Talbot v Deamer

[2007] NSWDC 174

CITATION:	TALBOT v DEAMER [2007] NSWDC 174
HEARING DATE(S):	14 - 15 August 2007
JUDGMENT DATE:	23 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1.There will be verdict and judgment for the plaintiff in the sum of $778,079.40; 2.The defendant is to pay the plaintiff’s costs of the proceedings; 3.The exhibits will be retained for twenty-eight days; 4.The parties have liberty to restore the matter to the list within seven days in the event that there is any further argument to be heard in respect of the costs order.
CATCHWORDS:	Extent of psychological injury - Whether cardio-vascular condition the result of the motor vehicle accient - Conclusive nature of certificate of whole person impairment
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Brown v Lewis (2006) 65 NSWLR 587 Pham v Shui (2006) MVR 231
PARTIES:	Malcolm Brian TALBOT Daniel DEAMER
FILE NUMBER(S):	Coffs Harbour 35/2007
COUNSEL:	Plaintiff - M J Cranitch SC - M Inglis Defendant - J Bellew SC
SOLICITORS:	Plaintiff - Commins Hendriks Defendant - Moray & Agnew

HER HONOUR
JUDGMENT

1 In this matter the plaintiff, Mr Malcolm Talbot, is a former police officer who had responsibility for a one man police station at Ganmain in south-western New South Wales. He faced a life threatening situation when the defendant deliberately drove his motor vehicle at him a number of times at high speed. Liability for the incident is accepted by the defendant.

2 The plaintiff claimed injuries resulting from the incident.

3 The issues to be determined were as follows:

1. It being accepted by the defendant that the plaintiff suffered post-traumatic stress disorder as a result of the incident, the issue went to the severity of the injury and its ongoing consequences to the plaintiff.

2. Whether the cardiovascular disease causing angina, which manifested in October 2004, was a consequence of the motor vehicle accident, or, if the disease was a pre-existing condition, whether it was exacerbated as a consequence of the accident.

4 The defendant had a history of mental illness. In March 2002, in the course of his duties, the plaintiff was called upon to attend an incident involving the defendant, the result of which was that the defendant’s car was confiscated and impounded at Wagga Wagga. When told that he would have to go to Wagga Wagga to retrieve his vehicle, the defendant said to the plaintiff: I’ll say a prayer for you, chocolate, because you won’t be around for long.

5 On the evening of 15 April 2002, the plaintiff received a call from the licensee of the Matong Hotel for assistance in dealing with the defendant. He received a second call to the effect that the situation had become urgent and that the defendant had driven off in the direction of Ganmain.

6 The plaintiff drove towards Matong and came upon the defendant and his vehicle stationary in the centre of the road. The defendant drove his vehicle at high speed directly towards the plaintiff. The plaintiff moved his police vehicle as far to his left as possible but, he said, the wing mirrors of the two vehicles touched. Each turned their vehicle around and the defendant again drove towards the plaintiff and, again, another near miss was involved.

7 The plaintiff said that he decided that he had to put a stop to what was happening and he parked in a driveway of a nearby property and got out of his truck. He pulled out his firearm, intending to shoot at the defendant if necessary. He said the defendant drove straight towards him again and pulled up shortly before the point where the plaintiff was standing. The plaintiff told the defendant to get out of the car and before alighting from his car, the defendant felt around in it, the plaintiff apprehending that he was looking for a weapon.

8 When he got out of the car, the defendant had nothing in his hands and so the plaintiff holstered his gun. The defendant said to the plaintiff: You’re dead and came at him. There followed a struggle, in the course of which the plaintiff overcame the defendant and placed handcuffs on him.

9 The plaintiff said he then heard sirens of other police vehicles attending the scene. They had been called from Narrandera. The plaintiff said that his superior officer, who attended from Narrandera, said words to him to the effect: You’re white. The humour of this statement will be appreciated from the fact that the plaintiff is Aboriginal.

10 The plaintiff said he was shaking all over. The defendant was placed in the back of a police truck but continued to make threats towards the plaintiff. The plaintiff said he took a cigarette to calm his nerves. He had given up cigarettes after an operation for a quadruple bypass in 1999.

11 Before proceeding to deal with the issues, I set out some of the background to those issues.

12 The plaintiff, as I have mentioned, is Aboriginal. He was born in 1955 at Moree and was forty-six years old at the time of the incident. He is now fifty-two. He was educated to the age of fourteen, and started work as a labourer.

13 He undertook a tertiary preparation course in Nowra, and entered the police force at the age of thirty-five. Legal complications concerning his age required some duplication of his studies but he graduated in 1992 as a Probationary Constable. He was elevated to the status of a full Constable, and in 1995 posted at Ganmain, a one man station, where he lived with his second wife and their three children.

14 In 1997 he was promoted to the rank of Senior Constable with glowing references from his superior officers.

15 In 1999 he suffered the heart problems that I have already referred to and he underwent a quadruple bypass operation. Following surgery, he returned to full duties, some of which required considerable physical exertion. I have already noted that he had given up smoking after this surgery and, he said, he reduced his consumption of alcohol.

16 After the incident he complained of the following.

1. Having smoked a cigarette immediately after the incident to calm his nerves, he took up the smoking habit in greater quantities than previously. He said he also drank more. There was evidence to suggest that he developed a dependence upon alcohol.

2. He became hyper-vigilant, constantly checking doors and windows, and sleeping with a firearm under his pillow.

3. He avoided dealing with people at the police station and put them off until other police arrived to deal with them.

4. On some days he was considerably delayed in putting on his police uniform and he was unable to get into his police vehicle.

5. The defendant was charged and received a custodial sentence. He was released in March 2003. At that point, security for the plaintiff and his family at the Ganmain Police Station was increased and the plaintiff was required to work the day shift only.

6. At one point, when the plaintiff was out on a call, a prowler set off an alarm at the home that was then occupied by his wife and his three children.

7. The plaintiff experienced nightmares and disturbed sleep. Those nightmares included a sequence in which he actually shot the defendant. The plaintiff said that after these nightmares he woke in sweat.

8. He was transferred to the police station at Yamba in March 2003. At this point he said he lost interest in police work because of his continued insecurity. He continued to suffer from nightmares and insomnia and he smoked and drank to excess.

9. He was irritable with his family. His treatment of his family, he claimed, resulted in a separation from his wife in October 2005. Initially the children went with his wife but Kara, the youngest, returned to reside with him.

10. In October 2004 he suffered an angina attack for which he was hospitalised.

11. The plaintiff claims that his physical capacity was restricted by his angina and he was no longer capable of fully operational police duties. He was placed on restricted duties at the Grafton Police Station and for a period of time was engaged for three days a week in clerical work. However, he was subsequently required to undertake work which involved dealing with the public, responding to phone calls and working in the cells. He said that this was work that, on medical advice, he should not have been doing. It aggravated his angina and he had a particular problem dealing with mentally ill persons.

12. The plaintiff’s nightmares continue, although he says they are now less frequent.

17 The plaintiff initially said that he had not worked after August 2005 when he was certified as unfit. He subsequently agreed that he may have last worked in mid-2006.

18 In July 2007 he formally retired as medically unfit.

19 The plaintiff said that six months ago he stopped smoking and he has also reduced his intake of alcohol, both to the benefit of his general health.

Issue one – Severity of psychological injuries

20 On this issue the defendant pointed to the apparently limited extent of medical treatment sought by the plaintiff stating that, if he was suffering to the degree which he claimed, a greater amount of medical treatment would have been provided.

21 The evidence of treatment while the plaintiff was at Ganmain was of three consultations with his general practitioners, a one half hour consultation with the police psychologist, and up to five consultations with Dr Blake who was probably a psychiatrist.

22 The plaintiff said that he was offered medication by Dr Blake but he declined because he wanted to remain alert in order to deal with what he perceived to be a continuing risk.

23 In October 2004 the plaintiff consulted Dr Thakur concerning his chest pains. Dr Thakur’s letter of referral to Dr Graham, a cardiologist at Lismore Hospital, dated 28 October 2004, makes reference to family stresses but no reference to the incident or to any post-traumatic stress disorder.

24 To me it appears logical that the reference to family stresses would be made at a time when the plaintiff was only recently separated from his wife and family.

25 Finally, I was pointed to the fact that the plaintiff continued to work full time and apparently on unrestricted duties until October 2004, in particular, a full year in a one man police station at Ganmain, until his transfer to Yamba.

26 I do not accept this part of the defendant’s arguments.

27 As far as working full time was concerned, there was evidence from the plaintiff that, for a period at Ganmain, he was limited to day work only and that he received considerable support from his police colleagues from surrounding towns, who did some of his work for him.

28 It does appear that the medical treatment provided to the plaintiff in respect of his psychological injury has been less than optimal but the defendant’s argument overlooks the medico-legal evidence that supports an ongoing condition of chronic post-traumatic stress disorder of significant severity.

29 Mr Wallace Hall, psychologist, examined the plaintiff in March 2003, about a year after the incident. He set out symptoms reported to him by the plaintiff as ongoing throughout that period. He stated at page 5 of his report:

Whilst there was some reported diminution in the frequency and severity of Mr Talbot’s symptoms whilst the offender was in custody, there has been a re-emergence of the symptoms following the offender’s return to the community. In cases where compensatory payments are linked to psychological impairment, it is not uncommon for the individuals to exaggerate their symptoms or to adopt sick or helpless roles. During the examination there was no evidence that Mr Talbot had followed any of these courses.

30 Mr Wallace Hall diagnosed chronic post-traumatic stress disorder and assessed the plaintiff’s condition as seriously disabling. He said that resolution in the short term was unlikely and he recommended ongoing treatment.

31 Dr Howe, a psychologist, treated the plaintiff between October 2004 and May 2005 after his separation from his wife. In his reports he referred in detail to the plaintiff’s ongoing symptoms and he related the marriage breakdown to the plaintiff’s behaviour as a consequence of these symptoms. He also referred to the inadequate treatment of the plaintiff’s symptoms of post-traumatic stress disorder.

32 His diagnosis was of chronic post-traumatic stress disorder and a major depressive episode and he recommended treatment.

33 Dr Gertler saw the plaintiff in May 2003, just over one year later. He reported on the plaintiff’s continuing symptoms and recommended treatment. He stated that even with treatment, it was likely that the plaintiff would have residual symptoms that could affect his capacity to cope with his work.

34 In August 2005, Dr Gertler recorded that the plaintiff had continuing symptoms and that his condition had deteriorated. He said his depression had reached major proportions. He recommended anti-depressant medication but maintained that, even with this treatment, it was unlikely that the plaintiff would be able to cope with his work in the police force.

35 Dr Walden examined the plaintiff in September 1995 on behalf of the defendant. She accepted that the plaintiff’s symptoms had their genesis in the incident of April 2002, and she diagnosed post-traumatic stress disorder, major depression and alcohol dependence. She recommended treatment.

36 Dr George, in August 2005, diagnosed chronic post-traumatic stress disorder and recommended anti-depressant medication. This time the plaintiff accepted the medication and he reported that they were of some assistance to him.

37 A number of psychologists at the Vocational Capacity Centre reported on the prospects of alternative employment. They described the plaintiff as motivated for employment but stated that he was suffering from post-traumatic stress disorder of chronic duration with a severe level of impairment in function.

38 This was the prevailing opinion of the medical experts until the plaintiff was examined by Dr Lee, psychiatrist, in June 2006. Dr Lee raised concerns about the plaintiff’s credit. He referred to a report of a Mr Raue, psychologist. This report was tendered but was rejected for a number of reasons and it is therefore not in evidence. Dr Lee made reference to a statement of Inspector Bar indicating that there were other reasons for the transfer of the plaintiff to Yamba in addition to the incident of April 2002. Inspector Bar’s statement is not in evidence and Inspector Bar was not called to give evidence.

39 It was said that Dr Thakur, general practitioner, questioned the veracity of the plaintiff’s reports of cardiac treatment. Dr Thakur was not called and there was no written evidence to support this assertion.

40 There was reference to the comments of a Mr Hyland, who was not called.

41 There was reference to Mr Raue’s reporting disciplinary issues and a gambling problem. These were denied by the plaintiff and there was no evidence called to support these assertions.

42 Dr Lee concluded that there was no evidence of a psychiatric disorder related to the motor vehicle accident. He based his conclusion on:

(a) the plaintiff’s reports that he had suffered from depression after the 1999 heart surgery;

(b) his understanding that the plaintiff made no mention of a psychological disorder until his claim in respect of his cardiac condition was rejected;

(c) his assertion that there was evidence that the plaintiff was being investigated for serious firearms offences;

(d) his assertion that his general practitioner considered that the plaintiff was not open about his cardiac treatment; and

(e) a statement of a rehabilitation coordinator that his symptoms were a reflection of his cunning.

43 Dr Lee stated that these factors suggested that the plaintiff was falsely reporting his symptoms and that he was exaggerating or feigning symptoms.

44 None of the factors referred to by Dr Lee were supported by the evidence and his report is rejected in its entirety.

45 Unfortunately, this report was provided to Drs Walden, Zeman and Westmore.

46 Dr Walden, in July 2007, pointed to the error by Dr Lee concerning the time at which his psychological symptoms were first reported. Notwithstanding the other matters raised by Dr Lee, she maintained her opinion that the post-traumatic stress disorder was related to the incident, although on the basis of the matters raised, she concluded that it was only partially related to that incident and partially to other issues.

47 I am satisfied that there was ample evidence of the plaintiff’s ongoing symptoms from the time of the incident until the time of the hearing and of a chronic post-traumatic stress disorder of considerable severity.

Issue two – The plaintiff’s cardiovascular disease

48 I have already referred to evidence that the plaintiff underwent quadruple bypass surgery in 1999 from which he was recovered and following which he returned to police work on full duties. There was no evidence that he had any difficulty in undertaking those duties or that he had any ongoing symptoms until he experienced chest pains in October 2004.

49 There was much medical evidence on the question of whether the plaintiff’s post-traumatic stress disorder had resulted in a fresh outbreak of heart disease or whether the angina attack suffered in October 2004 was the result of progression of the pre-existing disease.

50 Fundamental to this issue was the question of whether the material contained in the report of Dr Johnson was conclusive on the issue of causation. Dr Johnson was appointed by the Medical Assessment Service to examine the plaintiff on 23 October 2006 for the purpose of determining the dispute between the parties as to the degree of permanent impairment of the plaintiff as a result of the injury caused by the motor accident. The italicized words have been taken from s 58(1)(d) of the Motor Accidents Compensation Act 1999.

51 S 60(1) of the Act describes a disagreement of this nature as a medical dispute. Under s 61(2)(a), the assessor is required to certify whether the degree of permanent impairment of an injured person is greater than 10 per cent.

52 Dr Johnson certified on 30 October 2006 as follows:

The determination made in relation to this dispute is as follows: The following injury caused by the motor accident gives rise to a whole person impairment which in total is greater than 10%.

Cardiovascular disease - angina.

53 It will be noted that Dr Johnson’s certificate was issued solely on the basis of injury to the cardiovascular system. His precise diagnosis is set out at page 8 of his accompanying reasons, in the following terms:

Mr Talbot suffered in an MVA on 15/4/02:

Post traumatic stress disorder with a severe chronic anxiety and depression requiring medical treatment following the motor vehicle accident, and this contributed to the progression of his pre-existing coronary artery disease and reappearance of angina earlier than would have been expected. He tends continues to suffer almost daily angina and despite medical treatment, his lifestyle and exercise performance has been severely limited.

54 The question is whether the certificate is conclusive, not only in respect of the degree of whole person impairment, but as to whether the injury certified to be the cause of the impairment was caused by the motor vehicle accident. I received oral and written submissions from the parties on this issue.

55 The defendant relied upon the decisions of the Court of Appeal in Brown v Lewis (2006) 65 NSWLR 587 and Pham v Shui (2006) 47 MVR 231. Each of those decisions dealt with the extent to which a certificate under s 61(2) was to be regarded as conclusive for the purposes of calculating economic losses claimed by a plaintiff. In each case it was held that the conclusive effect of the certificate was limited to matters relating to non-economic loss and that it has very limited application in dealing with economic loss.

56 The defendant has extrapolated from these decisions the principle that the assessor’s finding is non-conclusive, both for the purposes of assessing economic and non-economic loss, concerning the injury that was caused by the accident. I do not accept this proposition.

57 In my view, a finding that an injury was caused by the accident must be fundamental to a determination of the degree of whole person impairment of the injured person as a result of the injury caused by the accident.

58 I accept that a finding that the cardiovascular injury was caused by the motor vehicle accident must be dealt with as evidence in conjunction with other evidence when it comes to the assessment of the plaintiff’s economic loss.

59 Were I to reach a decision different to Dr Johnson in respect of the injuries for which he is to be compensated for his non-economic loss, I would undermine the whole basis upon which his assessment of the whole person impairment was arrived at.

60 The legislation specifically states that I must regard that assessment as conclusive with limited exceptions which do not arise in this case.

61 Were I to be wrong in this conclusion, the findings of Dr Johnson are in any event consistent with the opinions of the plaintiff’s cardiologist, Dr Mumford, those of Professor Tennant, Professor O’Rourke and Drs Zeman and Westmore.

62 Dr Mumford was the plaintiff’s treating cardiologist. His opinion was that post-traumatic stress disorder would have exacerbated the frequency of the plaintiff’s angina attacks.

63 Professor Tennant was firmly of the view that the plaintiff’s post-traumatic stress disorder and depression contributed to the exacerbation of his pre-existing heart disease. He attached to his report a number of articles that he has published on this topic.

64 Professor O’Rourke noted that the plaintiff had taken up smoking again after the 2002 incident and stated that this could have predisposed him to the recurrence of heart disease. In his report of February 2006, Professor O’Rourke said, in response to the following question:

What is the relationship between the plaintiff’s complaint and the accident?

Mr Talbot’s symptoms of ischaemic heart disease recurred after the motor vehicle accident. He had previously been asymptomatic following successful revascularisation. There had been evidence of progression of native disease in coronary arteries following the accident and compliance with attention to risk factors had been impaired following the accident. Emotional problems appear to have been caused by the accident and heightened awareness of cardiac symptoms.

65 In a further report of 24 July 2007, Professor O’Rourke, on the basis of information that there were no reported symptoms of post-traumatic stress disorder in the months leading up to the angina attack, expressed the opinion that it was probable that the attack in 2004 was due to the progress of the pre-existing condition and not to the motor vehicle accident.

66 I have already noted evidence which establishes that this information provided to Professor O’Rourke was wrong.

67 Dr Zeman referred to both the reports of Dr Lee and Mr Raue and the unsubstantiated and incorrect information contained in those reports. This material appears to have influenced Dr Zeman’s opinion of the plaintiff’s credit and the extent to which his complaints were genuine.

68 On the issue of causation, however, he accepted that psychological stress could precipitate cardiac events but stated that they do not affect the progression of artherosclerosis or small vessel cardiac disease.

69 Dr Westmore agreed with Dr Zeman.

70 It will be seen that there is considerable medical evidence to support the plaintiff’s claim that the incidence of angina which manifested in 2004 had been at least contributed to by the psychological injuries suffered as a result of the accident.

Findings on Issues one and two

71 I find that the plaintiff suffered, as a result of the accident, psychological injuries in the nature of post-traumatic stress disorder and depression and the acceleration and exacerbation of his pre-existing heart disease.

Assessment of Damages

72 In assessing the plaintiff’s non-economic loss, I have already referred to the evidence of the serious effects of the incident upon the plaintiff’s physical and mental health.

73 His daughter, Kara, gave evidence concerning the change in his disposition following the incident. She said that prior to the incident they had led a normal family life. After the accident, she described a man who drank more, who was volatile, withdrawn and who accompanied the family on few outings. She said she had since persuaded him to reduce his alcohol consumption.

74 The consequence of the injury has been that the plaintiff has separated from his wife and his two sons. He has lost his career as a police officer which he secured with some considerable effort. His already limited life expectancy has been further diminished.

75 I have assessed his non-economic loss at $160,000.

76 As far as income loss is concerned, the assessment of his past loss was difficult for the parties because of the limited documentation produced by the police force. The plaintiff’s tax return for 2002 supports his claim of $300 per week in allowances which he no longer received after the incident. I have therefore allowed the amount claimed in respect of lost allowances in the sum of $52,000.

77 For the balance of the past economic loss, I have allowed the amount claimed for worker’s compensation payback in the sum of $31,550.60.

78 Past superannuation losses are allowed in the sum of $5,670.

79 For the future, the plaintiff’s evidence was that he intended to continue to work until the age of sixty-five. There is evidence that the psychological injury alone rendered him unfit for duties as a police officer but the defendant argued, and I accept, that the plaintiff has some residual earning capacity which was demonstrated by the clerical work which he undertook on a part time basis for a period while at the Grafton Police Station.

80 The plaintiff stated that his intention was to move to a property near Ashford, which is operated by the Aboriginal community, and to engage in work on behalf of the community.

81 It was suggested that I should adjust the vicissitudes to 25 per cent to take account of the plaintiff’s pre-existing heart condition and his limited life expectancy. I have increased the amount of vicissitudes to 35 per cent to take account also of the evidence of his residual earning capacity.

82 I have allowed for future economic loss the sum of $326,495.

83 Future superannuation has been discounted also by 35 per cent to arrive at a figure of $40,094.

84 A claim has been made for domestic care. I accept the claim of two hours per day in the past as reasonable in the sum of $48,000.

85 For the future, a claim is made of ten hours per week for twenty years. The defendant argued that the allowance should be of two and a half hours per week on the basis of evidence that, prior to the accident, the plaintiff’s wife was responsible for the majority of the housework. This overlooks the evidence that the plaintiff and his wife have separated and that Mrs Talbot is no longer available.

86 The plaintiff currently relies upon his eighteen year old daughter, Kara, who gave evidence of household services occupying her for about twenty hours a week. Kara proposes to move to Sydney in the near future. Accepting that her work is for both of them, the plaintiff proposes an allowance of ten hours a week.

87 I regard this claim as overstated. There is evidence that the plaintiff does have significant physical limitations but he is not totally disabled. Further, his physical limitations have not been caused by, but have been accelerated and exacerbated by the motor vehicle accident. This means that at some stage he would have required assistance in any event.

88 Taking these matters into account, I regard an allowance of five hours per week as reasonable.

89 I consider the twenty year period as optimistic. Life expectancies have been expressed by a number of the doctors, with the most optimistic being about twelve years. I have taken account of the history that the plaintiff’s grandparents lived to an advanced age and I have taken the halfway point between those two figures at sixteen years. I have allowed future domestic care, therefore, on the basis of five hours per week at $35 per hour for sixteen years, arriving at a figure of $101,412.

90 Past out of pocket expenses are allowed in the agreed sum of $2,857.80. Future out of pocket expenses are allowed for anti-depressant medication and as a contribution to part of the treatment which will inevitably be required in respect of the plaintiff’s heart condition. The allowance on this head is $10,000.

ORDERS

91 The orders which I make are as follows.

1.There will be verdict and judgment for the plaintiff in the sum of $778,079.40.

2.The defendant is to pay the plaintiff’s costs of the proceedings.

3.The exhibits will be retained for twenty-eight days.

4.The parties have liberty to restore the matter to the list within seven days in the event that there is any further argument to be heard in respect of the costs order.

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