Smith v Transport Accident Commission
[2022] VCC 767
•31 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02562
| MARK ROSS SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2022, 20 April 2022 (mention) Leave given to the defendant to file and serve a reply by the close of business on 4 March 2022. | |
DATE OF JUDGMENT: | 31 May 2022 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 767 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (c) of the definition of “serious injury” – aggravation of pre-existing psychiatric injury – issue of “causation”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Guppy v Victorian WorkCover Authority [2010] VSCA 164; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Angeletos v Museum of Victoria [1999] 3 VR 157; Altona Bus Lines v Lococo [2002] VSCA 159; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Judgment for the plaintiff. Leave for the plaintiff to bring common law proceedings for damages in respect of injuries suffered by him arising out of a transport accident which occurred on 4 October 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr J Ruskin QC with Ms J Ryan | Lander & Rogers |
HIS HONOUR:
1By way of Originating Motion, Mark Ross Smith (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for psychiatric injury (“the injury”) suffered by him arising out of a transport accident which occurred on 4 October 2016 when working at a Keilor Park premises (“the subject transport accident”).
2The plaintiff was the only witness to give evidence and be cross-examined. Only the plaintiff tendered documents, which are set out in Annexure “A”.
The relevant legal principles
3The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
4I refer to the document relied on by the plaintiff headed “Particulars of Injury”,[2] wherein the plaintiff alleges that he suffered the following injuries as a result of the subject transport accident.
· Post-Traumatic Stress Disorder (“PTSD”)
· Major Depressive Disorder
· Panic Disorder
· Agoraphobia
· Fibromyalgia.
[2]See exhibit 2 at pages 24-25 of the Plaintiff’s Court Book (“PCB”)
5By way of his Originating Motion, the plaintiff sought to rely on paragraph (c) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“‘serious injury’ means—
(a) …
(b) …
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
… .”
6In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) that “the injury” suffered by him was a result of the subject transport accident;
(b) the requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[3] wherein a majority the then Full Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[4]
[3][1992] 2 VR 129
[4]Humphries and Anor v Poljak (supra) at paragraphs [40]-[41]
7“Serious injury” as defined in paragraph (c), requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious” (as required in subparagraph (a) of an organic injury said to be “serious”. In Mobilio v Balliotis,[5] the then Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking JA stated:
“… Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’ … .”[6]
[5][1998] 3 VR 833
[6]See Mobilio v Balliotis (supra) at page 846; See also Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
8The Court must give reasons disclosing the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[7]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
9There was no issue that on 24 May 2016, the plaintiff was driving during the course of his employment, along the Calder Higher near the Milleara Road exit, when he arrived upon the scene of an “horrific motor vehicle accident”.
10It is convenient to refer to what I will call the “plaintiff’s first affidavit”, sworn on 8 April 2020 and, in particular, paragraph 6 of that affidavit, where he states:
“… I believe there was approximately 11 motor vehicles involved in the collision, including a fuel tanker. There was lots of dust, smoke and steam. One person was killed and many others were injured. I saw various things that I found distressing including a blue tarpaulin being placed on the body of the deceased, people being treated for injuries, fuel escaping from the upturned fuel tanker and lots of people in a state of panic and upset. There were also lots of loud noises including people screaming, children crying and the sounds of sirens and helicopters flying overhead. At one point I saw someone light a cigarette which made me feel very anxious because of the petrol and fumes in the area. I felt anxious and helpless. I felt trapped because emergency workers would not let us leave the scene. I was concerned there would be an explosion and more people would be hurt or killed including myself. I was stuck at the scene for about four hours, before eventually being allowed to leave.”[8]
[8]See paragraph [6] of plaintiff’s first affidavit, sworn 8 April 2020, at page 12 PCB
11After that incident, which I will refer to as the “first transport accident”, the plaintiff commenced, for the first time, to experience various psychological symptoms, which continued and worsened over the period up to the occurrence of the subject transport accident. The case of the plaintiff was that the subject transport accident aggravated his pre-existing condition and the consequences of such aggravation satisfy the requirement that it be “severe” and thus constituted a “serious injury” within the meaning of the Act.[9]
[9]See generally Petkovski v Galletti [1994] 1 VR 436
12I was informed by the parties that the Transport Accident Commission had granted the plaintiff a serious injury certificate in respect of the first transport accident.
13When the Court queried Senior Counsel for the defendant as to what were the issues in this proceeding, the Court was informed that there was no issue that the plaintiff did suffer a transport accident on 4 October 2016. Furthermore, there was no issue that, in appropriate circumstances, a plaintiff could be granted a second “serious injury” certificate, notwithstanding that the first transport accident had given rise to a serious injury also.
14In particular, Senior Counsel for the defendant submitted that, on all the evidence, the plaintiff could not discharge his onus to establish that the subject transport accident caused an aggravation of his pre-existing condition, which gave rise to severe consequences within the meaning of the Act. In particular, reference was made to the Victorian Court of Appeal decision of De Agostino v Leatch & Anor.[10]
[10][2011] VSCA 249
The evidence of the Plaintiff
15The plaintiff relies on two affidavits – the first sworn on 8 April 2020[11] (which I have referred to as the first affidavit) and a second affidavit sworn on 14 December 2021.[12]
[11]See exhibit 1 at page 11 PCB
[12]See exhibit 1 at page 16 PCB
16The plaintiff gave evidence that he had recently read such affidavits and was satisfied that the contents of such affidavits were true and correct to the best of his knowledge.[13]
[13]Transcript (“T”) 19, Line/s (“L”) 9-14
17In his first affidavit, the plaintiff deposes:
· That he is a sixty-one-year-old[14] married man with two adult children and four grandchildren.
[14]Born September 1960
· Having been born in Sydney, he grew up in Sydney and, later, Darwin, completing Year 11 at school. On leaving school, he completed an apprenticeship as a radio and television mechanic, and then worked as a radio technician, running his own business for approximately twenty years. Such business involved maintaining radio communication assets for clients, including Telstra, and various governments in Australia and overseas. The plaintiff was also involved in research and development.
· In about August 2012, the plaintiff moved to Melbourne and on 15 July 2013, he commenced employment with Elbit Systems of Australia Pty Ltd (“Elbit”) as a radiofrequency test chamber manager. Such company is an Israeli company specialising in military hardware and software applications.
· In paragraph 6 of his first affidavit, the plaintiff describes the circumstances of the first transport accident, which has already been referred to earlier in this judgment.
· Following the first transport accident, the plaintiff took a day off work, after which he continued to work with Elbit. In particular, the plaintiff deposes that he “was not well mentally and emotionally” and that over time, he became increasingly “stressed, agitated and worried”. He also felt “tired and lethargic” and found himself “crying randomly and becoming unusually emotional”. He was also having “trouble sleeping” because he was thinking about the transport accident or having nightmares. He thought he would feel better over time, but he did not.
· On or about 4 October 2016, the plaintiff was working at Elbit’s Keilor Park premises, which involved a testing facility. A large military vehicle, known as a Bushmaster, was being driven out of the test chamber and the plaintiff was required to stand at the entrance of the test chamber and guide the driver of the Bushmaster out. The plaintiff describes what then happened:
“… As the vehicle was exiting the chamber, something happened with the braking mechanism causing large pieces of plywood that had been placed underneath the vehicle to fly out across and from the chamber. A large piece of plywood flew through the air and missed me by only a small distance. I felt very scared and stressed as a result of this.”[15]
· Following the subject transport accident, the plaintiff became “increasingly stressed and agitated” and found himself having regular–
“… flashbacks to both the incident on the Calder Freeway [the first transport accident] and to a lesser extent the incident involving the plywood [the subject transport accident] … .”
[15]See exhibit 1, paragraph 8 of the plaintiff’s first affidavit at pages 12-13 PCB
· The wife of the plaintiff insisted that he get some medical treatment and see a doctor. The plaintiff last worked on or about 20 October 2016 and has not returned to work since that time, and lodged a WorkCover claim that was initially rejected, but later accepted, by WorkCover at court. The plaintiff remains in receipt of weekly payments of compensation.
· The plaintiff consulted his general practitioner on 22 October 2016[16] and a few days later, his general practitioner prescribed Temazepam to help him sleep and he was referred to a psychologist on or about 7 November 2016.
[16]It was not clear whether this is the first date that the plaintiff attended Dr Wang as, in the reports from Dr Wang relied on by the plaintiff, there is reference to the plaintiff attending the Pound Road Medical Centre in Narre Warren on 18 September 2016; that is, obviously enough, after the first transport accident, but before the subject transport accident. This issue was raised with the parties, and I was informed by Senior Counsel for the plaintiff that it was agreed between the parties that the reference to a consultation on 18 September 2016 was “in error” and that the plaintiff’s first consultation in relation to mental health issues occurred on 20 October 2016 (that is, after the subject transport accident)
· The plaintiff consulted his general practitioner on a few occasions in 2017 about his “mental health issues”, at which time his general practitioner suggested he take antidepressant medication, which the plaintiff refused because “it would affect [his] security clearance and therefore [his] ability to work in [his] chosen field”.[17]
[17]See exhibit 1, paragraph 13 of the plaintiff’s first affidavit at page 13 PCB
· The plaintiff’s general practitioner referred him to a psychiatrist, Dr Geoffrey Hogan, who first consulted with the plaintiff in November 2018, and in late 2018, the wife of the plaintiff stopped working to look after him. Prior to that, on a number of occasions, the plaintiff described that when his wife was at work and he was home by himself, he got into a state of panic and needed her to come home and be with him.
· In late 2019, he began seeing another psychologist who specialises in a treatment called Eye Movement Desensitisation and Reprocessing (“EMDR”) therapy and he underwent two short blocks of that treatment, which was very intense. The second block of that treatment involved him attending about every second day for two weeks and he is currently having a break from that treatment.
· The plaintiff describes himself as feeling “constantly depressed” and having “lost enjoyment in most aspects of [his] life”.[18]
· The plaintiff describes that most nights he is woken by nightmares and the nightmares always depict negative events, including motor vehicle accidents, deaths of family members and himself, people breaking into the house and children getting hurt. The plaintiff has become hypervigilant around his house for the safety of his family. He constantly checks the house is locked and secure, and if he hears any loud noises while at home, he becomes extremely alert and very anxious.
· The plaintiff describes that prior to the transport accident in 2016, he had good concentration and memory and was working at a high level and performing his job well. His concentration now is very poor, and he has lost the ability to retain things that he has read.
· He often tunes out to what is going on around him and does not take in what people are saying in conversations.
· Approximately once per month he has “thoughts of ending [his] life” and around the Melbourne Cup weekend 2019, he had made plans to “hang” himself, but was talked out of it by his wife over a number of days.
· Prior to the first transport accident in 2016, he led an active social life, including being heavily involved in model aircraft associations, including competition, and had competed at a high level and was successful. Furthermore, he instructed and judged competitions, and apart from recreational flying, he was no longer involved in this activity, which greatly upsets him.
· He had made some new friends since moving to Melbourne and enjoyed catching up with them socially, but now prefers to stay at home and be on his own. He avoids social activity as much as possible.
· He has a lot of difficulty with loud noises which startle him and make him very anxious. Even when his grandchildren are being noisy, it causes him to become anxious and distressed and look for ways to get away from the noise.
· He does drive a car locally but avoids driving on freeways as much as possible. He notes that he recently drove his wife to the airport and then home on his own and found the drive extremely stressful.
· He has always enjoyed working and considers himself to have been a high achiever and self-starter in the fields he worked in. His mental injuries and being unable to work has had a huge effect on his family financially. He hates not working now, but just feels he is “not well enough to work”.[19]
[18]See exhibit 1, paragraph 16 of the plaintiff’s first affidavit at page 14 PCB
[19]See exhibit 1, paragraph 25 of the plaintiff’s first affidavit at page 15
18By way of his second affidavit, the plaintiff deposes:
· In approximately July 2016, he began to suffer aches and pains throughout his body. Initially, he did not pay much attention, but as the pain got progressively worse, he commenced seeing a rheumatologist, Dr Daniel Boulos, in about October 2020, and has seen him “a few times since”. He has been told that he suffers fibromyalgia, and he has lots of pain in his feet, elbows and hands.
· In December 2020, he started seeing a podiatrist for pain in his feet and he was fitted with orthotics. He has continued to see the podiatrist regularly since then.
· He has also commenced seeing a physiotherapist on a few occasions but considered that such treatment made his pain worse. He has also commenced to see an osteopath and has seen her regularly since and considers that the treatment from the osteopath is painful at times, but believes he gets temporary relief in his pain and has more flexibility and movement for a few days after such treatment.
· He considers that the more “anxious and stressed” he is, the worse are the aches and pains throughout his body.
· In about June 2021, he commenced seeing a psychiatrist, Dr Pinto, at Pinelodge clinic, and at the time of swearing his second affidavit, had seen him three times. He has been prescribed, by Dr Pinto, the antidepressant, Duloxetine, which he took for a few weeks, but after taking it, he had bad headaches and felt very nauseous, and as it was not making him feel less depressed, he stopped taking it.
· At the time of his second affidavit, he was attending the psychologist, Wendy Brodribb, usually once per week, and also sees his general practitioner approximately once per fortnight. He attends Dr Pinto approximately every four months and Dr Boulos every six months.
· He takes Mersynofen for the pain throughout his body and occasionally takes Temazepam to help him sleep but has been told by his general practitioner not to take that drug too often because it is very addictive.
· He considers that his depression and anxiety are much the same as described in his earlier affidavit, and he continues to get very bad nightmares approximately four nights per week. In particular, after waking from a bad nightmare, he finds it very hard to get back to sleep and sometimes does not get back to sleep at all. Even on nights when he did not have a nightmare, he tends to only get between four and six hours of sleep, causing him to have a sleep during the day because he feels so tired from sleeping poorly.
· He continued to have “a lot of problems” with his concentration and memory and has lost the ability to focus and is easily distracted.
· He remains sensitive to loud noises and becomes easily startled and jumpy, causing his wife to buy him earplugs to make him less prone to loud noises, including their grandchildren.
· In October 2021, he drove past a nasty car accident on the Monash Freeway, and it looked as though it was a fatality. The plaintiff describes how this caused him to “burst into tears” and to become “very upset for hours afterwards”.[20]
· He describes how he and his wife drove their grandchildren into the CBD to see the Myer Christmas windows, but during the drive in, he “panicked” and became upset, causing him to withdraw, and he was unable to enjoy the trip with his grandchildren.
· Ultimately, the plaintiff states:
“Basically, each day is a struggle for me. I have to push myself through the day without any real enjoyment. If friends or family visit, I often find myself wishing they would leave and then feel guilty about feeling that way. I often spend long periods sitting outside on my own as that seems the easiest place to be.”[21]
[20]See exhibit 1, paragraph 13 of the plaintiff’s second affidavit at page 18
[21]See exhibit 1, paragraph [15] of the plaintiff’s first affidavit at page 18
19The plaintiff also relies on an affidavit from his wife, Sheree Ive Smith, sworn on 14 December 2021. In that affidavit, Ms Smith deposes:
· That she is the wife of the plaintiff and that she started a relationship with him when in Year 12 at school in Darwin and married in June 1981.
· In particular, Ms Smith deposes:
“I remember the day in 2016 that Mark was stuck on the freeway due to the accident. We spoke on the phone a couple of times whilst he was stuck at the scene and I recall Mark telling me there had been a very bad accident. I recall him afterwards telling me he found the whole experience very distressing and he expressed to me that he believed that he and others were not going to make it out of there alive.”[22]
[22]See exhibit 1, paragraph [3] of the affidavit of Sheree Ive Smith, sworn on 14 December 2021 at pages 20-21 PCB
· She notes that after the “freeway accident”, she noticed changes in her husband, such as:
ꟷ He was not getting up as early in the mornings and going to work as he previously did
ꟷ He seemed to dawdle around the house and move more slowly in the mornings prior to work
ꟷ He appeared less enthusiastic about going to work
ꟷ She also started to find him sitting in his usual lounge chair staring out the window, and recalls him weeping a few times.
· Ms Smith notes that she found this particularly alarming, because all the years she has known the plaintiff, she has rarely seen him cry.
· Ms Smith notes that she became “increasingly worried about him” and asked him to go and see a doctor on a number of occasions.
· She notes that, although she cannot recall specific dates, the plaintiff came home from work, telling her that he had nearly been killed at work due to an incident with a vehicle.
· Ms Smith deposes that since 2016, the plaintiff has never been the same and is a very different man from the one she married, and to the man he was prior to the freeway accident.
· Ms Smith deposes that the plaintiff was always a very driven and career-focused man and took his work very seriously, and would have plans and goals, and worked rigidly towards them. She notes that since 2016, he appears to have very little energy and drive and frequently seems exhausted, and she often finds him sitting alone, resting or napping.
· Ms Smith deposes that the plaintiff is anxious, nervous and hypervigilant about his safety and the safety of others and wants to know where she is at all times and often needs to know what is happening with everyone in the family, but, in particular, their daughter and her two children. Sudden changes in plans cause him to become either confused, agitated or angry, which he was not like prior to becoming unwell in 2016.
· Ms Smith describes that her husband used to be a good family man outside of work and they had a close and intimate relationship but, nowadays, she is his carer, and the plaintiff vents his frustrations and fears and anger towards her.
· She noted that, as a couple, they enjoyed socialising prior to the transport accident, but now, the plaintiff is very introverted and avoids socialising as much as possible. She describes him rarely smiling or laughing anymore and he appears to be constantly sad, anxious and worried.
· Prior to 2016, she describes being “jealous” of the plaintiff’s capacity to sleep, noting that he was able to sleep through all sorts of loud noise, whereas she was a very light sleep. She notes that since 2016, the plaintiff has been a poor sleeper and regularly gets out of bed during the night, and often tells her that he has had bad nightmares.
· She describes the plaintiff as being “very intolerant of loud noises”, causing her to buy specialised earplugs to help him deal with noise.
· She notes that she walks on “eggshells” around the plaintiff and is careful about the topics she brings up in conversation and how loud people are being in the house, including the grandchildren, as the plaintiff becomes “easily agitated, upset or angry”.[23]
[23]See exhibit 1, paragraph 15 of the affidavit of Sheree Ive Smith, sworn on 14 December 2021 at page 23 PCB
The treatment of the Plaintiff
20The plaintiff relies on three reports from his general practitioner, Dr Xiao Nan Wang, dated 14 February 2018,[24] 14 May 2019[25] and 13 August 2021.[26]
[24]See exhibit 4 at pages 31-35 PCB
[25]See exhibit 4 at pages 36-42 PCB
[26]See exhibit 4 at pages 43-54 PCB
21Dr Wang reports that the plaintiff presented at the Pound Road Medical Centre in Narre Warren on 18 September 2016,[27] complaining of “mental stress with severe anxiety”.[28] In particular, the plaintiff referred to a transport accident on 24 May 2016 (“the first transport accident”) and that:
[27]I refer to footnote 16, wherein it is made clear the first consultation was on 20 October 2016, not 18 September 2016.
[28]See exhibit 4 at page 36 PCB
· Such transport accident “almost involved him (His car to the location to the accident only 11 seconds distance)” [sic].[29]
[29]See exhibit 4 at page 36 PCB
· He witnessed a petrol truck fire, petrol gushing from the rolled tanker flowing out onto the road into the gully, fire trucks, firemen, fire hoses and fire form.
· Witnessed a dead person and injured person.
· Witnessed children and babies in cars.
· Witnessed helicopters hovering overhead, wreckage, police officers and panicking people standing and watching too close in the scene.
· Witnessed a cigarette being lit near him, and there was smoke and yellow vapour fumes in the gully.
· Heard sirens from fire trucks, police cars and ambulances, with the crying of children and babies, a school evacuative alarm and police talking.
· Tasted petrol vapour/fumes.
· He was afraid of a catastrophic explosion, feared death, incredibly severe fear for himself and others, especially the children and babies.
· He was afraid of being able to leave the area and feared to be trapped – he was told to stay there by a police officer – he was trapped at the area for four hours.
· He feared the helicopter would cause an explosion and the cutting of the damaged vehicles’ battery cables with bolt cutters would cause an explosion as well, and so on.
· He felt helplessness, desperation, anxiety and very panicky.
22Since the accident, Dr Wang reports that the plaintiff had been feeling very stressed, together with being anxious, experiencing feelings of panic, and recalling the accident all the time and crying without any reason. Furthermore, the plaintiff reported sadness, with sleep disorders including insomnia, nightmares and waking up at night.
23Dr Wang also noted that mental stress also impacted on his memories, daily life and work capacity.
24Dr Wang also notes that the plaintiff presented after a work accident, which was not recorded in his history at first consultation, such accident occurring on 4 October 2016 (“the subject transport accident”).[30] In particular, Dr Wang notes that the plaintiff:
· Witnessed a large piece of timber was released from the pressure and flying towards him and past him.
· Witnessed a large heavy military vehicle driving directly towards him.
· Heard the vehicle engine noise and plywood crashing to the ground.
· Smelled metallic burning and diesel fumes which induced the fearful feeling, which was just like the symptoms of the transport accident on 14 May 2016.
[30]By stating this, suggests that the plaintiff was first seen by Dr Wang after the subject transport accident – given his reference to it not being recorded at his “first consultation”
25Dr Wang noticed that the plaintiff was diagnosed with PTSD and was referred to a psychologist, Mr Mark Salter, for counselling under a mental health care program. Ultimately, he was referred to Ms Brodribb, another psychologist, for therapy, as Mr Salter was on leave.
26The plaintiff was off work with sick leave. Dr Wang notes the plaintiff was not willing to take antidepressant medication because of the character of his jobs which required high classification, and ultimately only agreed to take medication to help him sleep.
27The plaintiff was advised to claim WorkCover and was off work at the time of his first consultation. Initially, the insurance company rejected his claim, which caused more mental stress (the claim was later accepted).
28Dr Wang referred the plaintiff to a psychiatrist for assessment on 8 December 2016, but he did not attend such an appointment because his mental stress was reduced after psychotherapy from the initial psychologist.
29However, in May 2018, the plaintiff was referred to a psychologist again, under a mental health care plan due to his mental symptoms being ongoing and getting worse. He also consulted the psychiatrist, Dr Geoffrey Hogan, on 10 November 2018 who, in turn, after several consultations, referred the plaintiff to a clinical and counselling psychologist, Ms Anne Robertson, on 21 February 2019, for EMDR therapy. Such therapy is still ongoing.
30On 19 September 2019, Dr Wang referred the plaintiff to a further psychologist, Dr Nicholas Lawless, for ongoing EMDR therapy, and notes that after thirteen EMDR therapy sessions, the plaintiff’s medical condition had not progressed as quickly as would typically be expected due to the presence of several external life stressors and his comorbid major depressive episode of fear of what would happen if he were not to get well.
31However, Dr Wang noted there was some improvement in capacity to focus and execute simple tasks, increased ability to plan and motivate himself, and less disorientation, as well as reduced anxiety, irritability and hypervigilance (Dr Wang referred to a letter from Dr Lawless dated 11 May 2020).
32On 14 October 2020, the plaintiff presented with ongoing mental symptoms of PTSD and some somatic symptoms, such as unexplained headaches, the sense of smell abnormal, memory loss, sleep disorders and generalised joint and soft-tissue pain over the whole body. Dr Wang reports there were multiple areas of tenderness, about sixteen to eighteen points of tender triggerpoints on the neck, shoulders, back, legs and feet, on examination. His clinical picture was just the same as the complaints of a patient with fibromyalgia and the plaintiff was very concerned about the Chronic Fatigue Syndrome and fibromyalgia.
33Dr Wang referred the plaintiff to a rheumatologist, Dr Daniel Boulos, who assessed the plaintiff on 26 October 2020 and diagnosed him to be suffering central sensitisation, which Dr Boulos thought to be likely related to fibromyalgia.
34Dr Boulos prescribed the plaintiff Duloxetine and also advised a gradual-aided aerobic exercise program, physiotherapy, dry needling and transcutaneous electrical nerve stimulation (“TENS”). The plaintiff only took Duloxetine for one week and ceased such treatment due to the side effects he was experiencing.
35Dr Wang noted that considering the literature supported a relationship between PTSD and central sensitisation (fibromyalgia), the plaintiff was referred to Melissa Ward, a podiatrist, for attention given his ongoing foot pain. Ms Ward examined the plaintiff on 9 December 2020 and 2 February 2021.
36As at the date of his last report, dated 13 August 2021, Dr Wang was of the opinion that the symptoms of PTSD were ongoing and included:
· A feeling of very low mood with mood swings, extremely anxious, helplessness, sleep disorder with insomnia and nightmares, general lethargy, lack of motivation, flaring temper, decreased appetite, social withdrawal, but no suicidal thoughts.
· A feeling of being disoriented or foggy, unable to concentrate, forgetting words, timetables and schedules and actioning activity, sometimes which is getting worse.
· Bright lights causing headache, household sharp or higher-pitched sounds causing him to jump and uncontrolled muscle spasms of leg and lower torso.
· Struggling with unexpected tasks and emergency situation. Also, highly sensitive or experiencing hallucination in visual and auditory due to some stimulation, such as a child crying, alarm sounds. Olfactory issues.
· The plaintiff physically has been complaining of unexplainable generalised pain from head to feet, including headache, pain of jaws, neck, chest, shoulders, elbows, knees, feet and hands/fingers, and he also had a dry cough with chest wheeze sometimes.
37Dr Wang notes that the plaintiff had been visiting him monthly, sometimes even more frequently for review of his mental and somatic suffering, and also organising referral and investigations to supply WorkCover medical certificates and follow-up feedback information. Furthermore, Dr Wang notes that the plaintiff continues to see the psychologist, Ms Brodribb, almost weekly, and according to the latest feedback letter on 5 February 2021, Ms Brodribb had been conducting ongoing cognitive behaviour therapy, exposure therapy, imagery rehearsal therapy, meditation, deep breathing and other strategies.
38However, the plaintiff’s level of functioning continues to be severely impaired, with his memory and concentration continuing to be limited, and he requires daily support. The plaintiff has struggled to maintain social connections or activities and continues to experience major issues involving driving and leaving his home.
39Dr Wang notes that the plaintiff was referred to a further psychiatrist, Dr Pinto, for assessment on 11 June 2021. As at the date of his final report, Dr Wang notes that the plaintiff had attended Dr Pinto two times, but as yet, there was no feedback information.
40Furthermore, Dr Wang notes that the plaintiff attends a Ms Kim Brown, an osteopath, and a physiotherapist, weekly for his somatic suffering. He has also been referred to a dietician, Ms Lauren Chambers, for opinion of special food for fibromyalgia due to there being some suggestions that a special diet can help that condition.
41In his report dated 13 August 2020, Dr Wang states, in part:
“(1) Cause of Injury
Mr. Mark Smith, a 61-year-old, male, experienced two critical incidents of life-threatening in 2016. One is the MVA of 24/05/2016. The MVA was onset on the way from one workplace to another one (He was in a workplace first, then was driving to his main workplace). He was also experienced an[o]ther terrified accident which was onset at work on 04/10/2016. Mr. Smith never had mental issue in our record previously. Therefore, his description of the circumstances of the events result in his mental stress implicates his employer- Elbit Systems – a private defence force contractor as a significant contributing factor in the absence of other possible causative factors.
Similar with A/Prof. Saji Damodaran’s opinion, Mark’s psychiatric condition-PTSD is primary caused by the witnessed the incident of MVA on 24th May 2016 and further complicated / aggravated by the experienced the incident at work on 4th October 2016. Therefore, both Mark’s employer and TAC would be substantially account for his current psychiatric
(2) Diagnoses
Based to the history, symptoms and assessment of psychologist & psychiatrist, Mr. [M]ark Smith’s diagnoses are:
• Post-Traumatic Stress Disorder (PTSD) (The DSM-5 diagnostic criteria for PTSD include four symptoms’ clusters: re-experiencing, avoidance. Negative alterations in cognition/mood, and alterations in arousal and reactivity).
• Major depressive disorder (According to Dr, Hogan and A/Prof. Saji Damodaran).
• Central sensitisation including fibromyalgia, chronic fatigue and chronic foot pain which are secondary complications of PTSD (According to Dr. Daniel Boulos).
It is worth mentioning that there are many studies giving the evidence of PTSD can cause Central sensitisation (There is considerable overlap among syndromes such as fibromyalgia, chronic fatigue, irritable bowel syndrome, chronic pelvic pain, and chronic daily headache) in the literatures.
Mark’s Primary diagnosis of psychiatric condition still as PTSD with depressive disorder. The Central sensitisation/ fibromyalgia/foot pain/ general fatigue are complications of PTSD (Answer Q1).
…
(4) Prognosis and work capacity
It is a poor prognosis of his PTSD. Mark’s mental symptoms of PTSD mixed with Major Depressive Disorder and Anxiety are ongoing and very easy break out by number of trigger factors as mentioned as above last 4 years. His mental condition is stable at the level of moderate and severe impairment. There is no sings (scil sign) his mental issues would be improved in the foreseeable future.
Mark’s mental condition might be deteriorated and become permanent with the prolonged somatic sufferings, lost work capacity permanently and his psychosocial/Financial conditions become more embarrassing in the future (Answer Q 7).
For Mark’s mental health treatment and physical sufferings, Mark needs to have an ongoing support by WorkCover and / or TAC in the future, in my opinion.
In terms of her work capacity, Mark is unfit for his pre-injury normal duty. He is also incapable for any his professional jobs (high classified jobs) or any suitable jobs at the time being. Regarding to the timetables of return to work, it is uncertain. Mark wishes he could return to the work force. However, it is impossible that Mark would be back to his pre-injury jobs, as a radio frequency Test chamber manager, according to his current mental issues, in my opinion (Answer Q5).
According to his age, education, and work experiences, Mark is very difficult to find a suitable job in the future. Mark most likely never return to work force. His mental disability is permanent and stabilised at the levels of moderate and severe impaired in the near future. However, he still needs more supports from Workcover and / or TAC to maintain and cope his basic daily life needs, in my opinion (Answer Q 6).”[31]
(sic)
(My emphasis.)
[31]See exhibit 4, report of Dr Wang, dated 13 August 2021 at pages 50-54 PCB
42The plaintiff also relies on the following reports from other various treaters:
(a) The reports of the psychologist, Ms Brodribb, consisting, initially of an undated report[32] and then, reports dated 28 February 2018[33] and 12 August 2021;[34]
(b) The report of the psychologist, Mr Nicholas Lawless, dated 11 October 2021;[35]
(c) Reports of the consultant psychiatrist, Dr Geoffrey Hogan, dated 18 November 2018[36] and 31 March 2019;[37]
(d) Report of the rheumatologist, Dr Daniel Boulos, dated 24 July 2021;[38] and
(e) Report of the clinical and counselling psychologist, Ms Anne Robertson, dated 20 February 2019.;[39]
[32]See exhibit 4 at page 55 PCB
[33]See exhibit 4 at pages 55-58 PCB
[34]See exhibit 4 at pages 59-62 PCB
[35]See exhibit 4 at pages 63-64 PCB
[36]See exhibit 4 at pages 69-80 PCB
[37]See exhibit 4 at pages 71-75 PCB
[38]See exhibit 4 at pages 65-68 PCB
[39]See exhibit 4 at page 76 PCB
43Ms Brodribb reports that she commenced treating the plaintiff on 7 November 2016, and thereafter, the plaintiff has either attended weekly or fortnightly and receives psychological treatment, which consisted initially of psychoeducation, cognitive therapy, exposure therapy and other solution-focused treatment, including emotional regulation. Since the plaintiff’s symptoms of depression have exacerbated, other treatment, including cognitive behaviour therapy, suicide prevention, daily coping strategies following overwhelming stress, pain management and future treatment planning have been employed.
44I refer to the final report of Ms Brodribb, dated 12 August 2021, in which she responds to various questions posed by the solicitors for the plaintiff. In particular, I refer to the following:
“1. What is the diagnosis of my client’s:
a. Psychiatric condition?
… [The plaintiff] continues to meet the criteria for a diagnosis of Post Traumatic Stress Disorder (as previously reported) and Major Depressive Disorder (classified as moderate to severe) as assessed by the Diagnostic and Statistical Manual of Mental Disorders – 5 (DSM-5). … [The plaintiff’s] current symptoms include the following: recurrent involuntary distressing thoughts and memories of the incidents he experienced on 14 May 2016 and on 4 October 2016; distressing weekly nightmares where the content is typically related to death and/or one of the two incidents above; disrupted sleep; flashbacks of the above two incidents; avoidance of reminders of the incidents; feelings of numbness; dissociative reactions; significant increased arousal (severe anxiety) and reactivity associated with the two incidents; persistent hyper-vigilance and startled response to triggers of the two incidents; an inability to include triggers/reminders from both incidents into his daily lifestyle; persistent low mood fluctuating; flat affect; negative emotions and cognitions; feelings of intense loss and sadness; crying; social withdrawal; inability to experience happiness with family and friends; intermittent suicidal ideation and plans; poor motivation; impaired ability to make decisions and judgments; reduced concentration and recent memory recall impairment.
2. The nature and frequency of your treatment since 14 May 2019?
… [The plaintiff] has attended weekly/fortnightly psychological treatment appointments since 14 May 2019. The psychological treatment provided initially included psycho-education, cognitive therapy, exposure therapy and other solution focused treatment including emotional regulation. Since [the plaintiff’s] symptoms of depression have exacerbated, other treatment includes cognitive behaviour therapy, suicide prevention, daily coping strategies following overwhelming distress, pain management and future treatment planning.
3. Whether our client’s psychiatric condition remains consistent with the stated causes.
In my opinion I believe that …[the plaintiff’s] psychiatric condition remains consistent with the stated causes as follows:a.The incident on or about 24 May 2016 when he arrived at the immediate aftermath of an horrific and fatal freeway accident; and
b.The further incident on or about 4 October 2016 when he narrowly avoided being struck by plywood which had flung from underneath a military vehicle at his workplace.
4. If our client’s psychiatric condition is consistent with both stated incidents, which incident substantially accounts for his current psychiatric symptomatology in your opinion?
a. The incident on 24 May 2016?; or
b. The further incident on or about 4 October 2016?
In my opinion, I consider that both incidents, on the 24 May 2016 and 4 October 2016, account for … [the plaintiff’s] current psychiatric symptomatology. Clinical symptom checklists administered to [the plaintiff] and observations of his symptoms in weekly sessions have illustrated that … [the plaintiff] presents with a significantly high number of symptoms in relation to the incident on 24 May 2016 and the incident on 4 October 2016. However, the first incident on 24 May was reported by [the plaintiff] as an extremely traumatic event, where he was directly involved with an accident and he believed that he could have died. … [The plaintiff’s] past technical knowledge in engineering and military background work on explosions apparently provided him with the ability to quickly mentally calculate the ability of the semi-trailer’s fuel tank to explode at any moment. He reported that he and others at the accident scene were terrified of an explosion occurring. … [The plaintiff] significantly feared for his life and felt helplessness to escape. Numerous highly distressing stimuli was present on 24 May 2016. There were helicopters, ambulance, CFA vehicles, people who died in their vehicles, injured people, distressed people, etc.
… [The plaintiff’s] current psychiatric condition is exacerbated by the stimuli from the accident scene such as: the smell of petrol; sound of helicopters; sound of emergency vehicles; children crying; loud noises; motor vehicle noises; and the sight of Toll trucks. The complexity of the incident on 24 May 2016 and the number of stimuli that are associated into [the plaintiff’s] daily life is substantial in contributing towards his current psychiatric symptomatology.
Overall, it is evident that [the plaintiff’s] symptoms of post traumatic stress disorder initially developed on 24 May 2016. His psychological symptoms were exacerbated on 4 October 2016. Nevertheless, from clinical observations, reports and the multiple factors involved, I believe that the incident on 24 May 2016, the fatal freeway accident, may be the major cause of … [the plaintiff’s] current clinical symptomatology.”[40]
(My emphasis.)
[40]See exhibit 4, report of Ms Wendy Brodribb, dated 12 August 2021 at pages 59-61 PCB
45Ms Brodribb was of the opinion that the plaintiff had no capacity to return to his pre-injury employment. She also was of the opinion that considering the plaintiff’s age, his capacity to retrain, with reduced cognitive functioning, in another area of employment, she did –
“… not predict that he would obtain a work capacity to acquire new skills and engage in a new area of employment in the foreseeable future.”[41]
[41]See exhibit 4, report of Ms Brodribb, dated 12 August 2021 at page 62 PCB
46Mr Lawless commenced treating the plaintiff in September 2019 and thereafter, there were thirteen further sessions, ceasing on 3 April 2020. He diagnosed the plaintiff to be suffering from PTSD with major depressive illness. He obtained a history from the plaintiff of the first transport accident and the subject transport accident.
47Dr Hogan consulted with the plaintiff on two occasions, the initial occasion in November 2018 on referral from Dr Wang and, later, again on referral from Dr Wang on 31 January 2019. Dr Hogan obtained a history of both the first transport accident and the subject transport accident. Furthermore, he obtained histories of what was referred to as, “recent life stressors” involving the building of a house, his son-in-law’s diagnosis with multiple sclerosis and the separation of his son from his wife of seven years. In his report dated 31 March 2019 to the solicitors acting on behalf of the plaintiff, he confirms that the plaintiff had symptoms of PTSD/Major Depressive Disorder of a severity that precludes current employment.
48Dr Hogan also expressed the opinion that the –
“… symptoms appear clearly related to his exposure to the sites of major motor vehicle accidents.”[42]
[42]See exhibit 4, report of Dr Hogan dated 31 March 2019, at page 75 PCB
49Ms Robertson reports that she initially saw the plaintiff in January 2019 and thereafter, he attended for five sessions on his last mental health plan. She notes that at the time of presentation, the plaintiff was reporting severe symptoms of PTSD and depression in the context of experiencing two separate traumatic incidents, while engaged in employment; frustration and struggling against his current symptoms and situation and experiencing negative meaning about himself.
50Ms Robertson notes that the initial presentation was with the goal of engaging in EMDR therapy, but she came to the view that the plaintiff needed to improve his ability to calm his body and manage his post-traumatic symptoms before such treatment could commence.
51Dr Boulas initially consulted with the plaintiff on 26 October 2020, at which time he was suffering “post-traumatic stress”. At the initial consultation, the plaintiff described a two-year history of a “constellation of symptoms” that were slowly progressive, involving widespread body pain, particularly of the hands, knees, elbows, jaw and the entirety of his back and chest wall.
52Dr Boulas further consulted with the plaintiff on 30 November 2020, 13 June 2021 and finally, on 30 June 2021.
53In his report dated 24 July 2021, Dr Boulas states, in part:
“Therefore, in summary, … [the plaintiff] is a 60 year old gentleman who is likely suffering from Fibromyalgia. He describes his symptoms onset beginning in late 2018, though in retrospect, may have had symptoms preceding that date. My first clinical contact with … [the plaintiff] was on the 26th October 2020. The diagnosis was suspected at this first review, and confirmed on the 30th November 2020. This diagnosis was made on the background of chronic, widespread musculoskeletal pain, with significant elements of fatigue, sleep and cognitive disturbance, in conjunction with the exclusion of common mimics, such as autoimmune arthritis. The mainstay of management for this entails a holistic and team based approach including; 1) a graduated, aerobic, exercise program, 2) regular psychology follow-up with cognitive based therapy, 3) anti-depressants with neuropathic properties.
The cause of Fibromyalgia is not fully understood. There are genetic factors that may predispose someone to developing this, though it is appreciated that it may be triggered, exacerbated or perpetuated by illness, physical or psychological trauma, stress and depression. It would be difficult to attribute … [the plaintiff’s] condition to any one focal antecedent trigger or condition, as it is likely a cumulative effect of all the factors mentioned above, of which, his post-traumatic stress disorder is clearly a likely contributor. Identifiable exacerbating factors related to this in [the plaintiff’s] history include his insomnia, relatively sedentary lifestyle, depression and anxiety which may be potentiating his symptoms.
The prognosis of fibromyalgia is varied and heavily influenced by psychosocial factors. Some patients have an element of chronic pain and fatigue, though a large proportion of these patients do experience improvement to the point in which they can work and participate in their daily activities with only moderate impact from their fibromyalgia. This improvement can often take two years or more to become evident. The biggest determinants of recovery include the symptom severity at diagnosis, the presence of concomitant depression and the level of engagement in an aerobic exercise program. In … [the plaintiff’s] instance, I would classify his initially (sic) presentation as severe. He has ongoing depression, and whilst this is improving, I do not yet believe this has been fully addressed. He has pleasingly taken steps to participate in an exercise program and this should be encouraged and graduated. As such, I expect that his symptomatology will improve over the next few years. The degree and rate of this improvement is yet to be seen.”[43]
[43]See exhibit 4, report of Dr Daniel Boulos dated 24 July 2021, at pages 67-68 PCB
54The plaintiff also relies on the following medico-legal examinations by the following:
(a) The consultant psychiatrist, Dr Michael Epstein, who initially examined the plaintiff on 30 January 2019[44] and later, on 19 October 2021 (by way of Zoom videoconferencing due to COVID-19);[45]
(b) the general psychiatrist, Dr Alan Gallogly, who examined the plaintiff on 24 September 2021 (via Zoom);[46]
(c) the specialist occupational physician, Dr Joseph Slesenger, who examined the plaintiff on 26 March 2019;[47] and
(d) the rheumatologist, Dr Daniel Lewis, who examined the plaintiff on 30 April 2021 (via Zoom).[48]
[44]See exhibit 5, report of Dr Michael Epstein dated 30 January 2019, at pages 77-91 PCB
[45]See exhibit 5, report of Dr Michael Epstein dated 19 October 2021, at pages 92-108 PCB
[46]See exhibit 5, report of Dr Alan Gallogly dated 4 October 2021, at pages 125-143 PCB
[47]See exhibit 5, report of Dr Joseph Slesenger dated 19 April 2019, at pages 109-118 PCB
[48]See exhibit 5, report of Dr Daniel Lewis dated 30 September 2021, at pages 119-124 PCB
55The plaintiff also sought to rely on the following medico-legal reports obtained by the defendant:
(a) the report of the consultant psychiatrist, Dr Timothy Entwisle, who examined the plaintiff on 9 January 2018;[49]
(b) by the consultant psychiatrist, Associate Professor Saji Damodaran, who examined the plaintiff initially on 20 November 2019[50] and on 13 July 2020.[51]
[49]See exhibit 6, report of consultant psychiatrist, Dr Timothy Entwisle, dated 10 January 2018, at pages 144-148 PCB
[50]See exhibit 6, report of Associate Professor Saji Damodaran dated 26 November 2019, at pages 149-157 PCB
[51]See exhibit 6, report of Associate Professor Saji Damodaran dated 20 July 2020, at pages 158-172 PCB
56When first seen by Dr Michael Epstein on 30 January 2019, the plaintiff gave a detailed history and, in particular, gave details in relation to the first transport accident and the subject transport accident and the various psychological difficulties that commenced following the first transport accident.
57After obtaining a detailed history from the plaintiff, and indeed making a mental state examination, Dr Epstein, in his first report dated 30 January 2019, concluded:
“Mark Ross Smith was involved in two incidents, one on 24 May 2016 when he became caught up in a life threatening event with spillage of thousands of litres of fuel on a freeway and was trapped in his car and expected there to be a massive explosion leading to the incineration of people including possibly himself. After the incident he continued to have significant symptoms of trauma including nightmares and flashbacks to it and distress with reminders of it and avoidance of that scene.
The situation was exacerbated by the further incident that occurred on 4 October 2016 (the designated date 2 October 2016 is a Sunday, he is adamant that it occurred during the working week possibly the following Tuesday).
This incident was also a life-threatening incident that led to him feeling shocked and shaken. He was also upset by the response of his employer who he thought was more interested in signing off on the particular vehicle involved that than his own well-being.
He has a chronic Post Traumatic Stress Disorder, Panic Disorder, some Agoraphobia and a Major Depressive Disorder of moderate severity
Fundamentally his capacity for coping has been damaged and this damage is unlikely to fully resolve. He is likely to be incapacitated indefinitely and is unable to return to work in his pre-injury employment or other suitable employment.
His quality of life has diminished markedly affecting his work capacity, his relationships and his recreational enjoyment.
His prognosis for improvement is poor. It is now more than two years since these incidents occurred and with the passage of time the prospect of recovery recedes.”[52]
(My emphasis.)
[52]See exhibit 5, report of Dr Michael Epstein dated 30 January 2019, at pages 89-90 PCB
58When seen again on 19 October 2021, Dr Epstein again took a detailed history, (including the treatment undergone by the plaintiff from his first examination with Dr Epstein) and making a mental status examination. Dr Epstein stated, in part:
“I see no reason to change my opinion. In addition to the symptoms described in my previous report he now also described widespread pain and has also developed right foot pain. He has been diagnosed with fibromyalgia and has had treatment for that condition.
Since I last saw him there has been no improvement and there may have even been a deterioration, in part because of his grieving for the loss of who he was and his realistic fears about his future.
He made it clear that the redundancy that occurred in October 2016 simply meant that he would do similar and other work as a subcontractor for the same company. The redundancy has no part to play in his current mental state.
He has been upset about other factors including his son’s separation but that has all resolved and his daughter has separated and subsequently divorced and is currently living with him and his wife with her two children and, if anything, this has given him some pleasure.
The diagnosis I made when I saw him in January 2019 remains unchanged. He continues to have a severe chronic Post Traumatic Stress Disorder and a Major Depressive Disorder of moderate severity and panic attacks. In addition he has developed symptoms of ‘fibromyalgia’. This is regarded by his rheumatologist as being related to his injuries.
He does require continuing psychiatric and psychological treatment. He does require continuing physical treatment including assessment by his rheumatologist. He had already developed significant symptoms as a result of the incident on 24 May 2016 and these symptoms were significantly exacerbated by the further incident on 4 October 2016 in which he could well have been killed. The impression gained is that he was struggling after the first incident but was still managing to cope but the second incident led to the breakdown in his capacity for coping and that has continued.
The first incident involved him being in a situation for some hours when he and others were at imminent danger of being incinerated. It is a manifestation of his fear that he telephoned his wife to say goodbye indicating that he expected to die. In my view therefore the first incident on 24 May 2016 has substantially led to his current mental state.
It is now five years since these events with no evidence of any significant improvement and possibly even some deterioration. He remains severely disabled despite appropriate treatment and his prognosis for further improvement is very limited. He is not able to return to his pre-injury employment at present or for the foreseeable future.
His quality of life has diminished markedly and this is unlikely to improve in the foreseeable future affecting his work capacity, his relationships and his recreational enjoyment.
He does not have a realistic capacity to engage in alternative employment because of his mental state in particular with regard to issues arising from his cognition, his emotional ability, his high levels of anxiety and depression, his high levels of fatigue and his social withdrawal.
In my opinion he will never be able to return to the workforce and his quality of life will remain severely limited.”[53]
(My emphasis.)
[53]See exhibit 5, report of Dr Michael Epstein dated 19 October 2021, at pages 106-107 PCB
59When examined by the general psychiatrist, Dr Gallogly, the plaintiff gave details of both the first transport accident and the subject transport accident, and the various symptoms which he has suffered over time since then. Again, a detailed history was obtained by Dr Gallogly and a mental state examination of the plaintiff made by him.
60Those acting for the plaintiff posed various questions for Dr Gallogly, to which he answered as follows:
“1) What is the nature and diagnosis of my client’s:
a. Psychiatric condition?
The nature of Mr Smith’s condition:
Mr Smith was exposed to one or more traumatic events which are defined as an event that involved death or threatened death, actual or threatened serious injury. (Experiencing the traumatic event could be direct but it does not have to be). Mr Smith continues to have what are known as intrusion symptoms, symptoms of avoidance, symptoms of negative changes in his emotions and mood and symptoms of changes in arousal and reactivity.
These symptoms have persisted for years, have brought about considerable emotional distress as well as significant interference in his social, recreational and occupational functioning across all domains of his life. The above cannot be explained by a medical condition or some form of substance use.
Mr Smith has reported ongoing reoccurring and intrusive upsetting memories of the event including repeated upsetting nightmares related to the event. He also has reported ongoing strong and persistent emotional distress to stimuli that remind him of the events particularly the first incident in August 2016. Mr Smith has become an avoidant individual and now avoids ‘social activity as much as possible’. Mr Smith also avoids ‘driving on freeways as much as possible’.
Mr Smith has reported pervasive negative emotional state. He has reported experiencing an inability to experience positive emotions ‘I feel constantly depressed. I have lost enjoyment in most aspects of my life. I rarely laugh at anything anymore’.
Mr Smith has reported changes in arousal and reactivity, and he is constantly ‘on guard’ that danger is lurking around the corner. This is known as hypervigilance. It is characterised by difficulty concentrating, problems sleeping, and behaviours directed towards optimising safety in the face of potential danger. In Mr Smith’s case he reports ‘I have become hypervigilant about my house and my family safety. I constantly check that the house is locked and secure. If I hear any loud noises whilst at home, I become extremely alert and very anxious’.
Mr Smith has also reported significant impact in his cognitive abilities ‘My concentration is now very poor. I have lost the ability to retain things that I have read’.
Mr Smith evidently has a pervasive depressed mood almost every day. He has reported a markedly diminished pleasure in most activities of his life. He struggles with sleep. He does not have the same energy levels. He has marked reduced concentration and has recurrent thoughts of death but no active suicidal ideation.
The diagnosis of Mr Smith’s condition:
Based on the information available to me (history, mental state examination and review of enclosures) I consider that Mr Smith meets the DSM-5 diagnostic criteria for Post-Traumatic Stress Disorder (PTSD). It is evident he also meets the DSM-5 diagnostic criteria for Major Depressive Disorder. The symptoms elicited range from moderate to severe.
The associated impairment in occupational, social and recreational functioning range from moderate to severe.
2) Whether our client’s psychiatric condition is consistent with the stated causes, namely:
a. The incident on 24 May 2016?; and/or
b. The further incident on or about 4 October 2016?
Mr Smith has no past psychiatric history of note. He had never previously been diagnosed with Major Depressive Disorder. There is no clinical evidence provided/available of a pre-existing Major Depressive Disorder or PTSD prior to the two incidents.
I consider Mr Smith’s Post-Traumatic Stress Disorder and comorbid Major Depressive Disorder are consistent with the incident on 24 May 2016 and also further incident on or about 4 October 2016.
3) If our client’s psychiatric condition is consistent with both stated incidents, which incident, if any, substantially or predominantly accounts for his current psychiatric symptomatology and consequences?
a. The incident on 24 May 2016?; or
b. The further incident on or about 4 October 2016?
In my view, the incident on 24 May 2016 is the more significant factor in precipitating PTSD and Major Depressive Disorder.
The second incident, on 4 October 2016, likely compounded, underpinned and aggravated the psychological impact of the first traumatic event experienced on 24 May 2016.
Whilst I consider both incidents cumulatively account for his persistent psychiatric symptomatology and their consequences, I consider the incident on 24 May 2016 to be the more serious of the two and likely to be the one which substantially accounts for his ongoing psychiatric symptomatology and its consequences.
4) If you form the view that one of the incidents, when in comparison to the other, is the substantial or predominant cause of his current psychiatric symptomology and consequences, it will greatly assist the Court if you could set out your reasons for arriving at that opinion.
It will be impossible to get 100% agreement across psychologists and psychiatrists that one incident when in comparison with the other is the predominant cause of Mr Smith’s current psychiatric symptomatology and consequences.
With that said, I consider that the first incident on 24 May 2016, on the balance of probabilities, is (from a clinical perspective) more important than the second.
In that first incident, people died and others were seriously injured, including children and babies. A major metropolitan emergency response swung into action. This included police, ambulance and fire. Air and ground response were deployed - police vehicles, ambulance vehicles and fire trucks and police helicopters were involved in the rescue operation.
Mr Smith and the other individuals at the pile up were trapped for a number of hours, and witnessed fuel pouring from the tanker. During this time, Mr Smith reported witnessing an individual lighting up a cigarette near him whilst all around him he saw yellow vapour fumes.
For a number of hours, Mr Smith was exposed to an ongoing situation which at any stage could have resulted in a catastrophic explosion thereby exposing him (and others) to certain death, or at best, severe injury.
With his technical engineering knowledge, he was aware of the activity of the helicopter above and the fire officers deploying equipment including cutters to cut through metal could have inadvertently contributed to an explosion killing them all.
Compare this with the second incident in which Mr Smith was exposed to a large piece of plywood ‘fly through the air and miss me by only a small distance’.
Mr Smith was already feeling unwell mentally and emotionally after the first incident on the Calder Freeway. He was attending work feeling stressed, agitated and worried. He was feeling tired and lethargic.
He was crying randomly and becoming unusually emotional. He was having trouble sleeping because he was thinking about the accident and had begun having nightmares about the accident.
After the second incident he became ‘increasingly stressed and agitated’. He found himself ‘having regular flashbacks to both the incident on the Calder Freeway and to a lesser extent the incident involving the plywood’.
Considering both incidents in their entirety, it is evident that in the order of things, it is t (sic) Mr Smith was exposed to prolonged near-death experience for an extended period of time in the first incident during which people died and during which time it was possible that he would also die in a subsequent explosion.
Logically, this posed a much greater threat to his bodily integrity and life over a longer period of time than the second incident, which, while serious had he been struck by the plywood, ultimately was a ‘near miss’.
It is possible that had Mr Smith been exposed only to the second incident on 20 October 2016, he may not have developed PTSD, or if he had, it is possible any such PTSD would not have been as severe as it has been coming on the back of the first incident.
I consider the first incident of such magnitude that it is probable Mr Smith would have developed PTSD - and quite possibly of the same severity - even if the second incident did not occur.
Notwithstanding, the second incident on 2 October 2016 exposed him to a near death experience for the second time during the course of his work in a matter of months. Therefore, at the very least, this incident compounded the psychological effects of the first incident. The event could well have undermined any internal resilience he still had in the face of the first incident. To some extent, the second incident has perpetuated the psychiatric injury he sustained from the first incident.
5) Does our client currently suffer a psychiatric impairment as a consequence of his psychiatric injury/condition?
Yes, your client currently suffers a psychiatric impairment as a consequence of his psychiatric injury/condition. The psychiatric impairment is across occupational, social and recreational functioning.
Premorbidly, (that is to say prior to development of his psychiatric injury) Mr Smith was a man with an impeccable work ethic. He was hard working. He was a conscientious person with a successful business.
He had great pride in his career. He was a highly accomplished man who had made significant contributions to his chosen field of work.
He was a family-oriented man and had a lifelong passion for model aircraft both enjoying it as a competitor and in later years participating in judging at competitions. He developed patents and published papers.
The nature of the impairments are detailed in answer to the questions below.
6) If yes, is the psychiatric impairment permanent; that is, likely to last for the foreseeable future?
Your client, Mr Smith, has suffered significant impairment across all domains of functioning and despite years of appropriate Psychological treatment, he has made little headway. As such, I conclude the impairment has stabilised – it is likely to persist for the foreseeable future.
7) …
8) Whether, realistically, our client is likely to return to his pre-injury duties as a Radio Frequency Test Chamber Manager in the foreseeable future by reason of his psychiatric injury/impairment?
Realistically - no. The information available indicates that Mr Smith has suffered significant cognitive deficits specifically attention, concentration and focus which are essential components of his pre-injury duties. Despite years of appropriate Psychological treatment, he has made little headway.
As such, I consider it unlikely that your client will return to his pre-injury duties as a Radio Frequency Test Chamber Manager in the foreseeable future as a result of his psychiatric injury/impairment.
It is evident Mr Smith has been fully diagnosed and stabilised and his psychiatric condition is unlikely to improve in the foreseeable future. As such, I am pessimistic that your client would ever return to his preinjury duties as a result of his psychiatric impairment.
9) If no to question 8, does he realistically have a fitness to engage in alternative employment in the foreseeable future, on a reliable and consistent basis, taking into account his age, the nature, chronicity and duration of his psychiatric condition, any restrictions that would apply, his work background, education, skills and work experience?
No. Mr Smith does not realistically have a fitness to engage in alternate employment in the foreseeable future on a reliable and consistent basis. This takes into account his age, the nature, chronicity and duration of his psychiatric condition and the restrictions that would apply as well as his work background, education, skills and work experience.
Mr Smith suffers psychiatric symptoms on a daily basis. He suffers poor sleep. He suffers nightmares. He has intermittent thoughts that life is not worth living. He is intolerant of noisy grandchildren. He has lost confidence driving on freeways. He cannot focus or concentrate. He cannot make simple decisions in the family home and ‘glazes over’ when his wife discusses same. He is unable to participate in basic social activities including model aircraft flying which he has done since he was 9 years of age.
An individual with this profile is not realistically going to be a reliable and consistent employee in either their pre-injury duties or an alternative role.
Mr Smith’s symptoms have persisted for five years now. He has had appropriate diagnosis and appropriate and appropriate psychological treatment with little improvement in his symptoms.
Combining all of this information, it is evident Mr Smith does not realistically have a fitness to engage in alternative employment in the foreseeable future on a consistent and reliable basis.
10) Your prognosis?
The prognosis in this case has to be extremely guarded.
Mr Smith was a high achieving individual operating at a high level across all aspects of his life. He clearly has now significant impairment across all of those domains.
The psychiatric condition has been correctly identified and the correct psychological treatments have been initiated.
It is noted that Mr Smith has not had biological treatment (psychotropic or antidepressant medication).
Mr Smith was reluctant to take these medications for fear he would lose his security clearance.
Notwithstanding his motives for not wanting psychotropic medication, the response to psychotropic medications in conditions such as Mr Smith’s are variable. Even if Mr Smith were to change his mind regarding psychotropic medication, I am guarded there would be change in trajectory of his prognosis.
The best one could hope for with psychotropic medication in cases like Mr Smith’s is a reduction in the intensity of symptoms. I would not expect to see a resolution of Post-Traumatic Stress Disorder symptoms or Major Depressive Disorder. Even in this scenario, I am guarded that I would see a significant improvement in Mr Smith’s overall condition.”[54]
(My emphasis.)
[54]See exhibit 5, report of Dr Alan Gallogly dated 4 October 2021, at pages 137-142 PCB
61After obtaining a history and reviewing medical reports forwarded to him, the occupational physician, Dr Joseph Slesenger, in his report dated 19 April 2019, noted that the plaintiff presented over two years after suffering two significant incidents during the course of his employment, resulting in psychological symptoms. He notes that the plaintiff had been diagnosed with PTSD and remains under the care of his general practitioner, his psychiatrist and psychologist. Dr Slesenger also notes that the plaintiff was of the view that he was unable to work shortly after the second accident and currently has not returned to work since then. In particular, Dr Slesenger notes that the plaintiff does present with a generalised rheumatological condition, but had not, at that stage, been referred to a rheumatologist.
62Although, understandably, unwilling to comment on the psychiatric condition of the plaintiff – not being his area of expertise – he considered that many of the bodily symptoms complained of by the plaintiff detailed in his report would give rise to significant functional limitations with regard to domestic activities and recreational pursuits and, furthermore, the plaintiff was unfit for his previous employment, and given his age, his functional limitations, Dr Slesenger was of the opinion that the plaintiff was “unlikely to be able to return in a role for which he has suitable training and experience on a consistent and reliable basis”.[55]
[55]See exhibit 5, report of Dr Joseph Slesenger dated 19 April 2019, at page 118 PCB
63Dr Lewis performed a Telehealth examination of the plaintiff on 3 September 2021. He also obtained a fulsome history, in particular, reference to the two transport accidents and the various bodily symptoms complained of by the plaintiff. In response to various questions posed by the solicitors for the plaintiff, he stated:
“1.
The nature of the pain related complaints made by our client?
See the body of the report for the description of his complaints.
2.
Your diagnosis of our client’s pain condition?
The rheumatological diagnosis is fibromyalgia syndrome.
3.
Whether our client’s longstanding and chronic psychiatric conditions, including his PTSD, have materially contributed to the onset of his pain condition?
The cause of fibromyalgia is unknown and the pathophysiology is not fully understood.
There is a consistent and temporal relationship between acute and/or chronic stress and the subsequent development of fibromyalgia syndrome.
Post-traumatic stress disorder and insomnia are significant stressors I consider that these stressors have materially contributed to the development of his fibromyalgia syndrome.
4.
Your prognosis?
The ability to resume work and to develop high levels of function are largely dependent on the resolution of social and psychological factors. I consider that fibromyalgia occurring in association with a significant psychiatric illness indicates a poor prognosis. He has reported significantly reduced function for the last five years and this is a poor prognostic factor. The extent of any recovery cannot be predicted.”[56]
[56]See exhibit 5, report of the rheumatologist, Dr Daniel Lewis, dated 30 September 2021, at page 124 PCB
64When medico-legally examined by the psychiatrist, Dr Timothy Entwisle (on behalf of an insurer), Dr Entwisle obtained a history of both the first transport and the subject accident, and also obtained details of various symptoms suffered by the plaintiff since the advent of the first transport accident.
65At the time of his examination (9 January 2019), Dr Entwisle was of the opinion that the plaintiff had an “untreated major depressive illness with anxiety and features of traumatisation”.[57]
[57]See exhibit 5, report of psychiatrist, Dr Timothy Entwisle, dated 9 January 2019 at page 147 PCB
66When initially seen by Associate Professor Saji Damodaran on 13 July 2020, a full history was obtained of both the transport accident and, indeed, other stressors in the life of the plaintiff. Associate Professor Damodaran was of the opinion that the plaintiff suffered from a PTSD, along with a Major Depressive Disorder of moderate severity. Furthermore, he was of the opinion that the psychiatric condition suffered by the plaintiff “was caused by the reported incident in May 2016 and further complicated by the incident in October 2016”.[58]
The evidence established that in 2005, the applicant was involved in a significant motor vehicle collision (“the 2005 transport accident”) when the applicant was employed as an excavator/operator in a logging operation. On the day of the 2005 transport accident, the applicant was filling in as a truck driver, driving a truck laden with logs down the Black Spur. While driving the truck, the load shifted and the truck rolled onto its driver’s side. In some of his affidavit material at the time, the applicant swore the 2005 transport accident made him “anxious about truck driving for some time”, but did not cause him to require any psychiatric treatment or time off work.
The trial judge dismissed the application, causing the applicant to appeal to the Court of Appeal, which ultimately dismissed such appeal. The Court stated:
“The applicant’s contentions
75.While the applicant advanced six proposed grounds of appeal, in essence he made three complaints about the judge’s decision. First, the applicant submitted that the judge failed to apply the correct test to determine whether the applicant’s injury satisfied the statutory test (grounds 1‑3). Secondly, the applicant submitted that the judge failed to have regard to the whole of the evidence, and that the decision made by the judge was against the weight of the evidence (proposed grounds 4 and 5). Thirdly, the applicant submitted that the judge’s reasons were inadequate (proposed ground 6).
76.In submitting that the judge applied the wrong test, the applicant contended that the judge ‘erroneously considered the subject injury isolation from the other episodes of trauma’. In his written case, the applicant submitted:
As a matter of law:
(a)his Honour should have analysed the subject injury in the context of the other ‘episodes of trauma’; and
(b)the test that his Honour should have applied is: ‘but for the subject injury, would the plaintiff have gone on to develop his present psychiatric condition or not?; and
(c)if his Honour answered that question in the affirmative, the applicant is entitled to leave to bring proceedings.’
77.In submitting that the judge failed to consider the whole of the evidence, and that the judge’s conclusion was against the weight of the evidence, the applicant made reference to the fact that histories were taken for specific purposes, about which there should have been no criticism of the applicant. Further, the evidence of the applicant’s wife and Mr Stockton, which was not properly considered, supported a finding in favour of the applicant.
78.As to the adequacy of the judge’s reasons, the applicant submitted that the reasons did not show an adequate path of reasoning. Specific complaint was made about the judge’s failure to make findings about instructions given by the applicant for the purpose of the Black Saturday bushfire class action; the judge’s failure to make findings in relation to the applicant’s wife’s evidence; the judge’s failure to explain why the judge preferred contemporaneous accounts and opinions over those of Mr Stockton; the judge’s failure to explain why he gave little or no weight to the opinion of Mr Stockton as to the causal role played by the 2007 collision; and the judge’s failure to explain why he accepted the opinion of Associate Professor Doherty as to causation, when he ‘otherwise rejected’ that witness’s opinion.
The respondent’s contentions
79.The respondent submitted that the judge did not apply the wrong test. The judge was required to identify the injury suffered as a result of the 2007 collision and to delineate its consequences. This is what the judge did and, in doing so, the judge complied with what has been said by this Court in Petkovski, Filipowicz and De Agostino v Leatch.
80.Next, it was submitted that there was no error in the judge failing to find that the 2007 collision had caused a long-term severe mental behavioural disturbance or disorder. The judge was entitled to conclude that the applicant’s own evidence was reconstructed and unreliable, and therefore that contemporaneous histories and attributions were to be preferred. It was submitted that the judge was entitled to conclude:
(a)before the 2007 collision, the applicant suffered from the effects of the 2005 accident, and probably also the ride-on mower event, such that he had anxiety about driving trucks and heavy machinery in the bush and had become irritable and angry;
(b)while the 2007 collision added to the traumatisation that the applicant was already suffering, there was no marked change and deterioration in the applicant’s mental state and mood following the 2007 collision (this in circumstances where the applicant’s work required him to travel past the scene of the 2007 collision in the months that followed that event); and
(c)the deterioration in the applicant’s mental state after the Black Saturday bushfires was a direct consequence of the trauma of the bushfires in which the 2007 collision played but a relatively minor role.
81.Finally, it was submitted that there was no basis for any assertion that the judge failed to properly consider any of the evidence tendered before him. The reasons are detailed. It cannot be said that they failed to disclose the path of reasoning. Merely because the reasons do not address a particular matter now said to be significant does not provide a basis for contending that there is any inadequacy in the reasons. Indeed, far from being inadequate, the reasons are comprehensive, and disclose precisely why the applicant was unsuccessful at trial.
82.The judge was correct to reject the applicant’s submission that all the applicant need establish was that the 2007 collision was a cause of the applicant’s current total psychiatric condition. As s 93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s 93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.
83. That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding.”[118]
(My emphasis.)
[118]See Rowe v Transport Accident Commission (op cit) at paragraphs [79]-[83] [footnotes omitted]
I also refer to paragraph 86 of the judgment, wherein it is stated:
“The applicant’s contention that the judge should have asked himself, as a determinative question whether, but for the 2007 collision, the applicant would have gone on to develop his present psychiatric condition, must also be rejected. To pose such a question would be to fall into the error identified in the authorities to which we have already referred. Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.”[119]
[119]Rowe v Transport Accident Commission (op cit) at paragraph [86]
98The cases to which I have referred make clear that the task of a judge hearing an application under s93(4)(d) of the Act, requires the judge to identify an “injury” that occurred as a result of the transport accident in question and then to determine whether that injury is “serious” in the defined sense. However, as is made plain by the various authorities, an exacerbation or aggravation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to be caused by the transport accident in respect of which leave is sought to commence a proceeding.
99It is also clear enough on the authorities that it is inappropriate for a judge to ask him or herself as a determinative question whether, in the circumstances of this case, but for the subject transport accident, the applicant would have gone on to develop his present incapacity and need for ongoing psychological treatment. As is stated in Rowe v Transport Accident Commission,[120] s93 of the Act does not permit one to look at whatever minor contribution may have been to a condition by a particular transport accident, then ask if the total condition is “serious”, and then determine that the injury suffered in the transport accident is itself “serious” because it is a cause of the total condition.
[120]Op cit
100I make the following findings of fact:
(a) The plaintiff is a sixty-one-year-old married man, with two adult children;
(b) He completed Year 11 at school and thereafter completed an apprenticeship as a radio and television mechanic and worked as a radio technician, running his own business for approximately twenty years. Such business involved maintaining radio communication assets for clients, including Telstra, and various governments in Australia and overseas. The plaintiff was also involved in research and development;
(c) After moving to Melbourne in or about August 2012, the plaintiff commenced employment with Elbit on 15 July 2013 as a radiofrequency test chamber manager. Elbit is an Israeli company specialising in military hardware and software applications. His employment with Elbit involved long hours and some degree of travelling around the State;
(d) Prior to 24 May 2016, the plaintiff was in good health generally and, on the evidence, had no problems with any psychiatric or psychological problems over the years;
(e) On 24 May 2016, he was involved in an transport accident, which I have referred to in this judgment as “the first transport accident”. It is convenient to refer to paragraph 10 of this judgment, where I set out part of the plaintiff’s first affidavit, sworn 8 April 2020 and, in particular, paragraph 6, wherein he describes the circumstances of the first transport accident;
(f) Following the first transport accident, the plaintiff commenced, for the first time, to experience various psychological symptoms, which continued and worsened over a period up until the occurrence of the subject transport accident. Following the first transport accident, the plaintiff deposes, and I accept, that he “was not well mentally and emotionally” and that over time, he became increasingly “stressed, agitated and worried”. Furthermore, he felt “tired and lethargic” and found himself “crying randomly and becoming unusually emotional”. He was also having “trouble sleeping” because of thinking about the first transport accident or having nightmares; and
(g) The plaintiff considered that such condition was worsening, and this continued up to 4 October 2016, when he was involved in a second transport accident, which I have referred to as the “subject transport accident”. Again, I refer to paragraph 8 of the plaintiff’s first affidavit, at pages 12 to 13, whereat he describes the circumstances of the subject transport accident.
101Over the period from the first transport accident – that is 24 May 2016 ꟷ to the subject transport accident ꟷ 4 October 2016 – a period of approximately five months, it is to be noted:
(a) The plaintiff lost only one day of work – that day being the day of the first transport accident. The plaintiff was unaware of taking any other time off, but may have taken “a couple of hours here or there for something”;[121]
(b) The plaintiff continued to perform his normal duties and, in particular, continued to perform his normal hours of work, which could be anything up to sixty hours per week; and
(c) That over the period between the first transport accident and the subject transport accident, he did not seek any medical or other assistance from health professionals in respect to the psychological systems he was suffering.
[121]T30, L7
102After the subject transport accident on 4 October 2016, the following occurred:
(a) The plaintiff ceased work completely on 20 October 2016 and has not returned to any form of work;
(b) The plaintiff sought, and commenced treatment for, his psychological condition when he first consulted his general practitioner on 22 October 2016 (two days after ceasing work) and thereafter was referred to various health professionals, including psychologists and psychiatrists; and
(c) That, for the first time, he commenced vomiting following the subject transport accident and such was occurring once or twice a week, and if he did not vomit he would dry retch.
103I consider it important to also note the evidence of the plaintiff and, in particular, I refer to the following:
(a) When asked to compare “how much worse were you after the second incident [that is the subject transport accident]” compared to that period between the first transport accident and the subject transport accident, the plaintiff stated, “a lot worse. I was, uh, vomiting. I was, um, just non-functional”;[122]
(b) When queried as to how he was functioning after the subject transport accident, the plaintiff stated:
“Um, look, I - I was missing start times, I was not able to function, I had - had trouble, uh, getting out - with - I - I didn't want to go to work. I was just - just in such a - such a - a space. I - I - I would have trouble dressing, and when I buttoned my shirt up it would be buttonholes incorrect. I was sitting there in my underpants, one sock on, just not able to function. That was after the second accident.”[123]
(c) When queried as to whether he was having those sorts of problems after the first transport accident and leading up to the subject transport accident, the plaintiff responded:
“A little bit, but nowhere near what I had after the second accident. The - the last three weeks was really bad for me, before I finished work. I was just in a mess.”[124]
[122]T31, L1-4
[123]T31, L13-20
[124]T31, L22-25
I accept the evidence of the plaintiff in respect to these issues.
104I am also conscious of issues of proximity. Whereas the plaintiff worked on after the first transport accident for approximately five months (less a day or so), but ultimately ceased work sixteen days after the subject transport accident. On the evidence before me, there were no other significant stressors in his life, indeed, at the time of the first transport accident, or the subject transport accident. In this respect, I refer to the decision of Rowe v Transport Accident Commission,[125] wherein there was much evidence about how the plaintiff was affected in that matter by the Black Friday bushfires and, indeed, other stressors occurring before what was said to be the subject transport accident causing the serious injury.
[125]Op cit
105Furthermore, I consider it would be impermissible, as made clear by Rowe v Transport Accident Commission, for the plaintiff to argue, but for the subject transport accident, he would not be in the position he now is. However, I also consider that it would be inappropriate to speculate if, and, if so, when, the plaintiff would have ceased work as a result of any psychological condition absent the subject transport accident.
106Approaching the matter as to what the state of the plaintiff was after the first transport accident leading up to the subject transport accident, and comparing that with his state after the subject transport accident, the following can be said: Up to the subject transport accident, the plaintiff was continuing to perform his duties on a full-time basis, with no meaningful loss of time off work, and doing so in the absence of any treatment, whereas following the subject transport accident, which, on his evidence, made him “worse” and caused him difficulties to get to work, the plaintiff stopped work completely and has been unable to work since, and has required, and received, ongoing treatment for his psychological condition. On one hand, there was a functioning man, albeit with symptoms, even symptoms which were deteriorating, and on the other, a man, who, very shortly after the subject transport accident, could no longer function in a paid employment situation.
107Earlier in this judgment, I have set out the various psychiatric opinions as to the relative causation of each of the transport accidents in relation to the condition of the plaintiff. Of course, all such opinions have been rendered since the plaintiff ceased work. Most doctors accept that both transport accidents have played a role in his condition, which the consensus of his opinion describes him as having suffered PTSD and a Major Depressive Disorder.
108I will not, again, go through such opinions which have been highlighted earlier in this judgment but, in particular, given the facts so found in this matter, I am of the view that the consultant psychiatrist, Dr Michael Epstein, who examined the plaintiff on 30 January 2019 and later on 19 October 2021 (by way of Zoom videoconferencing due to COVID-19) comes, I believe, closest to reflecting the true position. He states:
“The diagnosis I made when I saw him in January 2019 remains unchanged. He continues to have a severe chronic Post Traumatic Stress Disorder and a Major Depressive Disorder of moderate severity and panic attacks. In addition he has developed symptoms of ‘fibromyalgia’. This is regarded by his rheumatologist as being related to his injuries.
He does require continuing psychiatric and psychological treatment. He does require continuing physical treatment including assessment by his rheumatologist. He had already developed significant symptoms as a result of the incident on 24 May 2016 and these symptoms were significantly exacerbated by the further incident on 4 October 2016 in which he could well have been killed. The impression gained is that he was struggling after the first incident but was still managing to cope but the second incident led to the breakdown in his capacity for coping and that has continued.
The first incident involved him being in a situation for some hours when he and others were at imminent danger of being incinerated. It is a manifestation of his fear that he telephoned his wife to say goodbye indicating that he expected to die. In my view therefore the first incident on 24 May 2016 has substantially led to his current mental state.
It is now five years since these events with no evidence of any significant improvement and possibly even some deterioration. He remains severely disabled despite appropriate treatment and his prognosis for further improvement is very limited. He is not able to return to his pre-injury employment at present or for the foreseeable future.
His quality of life has diminished markedly and this is unlikely to improve in the foreseeable future affecting his work capacity, his relationships and his recreational enjoyment.
He does not have a realistic capacity to engage in alternative employment because of his mental state in particular with regard to issues arising from his cognition, his emotional ability, his high levels of anxiety and depression, his high levels of fatigue and his social withdrawal.
In my opinion he will never be able to return to the workforce and his quality of life will remain severely limited.”[126]
(My emphasis.)
[126]See exhibit 5, report of Dr Michael Epstein dated 19 October 2021, at pages 106-107 PCB
109Ultimately, I have formed the opinion that the subject transport accident caused further deterioration in his condition, which manifested itself in his inability to continue working as he had up to the subject transport accident. I consider the change in his function from working full time to not being able to work is a severe consequence of a long-term mental or severe long-term behavioural disturbance or disorder. I am also satisfied, in the terms in which I have set out, the plaintiff has suffered a “serious injury” as a result of the subject transport accident and that has given rise to the long-term consequences of him being unable to work, whereas, prior to the subject transport accident, he could function in that capacity.
110Although not free of difficulty, I consider that the plaintiff has discharged his onus in that his pre-existing psychological condition has been aggravated by the subject transport accident and such aggravation has given rise to a severe long-term mental and severe long-term behaviour disturbance (that is to say, a “serious injury” as set out in the definition contained in s93(17) of the Act).
111Accordingly, I order that there will be leave to the plaintiff to bring common law proceedings for damages in respect of injury suffered by him arising out of a transport accident which occurred on 4 October 2016.
112Before leaving this judgment, I make clear that I do not intend to rule on whether or not the plaintiff could rely on the alternative approach suggested by Senior Counsel for the plaintiff, consistent with the judgment of Buchanan AJA in R J Gilbertsons Pty Ltd v Skorsis.[127] I only make the comment that the authorities, some of which I refer to in the judgment, essentially adopt the approach taken by the then Full Court in the leading decision of Petkovski v Galletti.[128]
[127](Op cit) at paragraph [27]
[128]Op cit
113I will hear the parties on any issues of costs.
- - -
114
Annexure “A”
1The plaintiff tendered the following documents:
Exhibit 1
· The affidavits of the plaintiff sworn on 8 April 2020 and 14 December 2021
· Affidavit of the plaintiff’s wife, sworn on 14 December 2021.
(All such documents are found at pages 11-23 PCB)
Exhibit 2
· Particulars of Injury
(Such document found at pages 24-25 PCB)
Exhibit 3
· The Plaintiff’s Injury Claim Form, dated 12 December 2017, together with Letter of Acceptance from Allianz, dated 8 July 2019.
(All such documents are found at pages 26-30 PCB)
Exhibit 4
· Medical Reports of the treating general practitioner, Dr Xiao Nan Wang, dated 14 February 2018, 14 May 2019 and 13 August 2021.
· The following reports from the treating psychologist, Ms Wendy Brodribb, undated, 28 February 2018 and 12 August 2021.
· Report from one of the treating psychologists, Mr Nicholas Lawless, dated 12 October 2021.
· Report from the rheumatologist, Dr Daniel Boulos, dated 24 July 2021.
· Reports of one of the treating consulting psychiatrists, Dr Geoffrey Hogan, dated 18 November 2018 and 31 March 2019.
· Report of the clinical and counselling psychologist, Ms Anne Robertson, dated 20 February 2019.
(All such documents are found at pages 31 through to 76 PCB)
Exhibit 5
· Medico-legal reports from the psychiatrist, Dr Michael Epstein, dated 30 January 2019 and 19 October 2021.
· Medico-legal report from the specialist occupational physician, Dr Joseph Slesenger, dated 19 April 2019.
· Medico-legal report from medico-legal rheumatologist, Dr Daniel Lewis, dated 30 September 2021.
· Medico-legal report from the psychiatrist, Dr Alan Gallogly, dated 4 October 2021.
(All such reports are found at pages 77 to 143 PCB)
Exhibit 6
· Report of the consultant psychiatrist, Dr Timothy Entwisle, dated 10 January 2018 (retained by the defendant).
· Reports of the psychiatrist, Associate Professor Saji Damodaran, dated 26 November 2019 and 20 July 2020 (retained by the defendant).
2The defendant did not tender any documents.
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