Stokes v Transport Accident Commission
[2018] VCC 287
•19 March 2018
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01807
| GRANT STOKES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2017 | |
DATE OF JUDGMENT: | 19 March 2018 | |
CASE MAY BE CITED AS: | Stokes v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 287 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – severe long-term mental or behaviour disturbance
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to the injuries sustained in the transport accident of March 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Lawyers |
| For the Defendant | Mr P Elliott QC with Mr A Saunders | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred in March 2011 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The severe long-term mental or behaviour disturbance relied upon is a Major Depressive Disorder with a differential Post-Traumatic Stress Disorder.[1]
[1]Plaintiff’s Court Book (“PCB”) 24B or PCB 58
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 14 July 2016 and 6 September 2017, and an affidavit sworn by his wife, Katy Stokes, on 6 September 2017. I have not summarised the plaintiff’s or his wife’s affidavits, or the plaintiff’s evidence; however, I will refer to their relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[2]
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
10 A serious injury under s93(17)(c) requires the level of impairment to be severe.
11 In respect to paragraph (c) of s93(17), the word “severe” is used as a stronger word than “serious” in paragraph (a) of s93(17).[3]
[3]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
12 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[5] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[6]
[4]Supra
[5](1995) 21 MVR 314
[6]Mobilio v Balliotis (supra) at 846
13 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[7]
[7](Supra). See also Phillips JA at 858 and Charles JA at 860-1 to similar effect.
14 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[8]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[8][1998] 1 VR 702
15 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[9]
[9](Supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
16 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[10] where the case is one of aggravation of a pre-existing condition, the application must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of, in this case, the mental or behavioural disturbance or disorder, before and after the relevant injury, and determine whether the additional impairment involved, in this case, a severe long-term mental or severe long-term behavioural disturbance or disorder.
[10] [1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
Background
17 It was not in dispute that in 2014, the plaintiff commenced a proceeding against his employer, Dairy Cropping Australia Pty Ltd, alleging that he suffered a psychological injury in the course of his employment between 2008 and 2011. He alleged that the injury arose due to the conduct of his employer, including exposing him to an unreasonable workload, resulting in long hours of work; providing old worn-out and unsafe plant equipment, vehicles and machines; providing poor quality grain for the animals, which caused the animals to become sick; providing an unsafe truck for the transport of animals, which led to a transport accident in March 2011; acting unreasonably and unfairly to the plaintiff; ignoring the plaintiff’s complaints and advice about the above matters. As a consequence, the plaintiff suffered, and continues to suffer, significant mental health issues. The serious injury was conceded by the WorkCover Authority and a Writ was issued in the Supreme Court.
18 In about 2015 or early 2016, Senior Counsel for the plaintiff was briefed. As a result of his involvement in the application, an amendment was sought to the Writ and Statement of Claim pleading, in effect, only the transport accident.
19 As a result of the amendments, the WorkCover defendant submitted that the proceeding related to a transport accident and, accordingly, a serious injury certificate was required from the Transport Accident Commission. As a result, the plaintiff commenced the current proceeding, seeking a serious injury certificate with respect to his mental health and/or behavioural disturbance or disorder he suffered arising out of the transport accident that occurred in March 2011.
The issues
20 The defendant submitted that the following issues were raised in the current proceeding:
(a)First, causation:
(i)To what extent does the transport accident play a part in the plaintiff’s current condition, given the plaintiff commenced Supreme Court proceedings alleging a psychiatric injury which arose in the course of his employment due to the conduct of his employer;
(ii)The plaintiff did not complain of the effects of the transport accident to his general practitioner until approximately six or more months after the transport accident;
(iii)The notes and report of Mr Francois Joubert, the treating psychologist, make no reference to the transport accident, yet refer to work-related stressors;
(iv)The WorkCover Claim Form does not refer to the transport accident;
(v)The plaintiff’s evidence is that the May 2011 fall at work, and rib injury, were unrelated to the psychiatric condition, yet the plaintiff conceded he was referred to Mr Joubert because he was depressed after the rib injury. The rib injury was referred to in the WorkCover Claim;
(b)Second, the plaintiff’s psychiatric injury arose over the course of his employment.
(c)Third, the evidence is that prior to the transport accident, the plaintiff suffered a psychiatric condition for which he received treatment. The plaintiff alleges that his current medical condition is caused by the transport accident of March 2011. This is an aggravation case and the principles of Petkovski v Galletti[11] are not met. The aggravation does not meet the test for seriousness.
[11]Supra
The evidence
21 The plaintiff is thirty-three years of age. He is married and lives with his wife, and three children, aged nine, seven and three. He left school after Year 10 at Chairo Christian School, Drouin, and holds the following qualifications: Trade qualifications as a motor mechanic and Certificate IV in Network Administration.
22 The plaintiff was employed from approximately 2002 to 2005 as an apprentice mechanic and then as a mechanic for Coffey Ford. From 2005 to 2006, he worked as an information technology technician with Leading Edge Computers. From 2006 to 2008, he worked as a fitter and turner and in information technology for Modra Technology.
23 In July 2008, the plaintiff commenced work with Dairy Cropping Australia Pty Ltd at Jindivick as a farmhand. He later became a farm manager. As a farmhand, his normal duties included milking cows, feeding out, farm maintenance, animal husbandry, harvesting, mowing and fencing.
24 As a farm manager, his normal duties included all his duties as a farmhand. In addition, he was involved in staff recruitment, rostering and supervision, budgeting, forward planning, feed planning, pasture management and meeting with consultants and owners. The plaintiff’s evidence was that despite a very high workload with long work hours, he coped well with his farm work.
25 In February 2009, as a result of the Black Saturday bushfires, half of the farm property was affected by the bushfires. The plaintiff was required to herd cows to safety. He said he and the cows were not significantly at risk, but that he was “exhausted” after the experience. The plaintiff said he was disturbed after the fires because of the way the owners of the farm treated his friend, the manager, after the fire, giving him no support, despite the fact he had lost all his possessions on that day. The manager left straight away and the plaintiff remained angry at the owners. This was compounded by the owners’ lack of resources and poor response to the need for more stockfeed in caring for the cows after the fires. As a result, the cows frequently became sick. He raised his concerns with management, but the issues were largely ignored and he became increasingly stressed, depressed and exhausted over time. On two occasions he had to “euthanise” cows, which caused him significant distress. The plaintiff said that in late 2009 to early 2010, he developed suicidal thinking, and in late 2009, attempted to hang himself on one occasion. He did not tell his wife about this, nor did he seek medical help. In March 2010, the plaintiff became the farm manager.
26 In about April 2010, the plaintiff consulted his church pastor, who provided counselling weekly[12] for approximately five or six months, which was very helpful.[13] The plaintiff said they completed a course on “forgiveness”, which was very beneficial in settling much of his anger, and his mood improved.
[12]PCB 11D and Transcript (“T”) 35
[13]T56
27 The medical records of Dr Vincent Xu, general practitioner, relating to the plaintiff were before the Court. They disclose that in 2008, the plaintiff suffered a condition of thrombocythaemia which was managed by Dr John Scarlett, haematologist, and a scarred right kidney. Further, that the plaintiff attended his general practitioner intermittently.
28 In November 2010, the plaintiff reported to his general practitioner tiredness and sweating at night. Also, he reported that “he had a bit of depression last year”.[14] Pathology tests were ordered and the plaintiff was referred to Dr Maydom, general physician, and Dr Scarlett.
[14]Defendant’s Court Book (“DCB”) 175
29 On 1 February 2011, Dr Maydom reported that the plaintiff was referred to him to discuss his hypertension, renal situation and tiredness. The plaintiff reported that late in 2010, he was unwell with night sweats, anorexia and weight loss, and quite severe easy fatigability. The plaintiff reported being concerned as to his ability to continue working as a manager of the farm. By the time of the appointment, the plaintiff reported being able to fulfil all his farming responsibilities. He denied any psychological problems. On 23 February 2011, Dr Scarlett reviewed the plaintiff in respect of essential thrombocythaemia. Dr Scarlett referred to Dr Maydom’s analysis of the plaintiff’s blood pressure, renal issues and a possible infection illness, and noted that the plaintiff continues to suffer a degree of fatigue.
30 I accept that Dr Maydom and Dr Scarlett treated the plaintiff for medical issues unrelated to this claim. Further, in February 2011, the plaintiff reported no psychological problems and being able to perform all his farming duties.
31 In January 2011, the plaintiff attended the general practitioner, complaining of an injured arm as a result of being kicked by a cow. An x-ray was ordered the following day and an ultrasound was performed.
32 In March 2011, while at work, the plaintiff was a passenger in a truck. The truck was loaded with more than a dozen cows which were contained in a large crate bolted to the tray of the truck. The truck was old. While travelling up a steep hill, the truck jerked violently when the driver changed down a gear. This made the cows fall towards the back of the crate, and their combined weight was enough to break it off. The crate frame became detached along the rear of the truck and down the right-hand driver’s side of the truck. Part of the crate began to fall onto the road. As a result, cows were able to get out of the crate. The plaintiff got out of the cabin and went to the back of the truck. One cow was trapped, her back hips pinned in the truck, and her front legs, head, and part of her torso, was dragging on the road. He tried to lift the cow’s head so it could stand. He asked the driver to slowly reverse to an embankment, but as the truck reversed, the pinned cow’s body began to go under the rear of the truck. He tried to help the cow out. To do that, he had to get under the back of the truck to try and drag her out. He was under the back of the truck when it began to roll backwards. It rolled about a metre. The axle was just about on him when it stopped. He was terrified. As the truck rolled back, the cow’s hips broke loose from the crate and the beast fell in with her head under the truck, near the plaintiff. He got out as quickly as he could. The plaintiff said the proximity of the cow as it was thrashing around at the same time as the truck’s axle was moving towards him was terrifying.
33 The plaintiff’s evidence was that following this incident, his mental health was compromised. He recalled that he suffered his first panic attack on the day of the transport accident. He experienced shortness of breath and an intense physical reaction, in which he felt both hot and sweaty, and relived the incident again and again. His heart was racing and he felt unwell.
34 In late May 2011, while working at the dairy farm, the plaintiff fell from 1.2 metres and landed on a metal bar on his right chest and suffered pain in the right lower chest area. At the time, he sought medical treatment, radiology was ordered, medication was prescribed and a medical certificate was provided.[15] The plaintiff gave evidence that he suffered insufferable pain from his rib.[16]
[15]DCB 173
[16]T115, L23-24
35 In early June 2011, the plaintiff attended his general practitioner and reported a recent chest injury, feeling depressed, could not sleep well, lack of energy and poor appetite. The plaintiff reported past Depression with suicidal ideation and a plan. The plaintiff was prescribed Lexapro, an antidepressant, and was referred to a psychologist. Mr Joubert, for counselling.
36 On 10 June 2011, the plaintiff reported his psychological difficulties to Mr Stephen Ronalds, a director of his employer. The plaintiff reported the transport accident and the incident with the cows and crate. Mr Ronalds recalled that the plaintiff indicated he had an anxiety issue. Mr Ronalds thought that was part of farm life.[17]
[17]DCB 107. Statement of Stephen Ronalds.
37 On 20 June 2011, the plaintiff commenced counselling with Mr Joubert, continuing on a regular basis in 2011, 2012 and 2013.[18]
[18]2011 – 19 sessions; 2012 – 29 sessions; 2013 – 16 sessions; 2014 – 1 session
38 Between June and mid-October 2011, the plaintiff consulted his general practitioner in respect to medication and medical certificates relating to Depression and Post-Traumatic Stress Disorder.
39 On 29 September 2011, the plaintiff completed a Worker’s Injury Claim Form which, in part, was illegible,[19] although a clearer copy was provided. Under the heading “Incident and Worker’s Injury Details”, the plaintiff completed the following:
[19]DCB 97
“What is your injury/condition, and which parts of your body are affected?
Depression, anxiety/panic attacks, psychological and post-traumatic stress disorder.
What happened and how were you injured?
A series of events have caused my injury. Some of the things contributing to this are:
machinery malfunction, long hours, conflict of expectations, physical injury (cracked rib).”
40 On 18 October 2011, the plaintiff completed a witness statement for his employer and reported to Dr Xu that he commenced suffering Depression following the transport accident in March 2011.[20]
[20]General practitioner’s records made 18 October 2011.
41 On 24 October 2011, the plaintiff was medically examined by Dr Hillol Das, psychiatrist, at the request of the employer’s insurer. Dr Das obtained a detailed history of the plaintiff’s employment and diagnosed Major Depression which had developed in the context of his experiences in his three-year employment, and had rapidly worsened since the traumatic experience related to the transport accident involving cows in March 2011.
42 On 1 December 2011, Dr Xu referred the plaintiff to Dr Keith Adey, psychiatrist, for assessment and management. The referral letter referred to the plaintiff having Post-Traumatic Stress Disorder related to a work injury.[21] The plaintiff consulted Dr Adey on approximately seven occasions.
[21]PCB 60E
43 Dr Adey’s notes were before the Court.[22] The plaintiff reported to Dr Adey the transport accident and his attempt to suicide. The plaintiff was seen on a number of occasions, and on 8 May 2012, Dr Adey’s notes record that the plaintiff was feeling better, sleeping well, and was to return in two months.[23]
[22]PCB 60C
[23]PCB 60D
44 In August 2012 and July 2013,[24] Dr Xu reported to the plaintiff’s solicitor that the plaintiff reported that he had Depression/Anxiety since the truck accident in March 2011. His symptoms got worse after another work injury in May 2011. He was receiving psychological and regular psychiatric counselling.[25]
[24]PCB 20-22
[25]PCB 20
45 In December 2013, Dr Xu referred the plaintiff to Dr Minaakshi Tolat, psychiatrist, for assessment and treatment. Dr Tolat diagnosed a Major Depressive Disorder with Anxiety features, and also features consistent with Post-Traumatic Stress Disorder. Dr Tolat obtained a history of the transport accident in 2011, which had a significant devastating impact upon the plaintiff, as well as the impact of the Black Saturday bushfires and other work issues. In November 2014, the plaintiff was admitted to the St John of God Hospital as an inpatient due to the level of deterioration he exhibited in his mental state, with worsening of his depressive symptoms, ongoing anxiety, extreme tiredness and an inability to perform his daily chores. Dr Tolat treated the plaintiff on a fortnightly basis until November 2015. Currently she is reviewing him four-weekly. In August 2017, she diagnosed a Chronic Major Depressive Disorder in the background of traumatisation and accepted that the plaintiff’s condition had been entirely contributed to by the events following the transport accident in March 2011.[26]
[26]PCB 58
Credit of the Plaintiff
46 The plaintiff answered questions directly, made concessions, gave his evidence without embellishment and was straightforward in his presentation. There was no suggestion in the medical evidence that the plaintiff’s credibility was in issue. The plaintiff was frank in his affidavits and his viva voce evidence as to his condition and the issues of causation. Counsel for the defendant did not make any submissions that the plaintiff was not a witness of truth, or that he was not candid in cross-examination. Overall, the plaintiff impressed me as a believable and credible witness. His evidence was supported by the evidence of his wife, who was not cross-examined.
Analysis of the evidence
47 It was not in dispute that the plaintiff was involved in a transport accident. What was in dispute was whether the transport accident was a cause of the plaintiff’s present psychiatric condition.
48 The driver of the truck, the subject of the transport accident, Cameron Deveney, gave evidence. He was recalling events which occurred six years ago. He confirmed that he was driving the truck at the time of the transport accident, that cattle were in the crate, that there was a forceful jerk which moved the cattle to the back of the crate and that the consequence was the back of the crate smashed and that a cow became jammed in the back. He could see its legs in his right-hand mirror. He agreed he backed up. He accepted that, as a consequence, the cow’s head and shoulders started moving under the truck. He did not accept that the plaintiff was under the truck attempting to extricate the cow. He agreed he had not mentioned the cow being stuck before, but that was because it jumped out. He agreed that both he and the plaintiff were flustered. He said the plaintiff walked through the paddock to the farm after the event. He agreed they did not discuss what occurred.
49 The plaintiff’s evidence was that as a result of the transport accident, he experienced his first panic attack. This is what he told the Court. The plaintiff’s evidence was that his first panic attack occurred on the same day as the truck accident, and it was not long after that accident. Once the stock were safe, he was walking back towards the farm. He experienced shortness of breath, an intense physical reaction in which he felt both hot and sweaty and relived the incident again and again, that is, the fear that the truck would roll and cause him injury. His heart was racing and he felt very unwell. This is consistent with the plaintiff’s wife’s evidence. In her affidavit, she swore:
“I recall that when Grant came home on the day that the cows broke out of the old truck, he was on edge. He seemed panicky and unable to communicate properly. From that day he became increasingly worse. There were days where he would not get [out] of bed. On these days, I had to get up and milk the cows and do Grant’s jobs on the farm. He seemed scared of the cows. He would shut the blinds to our windows that looked out onto the farm. He told me he didn’t want to be able to see them.”[27]
[27]Paragraph [10] of the affidavit of Katy Stokes sworn 18 September 2017, PCB 15C
50 The plaintiff’s wife was available for cross-examination. The defendant did not cross-examine the wife, even though she was not in Court during the plaintiff’s cross-examination.
51 The plaintiff did not seek medical assistance until early June 2011 for his mental condition. The plaintiff was cross-examined as to why he had not reported the transport accident to his general practitioner. He said at the time, in June 2011:
A:“… Well, that’s the reason I knew at the time. You’re asking me, if I had any chance of self-diagnosis? I didn’t have a chance of self-diagnosis. All I knew was that I felt crap, okay? I really, really felt crap. I was not sleeping, I was scratching, biting, chewing myself. I – I was really, really in a really bad way. So yes, I went to the doctor and told him this. He told me, ‘That’s sounds like depression,’ and he sent me off to the mental health practice. I didn’t go and say, ‘Look, I’ve got depression, this is my problem’.
Q:But you didn’t go to see this doctor in June 2011; you didn’t go to him and say, ‘Look, I’ve had this horrendous transport accident and I’m suffering from these dreadful flashbacks and headaches’. It’s not there?---
A: Well, I was suffering from a lot of things at the time, mate.
Q:Correct. Correct. The transport accident was just one of many things that was causing you to be in this very bad condition. That’s the situation, isn’t it?---
A: I can’t answer that question. I must admit I’m a little - - -
Q: Why can’t you answer that, Mr Stokes?---
A:Because I don’t know and I had certainly had no idea then what the hell was wrong with me.”[28]
(sic).
[28]T64, L29 – T65, L19
52 The plaintiff’s evidence was that before the transport accident, he did not suffer nightmares. After the transport accident, he stopped sleeping and it occurred over weeks. The nightmares were primarily about the truck accident, about being hit by the truck, or being hit by another truck.[29] After the truck accident, he started scratching himself on his arms and back.[30]
[29]T112, L14-20 and L23-25
[30]T112, L21-22
53 The plaintiff’s evidence was that he did not go to the doctor after the transport accident. He said:
“No, I wasn’t trying to make a big deal of it[31]… You just pull up your bootstraps…I didn’t go to the doctor much for anything unless it was very serious.”[32]
[31]T60, 21-23
[32]T61, 16-17
54 The plaintiff was asked about why he did not tell his general practitioner in June 2011 about the transport accident. The plaintiff said:
“I can’t answer that question. I must admit I’m a little…Because I don’t know and I had certainly had no idea then what the hell was wrong with me.”[33]
[33]T 65, 15-19
55 I accept the submission of counsel for the plaintiff that the plaintiff’s attendance on his general practitioner on 6 June 2011 was the first time the plaintiff had attended his doctor for a psychiatric event. As a result, he was referred to a psychologist for treatment. On 10 June 2011, the plaintiff reported his psychological difficulties to his employer, Mr Ronalds. This is confirmed in a statement made by Mr Ronalds on 18 October 2011. Mr Ronalds said that the plaintiff had reported anxiety issues in a meeting with the plaintiff on 10 June 2011. Mr Ronalds said that the plaintiff reported the transport accident and anxiety issues he experienced. The first indication that the plaintiff was suffering Depression from the transport accident is referred to in the general practitioner’s notes on 18 October 2011.
56 The plaintiff’s evidence was that he had discussed the transport accident, and its effect upon him, with the psychologist, Mr Joubert. Mr Joubert’s report dated 3 December 2012 and his handwritten records of consultations, including a treating psychologist’s questionnaire, were before the Court. There was no mention in the report, questionnaire or records of the transport accident and its effect upon the plaintiff. The report and records referred to the reported factors that the plaintiff was exposed to, and of concern, during his employment as a farm manager. They were:
·unrealistic work time expectations
·limited and unsafe work equipment
·poor management support
·fear of job security if bringing these issues to management’s attention
·superannuation.
57 By December 2011, the plaintiff was referred by his general practitioner to Dr Adey, a psychiatrist, whom he attended on a number of occasions. There was no medical report from Dr Adey, other than his notes which confirmed that the plaintiff reported the transport accident and his attempt to suicide.
58 In December 2013, the plaintiff was referred by his general practitioner to Dr Tolat, psychiatrist, for treatment. Dr Tolat provided medical reports dated 10 February 2014, 8 October 2014, 11 February 2015, 5 November 2015 and 20 August 2017. Between December 2013 and November 2015, Dr Tolat reported she was reviewing the plaintiff fortnightly. Currently, Dr Tolat reviews the plaintiff on a four-weekly basis. She obtained a history of the truck accident having a devastating impact upon the plaintiff and the effects of the fires on Black Saturday, cattle dying, and work pressures. Her current diagnosis is a Chronic Major Depressive Disorder in the background of traumatisation. She accepted that the plaintiff’s condition has been entirely contributed by the events following the transport accident in March 2011.[34]
[34]PCB 58
59 The defendant’s medical evidence supports the evidence of the plaintiff.
60 In October 2011 and April 2012, the employer’s insurer arranged for the plaintiff to be medically examined by Dr Das, psychiatrist. Dr Das obtained a detailed history of the plaintiff’s employment, including the Black Saturday bushfires of February 2009, managing the farm and the plaintiff’s concern about his employer, the truck incident, and the plaintiff’s rib inquiry. Dr Das diagnosed Major Depression, which had developed in the context of his experiences endured during the course of his three-year farm employment, and had rapidly worsened since the traumatic experience related to the transport accident involving the transportation of the cows in March 2011.
61 In April and November 2013, the plaintiff was medically examined by Dr Timothy Entwisle, psychiatrist, at the request of the employer’s insurer. In April 2013, Dr Entwisle obtained a detailed history of the events and in his report he recorded that “the cattle truck incident really got to him”.[35] He interviewed the plaintiff’s wife, who referred to the truck accident as “a straw that broke the camel’s back”.[36] Dr Entwisle diagnosed the plaintiff’s condition as chronic, which may fulfil some of the criteria, but not all, of Post-Traumatic Stress Disorder. He said whatever the diagnosis, his psychiatric condition is severe and he has no work capacity. He diagnosed a major depressive illness with traumatising features. He reiterated his diagnosis in November 2013.
[35]DCB 58
[36]DCB 60
62 In May 2013, the plaintiff was examined by Associate Professor Saji Damodaran, psychiatrist. Professor Damodaran obtained a more detailed history of the circumstances leading up to the transport accident, the transport accident, and subsequent events. The plaintiff identified the transport accident to the doctor “as the major crisis of his overall work experience”.[37] It was Professor Damodaran’s opinion that the plaintiff was suffering from Chronic Post-Traumatic Stress Disorder associated with a moderate major depressive episode and Panic Disorder. He said the plaintiff’s current condition was work-related and his prognosis was poor in view of the protracted nature of the condition, and the impact of the condition on his overall state. He thought the plaintiff’s psychiatric condition had stabilised and there would be no significant improvement in the foreseeable future.[38] He said the plaintiff fulfils the criteria for Post-Traumatic Stress Disorder as he was exposed to a traumatic incident and he has recurrent re-experience, avoidance symptoms and marked autonomic hyper-arousal, along with recurrent panic attacks characterised by physiological, psychological and cognitive symptoms, and a major depressive episode, characterised by low mood, lack of motivation, poor energy, reduced enthusiasm, reduced enjoyment, sleep and appetite difficulty, and suicidal thinking.[39] Based on the body of the report of Professor Damodaran, I accept that the traumatic incident he is referring to is more than likely the truck incident. I say this because the doctor reports that the plaintiff identifies the transport accident as the major crisis point in his overall work experience.
[37]DCB 75
[38]DCB 79
[39]DCB 80
Current medical evidence
63 The assessment of “serious injury” must be made at the time the application is heard. The current medical evidence is expressed by Dr Tolat, treating psychiatrist; Dr Sonali Jain, treating general practitioner, and medico-legal psychiatrists, Dr Tagkalidis and Associate Professor Doherty.
64 Dr Tolat said the plaintiff had made some improvement since her last report and he does not fulfil the DSM-5 criteria for Post-Traumatic Stress Disorder, but has some features of traumatisation. She said the plaintiff’s current diagnosis is of Chronic Major Depressive Disorder in the background of traumatisation.[40] Further, the plaintiff’s condition has entirely been contributed to by the events following the transport accident in March 2011. She accepted that the transport accident had a significant impact on the plaintiff’s mental state, and it was further compounded by his experience of not feeling supported, validated or acknowledged by his employers.[41] Given the nature of the chronicity of his symptoms, and the modest improvements he has made over the period, she remained sceptical of his ability to return to work in the future.
[40]PCB 58
[41]PCB 59
65 Dr Jain, who took over from Dr Xu, the plaintiff’s general practitioner, agreed with the diagnosis referred to by Dr Tolat. Dr Jain confirmed that she reviews the plaintiff every four weeks.
66 Dr Tagkalidis, psychiatrist, examined the plaintiff in October 2015, and again in July 2017. He diagnosed a Chronic Major Depressive Disorder with significant features of traumatisation relevant to the claimed injuries.[42]
[42]PCB 105 and PCB 120
67 I accept that Dr Tagkalidis obtained a reasonably accurate history of events, particularly up to the time of the transport accident, namely, that between early- to mid-2009, the plaintiff developed suicidal thoughts and made an attempt, on one occasion, on his own life. The plaintiff consulted his church pastor, attended counselling sessions and completed a course on forgiveness which was beneficial in settling much of his anger towards his employers. As a result, his mood improved. He obtained a reasonably accurate history of what occurred in March 2011 and the middle of 2011, which was supported by the uncontested description of the plaintiff’s evidence. In his second report, Dr Tagkalidis, was provided with the reports of Professor Doherty. He also was provided with the plaintiff’s affidavits of 2 July 2014 and 14 July 2016. He noted that both affidavits were consistent with the accounts provided to him by the plaintiff. He formed the opinion that the plaintiff was functioning well in life prior to the relevant incidents and that the transport accident caused a substantial detrimental effect on the plaintiff’s functioning and emotional well-being. He accepted 70 per cent of his current emotional distress related to the transport accident.[43]
[43]PCB 120
68 In a further report, Dr Tagkalidis was asked to comment upon Professor Doherty’s report, which stated that the transport accident did not give rise to any immediate significant features of traumatisation, but was one of many events that took place in his employment and was not a significant event. Professor Doherty relied on the objective evidence in the clinical notes of the general practitioner and psychologist, Mr Joubert, to support his opinion.
69 Dr Tagkalidis said he relied on the evidence that the plaintiff reported attending regular counselling with his church pastor, which was very helpful, and the fact that the plaintiff said his mood improved. He accepted the plaintiff’s account of the transport accident in March 2011, the fact that the experience was very harrowing, and in the days and weeks after the incident, he started to experience frequent intrusive flashbacks and nightmares directly related to the incident, with the result he became increasingly intense, irritable and depressed. He said the transport accident flared up old wounds about the owner’s neglect of the farm and cows. Further, Dr Tagkalidis relied on the comments of Dr Tolat, the treating psychiatrist, who came to a similar conclusion to Dr Tagkalidis, that the transport accident had caused significant traumatisation. He concluded that the relevant incident, that is, the transport accident, contributed to a major deterioration in the plaintiff’s mood state. Dr Tagkalidis indicated that in his first report, he did not distinguish between prior workplace incidents and the transport accident and considered that all the history of the workplace incidents was to be considered together. In his July 2017 report, he did not distinguish between the preceding events and the relevant transport accident.
70 In respect to Professor Doherty’s reports, I make the following comments. First, in relation to his report of September 2014, Professor Doherty makes no comment about the successful counselling the plaintiff received from his pastor. Secondly, he does not take into account that, in February 2011, Dr Maydom, physician, reported “He denies any particular psychological problems”.[44] This is consistent with the medical records of the general practitioner which do not disclose treatment by the general practitioner for Depression until June 2011. Professor Doherty does not address this. Further, he says that within four to eight months the plaintiff should have a capacity for full-time work in a less stressful and less managerial position.
[44]DCB 184
71 In his second report, Professor Doherty obtained a more accurate history of the counselling the plaintiff obtained from his pastor and that he was “feeling awesome and better”[45] prior to the transport accident. However, he obtained an incomplete history of the transport accident.
[45]DCB 13
72 In his third report, Professor Doherty says he has read a report of Dr Tolat, but is not provided with her current report where she makes attribution to the transport accident. He concludes that the transport accident did not give rise to any immediate significant features of traumatisation and it is one of the many events that occurred in his employment.
73 I accept the report of Professor Doherty expresses an opinion which is different to the opinions expressed by the other psychiatrists. Dr Tolat and Dr Tagkalidis have attributed the plaintiff’s psychiatric condition largely to the transport accident.
74 While not current, I note the report of Dr Entwisle obtained a detailed history of the transport accident and accepted that it was one of the work events that contributed to the plaintiff’s psychiatric condition. He obtained a history that “The cattle truck accident really got to him”.[46]
[46]DCB 58
75 Dr Entwisle interviewed the plaintiff’s wife. Dr Entwisle reported that:
“She believes that his work on the farm has caused his illness, particularly the constant machine breakdowns and the truck accident which she described as a straw that broke the camel’s back.”[47]
[47]DCB 60
76 I accept that Dr Entwisle took into account the transport accident in his diagnosis.
77 The same applies for Professor Damodaran, who said:
“Mr Stokes reported that in March he was involved in a truck accident. According to him, this was the major crisis point in his overall working experience. He reported that he and another staff member were driving a truck which he reportedly said was unroadworthy. He reportedly informed his employer that the truck was not meant to be used, however they did not pay any attention to him. When they were getting close to the farm on their return trip they were on a steep hill and, at that point in time, the back crate of the truck gave way and the cattle were falling off the back of the truck.
Mr Stokes had to jump out of the truck and he had to shout at them to stop but by that time some of the cows were under the truck and it had gone over them. He had to pull some of the cows out of the truck in order to save them and there was blood everywhere and he was frightened and he felt it was dangerous. Somehow he managed to lead the cows through another property and he managed to secure them and he came back to work.
According to Mr Stokes he had his first panic attack at that point in time and he could not really manage himself. He felt his workload increased and he had to milk up to 250 cows.”[48]
[48]DCB 75
78 The plaintiff reported to Professor Damodaran that he was still having recurrent flashbacks, especially of the truck accident and the cows running around.[49]
[49]DCB 77
79 Professor Damodaran said the plaintiff’s sense of helplessness and worthlessness associated with his work experience and his sense of frustration was complicated by an injury that he sustained while he was at work, where he had to confront a major truck accident involving cattle. I accept that Professor Damodaran accepted that the truck accident was causally related to the plaintiff’s condition, which he described as Chronic Post-Traumatic Stress Disorder associated with a moderate major depressive episode and Panic Disorder.[50]
[50]DCB 79
80 In October 2011 and April 2012, Dr Das, psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer. It was his opinion that the plaintiff developed a severe reactive condition of Major Depression, along with features of panic attacks, anxiety, and post-traumatic stress, a condition which developed in the context of his experiences during the course of his three-year farm employment and rapidly worsened since the traumatic experience involving the transportation of cows in March 2011. In April 2012, he diagnosed Major Depression, otherwise he reiterated his comments in his previous report.
81 I accept that the majority of the current medical witnesses accepted that the transport accident of March 2011 was a cause of the plaintiff’s mental condition. Professor Doherty was the only medical witness to say that the plaintiff’s psychiatric condition has not arisen directly due to the transport accident. Accordingly, I accept the view of Dr Tolat, Dr Jain and Dr Tagkalidis. Accordingly, I accept that the transport accident is a cause of the plaintiff’s current medical condition.
82 The plaintiff commenced proceedings against his employer, alleging throughout the course of his employment he suffered psychological injury. The injury arose due to the conduct of his employer, which included:
(a) unreasonable workload causing very long hours of work;
(b) providing old, worn-out and unsafe plant equipment, vehicles and machinery;
(c) providing poor quality grain for the animals which caused the animals to become sick;
(d) providing an unsafe truck for the transport of animals which led to an accident in March 2011 in which the plaintiff was involved;
(e) acting unreasonably and unfairly towards the plaintiff and other employees; and
(f) ignoring the plaintiff’s complaints and advice about the matters.
83 In relation to the issue of causation, the plaintiff must establish that the transport accident is a cause and not the cause of his injury. The majority of current medical evidence is that his current presentation is related to the transport accident.[51] I accept that there was no mention in the records or reports of the psychologist, Mr Joubert, of the transport accident. The plaintiff gave evidence that he thought he discussed the transport accident with Mr Joubert. Mr Joubert has not seen the plaintiff since 2013.
[51]As per the reports of Dr Tolat, the general practitioner and Dr Tagkalidis
84 I accept that the WorkCover Claim Form filled out by the plaintiff on 29 September 2011 does not refer to the transport accident. The medical evidence is that the plaintiff was most unwell. However, I note that in October 2011, the plaintiff was discussing the transport accident with his general practitioner and the report dated 24 October 2011 of Dr Das, completed at the request of the defendant’s insurer, diagnosed the plaintiff with Major Depression which developed in the context of his experiences in his three-year employment, and had rapidly worsened since the traumatic experience related to the transport accident involving cows in March 2011.
85 I accept that the plaintiff has established causation in relation to the transport accident.
Aggravation injury
86 The evidence is that the plaintiff experienced mental health issues arising from his employment before the transport accident; however, he was able to continue working. The plaintiff’s evidence was that as a result of a number of work-related events, by mid-2009, he had developed suicidal thoughts and in late-2009, attempted to hang himself on one occasion. He did not tell his wife about this, nor did he seek medical help.
87 As a result, the plaintiff consulted his church pastor, who provided counselling regularly, which was very helpful. The plaintiff said he completed a course of forgiveness with the pastor, which settled much of his anger, and his mood.[52] The plaintiff’s evidence was that the counselling was for approximately six months and then tapered off. The plaintiff’s evidence was that he improved as did things on the farm.[53]
[52]T35, L20 – T37, L4, T55, L25 – T56, L9
[53]T56, L15-18
88 In November 2010, the plaintiff consulted his general practitioner with fatigue-related symptoms and reported past Depression.[54] I accept that it is reasonable to infer that the plaintiff was not complaining of Depression.
[54]T56, L10-21, L30
89 In January 2011, the plaintiff was referred by his general practitioner to Dr Maydom, physician, and Dr Scarlett, haematologist, in relation to unrelated matters. Dr Maydom reported that, by the time of the appointment, the plaintiff reported being able to fulfil all his farming responsibilities and denied any psychological problems.
90 The medical records of the general practitioner confirm that on occasions prior to June 2011, the plaintiff attended for unrelated matters. The first record of a diagnosis of Depression was in June 2011. On that occasion, the plaintiff reported a history of Depression and being seen by a psychologist, with effect.
91 It was accepted by both counsel that the reference to a psychologist by his general practitioner in the medical records, was a reference to the plaintiff consulting with his church pastor in 2010. In June 2011, the plaintiff was referred to a psychologist and later, a psychiatrist. Since December 2011, the plaintiff has consulted psychiatrists regularly, is on medication and has been hospitalised on two occasions.
92 In respect of an aggravation to a pre-existing condition, Southwell and Teague, JJ in Petkovski v Galletti,[55] said the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury. The court said:
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment … .”.
[55](Supra) at 443
93 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a serious long-term impairment or loss of a body function.
94 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident is a severe and long-term mental, or severe long-term behavioural disturbance or disorder.
95 I accept that prior to the transport accident, in 2009, the plaintiff suffered from Depression and developed suicidal thoughts with an attempt to hang himself. At the time, the plaintiff did not report his Depression to his general practitioner. He received counselling over a period from his pastor. The plaintiff’s evidence was that he improved as did things on the farm.
96 The plaintiff suffered from unrelated medical conditions. In November 2010, he consulted his general practitioner, on occasions reporting fatigue-related symptoms and reported past Depression. It is clear from the entries that the general practitioner considered his presentation related to unrelated medical conditions. The plaintiff was referred to Dr Maydom, physician, who, in February 2011, did not attribute the plaintiff’s condition to any psychological event or condition. Further, he stated that the plaintiff was able to fulfil his farming duties around the farm.
97 In February 2011, the plaintiff was reviewed by Dr Scarlett, haematologist, who had access to Dr Maydom’s findings and confirmed the plaintiff’s presentation was related to his other medical conditions. I accept that in February 2011, the medical evidence is that the plaintiff was not suffering, or being treated for, a psychological or psychiatric condition.
98 I must consider the plaintiff at the current time. The plaintiff now suffers from a Chronic Major Depressive Disorder, receives ongoing regular medical treatment and has been hospitalised on two occasions, and has no capacity for work.
99 Based on the majority of the medical evidence, I accept that as a result of the transport accident, the extent of the additional impairment the plaintiff has suffered is the difference between being able to work as a farm manager, performing physical work and being lethargic on occasions, to a position where he has no work capacity and he requires constant medical treatment, including significant levels of medication and hospitalisation on two occasions.
100 I am satisfied that the plaintiff’s impairment is permanent. I note the impairment has remained since 2011. There is no medical evidence to suggest the plaintiff will improve. Given the plaintiff’s age of thirty-two years, this is particularly notable. In fact, Dr Tolat said, given the nature of the chronicity of the plaintiff’s symptoms and the modest improvement he has made over the past six years, she remains sceptical as to the plaintiff’s ability to return to full-time work in the future. She said the plaintiff will require ongoing psychological support on a one-on-one basis.
101 Dr Tagkalidis accepted the plaintiff was not fit for pre-injury employment, nor was he fit for alternate duties, and given the fact the plaintiff has been unwell for over five years and has had appropriate psychotropic and psychological therapies, he could only conclude that his condition is treatment-resistant and, therefore, indefinite. He said the plaintiff will require ongoing long-term psychiatric review into the future.
102 I am persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers as a result of the additional impairment satisfy the test. I accept the consequences to this particular plaintiff are severe. I accept that when judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least very considerable and more than significant or marked, as the plaintiff’s consequences have persisted for almost five years and as there is no evidence to suggest improvement in the future, in my view, his impairment is long term.
103 Taking all the evidence into account, I am satisfied the plaintiff has a longstanding severe impairment.
104 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the injuries sustained in the transport accident.
105 I will hear the parties on costs.
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