Ganassin v Ulan Coal Mines Limited

Work Rosters

1. The Plaintiff stated that when he started in 2011 at Ulan he worked on the afternoon shift in a development panel. After about two years on the afternoon shift, he went into the secondary support crew which was a five on four off shift working ten hour days. [389]
2. A few months after starting, after being told that he might be losing his job, the Plaintiff stated that he was also missing his wife and children and that he was second guessing as to whether he made the right decision. He stated that he found it hard to hop in the car and drive away from his family and that his sleep wasn't good as he didn't know what was going to happen and whether he would have a job. He nevertheless described himself as coping at work and always presented and did his job, and did not have time off. [390]
3. Five or six months prior to 5 August 2016 the Plaintiff described going on what was described as the outbye night shift. That involved working five days, starting Sunday night and then finishing on Friday mornings. [391]
4. After his last shift he stated that he drove home, picked the children up from school on Friday afternoon, did the shopping, mowed the lawn, tried to get some cooking done and make things easier for his wife. [392] He said that there were times that he was tired coming off night shift. [393]
5. The Plaintiff's attention was drawn to statements recorded by Dr Allnutt in his report of 27 March 2017. There Dr Allnutt records:- At the time of the index injury he remained depressed, missing his family. He had also taken a new position on night shift but was getting on with everybody. His sleep was good nonetheless, and he had acclimatised to nightshift over a period of two weeks. His appetite and energy levels were good. He was going to the gym every day and was walking. His motivation was high, he had good self-esteem and thought he was really good in his new position. [394]
6. In response the Plaintiff stated that he enjoying his work because he loved his work. [395]
7. In cross-examination it was put to the Plaintiff that even when he was working four and five day breaks he wasn't finding it all that easy. He accepted this was so, stating it was manageable and it was good to be home. [396] He later accepted that he had a number or consultations with Dr Butler in which he quite frankly stated that he was having trouble both at work and at home even before he went to work at Ulan. [397]
8. The Plaintiff stated that when he was placed on the outbye night shift, working five days on and two off, he had no choice in the arrangement due to seniority. [398] Whilst he said he made it work he conceded he wasn't happy about it because he was not going to see his family as much. [399] He further accepted that there was a letter from management that the new arrangements were to take effect from 17 July 2016. [400]
9. Whilst working on the night shift, being five days on and two days off, the Plaintiff recalled knowing Mr Wilson who he described as a person that if you had a question "he was more than happy to help." [401] He denied complaining at every pre-shift meeting about how unfair it was and how he should not have to do it. [402] Later the Plaintiff accepted that after starting the new roster, he asked Mr Wilson whether anything could be done to get him back to his old working arrangements. [403] He stated that he could not remember being told if he was unhappy to go to the union but he did recall Mr Wilson assist him in writing a letter. [404]
10. The Plaintiff was asked but did not recall after the fire speaking to a Mr Nichols about being very unhappy with the change of rosters to work five days on and two off. [405]
11. Nevertheless, the Plaintiff accepted that after commencing at Ulan he continued to see Dr Butler and had consultations with him in which he was struggling as he wasn't around his children. [406]
12. Overall in cross-examination the Plaintiff stated that from the time he started working at Ulan whilst his family was living in Wollongong he found it hard but he and his wife made it work. [407] The Plaintiff rejected the suggestion that even before his transfer to 5 days on and two days off in July 2016 he was thinking of throwing his work in and giving it away. [408]
13. The Plaintiff's attention was drawn to a consultation with Dr Butler on 25 February 2016 where he records: - and how will impact on mood much improved on vortioxetine doing well looking at approaches to long and short term work options discussed impact and consequencs [sic] of change discussed ned [sic] to increase dose - does nto [sic] feel need to and happy at this dose [409]
14. The Plaintiff stated that he did not recall discussing that he was looking at long and short term work options and a discussion about the impact and consequences of change. He did not accept it meant that he was looking for a change of employment, stating he had only three changes in his working life. [410]
15. The Plaintiff's attention was drawn to a further consultation on 12 April 2016 where the notes record: - Not feeling well - states feeling flat Croaky throat, sore throat, headache, tired last 1-2 days Mother had a turn - needs gallbladder out - ?outpatient - had to leave work for same over weekend Everyone at work unwell with viruses Going to quit job - discussed Currently doesn't feel it is mood related, feels more viral On Brintellix and going well [411]
16. The Plaintiff stated that he did not remember discussing quitting his job. [412] He reiterated that it was hard moving between Wollongong and Ulan and working underground shifts however he was managing it. [413]
17. The Plaintiff stated that he did as much overtime as he could and loved doing what he was doing. He knew he was not at home and thought that rather than sit in his apartment he could provide for his family as his wife was still part-time. [414] The Plaintiff stated that the difference in his earning from mining compared to what he had been doing in Wollongong was $60,000 to $70,000 with overtime. [415]
18. The Plaintiff stated that before the event of August 2016, his wife had fallen pregnant with their fourth child. It was his intention at the time to continue working as an underground coal miner and they reinvoked plans to move to Mudgee and continue working full-time at the mines. He stated that his wife was looking at taking a secondment. [416]
19. Mrs Ganassin stated after her children were born there were a round of redundancies that were being offered at Bluescope and there was uncertainty as to whether the Plaintiff had a job. She stated that the Plaintiff then went for the position with the Defendant even though he wasn't made redundant as "it was well up in the air at that point." [417] Mrs Ganassin stated that even before the Plaintiff was offered the job they had discussed in the longer term moving to Mudgee. She stated that she had spoken with her work manager about the possibility of taking one or two years off for a period of time or perhaps forever. She started that they owned an investment property in Mudgee and the plan was to live in it for a number of years and then figure out what to do from then. Towards the end of 2012 they reconsidered their position as there was a threatened round of redundancies at the mine. Accordingly, they remained in Wollongong and the Plaintiff resided in Mudgee in various rental accommodations. [418]
20. Thereafter Mrs Ganassin felt pregnant with her fourth child. She stated that they discussed renting their home and moving the family to Mudgee at least during her maternity leave. She stated that the plan was not carried out due to the Plaintiff's injury. Up until that time she stated that the Plaintiff had not discussed quitting his work a coal miner. [419]
21. Mrs Ganassin stated that when the Plaintiff started working at the Ulan Coal Mine he returned to Wollongong on his days off. She stated that in 2009 the Plaintiff's father had passed away and he didn't have his affairs in order and the Plaintiff had a lot of work to do including fixing up some properties. [420] At that point the Plaintiff's workload was such that he had to come home and balance the limited time he had with the children and assist his mother. [421] She described his personality as unchanged, although he wanted more hours in the day. [422]
22. In cross-examination Mrs Ganassin conceded that at one point the Plaintiff's roster had changed to require him to work five nights on and two nights off. She could not recall whether that was imposed in the middle of July 2016 but recalled that she had a nanny at the time to assist her with the children. [423]
23. Mr Wilson stated that he had first met the Plaintiff in about 2012 although at that time they had been of different shifts. He conceded that a month before the fire of August 2016 he came to be on the same shift which required working on nightshift five days with two days off. [424] He stated that before each shift there was a meeting of the crew on the surface and in the period that the Plaintiff came onto his crew, the Plaintiff told him that he wasn't happy about having to be on night shifts. Mr Wilson said that the Plaintiff told him that it wasn't good travelling home because he didn't live local and the shifts were not helping with his home life. [425] Mr Wilson stated that he mentioned this generally at the start of every shift. Mr Wilson said that he advised the Plaintiff to talk to the Union President as the Union could have some say or assist them through seniority. [426] Mr Wilson conceded that he was a sort of go-between his workmates and the Union in the sense that people talked to him. [427]
24. In cross-examination, Mr Wilson conceded that as a starting point the fact that the Plaintiff came to him to complain to him about his shift allocation was consistent with him being a go-between. Similarly, in relation to the approach regarding CMI he conceded that the Plaintiff was seeking advice and he provided such advice as he was able to give. [428]
25. Following the fire he stated that the Plaintiff had not been back on his shift. He stated that two or three months after the fire he received a phone call in which the Plaintiff advised him that he was having problems with CMI in getting paid whilst he was off work, and his lung capacity had dropped. [429] He conceded that on the phone he came across as upset. Mr Wilson advised him to go and talk to the Union. [430]

OPL Mining Pty Ltd

1. Whilst working in mining the Plaintiff had also started a company called OPL Mining Pty Ltd with the aim of inventing manufacturing and/or selling equipment and/or devices to coal mining companies. [431] He stated that the Defendant bought ventilation underground doors and sliding poles used in ventilation as part of a door. [432]
2. The Plaintiff also designed a manifold pipe with the desire to manufacture and sell to coal mining companies and had it registered through a patent company. [433] The Plaintiff further designed a bag for lifting stone dust when using a razor duster. He stated that he did not fabricate that design nor was he aware of anyone else doing so. [434] Since August 2016 the Plaintiff stated that he did not continue with the activities of OPL Mining Pty Ltd. Although the company is still active, he said that he walked away from it as he didn't want to be involved in coal mines any more. [435]

The Plaintiff Ceases Work

1. Following the incident, the Plaintiff returned to work the following Monday. The Plaintiff stated that he was contacted at home the preceding Sunday by the operational manager, Mr James Johnson, and asked to return to work on the following Monday. [436] Mr Johnson was said to have told him that there was a team of people coming from other mines for an ICAM investigation and he needed to be there. Arrangements were made for the Plaintiff to attend at 11 am. [437] The Plaintiff stated that he had a doctor's note stating that he wasn't to go underground from Dr Casey. [438]
2. The Plaintiff stated that he was directed to go back underground to the site of the fire. He stated he felt terrible, had a panic attack when he got back to the where the incident was, couldn't hold himself up, was sweating, breathing heavy and crying. He was there for around two hours or longer. [439] He stated that he has not been back underground in the mine or any other mine since that event as he was scared. [440] The Plaintiff said that he only remained in Mudgee until Wednesday afternoon as he was not required to work the rest of his allocated roster. In the three days that he was there he stated that he went outside to pick up some rubbish and turn on a hose. [441]
3. The Plaintiff described that he returned to work between September 2016 and December 2016 during which he performed duties, including using the pressure hose in the wash down bay to wash machinery for the fitters or emptying duct bills that had come out from underground with rubbish in them. [442] He ultimately ceased work in December 2016 when his fourth child Leo was born in 6 December 2016. He stated that he did not go back to work as the Defendant "didn't have my back…they weren't looking after me." [443]
4. In cross-examination it was put the Plaintiff in a consultation with Dr Butler on 15 December 2016 he was given a carer's leave for a further four weeks as his wife had a caesarean section. He conceded that he was home and that his wife had a caesarean section but could not otherwise recall the details. [444] He did state, however, that he was at home because he was unable to work. [445] The Plaintiff could not recall having further carer's leave given on 12 January 2017 or 25 January 2017. [446] He was asked whether he recalled telling Dr Allnutt that the reason he actually went off work was because of the need to provide in effect carer's support at home after his wife's delivery of a fourth child. He responded stating that his wife had a caesarean and she wasn't able to lift things. [447] Otherwise he could not recall a conversation with Dr Allnutt in which he stated that he went off work because at the time his wife had complications secondary to the delivery of the last child and had to have a number of procedures. [448]
5. The circumstances in which the Plaintiff ceased work were recorded by Dr Allnutt as follows:- He eventually went off work because at that time his wife had complications secondary to the delivery of their last child and had to have a number of procedures. He went off work in December 2016 but there were no formal complaints about his performance at that time. He said that during his tenure at work in those six to seven weeks he took a few sick days. At the time he went off work he worked 24 hours a week. He was worked fewer hours than before in a job that was not the same and was of lesser responsibility. I asked him if he would have remained at work had his wife not had problems, and he said "I would have got to a point where I would not have gone to work." [449]
6. Dr Wendy Roberts on 14 August 2018 recorded the following history from the Plaintiff:- …I had a work program of going back on a part-time basis, doing surface operations only. It was very hard being back at work. I just got pushed back onto the washdown bay. Overseers would come to the crib room and talk to me about paperwork. It was not about me, they were not offering the help I'd asked for and it fell on deaf ears. I stayed a few months and there was a slow increase in my hours (during that time). I got up to four days a week on eight hour shifts of day work. It was pretty sad when a contractor could see my problems. I made it pretty clear I wanted to go back, but CMI didn't support it. They did nothing about supporting me at all. I got up to 32 hours a week and starting taking…It's very hard when you're at work and you're reliving everything and stuff is coming out and you are just alone in a corner. It was on paper but it was not written that you can go to the toilet, and if you do, you get spoken to. All I wanted was help and I didn't get it, so I got it myself. [450]
7. Mr Bass obtained a history that on the Plaintiff's return to work, he had two days onsite assisting the incident investigation and then took two weeks off work as sick leave. He then participated in a gradual return to work programme, which initially saw him performing above-ground duties, washing machinery by himself in a dedicated bay. The Plaintiff described himself as "jumpy" during the time onsite, and relayed an incident where an Undermanager cast doubt on his recital of the incident. He also relayed a conversation where he informed by a Mine Deputy that it looked as though he was being managed out. Mr Bass recorded that when underground duties were to be incorporated into his work, the Plaintiff was "startled" upon hearing a horn and then "bolted" and "hid and cried". He stated that he left work that day, leaving his work clothes on the floor of the change room and has not been back. He stated that there was a telephone conversation with his employer in late 2016 where he was informed that he could return to work once he was medically certified as able to do so. [451] The Plaintiff was not cross-examined as to that history.
8. Mrs Ganassin accepted that after her fourth child was born she worked fulltime whilst the Plaintiff is the primary carer for the children. [452] In cross-examination Mrs Ganassin stated this did not occur immediately after the fourth child was born as she was at home until the end of 2017. [453]
9. Mrs Ganassin was interviewed by Dr Allnutt who recorded in his report of 21 December 2018: .. At the time of the index injury she recalled being between five and six months pregnant and they had discussed whether she should return to work for financial reasons (because of his mental state). She said at the time "Rob was a mess." [454]

Submissions

1. As part of its submission attacking the Plaintiff's credit, the Defendant highlighted that the Plaintiff stated that he had only lost time through injury or illness because of a broken wrist. However, it submitted that the evidence indicated that he had both compensable back and foot injuries whilst employed by Bluescope. [455]
2. The Defendant submitted that it was open to question the Plaintiff's motivation to continue working with the Defendant given the contents of the clinical notes of Dr Butler on the very topic. [456] In this respect it was submitted that the Plaintiff's evidence in cross-examination as to how he parted company with the Defendant as they "just didn't have my back" [457] was to be contrasted with the contemporaneous records about him having to become a domestic carer with a continuation of that situation. [458]
3. It submitted that in any event, the Plaintiff would not have stayed in his role as a miner as he was considering leaving his job, particularly after he had been forced into a shift change, which left him only two days a week to travel to and from Wollongong. [459]
4. The Defendant drew attention to the account recorded by Dr Allnutt (in his report of 27 March 2017), that he had "taken" a new nightshift roster and was enjoying it. This contrasted with his contemporaneous statements to Dr Butler in consultations on 25 February 2016 and 12 April 2016. The Defendant submitted that it was noteworthy that when the Plaintiff had told Dr Butler he was going to quit his job on 12 April 2016 he was yet to be transferred with a more burdensome roster, especially for a man who had to spend nine hours on his weekend driving to and from Wollongong. Moreover, his evidence as to satisfaction with the change in his working situation was contradicted by the evidence of Mr Wilson, noting that Mr Wilson's evidence in this regard was not touched on in cross-examination, let alone challenged. [460]
5. The Plaintiff argued that so far as the failure to mention the back condition and foot injuries were concerned whilst they were compensable injuries, there was no evidence that he had any time off due to those conditions and it would not be fair to make a finding of an inconsistency based on those answers. [461]
6. The Plaintiff drew attention to Mrs Ganassin's evidence in relation to the claim that him leaving contrasted with the fact he became a domestic carer. It drew attention to the fact that Mrs Ganassin stated that she had a caesarean section and she was unable to perform various activities for about four weeks. She stated that after that time the Plaintiff was not needed to continue to be a domestic carer. [462]
7. In so far as the Defendant pointed to Dr Allnutt recording that the Plaintiff was enjoying a new night shift roster, the Plaintiff submitted that his complaint about that roster to Mr Wilson did not suggest in any way that he was unhappy with his work as a coal miner. It suggested that while the Plaintiff may not have been happy with having to do the night shift and having the reduced amount of time off, it was a specific concern and not a general one as to whether he enjoyed coal mining. [463]

Consideration

1. On the evidence before me it is not apparent that either of the injuries occasioned at Bluescope were of much consequence, notwithstanding that the Plaintiff had treatment. I cannot be satisfied that the Plaintiff had any time off or at least of such significance that he would recall it. It follows that I do not accept the Plaintiff's answers reflect adversely on his credit.
2. Nor do I attach any particular significance to the contents in Dr Butler's notes of 25 February 2016 and 12 April 2016 as to the likelihood of the Plaintiff resigning his employment.
3. Dr Butler's note of 25 February 2016 was that he was looking at approaches to long and short term work options. What was recorded on 12 April 2016 was also in a context where the Plaintiff's mother had a turn and everyone at work was described as unwell. In subsequent consultations, Dr Butler documented chest complaints on 16 June 2016 but there was no mention of leaving his position. It is not clear if by that time the decision to relocate to Mudgee had been taken.
4. Despite Dr Butler recording that the Plaintiff told him that he went off work as his wife had complications secondary to the delivery of their last child, the evidence of Mrs Ganassin was that this pregnancy was not difficult except due to her age. She further denied that the Plaintiff went off work at the time to become the family carer, stating that she was at home until the end of 2017. She did state, however, that the Plaintiff took paternity leave while she recovered from a caesarean.
5. I accept Mrs Ganassin's evidence in this regard. It was largely consistent with that of the Plaintiff. It is not apparent that there was any need for the Plaintiff to provide parenting assistance following the delivery of the fourth child except perhaps during the period of paternity leave when Mrs Ganassin was in recovery. No doubt the Plaintiff found the change of rosters that restricted his family time difficult, leading to him making representations to Mr Wilson and complain to Dr Butler. However there is no evidence that before 5 August 2016 he was lacking in his commitment, not enjoying the substance of his work, had applied for positions elsewhere or mentioned any plans to anyone beyond the references in Dr Butler's clinical notes. To the contrary, there was evidence that he took up opportunities for overtime wherever he could. Furthermore, Mr Chapman described the Plaintiff in the most positive terms with regard to his observation when he came under his supervision. The Plaintiff returned to work on a return to work plan. Beyond that, the Plaintiff had established OPL Mining Pty Ltd and was transacting some business with the Defendant.
6. Mr Molinia recorded in his report of 26 August 2016 that the Plaintiff was eager to return to work subject to him clearing his head. A similar desire was recorded by Dr John Roberts in his report of 8 December 2016 (discussed below at [496]). Indeed the Plaintiff did return, albeit on select duties. The circumstances in which he came to cease work were described in Mr Molinia's reports which included references to increased anxiety whilst at work, predominantly when working near the drift and being in close proximity to the mine site.
7. The context of Dr Allnutt's question to the Plaintiff recording that he would not have continued working is not clear. It is not apparent as to whether the Plaintiff understood it as referring to the position in light of the events following 5 August 2016. In the circumstances I am unable to ascribe any weight to this response.
8. The Defendant's submission as to the timing of the roster change was contained in a letter that was not admitted into evidence. The Plaintiff nonetheless appeared to accept the letter indicated the change of arrangements were to take effect on 17 July 2016. However the evidence of Mr Chapman was that the Plaintiff came into the mid-week roster in February 2016. That is consistent with the Plaintiff's earlier evidence that he commenced the change six months prior to August 2016. The report of Mr Molinia dated 5 September 2016 stated that the Plaintiff was recently placed on a night shift roster of 5 x 8.5 hour shifts. Whilst Mr Wilson in chief said that he and the Plaintiff came to be on the same shift for about a month, it is not apparent as to what the circumstances were in which that occurred. In any event the discussions he had with the Plaintiff did not include any proposal by the Plaintiff to leave Ulan in the event his wishes were not accommodated.
9. Whenever the Plaintiff commenced on the new roster, neither he nor Mrs Ganassin were cross-examined in relation to their plans to move to Mudgee after she fell pregnant with their fourth child. Nor was it challenged that Mrs Ganassin would be on maternity leave after the child's birth and that she remained so until 2017.
10. Mrs Ganassin was not cross-examined in relation to the interview she had with Dr Allnutt, the subject of his report of 21 December 2018. Specifically, Dr Allnutt recorded that Mrs Ganassin had a conversation with the Plaintiff when she was five or six months pregnant, discussing whether she should return to work for financial reasons because of the Plaintiff's mental state. [464] Dr Wendy Roberts in her report of 14 August 2018 also recorded that she had been told Mrs Ganassin had previously worked part-time when the Plaintiff was working but now was working full-time as he was not working. [465]

Work with Cousin

1. In February 2017 the Plaintiff said that he started doing work with a cousin of in a business involving "balustrading, fabrication, glasswork, off the pool fencing or people's verandas." [466] This was through a company described as Ganassin Manufacturing Pty Ltd in which the Plaintiff and Mr Bryan Ganassin were directors from 1 February 2017 to 7 September 2017. [467] Work lasted for 7 to 8 months. The Plaintiff stated he often make costly mistakes from just cutting material at wrong lengths, and not listening to the instructions that were given to him. Ultimately the venture ceased and he has not performed any income earning activities since that time. He stated that he did not feel fit for fulltime work. [468]
2. In cross-examination the Plaintiff reiterated that he wasn't coping in the position, he made too many mistakes and this caused the enterprise not to be a success. [469] The Plaintiff conceded that he discussed with Dr Butler the work he did with his cousin. [470] The Plaintiff did not, however, recall telling Dr Butler on 21 August 2017 that he was struggling with his cousin as he was not organised and was lazy. [471] He rejected the suggestion that his cousin was lazy, describing him as "a gun" when it comes to fabrication. [472] He also did not recall saying in a consultation on 12 September 2017 with Dr Butler that he stopped working with his cousin "as poor work ethic and unable to manage." [473]
3. The actual note of Dr Butler dated 21 August 2017 relevantly records:- no real change sig financial proseesures [sic] sig burden and work ethic eating him up struggling with cousin as not organised and lazy impacting on family duscssed [sic] not to stop meds continue on vortioxetine [474]
4. On 12 September 2017, Dr Butler's notes relevantly record:- strglling [sic] as no work stopped iwt [sic] cousin as poor work ethic and unable to maange [sic] [475]
5. Dr Allnutt in a report dated 27 March 2017 recorded a history as follows:- …His cousin was currently helping him out. He cleaned balustrades and swept floors 10 to 12 hours a week in a small workshop, and said his performance was "not bad". He had been doing this for the last few weeks, about two hours a day. He said "What I'm trying to do is, if I get myself sorted I'd like to be on top of the ground. I can't go underground anymore. I want to get a partnership with my cousin". [476]
6. Dr Allnutt in a report dated 26 May 2020 recorded a history as follows:- He said about two years ago he and his cousin attempted to set up a business. His cousin was doing him a favour in doing this, but the business lasted about six months and folded because his cousin was concerned that the relationship was not working. His cousin regarded the plaintiff as 'a liability", saying he was going to end up hurting himself or somebody else because he was making too many mistakes, had no patience and was irritable and short tempered. [477]
7. Mr Bass in his report dated 5 April 2018, included a history as follows:- In early 2017 Mr Ganassin formed a company with an acquaintance, Ganassin Manufacturing. He said that this company was concerned with the bespoke manufacture of balustrades and handrails. He related experiencing significant cognitive difficulties while working in this business, including mnemonic difficulties, anger issues, problems sequencing tasks and following a series of instructions, and interpersonal issues. He said that at one time he attended the premises of a prospective client and was eventually asked to leave due to these difficulties. He said that he ceased working in this business after six months, and he has not worked since that time. [478]
8. Dr Wendy Roberts in her report dated 14 August 2018 obtained a history as follows:- I asked if he has done any work since. He told me that he did and referred to a cousin of his who "talked about trying to get me out of the house. He offered to babysit me. We started up a company together. He carried me as long as he could. He said it was not working. For six months, I tried balustrading. I wasn't going…I was stuffing up everything". I asked about any problems in the job. He replied "I lost it with customer and jobs and was not doing what was asked. Even when it was written down, I was cutting things wrongly and it was not beneficial for anything. I stopped it. I have nothing to do with this company any more". [479]
9. In his report of 4 October 2019 Dr John Roberts recorded:- …Mr Ganassin stated that he had worked with his cousin in the company Ganassin Manufacturing which dealt with glass, pool fencing and balustrading, he commented that this work had only lasted a few months; that the company was not profitable and that he made mistakes. [480]
10. The Defendant submitted that the Court should reject the Plaintiff's assertion that the business venture with his cousin failed was because of his own performance. This was said to be inconsistent with the suggestion in Dr Butler's notes, where it was submitted they recorded that the venture failed because of the Plaintiff's cousin. [481]

Consideration

1. Whilst it was put that Dr Butler's notes contradicted the circumstances in which the Plaintiff came to cease work with his cousin, a fair reading suggests that the matters referred to there can be read as relating to the Plaintiff's performance rather that his cousin's. Whilst the Plaintiff had little recollection of the matters raised in Dr Butler's notes, such a reading is consistent with what was recorded by Mr Bass and the Plaintiff's own evidence describing his cousin as a "gun" in fabrication. The issues reported by Dr Allnutt appear consistent with Dr Butler's consultation notes and the account given to Dr Wendy Roberts and Dr John Roberts.
2. Overall on the balance of probabilities I am satisfied that the relationship between the Plaintiff and his cousin ended due to matters concerning the Plaintiff's performance, not that of his cousin.

Motivation to Return to Work

1. The Plaintiff stated that he is hopeful that he would be able to perform some part-time work at the present time. In this respect, he stated that he would have to retrain himself and go back to take a look at a course at TAFE as he did not have the necessary licence or tickets to operate an earthmoving plant, a forklift, crane or drive a heavy vehicle. [482] He stated he still had his contracting license to work as a plumber. As to whether he would go back to being a plumber, he stated no, adding that he tried to go underneath his house to fix a pipe that was leaking and "freaked out." [483]
2. In cross-examination the Plaintiff stated that he hasn't been to TAFE to retrain in the time he has not been working as he has been trying to look after himself and trying to get back to the state that he was in prior to the incident. [484] When asked whether he thought retraining would assist his chances of getting back into the workforce, he stated that was easy to say if he had money but he doesn't. [485] He acknowledged that apart from work with his cousin he had not applied for any other kind of work. He stated that he went to Centrelink to speak to them and was given a lot of paper. [486]
3. The Plaintiff could not recall stating in his interview with Dr Wendy Roberts the prospect of further retraining being raised. Nor could he recall saying "I would have to re-skill myself in something. It's not viable not working. We can't live on one wage with four children." He further could not recall when asked by Dr Wendy Roberts as to his thoughts of retraining responding "no, presently nothing. I want to get this over and done with and get back to the person I was, not what I am." [487]
4. It was put to the Plaintiff that he was waiting for the Court case to conclude before making any serious effort to get back into the workforce. He rejected this, as well as the suggestion that he has been marking time for this case to get over and done with before he did anything serious about getting into the workforce. [488]
5. In cross-examination it was put to the Plaintiff that he had taken a key interest in the Court case since it had got underway. He rejected this, [489] but conceded that he nonetheless spoke to Drs Butler and Osborne about it as it is a place where he knows that he is safe and he can talk to them. [490]
6. The Plaintiff stated that he was told by his wife not to read reports as they came in as they would make him more upset. [491] He nonetheless gave evidence of reading reports of Dr John Roberts as referred to at [154].
7. His attention was then taken to a statement in Dr Butler's note of 16 September 2016, where it was put to him that he wanted to discuss aspects of a statement connected with the case. The Plaintiff did not remember and was unaware whether the statement would have been connecting to this case. [492]
8. Next the Plaintiff was taken to an entry in Dr Butler's notes of 20 February 2017 of him not being fit for underground work and the need to have a review with his solicitor and barrister. He could not recall nor explain why he would discuss a review with his solicitor and barrister with his doctor. [493]
9. Next, the Plaintiff was taken to an entry on 7 November 2017 where Dr Butler recorded "no movement on court case" The Plaintiff responded that he could not recall, however the doctor would ask him where things were up to and he would speak to him about it. [494]
10. The Plaintiff did not recall telling Dr Butler on 27 May 2019 that he was struggling with the ongoing court case and it had a definite impact on his mood. He also did not recall telling Dr Butler on 29 July 2019 that he was not doing that well at that point as the Court case was looming. He did not recall on 2 December 2019 telling Dr Butler that he had nil support from the legal system and was now looking at a court date of 2021. On 12 May 2020 he did not recall telling Dr Butler that he was struggling, his mood was low and he felt completely beaten up by the court system next month. The Plaintiff conceded that he was struggling with the case and that he was not doing well with the Court case looming. When asked whenever he saw Dr Butler he told him the truth about how he felt, he responded that he would talk to Dr Butler because it was a place where it was safe. [495]

Submissions

1. The Defendant submitted that the Plaintiff's denial that he had taken a keen interest in the court case contrasted with the clinical notes of Dr Butler and Dr Osborne who both made references to his concerns about the progress of the Court case. It point to the fact that the Plaintiff was referred to an entry of Dr Butler of 20 February 2017 about a review with his solicitor and barrister. This was coupled with other references, including in the history recorded by Dr Wendy Roberts, [496] where he stated that he would read her report "from front to back"; his display of distress in evidence in chief after Dr John Roberts had reported about his demeanour at the consultation; and his concern about the prospect of the case not being on "until next year" as disclosed to Dr Osborne. [497] This, it was submitted, was all contrary of his assertion in evidence. [498]
2. The Plaintiff's submitted that the Defendant's contention should be given no weight in terms of issues of credit and reliability. [499]

Consideration

1. I do not attach any particular significance to the Plaintiff's denial of taking a keen interest in the proceedings. Whether the brief entries in the clinical notes of the treating practitioners in a case of this nature amount to "keen interest" is a matter of conjecture. It is not clear when asked as to whether the Plaintiff understood this as a reference to the progress of the case or its content.
2. Further, it is not apparent how the topic arose in consultations. Neither Dr Butler nor Dr Osborne were questioned in this regard. Some observations, however, are pertinent.
3. The reference in Dr Butler's notes of 16 September 2016 appears to be a reference to the Defendant wanting the Plaintiff to return to work to discuss an aspect of a statement rather than an initiative of the Plaintiff. As to the clinical note of 20 February 2017, when read in its context, Dr Butler recorded "certificate for work 2 weeks leave", "will need to decide on way forward with work not yet fit for underground work given level of anxiety" and "will need to review with solicitor/barrister." That in itself is unremarkable.
4. As for the remaining entries, the present proceedings in this Court were formally commenced on 29 March 2018 although there were some previous proceedings in the Court's residual jurisdiction that appear to have been commenced sometime in 2017 and discontinued on 8 August 2018. [500]
5. The delay in the finalisation of this matter would be an understandable source of concern to any litigant. However described, the litigation and its outcome was no doubt of interest to the Plaintiff. In the context of this case I am satisfied that the Plaintiff was waiting for the finalisation of this matter before pursuing employment or retraining opportunities. However, for reasons earlier stated, I do not consider that his cessation of work with the Defendant was motivated by a desire that was unrelated to the incident of 5 August 2016.

Injuries

1. The Plaintiff gave evidence of being an active sportsperson at school. After leaving school he got involved in surf lifesaving rowing surf boats and doing voluntary patrols through various surf clubs. Between 1990 and 2005 he was a member of the Wollongong Surf Lifesaving Club. He gave evidence that from 2005 to 2016 he served as an associate member of the Wollongong City Surf Life Saving Club, performing the role of age manager from 2012 to 2016. This role required giving talks and instructions to younger children that was performed in the summer months. [501]
2. Following the incident of 2016, the Plaintiff described that he no longer did this as he didn't have it in him to do it anymore. [502] He also stated that he had no ongoing involvement with the Wollongong City Surf Lifesaving Club. [503]
3. Prior to August 2016, the Plaintiff described his relationship with his wife as very good and "beautiful", and that he was participating in activities with his children when he was back at home. [504] He stated that when he was not at his work he would go to school and do canteen work, help around the school yard, help children with reading, attend sporting activities surf club and have lots of social outings. [505] Prior to the fire he stated that he was the "go to person" with his children but now he was not like he used to be.
4. Beyond that the Plaintiff gave evidence of previously being involved in his children's sporting pursuits, particularly his son and daughter, both of whom were playing AFL. [506] Since August 2016, the Plaintiff stated that his involvement has decreased as he doesn't like being around crowds that are involved in going to games. He stated that he finds himself sitting in the car or dropping them off and picking them up. [507] He stated that he does not take his kids to sporting unless he has to. [508]
5. He stated that prior to the fire he was even-tempered but now was not. He said that he would blow up the smallest thing. His relationship with his wife had been affected including his sexual relationship. He acknowledged that his antidepressant medication had increased since the fire and seems to have calmed him down such that he is not as volatile. He stated that he feels that he gets more irritated easily that prior to the fire. [509] He stated that when driving a car, if he sees a coal truck anywhere near him he pulls the car off the road. [510] In terms of his relationship with his wife, he stated that he has had to spend some time sleeping in the pool house to stay away from her as "it's at breaking point". [511]
6. Prior to August 2016, the Plaintiff gave evidence that every time he came back from Mudgee he would have something organised through the week where they would catch up with friends or have friends come around. He stated he also put a pool house at the back of the house with the intention of knocking the front house down and then rebuilding. Whilst the pool house is being done he stated that everything is put on hold. [512]
7. In cross-examination the Plaintiff stated that if the COVID-19 pandemic had not descended it was his intention to go on a family holiday to Samoa. He acknowledged that that was going to put him in locations, such as airports, where there were a lot of people around. He stated that this was the first holiday they were thinking of having in years but he was prepared to do it. [513]
8. The Plaintiff described that since August 2016 his engagement with physical exercise has consisted of doing some outdoor training with an instructor as part of a group. He described that this had been recommended to him by his doctor. He stated that his wife was doing it and was taking him there for some months. [514]
9. In cross-examination the Plaintiff stated that he had been doing group exercise on and off for some three and a half years. [515] He stated that he would attend classes at least three times a week, although sometimes he would only attend two. [516] During the period of three and a half years there were breaks for periods of weeks. [517] Overall, he could not state how many weeks he was exercising but conceded that there were weeks that he didn't train and weeks that he did. [518] When he went to the group exercise classes he stated that they were 45 minutes in duration with a 15 minute warm up. [519] The classes varied. He accepted that activities included lifting hand weights, such as dumbbells and kettle bells, and he stated that there was a schedule out the front and you would do what you could do. [520] He accepted that there was a lot of physical activity handling weights and that he also did body weight squats and push ups. [521] He rejected the suggestion that what was involved amounted to a boot camp. [522]
10. Prior to the incident the Plaintiff described a good night's sleep as being 7 to 7 a half hours. Following the incident Plaintiff described a good night's sleep as being 4 to 5 hours with a poor night's sleep being two hours. Since the fire he stated that he had nightmares which started two weeks after the event. Those nightmares he described as being not too bad when he's not talking about what happened but "coming to court and everything else that's been going on the last few months, it's been terrible." [523] He stated that he often has flashbacks or memories of the fire and more recently that is all he has been thinking about. [524]
11. The Plaintiff gave evidence that the coughing has not resolved, and that he continues to suffer coughing fits and shortness of breath. He stated that he does not have the lungs he used to have. [525] For a good two years he described as coughing up black gunk. He further stated that he had a bad run of bronchitis since the fire. [526] He also stated that he wheezes and has put on weight, and that since the incident he has been anxious when going out in public and even having people around the house. [527]
12. The Plaintiff described himself as having daily panic attacks, where his breath starts getting short, he has a lot of pressure in his head and he starts to twiddle and fidget and look over his shoulder to see who is around him and what's going on. He states he does not like crowds. The panic attacks were said to last for a minute or two although it could be up to half an hour; when this occurs his heart rate "goes through the roof." He sweats a lot and has a lot of body odour. [528] He stated that he is withdrawn from his friends and does not want to talk about what happened states. He further stated that his memory has been impaired and his capacity to concentrate and self-confidence has been affected. [529] The Plaintiff stated that prior to the fire he was not a moody person but now is. [530]

Pre-Incident Health

1. Much attention was drawn in cross-examination to the Plaintiff's previous health history.

Coughing

1. The Plaintiff conceded that he had chest infections both prior to and since the fire. His attention was drawn to a consultation of 22 August 2008 with Dr Butler whose records disclose:- Still unwell continuing fevers cough, brown phlegm, occ blood cob myalgias continue Chest clear facial tenderness [531]
2. The Plaintiff did not recall the consultation. [532]
3. The Plaintiff's attention was drawn to a consultation with Dr Butler on 16 June 2016 where he records: increasing cough productive green mucus and coal dust never coughed up cola dust disucssed [sic] incrasing [sic] sputum o/e chest -creps right med zone good ae nil other firelds [sic] advised for augmentinDF If not imrpoving for CXR an dthen see [sic] [533]
4. The Plaintiff had no recollection of having a chest x-ray following this visit. [534] One did occur later the same day and the recorded results from Dr Arunima Gupta radiologist were as follows:- No concerning pulmonary parenchymal opacities or any pleural pathology is evident. [535]

Depression

1. In cross-examination, it was put to the Plaintiff he had been diagnosed with depression for some years before he went to Ulan colliery. He conceded that he was taking medication. [536]
2. On 18 February 2008 the Plaintiff consulted Dr Rodney Sloan. His records disclose the following:- (Presents with exhaustion + low mood) Presents with exhaustion + low mood Has 2-3 year old daughter + 3/12 twins 3/12 daughter unwell and inpatient at Sydney Kids Hospital with extreme reflux + Failure to thrive Wife staying in Sydney with daughter for last month Looking after other kids, and mentally and physically exhausted, balancing with work No TOSH No TOHTO Low mood Poor sleep 1-2 hours per day over last week Imp: Adjustment disorder. [537]
3. The Plaintiff stated that he had no recollection of saying those words or being advised that he had an adjustment disorder. [538]
4. In evidence in chief the Plaintiff stated that in light of the emotional issues he experienced when leaving Wollongong to travel to Mudgee, he at some point saw his GP Dr Butler who prescribed some antidepressant medication called Pristiq. He stated that he took this up until the incident of August 2016. [539] At some point he stated that he was prescribed Brintellix. [540]
5. In cross-examination it was put to the Plaintiff that he had been taking Pristiq since at least December 2011. He stated that he could not remember. It was further put that he had been taking the anti-depressant medication for about 6 months by the time he was at Ulan. He accepted this, however, did not recall telling the doctor he saw in Mudgee prior to commencing with the Defendant. [541]
6. The Plaintiff's attention was also drawn to a consultation with Dr Butler on 29 November 2011 when recorded the following:- (Depression) seevre depressuion [sic] not managing at all sig lability [sic], tearful not maanling [sic] at all with work or home feels like walking disucssed [sic] at length issues DASS high depression disucssed [sic] medication and need to refer to psychology to address underlying triggers etc for MHCP [542]
7. With reference to this consultation, the Plaintiff gave evidence that they were "hard times, we had a young family, a lot going on." He did not recall any mention of a need to address underlying triggers or high depression. It was put to him that it was at that time that he went on Pristiq. He stated that he remembered the medication but cannot recall what he was on. [543]
8. The clinical notes of Dr Butler record on 13 December 2011 that the Plaintiff was:- (Depression) doing well with pristiq anger nad [anxiety setled [sic] well seeing wood for teh trees [sic] and able to think around issues mood not lifting but only one week advised for Pristiq 50 mg and see in 4 weeks to review [544]
9. Dr Butler's notes thereafter record on 3 January 2012:- (Depression/Anxiety) stopped taking tablets as was doing well then has crashed and burned disucssed iddssues around treatment and to not stop RX sudpdenly [sic] advised over length of treatment has restarted meds continue on 50 mg andtenn [sic] review. [545]
10. The Plaintiff stated that he did not remember the details of this consultation. [546]
11. The Plaintiff's attention was drawn to a consultation on 29 February 2012 in which Dr Butler records:- (Depression) doing really well despite pressure at work and with several renovation issues disucssed [sic] managing io this environment seeing ongoing changes with psychologist work discussed continue on pristiq50 mg and see in 3./12 [547]
12. The Plaintiff again could not recall details of this consultation. [548]
13. The Plaintiff's attention was then drawn to a consultation with Dr Butler on 28 June 2012. The notes record:- (Depression) diooing [sic] really well when on meds different person disucssed advised over Rx ansd need to ciontiue [sic] new job working in mines in Mudgee feels new start doing well with family and pland [sic] to move north with time. [549]
14. The Plaintiff again did not recall details of this consultation. [550]
15. The Plaintiff was next taken to a consultation with Dr Butler dated on 29 July 2013 the records of which state:- (Depression/Anxiety) doing well but stretched with wprk [sic] and home findiong [sic] difficulty managing the two sites with work and home disucssed ongoiig lifestyle maangment and protecting sel;f [sic] disucssed maanging [sic] stress when away from home advised disucssed med with [pristiq [sic] advised needs to contiue andthen [sic] see in 3/12 if need [551]
16. The Plaintiff did not recall details of this consultation. [552]
17. Plaintiff saw Dr Butler again on 27 November 2013 on which occasion his notes record:- (Depression / Anxiety) ran out of meds agai [sic] bottomed outr [sic] mood wise sig ossues with fnainces [sic] a dn [sic] problems with mum disucssed strtaegies for managing and foro stepping back to reassess prioritories [sic] will need colnoscpy [sic] in new year will review at that point. [553]
18. The Plaintiff did not remember those details. [554]
19. The Plaintiff had a consultation with Dr Butler on 8 April 2014 in respect of which he recorded:- (Consult) not happy with assoc weight gain of teh [sic] meds disucssed [sic] options headspace good but not managing with isues [sic] with weight -0ver 100kgs disucssed [sic] issues advised re need to maange [sic] consider trial of valdoxan 25 mg advised over meds and possibel [sic] ADRs advised re non PBS sample given reviewin [sic] 4 weeks follow pn script given [555]
20. The Plaintiff could not recall details of that consultation. [556]
21. On 6 May 2014 the Plaintiff was seen by Dr Butler again whose notes record:- (Consult) in process of changeover not really maanging [sic] reduction in Pristiq will persevere if unabel [sic] consider swap to lovan for a period advose [sic] d disucssed [sic] ways of managing headspace and isses [sic] with work and family disucsed pressures from Mumin making financial decisionsetc [sic] [557]
22. The Plaintiff could not remember details of that consultation. [558]
23. With respect to a consultation on 10 March 2015, the notes record:- struggling with work idsucsse dongoing issues [sic] advised over ways to manage boiundaries with work and stresses of woking away [sic] impact on health disucssed lifestule [sic] issues afgreed [sic] need to carry on with medication no suicidal ideation nil risk of harm to self or others also increasing diarrhoea ? why nil in gut ob colonoscopy but gven Hx carcinoid needs blood sand ?PERR scan [sic] [559]
24. The Plaintiff stated that he could not recall the details. [560]
25. Notwithstanding this, the Plaintiff maintained that he did not believe that he had continuous psychological problems for a long time before he commenced work with the Defendant. [561]
26. It was put to the Plaintiff that he didn't tell Dr Allnutt about any of the consultations from 2008 to 2015. He stated that he can't remember "what happened last week, let alone five, ten years ago." [562]
27. In cross-examination it was put to the Plaintiff that he had problems with his weight before the fire. He stated that he did when he was on medication but accepted that he was not on medication for depression in February 2008. He did not recall a consultation with Dr Rodney Sloane whose records of 26 February 2008 stated:- …overweight. Body mass index greater than normal range (ideal weight) Is associated with increased risk of (diabetes hypertension, cardiovascular disease) and a shortened life span… [563]
28. Nor could the Plaintiff recall whether his weight at the time was 103kg as recorded in the notes. [564]
29. The Plaintiff's also did not recall a consultation with Dr Butler on 6 June 2011 in which he records:- also increasing reflux since u on weight and stress with work. [565]
30. The Plaintiff stated that he did not recall how much he weighed at the time. [566]

Carcinoid Syndrome

1. In 2008 the Plaintiff stated that he had a colonoscopy performed because he was advised in light of his father having cancer that he was at high risk. He conceded that to his understanding some abnormal tissue was removed under a procedure by Dr Malouf. [567] The histopathology records record that the abnormality was diagnosed on 20 March 2008. [568] The Plaintiff stated that he has since had a number of colonoscopies but did not understand that he was suffering from carcinoid syndrome. [569]
2. In cross-examination, the Plaintiff stated that he has colonoscopies as he often bleeds from the backside and wants to go and find out what is going on. [570] He added that he does not sit at home and think about what is inside him. He stated that it was not a concern that has worried him for years but rather something that people get done as he did. [571]

Diarrhoea

1. Dr Allnutt in his report of 27 March 2017 recorded that the Plaintiff denied that prior to the index injury having episodes of flushing, changes in his skin, diarrhoea, stomach cramps or episodes of shortness of breath noted as symptoms of carcinoid syndrome. [572] In cross-examination the Plaintiff conceded that he told Dr Allnutt that he had no problems with diarrhoea before the fire. [573] His attention was then drawn to an attendance said to be with Dr Butler on 6 February 2007. The relevant entry states:- 7/7 abdo cramps, dizziness, headaches and aches and pains and diarrhoea on and off afrebile; abdo non-surgical and BS present [574]
2. The Plaintiff stated that he could not remember the consultation of 6 February 2007 which appears to have been with a Dr Ian McCorkindale. [575] The diagnosis at the consultation was that of "infective gastroenteritis." It well preceded the 2008 colonoscopy consequent to which Dr Allnutt was looking for symptoms of carcinoid syndrome. Notwithstanding that, the Plaintiff conceded that he had diarrhoea sometimes. [576]
3. The Plaintiff's attention was next drawn to a consultation with Dr Butler on 10 March 2015 (earlier referred to at [364]) where there was mention of increasing diarrhoea. Although not recalling the consultation, the Plaintiff accepted the accuracy of the records.
4. The Plaintiff was subsequently referred to Dr Ivan Valiozis who noted a history of on a daily basis for a 3-4 month period and occasional although infrequent nocturnal diarrhoea. [577]
5. It was put to the Plaintiff that it was not correct to tell Dr Allnutt that he had no diarrhoea problems before the fire. He acknowledged that he had diarrhoea, adding that when he was asked the question it was as to whether he had diarrhoea all the time or once a week or after he ate something that was disagreeable. [578] When it was next put to the Plaintiff that he was trying to explain away the fact that Dr Allnutt's report states that he told him that he had no problems with diarrhoea before the fire. He responded that he didn't recall saying that. [579]

Pericarditis

1. In cross-examination the Plaintiff accepted that in June and July 2015 he was hospitalised with a cardiac condition of pericarditis. The Plaintiff did not recall telling Dr Piatek that he was very stressed with his recent hospital admission and work although he did remember seeing a doctor about pericarditis. [580] Dr Piatek's notes of 3 July 2015 record: Very stressed with recent hospital admission Also work etc Long discussion on same Strategies discussed [581]
2. The Plaintiff was questioned about a consultation with Dr Piatek on 7 October 2015 when a mental health problem was mentioned. He stated that a friend passed away. [582] Dr Piatek's clinical notes for 7 October 2015 record: - Not doing well of late In last couple days close friend committed suicide. THis [sic] is on background of a few suicides of close friends Teary re. same Made him realise he has to get his own MH in order Prev on Valdoxan - has been off to 2/12 only taking second daily prior. Did work when he used it properly. Has seen psych in past - not keen for same currently No TOSH. States could never do anything like that seeing what it does to families and friends who have done same is it declines to discuss things further however issues at home also - won't expand on same [583]

Melissa Ganassin

1. Mrs Ganassin stated that the Plaintiff was previously house proud and now was not keeping a clean and tidy house and was unmotivated. [584]
2. Prior to August 2016, Ms Ganassin stated that the Plaintiff was patient, and would engage and be balanced with the children. She described him as thoughtful of the children's experience and their wellbeing. [585] Following the accident she stated that he disproportionality reacts and is frustrated and angry. Mrs Ganassin stated that the Plaintiff was no longer an age manager for the surf club and is much more disinterested in the children's sporting activities. She stated that he does come along to watch a game but he was not as encouraging as before. She gave examples of Plaintiff coming into conflict with two of the older children. [586] Prior to August 2016 Mrs Ganassin stated that the Plaintiff was not aggressive towards the children at all and if he got frustrated he'd retreat. [587] Since then he acts on frustration and was described as "abusive." [588] Mrs Ganassin stated that she feels that the Plaintiff is like a fifth child that needs to be monitored and supported. She instanced weekly and sometimes daily occasions that she has had to step in and the anger very quickly gets turned to her. There are times that she described being frightened which never happened prior to August 2016. She stated that in a heightened state she could not reason with him and it takes time for him to calm down and then he does, dissolves into tears and he apologises. The frequent crying was described as something that was new. Mrs Ganassin stated that she has instigated a time-out password when the position deteriorates whereupon the Plaintiff is to leave the house. She stated that there have been discussions about separating and there were occasions when she sent him to the pool house for a few nights and sometimes a month. [589]
3. Mrs Ganassin stated that she thought the Plaintiff was taking anti-depressants before August 2016, but did not know the specific medication that he was on at the moment. [590] In cross-examination Mrs Ganassin accepted that in stating that she thought the Plaintiff had in the past been on antidepressants. She stated that she meant that she was sure he was but did not know when. [591] Doing the best she could she thought it might have been in 2011. [592]
4. Prior to her fourth child being born, Mrs Ganassin stated that she didn't see evidence that the Plaintiff wasn't doing it well in terms of having trouble coping with working life and home life with a young family. [593] She stated that she was never concerned about his capacity to parent, work, or his ability to come and go from home and work and saw no indication of him having trouble coping or struggling. [594]
5. Mrs Ganassin stated that following the accident the Plaintiff was not undertaking exercise and was the un-fittest she had seen him. She stated that she encouraged him and took him to "Savvy," which was an outdoor exercise programme, in 2018 because she was worried about him. She described that although she was told that he goes two to three times a month there were periods that he had missed months. [595]
6. Much of the account given by Mrs Ganassin was also reported to Dr Allnutt. In addition, he recorded that the Plaintiff's self-esteem had diminished in that he always had a good business brain but now he had lost all confidence in his decision making including business decisions. Mrs Ganassin was recorded as observing that the Plaintiff had diminished energy, poor motivation, poor concentration and memory problems. She had observed him waking up and screaming in his sleep and having panic attacks when he would get short of breath and would get "really sweaty." He recorded that Mrs Ganassin observed the Plaintiff to be hyper vigilant about his own safety and gave as an example that he had an appointment in the city when there was a fire and it was almost impossible to get him there. He was too fearful and became more anxious when in enclosed spaces and would be looking for exits. There was a reference to such an occasion in the report of Mr Bass who stated:- He wore a grey t-shirt to our interview, which became wet in parts due to his torso sweating even though the room was not warm. It should be noted that on the day of our interview there was a building fire in Pitt Street, which required the closure of several streets and the attendance of many fire engines. There was smoke throughout the surrounding areas of our offices, and Mr Ganassin stated that this situation contributed to his stress levels and generally anxious demeanour. [596]
7. Mrs Ganassin reported that the Plaintiff was socially withdrawn avoided social situations and would wasn't to leave. He would not drive a car to an unfamiliar place unaccompanied and had lost contact with friends. [597]

Dr Gary Butler

1. In a report dated 20 September 2016, [598] Dr Butler recorded that recovery was dependent on the extent of smoke inhalation which cannot be assessed by any investigations other than possible assessment immediately after the event and this was not done by the attending medical officer on site or in the ED. Regular review were said to be required with ongoing close monitoring of mental health given that the Plaintiff was taken back underground after the event whilst still signed off sick, having a significant impact on his mental health and significant anxiety. Dr Butler recorded that the Plaintiff remains off work as he is still producing significant altered sputum and the spirometry had not returned to normal. He observed that whilst the Plaintiff had previous episodes of mild depression, he had no significant anxiety and panic attacks prior to the underground fire. Previous treatment was with Vorioxetine 15 mg. In the circumstances Dr Butler attributed the anxiety and panic attacks to the underground fire and the immediate and subsequent management by the Defendant. Dr Butler opined that full recovery is expected but in his current position the Plaintiff should not be working underground and a return to work programme should be initially on the surface. He noted that the Vorioxetine medication had been increased to 10 mg and there has been improvement. [599]
2. In a further report dated 29 July 2019, [600] Dr Butler stated that he had seen the Plaintiff since August 2008 in 85 of his 90 consultations. Dr Butler noted that the Plaintiff was experiencing significant impact on his ability to sleep at night and during the day was experiencing flashbacks to the underground fire and reliving the experience and the decisions that he had made. A referral made to Dr Jonathon Osborne was noted as having been precipitated by a concern that the episode might develop into post-traumatic stress disorder given the early clinical and psychological symptoms. It was noted that the Plaintiff felt isolated and doubted his experience of the fire and how to protect his colleagues further down the mine tunnel. A perception by the Plaintiff of lack of support by his employer was said to have increased the extent of the psychological injury and required medication to try and manage the sleep deprivation and to improve the Plaintiff's psychological health.
3. Dr Butler stated that as the respiratory symptoms settled the psychological distress was increasing, significantly fuelled by lack of support and ongoing questioning about the underground fire.
4. A return to work plan was said to involve menial duties designed for graded return for other injuries rather those the Plaintiff had experienced and the Plaintiff experienced increasing panic attacks. Thereafter the Plaintiff took carers leave as his wife was said to have a caesarean section due to late pregnancy complications. At that point his return to work plan was put on hold.
5. Dr Butler described that in early February 2017 the Plaintiff's claim for anxiety/psychological injury had been declined on the basis that the symptoms were related to a prior history of carcinoid syndrome. Dr Butler noted that following a colonoscopy the Plaintiff had a rectal polyp identified and removed, and that the histology showed carcinoid tumour/cells. Based on other tests which were performed and detailed questioning, Dr Butler rejected the suggestion that the Plaintiff ever had carcinoid syndrome.
6. Dr Butler stated that since denial of liability and the lack of support, the Plaintiff's mental health had deteriorated significantly, impacting on his relationship with his children, his wife and his community of support.
7. Dr Butler accepted that the Plaintiff had experienced some psychological symptoms prior to the underground fire but stated that these were contextualised around specific events that would be considered appropriate, such as when the twins were born, with the Plaintiff having to manage family and work demands as he looked after the children whilst his wife was in the Sydney Children's Hospital. Furthermore he noted that the Plaintiff was working away from home as a drive in drive out worker. He observed that the Plaintiff was concerned for his mental health which was being impacted by a combination of shift work associated sleep deprivation, absence from home and family and ongoing decisions about relocating the family. He also noted that the mining industry was experiencing some issues and there were regular redundancies and reduction in working hours and overtime and this was impacting on income and job permanency. Around this time Dr Butler noted that a close friend of the Plaintiff's committed suicide. These pressures and events were seen to impact on the Plaintiff's mental health. It was noted that the Plaintiff appeared to have responded well to medication and his mood stabilised until the underground fire occurred.
8. Overall Dr Butler stated that he had seen a change in the Plaintiff from the man he was before August 2016 to what in layman's terms would most likely be described as a "shell" of his former self. [601]
9. In cross-examination Dr Butler was taken to his report of 20 September 2016 [602] where he stated "Full recovery will be expected but in his current position he is not appropriate to be working underground." He stated that he was referring to the Plaintiff's physical and psychological recovery should the environment be conducive to recovery. [603]
10. Dr Butler was then taken to his report of 29 July 2019 where he stated "Unfortunately as the respiratory symptoms settled the psychological distress was increasing significantly fuelled by lack of support and ongoing questioning about the underground fire." [604] It was put to him that there came a time when the problem was psychological. He responded that he was not asserting that the respiratory symptoms ceased but that they were settling. [605] He said that PTSD by its nature meant the increase of symptoms tended to be significantly after the event rather than immediately after. He opined that given the Plaintiff's symptoms of significant respiratory symptoms had settled, something brewing in the background comes more to the head. [606]
11. Dr Butler agreed that the condition that the Plaintiff was now consulting him about was psychological. He agreed that depression and anxiety were complaints within the Plaintiff's diagnosis of PTSD amongst multiple other symptomologies. [607] It was put to Dr Butler that unlike a psychosis, PTSD complaints are subjective and not observable from the appearance of a patient. He responded stating that there is non-verbal communication and presentation which are related to high adrenaline drive which would be evident on examination, just as observing someone in the middle of an acute florid psychosis. [608] Nonetheless, he conceded that he was reliant on a history and observation to make a diagnosis and that any condition required the patient to be truthful and honest. [609]
12. Dr Butler conceded that contrary to the expectation in his report of 20 September 2016 there had yet to be a resolution of the Plaintiff's complaints. He stated there can be underlying causes that would cause any mental condition to extend beyond that period. [610]
13. Dr Butler stated that episodes the Plaintiff presented in the past with previously were "very contextualised at those moments" to which there was a resolution, and that PTSD is a separate diagnosis from anxiety and depression. [611] He conceded nonetheless that PTSD was something that would have resulted in improvement in the correct environment. [612] He conceded that the Plaintiff has been triggered by repeatedly poor communication and a lack of handling by CMI. [613] He acknowledged that with appropriate management of the case he would have hoped to see resolution. [614] Specifically he stated that it would be expected that when triggers associated with the case are removed then it would be clear for significant improvement in the Plaintiff's condition over time. [615]

Referral to Dr Moses

1. On 19 August 2016 the Plaintiff saw Dr Butler who recorded "sig cough following smoke inhalation" and "productive sputum - black still." The notes also record "sig psychological impact". [616] On 30 August 2016 the Plaintiff was referred to see Dr John Moses. [617]
2. Dr Moses saw the Plaintiff the following day and reported on 1 September 2016. [618] After recording a description of the 5 August 2016 incident which largely accords with the Plaintiff's account in oral evidence, Dr Moses stated:- His chest X-ray was said to be okay and he has a normal recent high resolution chest CT. Apart from an incidental nodule measuring 7.3mm in segment 8 of the right lobe of the liver for which I've arranged a non urgent liver ultrasound. Since the inhalation smoke, he's had a bad taste in his mouth and he has an ongoing cough, initially productive of black material but less so now. Some days he's better than others. He's also had shortness of breath and chest tightness but no wheeze. He's had no fever or sweats. [619]
3. Dr Moses noted that a MET haemoglobin was not done either at Gulgong or Mudgee Hospital.
4. Dr Moses noted that the Plaintiff had a history of mild depression over the past eighteen months to two years and was currently on Vortioxetine 5mgs daily. He noted that on examination the Plaintiff was saturating at 99% on room air, blood pressure was 140/90, he was in sinus rhythm and there was no finger clubbing. He noted that chest examination, and spirometry were normal. Dr Moses opined that the Plaintiff has suffered from the symptoms of smoke inhalation and was happy for him to return to his usual duties when he feels able to cope. [620]
5. The Plaintiff saw Dr Moses again on 28 March 2017 and he reported on 29 March 2017 to Dr Butler. [621] Dr Moses noted that the Plaintiff had not returned to work and gained some 2kg simply because he was short of breath on exertion, was always tired and had noted the onset of wheeze. He observed that exercise effort was no more than 15 minutes before he gets unusually out of breath. Dr Moses recorded that the cough was mostly dry and probably less persistent but that the Plaintiff had recently coughed up mucus that looked like black soot. He noted that the Plaintiff was not taking any puffers as Symbicort failed to give him any relief. Dr Moses recommended that the Plaintiff undertake a number of tests. [622]
6. A third consultation was held on 8 August 2017 with Dr Moses reporting the same day. [623] He noted that the Plaintiff's detailed lung function tests were normal and there was no evidence of any bronchial hyperactivity. [624] Dr Moses recorded that he tended to agree with Plaintiff's wife that there was a large anxiety overlay contributing to the Plaintiff's symptoms, but to ensure he was not missing anything Dr Moses organised an exercise echo. He noted that the Plaintiff's motivation to exercise as being severely affected and this may have contributed to in part by the antidepressant that he was on. In conclusion, Dr Moses stated that the Plaintiff was worried about his cough, although it did not appear to have any specific respiratory cause.

Professor David H. Bryant

1. The Plaintiff saw Professor David H. Bryant on 27 July 2018, who reported on the same day. [625] Professor Bryant recorded a history of the incident, which largely accords with the evidence adduced by the Plaintiff in oral evidence. In particular, he stated that after the Plaintiff arrived to the surface of the mine, he was given oxygen, an ambulance was called and he was taken to Gulgong. There, he was examined and there was no evidence of any wheezing and his chest x-ray was normal and was allowed to go home but he continued to have a cough and dry retching which went on for some months, although the stinging in his eyes and nose improved over a matter of weeks.
2. Professor Bryant obtained a history that the Plaintiff returned to work part-time but by the end of 2016 he continued to have sensations of panic, a high heart rate, sweating and difficulty breathing whenever he went near the entrance to the mine and whenever it was suggested that he should go in and resume his former duties. He reported that for the first few months the Plaintiff felt short of breath on minor exertion and coughed up black coloured phlegm on a daily basis. After three months the colour of the phlegm gradually reverted to grey but that he still coughed up 1-2 teaspoonsful of mucoid sputum each day. He recorded that the Plaintiff was attempting to regain his fitness and was finding this difficult as he tended to feel short of breath and cough on exertion. He recorded that the Plaintiff had put on weight and was finding it difficult to undertake heavier household tasks, to play with his children and to walk up hills because of a sensation of breathlessness. Whilst the report acknowledges that the Plaintiff was able to carry out these duties, it was at a slower pace than previously. No wheezing or chest tightness was recorded. [626]
3. Professor Bryant recorded that the Plaintiff's lung function was currently normal. He stated that the ongoing cough syndrome was indicative of persistent bronchitis but without evidence of bacterial infection. Specifically, he found no evidence that the Plaintiff's ventilatory function was impaired as a consequence of the incident on 5 August 2016. Professor Bryant stated that since it was 11 months since the incident, it was becoming likely that some residual symptoms would persist, although it may take another six months before this could be stated with any certainty. [627]
4. If the chronic cough did continue, he was of the opinion that it is likely the Plaintiff would develop chronic bronchitis with a daily cough, productive of mucoid sputum and also the possibility over time that impaired lung function would develop. He also stated that it is likely that the Plaintiff will become more susceptible to chest infections and will require treatment for these more often than would be the case. He recommended that the Plaintiff have six monthly clinical assessments and lung function tests to clarify whether or not he is developing any tendency to lower respiratory tract infections, and furthermore, an assessment of his lung function to clarify whether or not his lung function is remaining stable or is tending to decline, in which case additional treatment would be required. [628]
5. Professor Bryant felt that it was inadvisable for the Plaintiff to travel long distances down into underground mines and that exposure to coal dust and probable diesel exhaust, because of the likelihood that future exposure to gaseous or particulate irritants would likely exacerbate his tendency for chronic bronchitis and coughing. Although his ventilatory function was sufficient for him to be able to undertake his physical duties that he was doing before the incident, Professor Bryant opined that the risk to his respiratory health is such that a return to his pre-injury employment was inadvisable. He accepted that the Plaintiff's ability to work in the future would be affected by chronic cough syndrome which he has now developed, which would limit his ability to undertake work. Such work would involve potential exposure to gaseous or particulate irritants in the air that he would be breathing and would likely limit his ability to undertake heavy physical work and carry out duties such as climbing up ladders or being on elevated walkways because of the possibility that if he were to develop a severe episode of cough he may fall and further injure himself. He was doubtful, in light of these limitations, that the Plaintiff would be able to continue to work until a retirement age of 67. [629]
6. As far as the attributably of the incident on 5 August 2016 to the Plaintiff's injuries, Professor Bryant stated that it was well documented that smoke inhalation can result not only in an acute injury to the chest but in the development of airflow limitation and persistent coughing of the type that the Plaintiff described. [630]
7. The Plaintiff conceded he hadn't had any specialist examinations for check-ups and advice since seeing Professor Bryant. [631] It was put to the Plaintiff that all the problems that he had that prevented him from working were psychological problems. He started they were part of the problem he also had coughing fits and his lungs are "not what they use to be." [632] He acknowledged that he had not spoken to Dr Butler about coughing fits in recent times as he had had a "pretty good run this winter." [633] The Plaintiff acknowledged that not that long ago he was involved in exercise classes of 45 minutes that required sets manhandling weights and kettle balls, push ups and so forth. [634] It was then put to the Plaintiff that to say that there was anything wrong with his lungs was a gross exaggeration. He rejected this. [635]

Dr Jonathon Osborne

1. Dr Jonathon Osborne saw the Plaintiff for the first time on referral from Dr Butler for assessment of mood disturbance in 2011. [636] His clinical notes show that at the time the Plaintiff presented with concerns of life's stresses and a young family, sometimes feeling overwhelmed but generally coping okay with some flat affect grief. [637] Dr Osborne recorded that the Plaintiff was suffering from an adjustment response to life stressors which was temporary and grief.
2. Subsequently Dr Osborne saw the Plaintiff again on referral from Dr Butler. The clinical notes record this as commencing on 16 September 2016 and continuing as at 5 May 2020. [638]
3. According to a report dated 2 October 2016, [639] Dr Osborne noted that at the initial session the Plaintiff presented with symptomatology consistent with acute stress disorder. He noted that when the Plaintiff described the nature of the incident at work he became significantly distressed and was quite emotionally labile at times. He noted that he had difficulty maintaining eye contact throughout the session and suffered from rapid speech, however he was able to articulate his concerns despite the stress he was experiencing. [640] His sleep was significantly disrupted, characterised by a difficulty in falling asleep and early morning awakening. This had been exacerbated by the disturbing dreams that he experienced each night focusing primarily on the workplace incident. The Plaintiff's appetite was noted as having been suppressed as result of his anxiety. This was made more difficult by chronic nausea and subsequent dry retching that he experienced each morning. His concentration and memory were also noted to have been severely impaired, as well as having a difficulty encoding and recording information. [641]
4. The Plaintiff was noted as being consumed by anger and irritability. The psychological distress he experienced was evident when he recalled information about the event and anything associated with the workplace. This was described as having a significant impact on his ability to meaningfully engage with his children and wife. Anger following the event was described as having resulted in chronic interpersonal conflict with his wife which was causing significant concern. The Plaintiff was also noted to be socially withdrawn and unwilling to engage with friends and work colleagues. The Plaintiff was easily activated and had difficulty imagining meaningful work life following the stress and trauma symptoms he had been experiencing. In essence Dr Osborne noted that the Plaintiff was unable to experience any positive mood state at this time following the incident and was significantly impaired from his acute stress symptoms. Given the symptomatology, Dr Osborne recommended that the Plaintiff receive fortnightly cognitive and behavioural therapy sessions. He cautioned that without intervention he was concerned that the Plaintiff's current presentation would deteriorate, pre-disposing him into developing PTSD. [642]
5. In his subsequent report of 2 July 2019, [643] Dr Osborne stated whilst the initial diagnosis was acute stress disorder diagnosis it had now changed PTSD with co-morbid Persistent Depressive Disorder. He described the Plaintiff as experiencing a threatening event which created helplessness and hyper vigilance, and he has developed recurrent distressing images and thoughts about the implications of the fire, particularly if it had not been subdued. He suffered from decreased interest in social withdrawal and enjoyed chronic irritability, concentration deficits and insomnia which overall had resulted in significant impairment in his life including with his wife and children. Comparing the Plaintiff's presentation in 2011 [644] to the symptomatology presented in 2016 onwards, Dr Osborne stated that there were considerable variations and symptoms based on the fact that he was suffering from different psychological conditions. From 2016 onwards, he stated that the Plaintiff suffered persistent depression and PTSD as result of his work injury whereas earlier complaints referred to uncomplicated grief following the death of a loved one. [645]
6. Dr Osborne opined there was no possibility of the Plaintiff returning to his pre-injury employment. He stated that his depressive and trauma symptomatology prevented this from happening, and his hyper vigilance, poor concentration and impaired memory prevent him from undertaking any tasks associated with his pre-injury employment. So far as other employment was concerned, Dr Osborne identified the following barriers to gaining meaningful employment elsewhere, currently and in the future: - 1. He continues to have difficulty falling asleep and suffers from early morning awakening which is partly attributed to disturbing dreams; 2. He does not have an appetite and has to force himself to eat; 3. He suffers from significant concentration and memory deficits leading to difficulty in encoding and recalling information; 4. His persistently flat affect is punctuated by anger and irritability; and 5. He has socially withdrawn and experiences feelings that his future has been cut short. [646]

Dr Wendy Roberts

1. Dr Wendy Roberts, clinical psychologist, examined the Plaintiff on 24 July 2018 and reported on 14 August 2018. [647] For reasons given in my judgment dated 17 June 2020, I declined to admit into evidence [9.2], [10.9] (the last two sentences were admitted) and [10.17] of this report. I further excluded statements from the joint report which became Exhibit 5E in the proceedings. Also admitted into evidence were two further reports dated 5 February 2019 [648] and 5 June 2020 respectively. [649]

14 August 2020 Report

1. In her report of 14 August 2020, Dr Roberts stated that the Plaintiff had a long history of adjustment issues, depression, anxiety, persisting personal stresses, unacceptable angry behaviour and referrals to a psychologist. She noted that he was taking ongoing antidepressants over the years, was referred to a psychologist in 2011 and had seen Dr Osborne over the death of his father. Dr Wendy Roberts stated that it was clear that the Plaintiff's account to her of his premorbid functioning was in many significant respects incorrect. In this respect, he denied any time off work ever, except for one day (but he was off in 2015 and at other times). She noted that the Plaintiff had denied that anyone close to him had died, except for his father, but noted that he told his GP that he was distressed particularly over the suicide of a close friend in October 2015. Dr Wendy Roberts noted that the Plaintiff had denied to her any problems with his job or ever wanting to leave it, but was apparently considering this as recently as four months prior to 5 August 2016. Dr Wendy Roberts noted that the Plaintiff had a long history of complaints of stress at work documented in GP records as well as anger issues (a doctor refused to treat him because of this), depression, anxiety and sleep problems. Further the Plaintiff was noted to be on antidepressants for the years prior to 5 August 2016, tending to lapse into depression when he discontinued medication. [650]
2. Dr Wendy Roberts thereafter stated:- I am concerned about the significant inaccuracies in Mr Ganassin's account to me of his premorbid functioning, together with issues of validity in his answers to objective testing for me. I do not doubt that he was angry, somewhat depressed and anxious at this appointment, but he had similar issues premorbidly. He reportedly had some initial problems after 5 August 2016 with some physical issues and some psychological problems. With regard to the latter, while some may have initially been related to the fire itself and his reaction to it, the focus quickly turned to insurance issues and his perception that the company/insurer did not care about him. This attitude persists, coupled with ongoing long-term issues with depressed mood, anxiety and anger, all of which predated the incident on 5 August 2016. [excluded] The records indicate that he had some physical issues and some emotional problems post 5 August 2016 in relation to some depression and anxiety, primarily driven by the ongoing dispute with his employer/insurance company, perceived poor treatment of him and over the perceived attitude of his employer wanting to downplay the significant of the fire. He claimed that he was accused of lying. [651]
3. Dr Wendy Roberts noted that the Plaintiff went off work and became the primary carer for his children while his wife did full-time work. She noted that he described increased anxiety since the fire with increased sleeplessness, as well as reliving all the events of the fire and continued on anti-depressants. She also noted that the Plaintiff reported some panic and anxiety at the end of September 2016 when issues with liability came up, which the Plaintiff attributed to the contents of Dr John Roberts' report of which he was critical, prompting the Plaintiff to ask Dr Wendy Roberts if they were related. [652]
4. Dr Wendy Roberts stated that the problem with Dr Jonathon Osborne's report was that there is no assessment of any emotional conditions, nor was there mention of anything else but work issues and no mention of the fact that he had seen the Plaintiff prior to 5 August 2016. She opined that a diagnosis made by Dr Osborne of PTSD was most likely based on the report of Dr Allnutt. She noted that Dr Allnutt was only given GP notes covering the period 2 July 2015 to 24 September 2016 and did not refer to the GP notes from 2013 and 2014. [653]
5. In Dr Wendy Roberts' view, the Plaintiff had a long history of depression and anxiety, predating 5 August 2016 and whilst it was possible that the incident of 5 August 2016 led to a temporary aggravation of his emotional complaints, she opined that he has ongoing psychological problems with depression, anxiety and anger all of which predated 5 August 2016. She opined that he remains particularly angry over the perceived treatment of him by his employer/insurer. [654]
6. Dr Wendy Roberts opined that the Plaintiff continues to suffer from emotional issues which predated 5 August 2016 and that he was not fit to return to pre-injury duties because of his attitude towards his employer and insurer, although it was hoped that this would improve once litigation is finished by which time he could return to the workforce. She acknowledged that the Plaintiff may benefit from some structured treatment to assist with depression, anxiety and anger, all of which are pre-existing issues. She stated that it did not appear on the current evidence to have been adequately treated with the best evidence-based techniques. She recommended that the Plaintiff be referred to a different clinical psychologist who carries out an assessment then monitors treatment, sets goals and focuses on the efficacy of treatment. In the meantime, she requested to see a complete copy of Dr Osborne's file and files relating to psychological the Plaintiff had from 2011/2012. [655]

5 February 2019 Report

1. Dr Wendy Roberts received Dr Jonathon Osborne's clinical notes from prior to 5 August 2016, and commented on them on a report of 5 February 2019. [656]
2. Dr Wendy Roberts stated that the additional notes indicated that Dr Osborne saw the Plaintiff on one occasion only, in December 2011, for what he referred to as temporary adjustment issues and grief. She noted that Dr Osborne took no history on the grief at all or specific symptoms over time of depression, nor did he administer any formal assessment tools. There was no indication that Dr Osborne saw the Plaintiff thereafter, until the incident leading to this claim. Dr Wendy Roberts noted that the Plaintiff saw his GP on 3 January 2012, when he had stopped his tablets and then crashed and burned. She noted that the Plaintiff was advised not to stop treatment suddenly; he thereafter returned to taking his medication. [657]
3. Dr Wendy Roberts noted that Dr Osborne's notes were brief with no evidence of formal assessment or more particularly, any treatment goals or past history of emotional problems. In the absence of such information, she was of the opinion that this extra information would not cause her to alter the views that she had previously expressed relating to the Plaintiff. In particular, she observed that the Plaintiff told Dr Osborne that work was okay and he had no concerns. This, she noted, was inconsistent with the information in the GP notes, noting increased reflux since he had put on weight and stress with work in 2011. Dr Wendy Roberts stated that Dr Butler's notes indicated a long history of emotional problems, not temporary ones, going back as far as 2008. There was no mention in Dr Osborne's notes about the Plaintiff's father having had terminal bowel cancer in 2009, nor that the Plaintiff had a carcinoid issue or his history of possible early depression in 2009. [658]

MMPI-2

1. Pursuant to leave granted, Dr Wendy Roberts gave evidence that the MMPI-2 was the Minnesota Multiphasic Personality Inventory, which involved a test that was comprehensive of emotional functioning, and has multiple validity scales built into it. Dr Wendy Roberts opined that one of the issues that needs to be addressed in civil litigation matters is the extent to which you can rely on the person's information. She stated that the questions in an MMPI-2 are not as obvious, and most questionnaires don't address issues of whether the person's answering honestly and truthfully, or not. She described it as an incredibly important test which involved a total of 567 questions and took an hour to an hour and half to complete. [659]
2. So far as the Plaintiff was concerned, Dr Wendy Roberts indicated that the evidence of him embellishing and exaggerating came from the Fake-Bad Scale (FBS), which was designed specifically to look at the response style of someone who's engaged in civil litigation, relating not only to what they say about their past, but also about current symptomatology. [660] In this instance, she described the Plaintiff of having a raw score of 30, and standardised score of 98. Dr Wendy Roberts described that according to studies, a raw score of anything above 23 raises a possibility of exaggeration and embellishment, and the higher it gets the higher the degree of probability that one is exaggerating and embellishing. In her view, using an absolutely safe cut off raw score of 30, there was a degree of probability of about 99%, that you are detecting evidence of problems with exaggeration and embellishment on the test. [661]

5 June 2020 Report

1. In a further report dated 5 June 2020, [662] Dr Wendy Roberts responded to criticisms as to the use of MMPI-2 expressed by Dr Allnutt in his report of 21 December 2018. Dr Wendy Roberts stated that it well recognised in psychology that symptoms of PTSD are largely subjective and widely available to members of the public. She stated that the diagnosis of PTSD is difficult because diagnosing it positively usually involves asking leading questions about specific, well-known symptoms. To simply enquire about specific PTSD symptoms and other DSM-5 diagnostic criteria, she stated, can lead to problems. Specifically, naïve participants can simulate PTSD on a symptom checklist. For this reason she regarded it as important in interviewing for PTSD, particularly in a medico-legal assessment, to enquire about any emotional symptomatology using open-ended, non-specific questions and then to compare that information with material from specific questions in interview and questionnaires which ask leading questions. She opined that it was also important in establishing a diagnosis of PTSD that there is a demonstrated connection between an index traumatic event and to separate out and specifically enquire about other possible causes, both before and after the specific incidents which are the subject of litigation. It was in that sense that she described the MMPI-2 as playing a significant role. She acknowledged, however, that multiple pieces of evidence need to be taken into account and that the presence of emotional problems is not ruled out if someone is exaggerating and embellishing. However, Dr Wendy Roberts stated that in her view:- 1. Dr Allnutt had not given significant weight to the Plaintiff's long history of emotional problems and inconsistencies in his account, both before and after the incidents leadings to this claim. In this respect, she noted that he did not appear to have the information from the GP going back to 2008 which she had seen; 2. Whilst the Plaintiff's demeanour during the interview needs to be taken into account, and she has done this, this was not diagnostic of PTSD; and 3. That whilst she was unable to interview Mrs Ganassin, she did consider multiple sources of collateral information in detail.
2. Dr Wendy Roberts stated that the combination of all the information she had available to her suggested that exaggeration/embellishment was a significant factor which had to be taken into account and which precluded accurate diagnosis. Based on this, she concluded that the Plaintiff did have chronic emotional problems which were probably exacerbated at the time of the incident, but that his presentation in July 2018 reflected his chronic emotional problems. Ultimately, Dr Wendy Roberts stated that whilst the Plaintiff completed a checklist/questionnaire, which had a relatively simple validity scale built into it and endorsed symptoms of PTSD on that form, he did not described symptoms consistent with PTSD in response to detailed interviewing which involved open-ended questions. The testing of emotional function indicated that there were problems with validity. Because of these factors, the history the Plaintiff gave, where the focus of his anger was on the employer, and because it was unclear just what did happen in the incident, and therefore whether the incident met Criterion A of the DSM-5, she did not consider that an accurate diagnosis of PTSD could be made. So far as the issue of anger and irritability was concerned, Dr Wendy Roberts noted that irritability and short-temperedness are symptoms of many psychological disorders and emotional reactions are not specific to PTSD. Similarly, the Plaintiff's demeanour during the interview of tearfulness and restrictedness affect occur in many different psychological disorders.
3. According to Dr Wendy Roberts, Dr Allnutt had not considered adequately other sources of problems which might have accounted for the Plaintiff's presentation. Overall, Dr Wendy Roberts stated that her opinion was not altered.

Joint Report of Dr Wendy Roberts and Dr Jonathon Osborne

1. In preparation for a joint report following a conclave held on 30 May 2020, Dr Wendy Roberts and Dr Jonathon Osborne were provided with a number of documents set out in a Schedule. [663] In addition, Dr Wendy Roberts had access to other documents that were cited in her reports of 14 August 2018 and 5 February 2019.
2. Dr Osborne stated that he last consulted with the Plaintiff on 6 May 2020 and since 2018 had seen the Plaintiff for approximately 18 sessions. Dr Wendy Roberts stated that she had seen the Plaintiff on one occasion only for a period of 6 hours on 24 July 2018. Dr Wendy Roberts indicated that she was not aware that Dr Osborne was still treating the Plaintiff, and had not seen material from him since December 2017 except for his letter of 2 July 2019.

Past and present psychological and psychiatric conditions

1. Dr Osborne opined that the Plaintiff has suffered in the past from an adjustment disorder (chronic) in 2011 and questioned a bereavement disorder. He decided that it was difficult to establish a diagnosis because he only saw him for one session in 2011. At present he considered that the Plaintiff suffers from major depressive disorder and PTSD as per the DSM-V.
2. Dr Wendy Roberts opined that the Plaintiff may have met the criteria prior to 5 August 2016 for major depressive disorder when diagnosed by his GP using the DSM-IV in December 2011 or a Persistent Depressive Disorder with Anxious Distress, or alternatively, Adjustment Disorder with Depressed Mood and Anxiety of which he had had symptoms going back to 2008 which fluctuated in intensity. With regard to the Plaintiff's symptoms since 5 August 2016, Dr Wendy Roberts opined that whilst it is likely that the Plaintiff had an initial exacerbation of anxiety at the time of the incident. Since then, she stated that a significant focus had been directed toward his employer and his anger over the way that he perceived that the situation was managed. When she saw him in July 2018, she thought he continued to have chronic emotional problems, as he did prior to August 2016, but noted that there were problems with accurately assessing his emotional problems at the time. She noted that the Plaintiff provided an unreliable history which in turn made an accurate diagnosis difficult, if not impossible, but did not preclude emotional problems being present. She noted that there was also inconsistent information as to why he went off work in December 2016 and whether this was work-related or related to issues with the birth of his child. She further noted that details of the incident on 5 August 2016 have varied, with implications for diagnosis of PTSD in particular.

What psychological or psychiatric conditions identified are continuing or may reoccur, and what is the prognosis?

1. Dr Osborne opined that the continuing psychological condition is PTSD and major depressive disorder, in which the prognosis is unfavourable.
2. Dr Wendy Roberts noted that she had only seen the Plaintiff on one occasion in July 2018, but accepted that based on the pre-existing fluctuating chronicity and information from other reports, his emotional problems may be recurring. On that basis, the prognosis would be for ongoing chronic emotional problems, albeit fluctuating.

For psychological and psychiatric conditions that pre-existed the events of 5 August 2016, what would the prognosis have been even if the incident had not occurred?

1. Dr Osborne opined that if the pre-existing condition was a bereavement disorder, there would have been a slow dissipation of symptoms over the course of the years on the basis of a pre-existing condition. If it had been a chronic adjustment disorder, the symptoms would have also likely resolved over time, over a matter of months or longer.
2. Dr Wendy Roberts opined that it would have been the same prognosis even if the incident of 5 August 2016 had not occurred.

In relation to each psychological or psychiatric condition identified, was the incident of 5 August 2016 a substantial cause, or was it pre-existing and/or attributable to other events?

1. Dr Osborne opined that the Plaintiff's major depression disorder was primarily caused by the incident and was a component of his PTSD.
2. Dr Wendy Roberts stated that whilst the Plaintiff had some initial reaction after 5 August 2016, with physical and psychological problems which may have initially been related to the fire and his reaction to it, his focus turned to insurance issues and his perception that the company/insurer did not care about him. In her opinion, the Plaintiff's emotional presentation in July 2018 was likely to have been a continuation of his premorbid functioning.

What is the causal significance, if any, of the Plaintiff's reaction to his post-injury, post-cessation of employment dealings with CMI?

1. Dr Osborne opined that there was no causal significance of the Plaintiff's reaction to his post cessation of employment dealings with CMI. In his opinion, his PTSD symptomatology prevented him from being reemployed. He accepted, however, that the Plaintiff's dealings with CMI had led to an exacerbation of his depressive symptomatology, particularly his sense of helplessness and hopelessness. In terms of aggravation of his PTSD symptomatology, Dr Osborne opined that the Plaintiff's dealings with CMI had at times increased arousal symptoms, increased irritability, increased negative affect and increased intrusion thoughts and feelings of the event.
2. Dr Wendy Roberts was of the view that the Plaintiff's psychological problems/diagnosis preceded 5 August 2016 and fluctuated in intensity, principally in response to anti-depressant medication, but were ongoing up to that time. Whilst she acknowledged that there may have been a temporary aggravation of his emotional complaints in his initial response to the 5 August 2016, his presentation to her in July 2018 reflected his pre-existing chronic psychological issues.

Past medical and like treatment

1. Dr Osborne opined that the appropriate medical needs were undertaken by the Plaintiff by seeking treatment from his GP and a clinical psychologist or psychiatrist.
2. Dr Wendy Roberts stated that in the past and prior to August 2016, the Plaintiff saw his GP, took psychotropic medication, had some mental health consultation and saw a psychologist on two separate occasions, all of which seemed appropriate.

Did the treatment arise from the incident or from pre-existing psychological or psychiatric condition and/or other events?

1. Dr Osborne opined that the treatment identified was most likely in response to the incident itself but not from any pre-existing psychological conditions. He noted that the focus of the treatment was primarily on his major depressive symptoms.
2. Dr Wendy Roberts stated that the treatment that arose prior to 5 August 2016 was due to his chronic emotional problems. In 2018, she recommended ten sessions of treatment from a clinical psychologist for his chronic issues with depression, anger and anxiety. The question of medication was a matter for his treating psychiatrist/medical practitioner.

Future treatment

1. So far as future treatment was concerned, Dr Osborne stated that ongoing cognitive behaviour therapy for the Plaintiff's depressive and anxiety symptoms was appropriate. He stated that prolonged exposure therapy for his PTSD and/or EMDR therapy for his PTSD would be appropriate. Ongoing psychotropic medication would be a question for his treating GP.
2. So far as cost is concerned, Dr Osborne stated that the APS scale private treatment was $254 per hour and he would recommend a total of 20 sessions a year. Dr Wendy Roberts accepted that the rate was $254 an hour, but recommended ten sessions. However, Dr Osborne opined that the treatment expense arose from the incident, whereas Dr Wendy Roberts opined that the treatment would relate to pre-existing issues.

Capacity for employment

1. Dr Osborne had the view that the Plaintiff has been unfit for work from the date of the incident ongoing. He noted that the Plaintiff has made some efforts to engage in above ground work duties however was unsuccessful in maintaining those duties and was unable to perform pre-injury duties for any length of time.
2. Dr Wendy Roberts was of the opinion that the Plaintiff had worked for 32 hours per week on alternate duties post 5 August 2016, but went off work in December 2016, for different reasons but including reasons being related to the birth of his child or to work-related issues. He worked with his cousin in a balustrading business for possible six months. The circumstances in which that came to an end are unclear. The Plaintiff also discussed work possibilities involving product development/innovation, but has been caring for his children on a full-time basis over time whilst his wife has been reportedly working full-time. Overall, Dr Wendy Roberts was of the view that the Plaintiff had some capacity for employment, likely to be enhanced if his mood is stabilised on antidepressant medication.

Future employment capacity

1. Dr Osborne was of the view that the Plaintiff is not able to perform any of his pre-injury duties for the foreseeable future. He appears to accept that the Plaintiff is not capable of doing anything in the mining sector, and whilst he may be able to do some product development or innovation work, it would have to be outside of the mining industry.
2. Dr Wendy Roberts was of the opinion that the Plaintiff has capacity for work in the future, and details for specific types of jobs would invite vocational opinion. She stated that the Plaintiff's ability to work is likely to be enhanced if his chronic depression is stabilised on an ongoing basis and will hopefully improve once litigation is finalised.

Joint Evidence Session Dr Wendy Roberts and Dr Jonathon Osborne

1. In cross-examination, Dr Wendy Roberts stated that the MMPI-2 test involved a person completing questions under her supervision and various questions load on or contribute to various scales. She stated that the scoring was carried out independently as it takes time and is fairly complicated. She stated, however, that she did the analysis based on the scores, not on the answers to the questions. She indicated that the scoring was performed by Pearsons Assessment. [664]
2. Dr Wendy Roberts was then asked about her familiarity with an article titled "The Fake Bad Scale: Malingering or Litigation Response Syndrome - Which is It?" by Dr Davis S. Nichols and Carlton S. Gass. [665] She indicated that she was not familiar with the article. [666] Dr Wendy Roberts acknowledged that one of the main authors of the FBS was "Lees-Haley." [667] Dr Wendy Roberts indicated that she was not aware of anything of Lees-Haley that had specifically written casting doubt upon the FBS. [668]
3. Dr Wendy Roberts stated that the MMPI-2 was not a test done to diagnose psychiatric conditions like PTSD. [669] Subsequently, however, she stated that it frequently was. [670] She added that it has a scale in it called a "PK scale", which has items in it that relate to PTSD-like symptoms. [671] Dr Wendy Roberts stated that on the basis of the instrument she gave the Plaintiff which was transparent in terms of the types of questions he was asked to respond to, the Plaintiff met the criteria to PTSD. She then analysed other information including her analysis in relation to PTSD from those parts of the MMPI-2 test that were relevant to PTSD. [672]
4. Dr Wendy Roberts was then asked on the basis of the contents of the article marked as Exhibit F, whether that she accepted from her own practice the FBS is highly sensitive to common psychological and emotional consequences of being involved as a personal injury claimant in the litigation process. She responded that she did understand it is but that it also depended on the cut off points. [673] She stated that she was not aware of what the authors in Exhibit F asserted, being:- Scores on the FBS are interpreted as evidence of faking, malingering and/or "non‑credible symptom reporting," yet scores on this scale are notably increased by brain injury, even to the extent of exceeding raw scores of 30. Other bona fide physical health problems produce elevated scores on the FBS. In addition to these troublesome confounds and sources of artificial score inflation, FBS scores are significantly increased by the stress associated with plaintiff status in personal injury litigation. Clinicians who use the FBS/FSB-r in civil litigation cases must somehow control for the numerous credible symptomatic effects… (citations omitted). [674]
5. Dr Wendy Roberts stated that she was aware in general of issues that have arisen with the FBS and, in particular, establishing a very high cut off level and using a raw score of 30, which she did, and that there has been research work published on the need to use a high cut‑off level, and that is what she had done. [675] Dr Wendy Roberts conceded that it was reasonable to ask questions about the FBS, but that she still relied on the high cut‑off point that she used, and the evidence that she was aware of outside of the article on its relevance. [676] She added this was one specific issue, and she looked at the matter in a broader context. [677]
6. Dr Osborne was unable to comment on the MMPI-2 test as he stated that it was outside of his expertise. [678]
7. Dr Wendy Roberts accepted that the Plaintiff's presentation and distress at an assessment was an important consideration to take into account. [679] She further accepted that perspiration in the circumstances of an assessment could be an objective indicator of anxiety or some other psychological abnormality. [680] Dr Wendy Roberts' attention was drawn to the incident described by Mr Bass in his report dated 5 April 2018 (discussed at [386]).
8. Dr Wendy Roberts was specifically asked whether she accepted that that incident was consistent with the Plaintiff becoming overly anxious about a stressful event that may have some relevance to a diagnosis of PTSD. She accepted that it can be. [681]
9. Dr Wendy Roberts accepted that the symptoms described to Dr John Roberts (including memory, concentration, in part chest cardiac symptoms, stomach symptomatology, appetite and weight symptoms, bowel symptomatology and some perspiration symptoms) could be related to heightened anxiety in a patient. [682] As to whether they would be expected to be used by the Plaintiff as part of some exaggeration or embellishment, she stated that people can claim those things as part of embellishment, but they can also occur and be genuine. [683] It was put to her that she didn't have any reason based on her single interview with the Plaintiff to suggest that his complaints about those sorts of symptoms are due to exaggeration and embellishment. She responded that she thought that the Plaintiff did have some genuine problems, but also thought that there was some evidence of embellishment. [684]
10. Dr Wendy Roberts was further asked about the information the Plaintiff gave concerning emotional functioning prior to the 5 August 2016 incident which she thought were inconsistent and were therefore consistent with embellishment. She referred to the fact that the history given by the Plaintiff was discrepant in important respects from what the Plaintiff had told her. The sorts of examples were that he was happy in the job, he had no intention of leaving, and that he had been on some anti‑depressants, which she thought was because of some sleeplessness. She stated that there may have been some other reasons, but the Plaintiff was on and off those, and that the history that was given in the GP's records dates emotional problems going back to around about 2008, and worsening over time. Further, the Plaintiff stated that he only missed one day from work, whereas he'd been off because of some pericarditis, and there were some other issues. Otherwise, she referred to inconsistencies detailed in her report. [685] Dr Wendy Roberts acknowledged that she didn't directly put to the Plaintiff about the matters set out in the medical records. [686] She stated that she asked him open ended questions and it would not have been appropriate, in the context of a difficult interview where the Plaintiff made threats to leave, to have conducted what would have amounted to cross‑examination on those points. [687]
11. Dr Wendy Roberts accepted that apart from the MMPI-2 results there was other information that was relevant to her assessment that should have been taken into account. She acknowledged that obtaining information from the Plaintiff's wife would have been an important matter but that was not possible at the time of assessment. [688] When asked whether she had taken into account any information from Mrs Ganassin as recorded in Dr Allnutt's reports, she responded that she was aware that Dr Allnutt had spoken to her. [689] When pressed whether she was aware what Dr Allnutt had recorded in his report in relation to Mrs Ganassin, she responded that, "I'm aware that she provided some information." [690] She stated that she had taken that information into account and had commented on it in her most recent letter. [691] In Exhibit 4, Dr Wendy Roberts stated that Dr Allnutt provided information in relation to his interview with Mrs Ganassin but his report did not indicate that he adequately considered other sources of problems which might account for the Plaintiff's presentation. Notwithstanding this, Dr Wendy Roberts stated that her views about PTSD remain as she has indicated. [692]
12. Dr Wendy Roberts was then asked about the contents of Dr Gary Butler's report dated 12 May 2020, referring to the Plaintiff's previous psychological concerns/symptoms being contextualised around specific events, the Plaintiff being otherwise physically well (referred to at [394]). When asked as to whether she had taken into consideration Dr Butler's opinion, Dr Wendy Roberts stated that she had taken the report into account, but that she had also taken into account his clinical notes and the detail that he had provided in those up until the time of the incident. It was put to her that what she had in fact done was interpret what Dr Butler had written in his clinical notes. She responded stating that she had taken into account what he had recorded. When specifically pressed whether she had taken into consideration what he had stated in his report of 29 July 2019 and shown a copy of it from Exhibit D1, she stated that she did not have a specific recollection of seeing it but she may be incorrect. [693]
13. Dr Wendy Roberts was next taken to Dr Butler's opinion where he stated:- I have seen the change in Mr Ganassin, from the man he was before August 2016 to what in layman's terms would most likely be described as a 'shell' of his former self. This is not a single observation of an individual but formed by over 75 consultations with and observations of Mr Ganassin. [694]
14. Dr Wendy Roberts stated that this was not necessarily relevant to the issue of PTSD, but would accept it as an observation that he had over that number of consultations and in that sense it was important. [695] She further accepted that Mrs Ganassin's recollection and accounts of the changes in his behaviour both before and after the fire would be equally important to take into account. [696]
15. Each of the psychologists were then taken to the criteria for a diagnosis of PTSD. Dr Osborne accepted that each of the criteria was satisfied. [697] Dr Wendy Robert's attention was drawn to evidence given by the Plaintiff's supervisors that the fire event must have been horrific for the Plaintiff. She was asked whether this relevantly met the criteria of "exposure to threatened death in one or more of the following ways, one, directly experiencing the traumatic events." Dr Wendy Roberts stated that she had not heard the evidence and that she was aware that there has been some contention about the seriousness of the actual incident. It was then put to her that assuming that the Plaintiff's supervisor was accurate in describing this event as being horrific for the Plaintiff, being a period of some 18 minutes trying to put out a fire in an underground coal mine, and during which the Plaintiff thought that he may very well die, she responded that they would meet Criterion A if that information was correct. [698]
16. As to Criterion B, it was put to Dr Wendy Roberts that the Plaintiff gave her an account of experiencing recurrent or intrusive memories of the fire. She accepted that she had a recollection that he mentioned some distressing thoughts. It was further put to her that the Plaintiff had given her a history of recurrent involuntary and intrusive distressing memories of the event, as well as dreams. She accepted that this was so. Dr Wendy Roberts stated that if you accepted that accuracy of the information it would meet Criterion B. [699]
17. In respect of Criterion C, it was put to Dr Wendy Roberts that refusing to go back underground in a coal mine would be considered to be an avoidance of reminders of a distressing event. Initially Dr Wendy Roberts stated that she understood that the Plaintiff did go back to work underground. She was then asked if she accepted that he had not gone back underground other than when his employer required him to two days after the fire for the purposes of an investigation, and that the Plaintiff had stated that won't ever go underground because he does not feel psychologically well enough to do so, whether Criterion C would be satisfied. Dr Wendy Roberts stated that it could be, but there was an issue in that after the accident a lot of his distress and anger was directed at the insurer and the employer. [700]
18. Next, it was put to Dr Wendy Roberts that the Plaintiff's negative thoughts about his employer would qualify for Criterion D, in that he had negative alterations in conditions and mood associated with a traumatic events, beginning or worsening after the traumatic events occurred, as evidenced by "persistent and exaggerated negative beliefs of expectations about oneself, others or the world". Dr Wendy Roberts accepted that the Plaintiff's thoughts about his employer could be in response to that and meet this criterion, but noted that he may have had those problems beforehand because they were associated with depression. [701] She further accepted that the Plaintiff has ongoing emotional issues, but in her view they are primarily driven by his reaction to the way he perceived himself as being treated. [702]
19. So far as Criterion E was concerned, it was put to Dr Wendy Roberts that the Plaintiff did have marked alterations in arousal and reactivity associated with the traumatic events, beginning or worsening after the traumatic events occurred evidenced by irritable behaviour and angry outbursts. She responded that the Plaintiff had irritable behaviour and angry outbursts since, and previously. Dr Wendy Roberts believed the reactions were fired by or set off by the way in which he perceived that he was treated. [703] Dr Wendy Roberts stated that she also noted that the Plaintiff had difficulties with concentration and sleep disturbance prior to the incident. [704]
20. In relation to Criterion F, Dr Wendy Roberts accepted that the Plaintiff had symptoms of disturbed behaviour both before and after the incidents and lasting more than a month. She accepted that this criterion was satisfied in this regard. [705]
21. As far as Criterion G was concerned, which refers to the disturbance causing clinically significant distress or impairment in social occupational or other important areas of functioning, Dr Wendy Roberts acknowledged that there had been changes, but that there had been other changes in his life namely him now being the main caregiver. She acknowledged that the Plaintiff was no longer working. [706]
22. As to Criterion H, Dr Wendy Roberts accepted that the disturbance is not attributable to the psychological effects of a substance or any another medical condition. [707]
23. In cross-examination, Dr Osborne accepted that not everyone who fights a fire gets PTSD. [708] He further accepted that people who fight fires successfully frequently get a sense of exhilaration and escape from psychological symptoms. [709] It was then put to Dr Osborne that Criterions B - G involve subjective complaints. Dr Osborne accepted this was the case. [710] Dr Osborne accepted that people could sweat for any number of reasons. [711] Leaving aside physical observations of sweating, he also accepted that complaints put in cross‑examination of Dr Wendy Roberts were of a subjective kind. [712] Next, it was put to Dr Osborne that based on his notes of 1 May 2018, where he recorded that the Plaintiff had nil desire to work in the mining industry and was antagonised by thoughts associated with doing so, this was in the context of ongoing legal issues, non-acceptance of liability and the fact that he felt let down by people. Dr Osborne stated that he accepted that based on the notes part of his inability to go back to work was as a result of what was happening from a legal perspective, and from work, but he stated that it was also as a function of the emotional turmoil that he experienced when thinking about going back to work from a PTSD perspective. [713]
24. Next, it was put to Dr Osborne that if he was to assume the Plaintiff had been working on the surface as part of a return to work plan and ceased working when his wife gave birth to a fourth child and there were difficulties associated with a new baby, whether that would suggest that but for those events in his life, if he carried on at work as part of his return to work plan and things could have got better for him. Dr Osborne opined that on the basis that the Plaintiff was suffering from PTSD there would have been probably a low probability that things would have got better for him, because ultimately the Plaintiff would be flooded with symptoms again and that it is highly unlikely it would have gotten better for him on the basis of working aboveground. [714]
25. Dr Osborne accepted that it may be the case that a person who's got an emotional or psychological problem can benefit from activity, depending on the activity. [715] He accepted that physical exercise and getting out of the house would be good for him. He stated that ultimately it was whether the physical work reminded him of the stresses related to the incident underground. He further accepted that if the physical work was in no way related to the incident, it would be good for him. [716]
26. Next, it was put to Dr Osborne that if the Plaintiff was able to drive to a location, spend 45 minutes exercising each day and then go home, there would be many jobs that he could have managed without difficulty. He stated that this would indicate that the Plaintiff had a capacity to be gainfully employed in some description. [717] He accepted that attending an exercise group session would suggest that he's got the capacity to co‑exist with other people, but he thought that was also determined by the nature of the activity itself. [718]
27. So far as travelling overseas with his family to Samoa was concerned, Dr Osborne stated that the question of whether that was inconsistent with social inhibition depended on who he went on holiday with and what his interactions would be. [719] When prompted, Dr Wendy Roberts stated that an ability to go and exercise with other people around him and going on holidays to a resort would be indicative of being able to socialise and seek the company of other people. [720]
28. It was next put to Dr Osborne that once the case is concluded and the Plaintiff didn't have to deal with CMI any further, there would be a reasonable expectation of rapid improvement of his emotional state. He conceded that there would be some emotional improvement as a function of not having to deal with CMI; however, he thought it would be unlikely that there would be any improvement in his PTSD symptomatology and his major depressive symptoms. [721]
29. Dr Osborne conceded that he only saw the Plaintiff once before 5 August 2016, and was not aware of his previous history until reading the material from Dr Butler's notes. [722] It was then put to Dr Osborne, that on the basis of the pre-existing mood disturbance, even if the Plaintiff had not been involved in the fire he could well have had an increase in emotional upset. He responded that he didn't think that a pre-existing mood disturbance increases a vulnerability to developing another psychiatric disorder. [723] Dr Osborne stated that the fact that the Plaintiff was on prescription anti-depressants would indicate that one would more likely get complaints of the symptoms associated with the pre‑existing condition rather than the development of a new psychiatric condition. On the belief that the Plaintiff had an existing psychiatric condition of depression, and was faced with a lot of stressors, Dr Osborne stated that one would get an exacerbation of that underlying depressive sort of symptomatology. [724] As to the question of whether the severity of the exacerbation would have led to the patient being taken out of the workforce, he stated that in most instances the symptomatology has to be fairly severe to be taken out of the workforce. [725]
30. Dr Osborne opined that as a result of the conclave with Dr Wendy Roberts, he was aware of a history concerning the Plaintiff that was evidence of frequency rather than significance. [726] It was then put to him that that would indicate a risk of worsening his emotional state in the event of any serious stressors in his life. Dr Osborne responded that he accepted that he could be at risk of an exacerbation of his underlying symptoms that appeared prior to 2016, but did not accept that he was at risk of developing a separate condition, which the Plaintiff has. [727]

Dr John Roberts

1. Dr John Roberts saw the Plaintiff on two occasions, being 25 November 2016 and 24 September 2019. Consequently, he produced a number of reports which were admitted into evidence dated 8 December 2016, [728] 18 January 2017 [729] and three reports on 10 October 2019. [730] During the course of the hearing, it emerged that Dr John Roberts had also prepared a report dated 15 January 2018. Pursuant to reasons I delivered on 17 June 2020, the tender of this report was not pressed by the Defendant and I rejected the Plaintiff's application for all preceding reports to be excluded pursuant to UCPR 31.34.

8 December 2016

1. In his report of 8 December 2016, Dr John Roberts obtained a history from the Plaintiff of sleep difficulties, being the result of him thinking of what was going on, and that when unable to sleep he watched television and he tossed and turned in bed. He also referred to the Plaintiff having a short fuse, and that he had lost the ability to react to his children. He also obtained a history from the Plaintiff of him returning to work on surface duty and that when he walked passed an area that he would normally pass on going underground, he felt sick and referred to looking over his shoulder. He obtained a history that the Plaintiff felt unsupported, that he put his life at risk and there were 40 other people on the other side of the fire. He recorded that the Plaintiff stated that CMI had caused him significant trouble, including requiring him to see a clinical psychologist and subsequently terminating his compensation payment. At the time of the interview, the Plaintiff recorded that he was working two days a week, but otherwise was staying at home. He had withdrawn from hobbies such as surf lifesaving and that he lacked motivation and patience to engage in any activities involving his children. [731]
2. So far as his past medical history was concerned, Dr John Roberts recorded that he had been admitted to hospital for viral pericarditis, remaining there for approximately five days. Otherwise, his medical history related to the presence of a chest infection. [732]
3. Dr John Roberts recorded that the Plaintiff had had a carcinoid tumour removed approximately eight years ago and he underwent six monthly reviews for three years. He also noted that the Plaintiff's father had a history of cancer. Dr John Roberts opined that such a carcinoid tumour was associated with a variety of psychiatric symptoms including depression and poor impulse control. He recommended that tests be carried out to ascertain whether the symptomatology could be attributed to the incident. Dr John Roberts recorded that the Plaintiff had told him that for three years he had suffered mild depression and had been prescribed antidepressants by Dr Butler. He also recorded that the Plaintiff had attended a psychologist some 25 years previously, arising out of a relationship. [733]
4. Dr John Roberts stated that he attempted to elicit from the Plaintiff evidence of psychological concomitants of anxiety, namely such symptomatology that would be present in someone who was suffering from significantly heightened anxiety regardless of the cause. He stated that the reasons for doing so was that if it was heightened anxiety of an inappropriate degree could not be demonstrated, no reactive state could be diagnosed. [734] He stated that reactive states under consideration included PTSD, the physiological symptoms of which, by reference to the DSM-IV-TR were:-

• Physiological reactivity on exposure to trauma related cues
• Difficulties falling asleep or staying asleep
• Exaggerated startle response [735]

1. Dr John Roberts stated that anxiety becomes abnormal when it is excessive and disproportionate to the circumstances. Pathological anxiety, he stated, results in strong subjective feelings accompanied by similar physiological activation as normal anxiety, including muscle tension, shortness of breath, hyperventilation, heart palpitation or pounding, increased perspiration or cold sweat, and exaggerated startle. [736]
2. Dr John Roberts stated:- Mr Ganassin describes a wide range of symptomatology involving memory, concentration, in part chest, cardiac symptoms, stomach symptomatology, appetite and weight symptoms, bowel symptomology and some perspiration symptoms that could be deemed to be related to heightened anxiety of inappropriate degree which if assumed to be anxiety related and having regard to the adjectives mild, moderate and severe would be anxiety in the moderate to severe range of severity but not the severe range. A definitive opinion in regard to the aetiology of Mr Ganassin's symptomatology cannot be determined until he had undergone a full neuroendocrinological assessment not only in regard to excluding a carcinoid tumour - syndrome but also other more common endocrine abnormalities such as thyroid disorder as being a factor in the genesis of his symptomatology. In addition in view of his chronic headaches a neurological referral would be appropriate. [737]
3. Dr John Roberts then obtained a history of the incident, and commented that the Plaintiff's keenness to describe the incident in detail was, from the aspect of PTSD, peculiar. [738]
4. He questioned the Plaintiff as to whether he had any personal, domestic, financial, marital, sexual or other problems, to which the Plaintiff commented that he had problems only in relation to the claim being the subject of the matter and to get himself "sorted". Dr John Roberts opined that in a significant psychiatric condition the ramifications of such a condition would be expected to impact upon areas of functioning and this was not described. This, he stated, was inconsistent with a significant depressive illness but not necessarily inconsistent with a condition of a lesser degree. He noted that the Plaintiff commented on having psychological problems because of his interaction with CMI, including the fact that his claim for the incident was not accepted. [739]
5. Under the heading of "Future Plans" Dr John Roberts recorded that the Plaintiff informed him that he planned to return to work when he "gets his head in order". He recorded that the Plaintiff indicated that he would increase his days above ground and that he would continue with counselling and return to work underground. [740]
6. After reviewing medical records in relation to the Plaintiff, Dr John Roberts commented that the Plaintiff had a history of pre-existing depression and responded to anti-depressants. Dr John Roberts recorded that there was clear evidence of pre-existing depression of significant severity, requiring intervention by means of a prescription of a variety of antidepressants. He noted that Dr Osborne in his report of 2 October 2016 appears to have had no knowledge of the Plaintiff's lengthy pre-existing history of depressive illness or his history carcinoid tumour and its potential psychiatric implications. Further he observed that Dr Osborne attributed the Plaintiff's symptomology to the subject incident in the absence of any comment on the previous history. He stated that to do so without qualification on psychiatric grounds was untenable. Referring to the report of Dr Butler of 5 August 2016, he notes the reference to Dr Casey who when he first saw the Plaintiff following the incident, obtained a history which was recorded as "not too shaken mentally, but wanting to make sure all is OK." [741]

18 January 2017 Report

1. In a follow up report of 18 January 2017, Dr John Roberts was asked whether in his view the incident of 5 August 2016 was not the cause of any psychiatric condition that the Plaintiff might suffer, but that the incident may have caused a temporary aggravation of an underlying, pre-existing psychiatric condition.
2. Dr John Roberts stated that in his earlier report he emphasised the need for a full endocrinological consultation needed to be undertaken in order to establish whether a carcinoid syndrome diagnosis was of relevance. However, he emphasised that even if the carcinoid was excluded, the pre-existing history of depression was the substantial cause of the Plaintiff's current symptomatology. In his view, the incident on 5 August 2016, assuming it was a substantial incident, would be deemed to be a transient aggravation superimposed upon a person who was in any event predisposed to depression by the nature of the Plaintiff's history. [746]

4 October 2019 Reports

1. In a further supplementary report on 4 October 2019, [747] Dr John Roberts was asked to comment whether he considered the Plaintiff could have carried out the duties required for the operation of OPL Mining. He opined that the Plaintiff's depression, when controlled, would enable him to undertake usual gainful employment. However, if he suffered a depressive relapse he may not be suitable. He stated that the failure to be able to function in a work environment would be consistent with an exacerbation of a depressive condition and that depression tends to become worse with age. In the event that the Plaintiff was not fit for duties for the operation of OPL Mining, he stated that he considered that this would result of a relapse of a depressive illness, emphasising that unemployability was not the normal anticipated outcome of even the most severe forms of PTSD. [748]
2. The main report of 4 October 2019 [749] followed the re-examination of the Plaintiff on 24 September 2019.
3. Dr John Roberts obtained a history that in respect of both physical and psychiatric health, and noted there no new problems, but rather what the Plaintiff had been experiencing was simply a continuation of what had been previously described. [750]
4. So far as employment was concerned, Dr John Roberts recorded that the Plaintiff stated that he worked with his cousin, dealing with glass, pool fencing and balustrading but commented that this work only lasted a few months as the company was not profitable and he had made mistakes. So far as OPL Mining was concerned, Dr John Roberts obtained a history from the Plaintiff that the company had not operated for some years, describing it as an underground mining company which designed, fabricated and filled various equipment solutions to Glencore, his former employer. [751]
5. Dr John Roberts noted that the Plaintiff was, at the time of the interview, working as a househusband, caring for a two and half year old infant and other children. He stated that the activities of working as a househusband would indicate a degree of work capacity. [752]
6. In regard to the physiological concomitants of anxiety, Dr John Roberts recorded that the Plaintiff continues to have memory and concentration difficulties, chest pain, chest tightness or chest discomfort, respiratory symptomatology, cardiac symptoms, stomach pain, indigestion, fluctuations in appetite and weight, bladder and bowl symptomatology, and perspiration. Dr John Roberts opined that the Plaintiff had autonomic hyperactivity, which if it was assumed to be true and accurate in terms of the account given, would be regarded as anxiety of a severe degree. [753]
7. So far as work at home was concerned, Dr John Roberts noted that the Plaintiff stated that he mowed the lawns but did nothing in terms of maintenance or remodelling. Whilst he acknowledged that he did have plans to undertake such work, he was not in a financial position to do so. In relation to recreational activities, the Plaintiff stated that he had been fishing once with his son since he had last seen Dr John Roberts. [754]
8. As to question of treatment, the Plaintiff informed Dr John Roberts that he had not attempted to seek additional treatment and that he was in such financial stress that he had no money for medication. [755] Dr John Roberts opined that the assertion of a PTSD diagnosis must be called into question on the basis of the evidence given of the incident under consideration as stated in his report of 15 January 2018, which would subject to expert technical opinion, gave an impression that the incident was minor and by definition could not give rise to PTSD. He stated that if evidence was adduced that circumstances of the incident were of a major degree, the diagnosis of PTSD would be a matter for consideration. [756] Further in his report, he stated that it was crucial to establish the severity of the incident, since if it was the case that the incident only involved a "few sparks", there is no basis on which PTSD could be diagnosed since it would have been a minimal incident which could not give rise to a PTSD or any other mental illness. [757]
9. Dr John Roberts noted the report of Dr Wendy Roberts of 24 July 2018 and the results of the MMPI-2 testing which indicated evidence of exaggeration and embellishment to a very high degree of probability and also suggested that the Plaintiff had some tendency to present an overtly positive account of himself. [758]
10. Dr John Roberts noted that Dr Allnutt had commented that while the results of the MMPI-2 show exaggeration it does not rule out a mental condition, and that it was necessary to factor in the Plaintiff's demeanour and other collateral information such as family. He stated that he agreed with Dr Allnutt, while stating that exaggeration is demonstrating dishonesty. He stated that Dr Allnutt referred to irritability and short-temperedness as a symptom of chronic PTSD. Dr John Roberts stated that his understanding that such behaviour predated the 5 August 2016 incident. [759]
11. Dr John Roberts opined that there was evidence of longstanding pre-existing psychopathology and in the event the subject incident was deemed to be minimal, a prognosis is that of the pre-existing condition. He stated that if this was deemed to be a severe condition, it would be unlikely that the Plaintiff would be able to work in the mines, but he would be capable of undertaking a wide variety of occupations for which he would be suited by virtue of his training and experience. Dr John Roberts stated that his experience with PTSD was unemployability would not be an anticipated outcome of such a condition. On the basis of the Plaintiff's history and his examination, he was of the view that the Plaintiff suffered a psychiatric condition that predated the injury and has been diagnosed as a major depressive disorder and will diagnostically exist for the rest of his life. He stated that he did not consider there was a basis for considering that the Plaintiff's current psychiatric condition could be deemed to have arisen as a result of the incident, especially if it is asserted that, contrary to the Plaintiff's assertion, it was a minimal incident. If the Plaintiff was deemed to not be fit for his pre-injury duties, he did not consider that that incapacity resulted from the pleaded injury. [760]
12. In a further supplementary report of 4 October 2019, Dr John Roberts stated that if the Plaintiff did have PTSD that would not impact upon his ability to carry out home renovations. If the Plaintiff did not have the capacity to undertake home renovations, he would not consider that that arose as a result of the pleaded injury, but would occur in the context of his recurrent major depression with a relapse into the depressive phase which would compromise employment. [761]

Dr Stephen Allnutt

1. Dr Stephen Allnutt, psychiatrist, prepared four reports dated 27 March 2017, [762] 21 December 2018, [763] 26 May 2020 [764] and 16 June 2020. [765]

27 March 2017 Report

1. In his first report, Dr Allnutt was able to review a series of documentation, however it is clear he didn't have access to Dr Butler's reports of 26 September 2016 and 12 May 2020, nor did he have access to the records of Dr Butler's practice outside the period of 2 July 2015 to 24 September 2016. It also appears that he did not have access to the reports of Dr Osborne dated 2 October 2016 and 2 July 2017, and his clinical notes. That aside, he obtained a history that prior to the index injury, there were no problems with the Plaintiff's performance and no significant conflicts. He recorded that in the five years prior to the index injury had taken place he had taken one day of sick leave. He noted that at the time of the injury the Plaintiff was taking Valdoxan 5mg daily and had been taking this for the past year, although the Plaintiff wasn't sure exactly how long. Prior to that he had taken Pristiq for about a year and a half. These were medications which had been prescribed by Dr Butler. He also recorded that the Plaintiff had not been seeing a mental health professional. The only contact the Plaintiff had with a mental health professional was as a teenager in the context of a relationship break up where he saw an Employee's Assistance Programme psychologist on one occasion, and described himself as not being depressed at that stage. [766]
2. The circumstances in which the Plaintiff described that he came to take Pristiq was that two and half years prior to 5 August 2016, in around 2013, he was working in Mudgee away from home, which created some insecurities in relation to his employment. He was also missing his family and working overtime. Around this time, he noticed that his sleep patterns changed. Following this, he felt more rundown. In 2013, Dr Allnutt recorded that the Plaintiff spoke to his GP who said he needed to take Pristiq, and at that stage his sleep was poor and was comfort eating but his appetite was okay. Energy levels were diminished but his motivation was okay and he was working 14 hour shifts. However, he felt that he was letting his family down but still maintained his interests and was keen for his family to come to Mudgee. When he took Pristiq, he felt that his weight increased and he continued to feel somewhat depressed although a little bit better. Due to the weight gain, his GP changed his medication to Valdoxan and he continued to take that at the time of the index injury. He noticed that he lost weight then and maintained a normal weight, but found that generally his mood remained the same. [767]
3. The Plaintiff specifically denied to Dr Allnutt prior episodes of depression. Dr Allnutt recorded that the Plaintiff's father had passed away six or seven years ago (prior to 2018) and that this was described by the Plaintiff as not a stressor at the time of the 5 August 2016 incident. Dr Allnutt noted that he had not been given a diagnosis of carcinoid syndrome following his diagnosis of a carcinoid polyp some years previously. Dr Allnutt recorded that the Plaintiff reported that prior to 5 August 2016 he did not have episodes of flushing, changes in his skin, diarrhoea, stomach cramps or episodes of shortness of breath, all of which are some of the symptoms of carcinoid syndrome. [768]
4. Dr Allnutt recorded:- At the time of the index injury he remained depressed, missing his family. He had also taken a new position on nightshift but was getting on well with everybody. His sleep was good nonetheless, and he had acclimatised to nightshift over a period of two weeks. His appetite and energy levels were good. He was going to the gym every day and was walking. His motivation was high, he had good self-esteem and thought he was really good in his new position. He had new people, had picked up the job "real quick" and was enjoying his work. He had confidence in his decision-making, maintained adequate concentration and found pleasure in activities. In this sense there had been some improvement in his mood in the six months prior, after he started medication and began doing more exercise. He was not experiencing any anxiety symptoms. [769]
5. Dr Allnutt obtained a history that his relationship with his wife and children was previously stable and that he saw his friends regularly with no difficulties with these relationships. [770]
6. The Plaintiff then described to him the circumstances of 5 August 2016. Dr Allnutt then asked the Plaintiff how he felt at the material time of the incident, and the Plaintiff advised him that it was "frightening" and that "I thought I was going to die, without a doubt". When he asked why he stayed, the Plaintiff stated that he had a duty of care and that there were 40 other persons at the other side of the fire and that at the time there was limited time for him to intervene to prevent deaths occurring. [771]
7. Dr Allnutt obtained a history that the Plaintiff went back to work and there was an investigation which required him to go back underground. The Plaintiff reported to Dr Allnutt that "I was terrified; I was looking over my shoulder. I was worried that something was going to go wrong." He reported that he was dry retching and that he had to walk away, felt emotional, his chest was crackling, had a foul taste in his mouth and that he was scared. The Plaintiff was thereafter interviewed before being asked to go home and take the rest of the week off. Dr Allnutt recorded that the Plaintiff felt "gutted" because his employer doubted him. He then recorded that his GP referred him to a specialist, which I infer is a reference to Dr Jonathon Osborne, psychologist, who the Plaintiff came to see on 16 September 2016. Dr Allnutt records a history that in the two months the Plaintiff was off work, he felt cranky and irritable and didn't want to leave the house as he was scared he was going to make a mistake and maybe have an accident. He recorded that the Plaintiff had difficulty concentrating, wasn't sleeping, kept thinking about what happened at work, from finding the fire to all the "stuff-ups" that were made, was dreaming about what had happened, waking up in sweats, waking up vomiting and waking up with diarrhoea. He observed that the Plaintiff had an increased appetite and was comfort eating, and that he was aggressive towards other family members. Thereafter he recorded that the Plaintiff returned to work and was put on a surface job operating the wash down. Dr Allnutt recorded that the Plaintiff described his performance as poor as he could not do what he was asked to do and was not completing jobs because of his attention span. He also recorded that the Plaintiff described himself as "snappy and yelling at people". Dr Allnutt recorded that at the time of his interview, the Plaintiff was assisting his cousin by cleaning balustrades and sweeping floors between 10 to 12 hours a week in a small workshop. He noted that the Plaintiff described his performance as "not bad" and added that he wanted to get a partnership with his cousin. [772]
8. Dr Allnutt noted that the Plaintiff described the relationship with his wife was strained because of his aggression. There was no physical aggression but there were verbal arguments and had smacked his children once or twice, something that he had never done before. At that point there was no discussion of separation because his wife was supportive, however he described a distant relationship with his family and friends. [773]
9. Dr Allnutt opined that the Plaintiff was suffering with a chronic PTSD and associated depression. This diagnosis was formed taking into account the fact that the Plaintiff experienced a life-threatening event. Following this incident, noting the period prior to his return to work and following his return to work, the Plaintiff's symptoms included, irritability, short-temperedness, nightmares with sleep disturbance, problems with concentration and increased appetite, as well as hyper-vigilance when exposed to cues that related to 5 August 2016, vigilance to sudden sounds and was experiencing episodes of panic. These symptoms, Dr Allnutt stated, were all symptoms of PTSD. At the time of consulting Dr Allnutt, it was noted that he continued to manifest symptoms characterised by irritability, ongoing poor sleep with nightmares, waking up with cold sweats, a loss of interest in usual activities, distress when speaking about the incident, avoidance of cues that reminded him of the incident, a persistent negative emotional state characterised by depression and anxiety, reduced participation in usual activities, a degree of estrangement from others through social withdrawal, irritability, hyper-vigilance, problems with concentration and sleep disturbance. He also noted that he continued to have ongoing panic attacks. Dr Allnutt did not consider that being able to describe a traumatic event in detail was inconsistent with a diagnosis of PTSD. The Plaintiff was also described as manifesting depressive symptoms characterised by reduced energy, reduced motivation, a degree of loss of self-esteem and reduced capacity for pleasure. [774]
10. Dr Allnutt stated that there had been a distinct change in the Plaintiff's behaviour but it is unlikely that there had been any change in his personality. So far as his anti-depressant medication was concerned, he considered that the dose that the Plaintiff was prescribed was sub-therapeutic, and the psychological treatment he was having was too infrequent. In the short to medium term, he opined that the prognosis was poor and the long-term prognosis was guarded. He recommended that the Plaintiff see a psychologist for a duration and frequency to be determined in collaboration with the treating psychologist which he would envisage being weekly to 2 weekly consultations over a period of 6 months, depending on the clinical response. He also opined that the Plaintiff should see a psychiatrist for a duration and frequency to be determined in collaboration with the treating psychiatrist, depending on clinical need, but would envisage 4 to 6 weekly consultations until stabilisation on medication is obtained with less frequent contacts thereafter for a period of 12 months. [775] He did not consider that the Plaintiff would be ever able to return to his pre-injury employment given that he developed a chronic PTSD, a condition that can be easily re-triggered by exposure to similar circumstances. At that stage he did not recommend that the Plaintiff return to an environment that exposed him to being underground or to cues that mimic what he was exposed to on 5 August 2016. He recommended that the opinion of an occupational therapist be obtained, but noted that the Plaintiff was working at the time of the report in a job with relatively less significant responsibility and should be encouraged to pursue employment which would suit his current capacities. [776]
11. Finally, Dr Allnutt noted that there was evidence that the Plaintiff had a pre-existing depression from about 2013, and described a number of depressive symptoms. He accepted that there were ongoing residual depressive symptoms at the material time of 5 August 2016, but not to the extent that they were impacting significantly on his functioning. Dr Allnutt stated that whilst this could be viewed as an aggravation of a pre-existing condition, he was of the belief that it could also be viewed as the onset of a completely new condition, namely PTSD, rather than as a depressive disorder. He did not believe that the condition was transient, given the symptoms described and which continued to persist. He believed that the PTSD persisted. [777]

21 December 2018 Report

1. Dr Allnutt provided a second report dated 21 December 2018 following a further consultation on 4 December 2018.
2. On this occasion, Dr Allnutt recorded that the Plaintiff described that he was trying to accept what had happened, however he felt he was a different person since the incident. His mood was fluctuating, and was easily fearful of negative events occurring, noting the fearfulness could be triggered by minor events such as hearing a sound, a siren or car driving past, seeing mining accidents on TV or seeing mining machinery such as a conveyer on a belt on a truck going to a mine. When such incidents occurred, he would sometimes feel clammy with palpitations. He had flashbacks about what occurred on the night of the incident and that if he smelt smoke he would straight away be standing, looking to see if there was a real fire. [778] He would have nightmares, waking up in a sweat and sometimes his wife would have to calm him down. His energy levels were fluctuating, his motivation poor and described himself as not being driven like he used to be. He described himself as being unable to focus on intellectually demanding tasks. Regarding his decision making, he stated that he now asked for his wife's opinion because he had lost confident in himself to make decisions. He had lost interest in doing anything to do with coal mining and surf lifesaving. Whilst he did try to engage in sport he was less motivated saying he was "always on the side (lines)." Dr Allnutt described him on this occasion as more irritable and short-tempered than on previous occasions. Socially, he was described as going out infrequently and his enjoyment fluctuated and was less engaged. If people visited he would rather be in the kitchen. He felt unable to drive a car to an unfamiliar place because of anxiety. His relationship with his wife was strained because of his irritability and they had just come out of a bad period where they had almost separated. His relationship with his children was strained and he described his behaviour to them as unacceptable. He had also lost contact with several friends. [779]
3. Dr Allnutt had also interviewed the Plaintiff's wife, Mrs Ganassin, who described that there had been a "definite change" since the incident. The account that Dr Allnutt obtained from Mrs Ganassin largely accords with that which Mrs Ganassin gave in evidence. This included the fact that the quality of her relationship with the Plaintiff had changed, there were more arguments and they had recently discussed separation. She described him as impatient, critical and irritable with the children and the quality of his relationship with them had changed, and he had limited contact with friends. [780]
4. Dr Allnutt viewed the documentation cited in the report of Dr Wendy Roberts of 14 August 2018. He also noted there was an occupation health assessment report dated 10 July 2018 by Dr Gerard Barold, who noted several anxiety and depressive symptoms in the Plaintiff. Dr Allnutt stated that Dr Barold found that description of his condition and diagnosis of a chronic PTSD with associate depression to be in accordance with his findings that day. Dr Barold apparently recommended psychiatric review and treatment as there had been a deterioration since the time he was assessed by Dr Allnutt. Dr Barold is recorded to have thought that the return to pre-injury duties were impossible due to PTSD, and believed the history was consistent with his clinical findings and thought he had reached maximum medical improvement. [781]
5. Dr Allnutt noted, in reference to the report of Dr Wendy Roberts, that whilst inaccuracies in history and poor performance on MMPI and validity testing raise concerns about the validity of an individual's account, other factors need to be taken into consideration in conjunction with those results before ruling out a condition. This would include demeanour during the interview, as well as other collateral informants such as family members. According to Dr Allnutt, MMPI results show exaggeration, but do not rule out a mental condition; what they demonstrate is that at the material time the MMPI was conducted, he was prepared to exaggerate on the test. Dr Allnutt further stated that people with chronic PTSD or any other psychiatric condition can still exaggerate and sometimes can exaggerate because of a condition. Dr Allnutt accepted that he was not an expert on the MMPI. Nevertheless, he stated that the Plaintiff's demeanour during the interview was consistent with PTSD in the sense that he was tearful and had restricted affect. The information given by the Plaintiff's wife was that there had been significant change in the Plaintiff's mental state. She described symptoms consistent with chronic PTSD that were not present before the injury, although acknowledging that he had a previous tendency to become angry. Dr Allnutt opined that the Plaintiff had a reasonable history of pre-existing depression and a history consistent with chronic PTSD following the incident. He noted that the Plaintiff had denied experiencing any symptoms commonly found in people with chronic PTSD preceding the incident. On balance, he remained of the view that the Plaintiff has chronic PTSD and stated that the information he had was insufficient to change that view. [782]

26 May 2020 Report

1. The Plaintiff saw Dr Allnutt for a third time in May 2020 by way of audio-visual connection. Dr Allnutt reported on 26 May 2020. [783]
2. Dr Allnutt reported that the Plaintiff had not returned to work since he last saw him, nor had he done any significant training or study and that he had been signed off by his GP as unfit for work. He also recorded that the Plaintiff's youngest son had recently been put into day care two days a week because his wife was not working full-time and he was unable to care for his son adequately two days a week. Recreationally, the Plaintiff had not pursued any significant hobbies. He did do some fitness training but his motivation was described as being up and down. Dr Allnutt noted that the Plaintiff continued to see Dr Osborne about four to six weekly and the Plaintiff's prescription of Brintellix had been increased 10mg to 15mg. He was seeing Dr Butler every four to six weeks.
3. The Plaintiff described to Dr Allnutt that he had a difficult night's sleep the night before this interview because he had heard five miners were seriously injured in an explosion underground. He reported starting to have a tight chest, diarrhoea and difficulty sleeping and since then had been more depressed. He said this news had triggered thoughts about the incident, why it happened and how life has changed. [784]
4. The Plaintiff described his main stressor impacting on him was what had occurred on 5 August 2016. He continued to have nightmares dreaming about work and the incident, including putting out the fire, being put in the back of the ambulance and people standing around him. He described his sleep in the last two to three month as having deteriorated. Whenever he awoke from a dream, he felt tightness in his chest and sweatiness and would have to turn on the light and look around to see if it was real and then have difficulty getting back to sleep. When he was asleep, little sounds would wake him and he would often get up and check the house and his children. He described eating comfort food and his energy levels were diminished when he sometimes went for a run or walk, and that he felt flat as far as his energy was concerned. His motivation was poor and if things had to be done, he would do them, but otherwise his motivation was low. [785]
5. The Plaintiff described a difficulty concentrating, he wasn't getting tasks done and he thought of his of himself as a failure who let a lot of people down. He struggled with decision making and had no significant hobbies. He continued to be irritable and short-tempered, and he and his wife had been discussing separation but she had given him another chance. Sudden sounds scared him and he would check to see where they had come from. He tried to stay away from most people as he had no trust. Sometimes he caught up with a friend but preferred to stay away from them and did not talk. Panic attacks were characterised by tightness in the chest, clamminess, palpitations and sweating. They could be triggered by going near the coal mine where the accident happened, certain sounds or going into public when people where around. He avoided coal mines and coal trucks, all of which could trigger panic attacks.
6. He described going out twice a week when he went for a walk with a friend, but other than that did not enjoy social events. He could drive a car alone, but became anxious when driving to unfamiliar places unaccompanied. He did not take public transport as he did not want to around people as he felt confined and was fearful that something could happen. [786]
7. As far as the relationship with his wife was concerned, the relationship had deteriorated. There was no intimacy and they were considering separation. Although there had been verbal aggression there had not been any physical aggression. The relationship with the children continued to be poor as he was impatient and cranky with them, and would not spend time with them unless he had to. Apart from one person he had lost almost all his friends. The mining company OPL that he had established in 2014 had not seen any work done on it since the incident. Before the incident, he was in the process of rebuilding his home, but said he had done any significant building or anything else since then because of his "state of mind". So far as the incident was concerned, he described himself as never being so scared in his life and thinking he would die. He noted that there was a full conveyer belt of coal and full belt on fire, with an increased risk of an explosion or fire and thus risk to his life. [787]
8. Dr Allnutt reviewed documentation, which included Dr Wendy Roberts' report of 14 August 2018, Dr Osborne's report of 2 July 2019, Dr Butler's report of 29 July 2019 and Dr John Roberts' reports of 18 January 2017 and 4 October 2019. Notwithstanding that, Dr Allnutt opined that his opinion remained relatively unchanged compared to that expressed in his report dated 27 March 2017 and the issues he addressed regarding diagnosis in the 21 December 2018 report. He remained of the view that the Plaintiff has a chronic PTSD and a diagnosis of major depressive disorder was also entertained. He accepted that the severity of the stressor required further investigation, but based on the information given to him by the Plaintiff at the material time of the incident, he perceived himself as being under threat of serious harm or death which meets the definition of Criterion A in the DSM-V. Noting the Plaintiff's symptoms, he opined that the Plaintiff would have difficulty not only in the mining environment but in any working environment. At this stage he was of the view that the Plaintiff was unfit for employment and would remain so until his symptoms continue at their current severity. He reiterated that the Plaintiff should see a psychologist and psychiatrist, characterising this as a recommendation. He also stated that the GP needs to continue to review his physical and mental states and undertake the usual investigations to rule out any underlying physical causes of anxiety and depression. [788]
9. Dr Allnutt stated that whilst the Plaintiff may have scored in a manner suggestive of exaggeration in the MMPI, the extent of the impairments and symptoms supported by the collateral information supports the conclusion that he has suffered a PTSD substantially contributed to by the incident. He noted that the Plaintiff's description of his PTSD and depressive symptoms was reported to all independent assessing clinicians and was supported by others, such as his treating clinician and his wife. [789]

16 June 2020 Report

1. In a follow up report of 16 June 2020, Dr Allnutt responded to the report of Dr Wendy Roberts of the 5 June 2020. He noted that her report appeared to focus on his report of 21 December 2018 and it was not clear whether she had considered his report of 26 May 2020, where he had regard to the reports of Dr Osborne dated 2 July 2019 and Dr Butler dated 29 July 2019, which were based on the summary of their notes and contacts. Whilst he accepted that psychiatrists were not trained in psychological tests such as the MMPI, he stated that when an MMPI is provided, regard is to be had to it and consider the findings. Dr Allnutt noted that he did not disregard the finding of the MMPI or concerns about the Plaintiff's self-reporting. However, he did have regard to all of the information, in particular, the GP notes from 28 October 2002 to 7 November 2017 and his report of 29 July 2019, [790] and the reports of Dr Osborne of 2 October 2016 and 2 July 2016 and his notes from 9 December 2011 and 6 May 2020, with about 38 consultations from 16 September 2019. In his view, those materials strengthened the argument in favour of a mental condition following the incident. The information was further supported by the observations made by Mrs Ganassin whom he had interviewed. He also considered the opinions and reports of Dr Wendy Roberts and Dr John Roberts, but disagreed with them. He accepted the findings of MMPI test would form part of the clinical information on which an opinion is formed, along with the consideration of other information and his clinical interview.
2. Dr Allnutt thereafter proceeded to state:- In my experience, many people provide inaccurate medical histories and mental health patients are at risk of this, due to anxiety and cognitive problems. As best as I am able to understand it, the inaccuracies that the psychologist raises are noted in her report dated 18/1/2017 at 10.15 and are derived from the psychologist's analysis of the medical record. If the GP notes are to be relied upon then I would also rely upon the GP's interpretation of his own notes (29/7/2019) which reports post injury deterioration. Further, in my view while requiring consideration, the inaccuracies noted at 10.15 are less of concern when considering the medical aspects of his mental state as recorded in the GP notes. In post-injury interviews he provided a history of pre-existing depression and treatment with medication, improvement around the time of the index injury and deterioration after the index injury. On my reading of the GP notes there was pre-existing depression treated with medication, improvement in his mental state around the time of the index injury (from 25/2/2016 to 5/8/2016 there is recurrent reference to him doing well on medication) and aggravation of his mental state after the injury (Dr Butler's report 29/7/2018). Thus, the overall medical data in the GP notes is consistent with change after the index injury and broadly consistent with his self-report of the course of his illness. Problems with his wife's pregnancy and dispute surrounding the investigation would be aggravating factors that would be more likely to aggravate depression rather than trigger posttraumatic stress symptoms. On the issue of demeanour, I agree that demeanour in an interview is not diagnostic; It is part of the clinical assessment and his demeanour was consistent with a person with a psychiatric condition - including PTSD. It was not inconsistent with PTSD. On the issue of irritability, I agree, irritability and short temperedness are a symptom of any psychiatric conditions including PTSD. However, there appears to be an aggravation of his irritability and short temperedness, reported to me in interview by his wife. [791]
3. Dr Allnutt thereafter proceeded to state that in his view, where a person has gone underground and experiences a fire, particularly when there is flammable material such as coal there, that there would be on reasonable grounds for that person to believe themselves to be under threat and that this would meet Criterion A. With regard to the question of diagnosis, he noted that Dr Wendy Roberts stated that she completed a checklist/questionnaire and that the Plaintiff endorsed symptoms of PTSD on that form, but he did not describe symptoms of PTSD in her detailed open-ended interviewing. However, Dr Allnutt referred to sections of Dr Wendy Roberts' report where she made observations that he personally regarded as at least suggestive of a diagnosis of PTSD symptoms according to the DSM-V. He acknowledged, nonetheless, that Dr Wendy Roberts had a right to interpret her clinical information in the manner she wishes. He made the following observations on her report, with references to DSM-V symptoms in brackets:- …At 2.15 - "I was numb, it's very hard when you're back at work and you are reliving everything (B3); 2.17 - a cousin…who "talked about trying to get me out of the house" (D5/D6), "I lost it with customers and jobs" (E1); 3.16 - when speaking about the incident - at this point his head was in his hands and used a tissue to wipe his eyes. I offered him a break (B4/5): 3.8 - "I was in shock" (A1); "I was cranky" (E1); 6.4 "I've shut a lot of people out of my life" (D6); 6.8 "I had a nice vegetable garden and I let it go to ruin" (D5); I fail at everything" (D2); 6.11 - "the return to work guy came in"…"lots of flashbacks ((B3), lots of nightmares (B2), lots of palpitations and I was clammy and sweaty (B4/5); there was a lack of sleep (E6); he worried about guys going underground every single day (D2); 6.12 - "I've gone from someone who has plateaued. I was never angry before and now I rage anger. It doesn't take much to set me off' (E1); 6.13 - "I don't trust anyone" (D2); 6.37 - in relation to going underground "I told them I can't and wasn't up to it" (C1/2); 6.39 - "I dream about what happened" (B2). [792]
4. Dr Allnutt also noted that Dr Wendy Roberts raised concern that PTSD symptoms are widely available and subjective. However, he noted that at [4.1] of her report, when he was asked to list his presenting problems, the Plaintiff spoke about current stressors and did not list PTSD symptoms.
5. Overall, Dr Allnutt opined that he had come to the conclusion that on balance, if the observations of other collateral informants are regarded as reliable and despite the problems with self-reported details about his history and difficulties with the MMPI, the Plaintiff experienced a psychiatric injury as a consequence of the incident, manifesting a constellation of symptoms consistent with PTSD. If the injury was not deemed adequate to meet Criterion A, Dr Allnutt was of the opinion he suffered a chronic adjustment disorder with depressed and anxious mood.

Joint Report Dr John Roberts and Dr Stephen Allnutt [793]

Does the Plaintiff now suffers/has the Plaintiff suffered in the past from psychological or psychiatric condition and if so what type?

1. Dr John Roberts opined that the Plaintiff suffers major depressive disorder that predates 5 August 2016. He saw no basis to support the development a new psychiatric condition or an aggravation of the pre-existing one.
2. Dr John Roberts noted the comments of Dr Wendy Roberts and considered them to be significant. Due to inaccuracies in regard to history, amongst other matters, and the evidence of exaggeration and embellishment on tests, he opined that it was not possible to come to a conclusion due to the Plaintiff's unreliability as a historian in regard to his assertion of symptomatology arising as a result of the incident of 5 August 2016.
3. Dr Allnutt was satisfied that the Plaintiff either suffered an aggravation or the onset of a new psychiatric condition as a consequence of the index injury. He stated that the Plaintiff would have been vulnerable given the pre-existing depression.
4. He opined that in circumstances where there had been concern about the inaccuracies and inconsistencies in reporting it was necessary to turn to other collateral confirmation. Relying on the report of Dr Butler of 29 July 2019, he was satisfied that there had been a deterioration in the Plaintiff's mental state, noting 90 consultations since 2008. He also had regard to the notes which reports of panic attacks not being present before 5 August 2016 and a referral to a psychologist who noted symptoms of depression and anxiety. He also noted a deterioration in the area of his marital relationship, occupational capacity and social interactions. In Dr Allnutt's view the Plaintiff's symptoms were either an aggravation in his mental state with the emergence of post-traumatic stress symptoms in addition to his depression, or the onset of a chronic post-traumatic stress disorder.
5. Dr Allnutt accepted that inaccuracies in self-report and the poor performance on an MMPI raised concerns. However, he stated the information needs to be considered in light of factors that might influence or motivate inaccurate reporting or poor performance on MMPI and balanced with other sources of information. In his view, if Dr Butler's and Mrs Ganassin's observations are accepted then there are reasonable grounds to accept the self-report.

If any such condition is continuing or may recur, what is the prognosis?

1. Dr Roberts opined that the major depressive disorder is likely to continue into the future. It is characterised by periodicity and the prognosis is recurrence and increasing episodes with age. He did not consider that the incident of 5 August 2016 altered the position.
2. Dr Allnutt opined that given the persistence of symptoms and the comorbidity the Plaintiff will continue to experience posttraumatic stress symptoms that will fluctuate with intensity for the foreseeable future. It is not possible to predict whether full recovery will ever occur but it is unlikely. In respect of the recurrent depression he considered full recovery would have been poor.

In relation to any psychological or psychiatric condition, was the incident a substantial contributing factor?

1. Dr John Roberts opined that the major depressive disorder was pre-existing and attributable to other events which cannot be established, although opined that depression of this type tends to be substantially of a genetic basis. Whilst he accepted that pre-existing psychiatric illness may render a person vulnerable, the stressors to which Dr Allnutt refers are ubiquitous and to assess the increase in vulnerability to PTSD as a result of normal stressors would be difficult if not impossible in his view. In this respect, the Plaintiff's unreliability as a historian renders the making of a judgment extremely difficult.
2. Dr Allnutt opined that given the Plaintiff had a pre-existing depressive condition and was vulnerable to mood fluctuations in the context of general life stressors as depicted in the Dr Butler's notes, he would have been vulnerable to an aggravation in his mental state in the context of more significant stressors such as an incident where he felt his life and physical well-being to have been threatened.

What is the causal significance of the Plaintiff's reaction to his post injury post cessation of employment dealings with CMI?

1. Dr Allnutt opined that the Plaintiff would see factors such as a discontinuation of treatment and the reluctance to accept liability as stressors which would have aggravated his depressive symptoms and in turn could have aggravated post-traumatic stress symptoms. He stated that the longer treatment is delayed in respect of psychiatric conditions, the poorer the prognosis and the longer a condition persists the more likely it will remain chronic.
2. Dr Roberts noted that in the context of his contact with the Plaintiff and his wife, the Plaintiffs psychological difficulties were blamed on the insurer. If this history is accepted, he would consider that they were nominating the insurer as being responsible to a degree for the Plaintiff's psychopathology. He was unable to assign aggravation in terms of percentage in light of the difficulties in accepting the history as given by the Plaintiff.

If the incident was a substantial cause of any psychological or psychiatric condition was it an aggravation of a pre-existing psychological or psychiatric condition?

1. Dr John Roberts assumed that if the incident was of significance a transient aggravation may have occurred. However due to the Plaintiff's at unreliability as a historian he was unable to establish whether that was the case.
2. Dr Allnutt was of the view that the 5 August 2016 incident was a substantial contributory factor, or at the least, an aggravation, if not triggering the onset of a new condition, namely Chronic PTSD. In terms of aggravation, he opined that since the incident the Plaintiff had become unemployed, socially withdrawn and the quality of his relationship with his wife and his children deteriorated and the extent of the aggravation was therefore significant. In his view the aggravation was permanent and he did not believe it had ceased.

If the incident was substantial and a new cause of any psychological or psychiatric condition rather than an aggravation, has the causal effect of the incident ceased and, if not, what is the nature and extent of the continuing symptoms referable to it?

1. In this respect Dr John Roberts stated that he was unable to determine any new psychiatric or psychological condition had resulted from the incident of 5 August 2016.
2. Dr Allnutt was of the view that the condition had not ceased and was still affecting the Plaintiff. The symptoms of major depression and post-traumatic stress disorder in his view can overlap so that one condition can aggravate the other so that a person with depression who then also meet the criteria for PTSD can then also meet the criteria for a diagnosis of PTSD. He found the symptoms at least moderate in nature.

Joint Evidence Session Dr Allnutt and Dr John Roberts

1. In cross-examination, Dr Roberts accepted that carcinoid syndrome had been excluded as a circumstance accounting for the Plaintiff's presentation. [794]
2. Dr John Roberts was asked whether in light of Mr Chapman's evidence that the experience of fighting a fire was horrific would be of significance in considering whether the event was sufficient to cause PTSD. Dr John Roberts agreed that he would accept the opinion of an expert in this regard, and if it was assumed that what the Plaintiff perceived was a horrific event, it would have the potential to cause PTSD. He noted that it would not necessarily cause PTSD. [795] Dr Allnutt agreed. [796]
3. Dr John Roberts was then referred to the history recorded in his report of 8 December 2016 recounting Mr Ganassin stating that for three years he had suffered mild depression and had been given antidepressants by his GP. He did not accept that that was a reasonable summary in light of the contents of the GP's notes that recorded significant depression and that period to the accident was feeling unwell and wanted to quit his job. He stated that a depression that causes you to consider leaving your job was more than mild but not at the most severe level. [797] He conceded, however, that he did not when asking the Plaintiff's questions specifically make reference to the GP notes. [798] Whilst Dr John Roberts accepted that he had regard to Dr Butler's clinical notes, he did not indicate when asked that he had regard to the Dr Butler's report of July 2019 which did not indicate that he considered the Plaintiff's pre-existing depression to be severe. He stated that he took into account what was in essence a sported report of Mr Ganassin's condition. He stated he wasn't able to see psychiatrically any difference in terms of the symptoms described by prior to the subject incident and post the subject incident. [799]
4. Dr Allnutt disagreed with Dr John Roberts' assessment pointing to the following:- 1. The GP is in the best position to assess his own notes. As such, he stated that it is fair to accept what Dr Butler stated in his report was based on his review of the notes. This, it was stated, was more reliable than a psychiatrist's interpretation; 2. A review of the notes indicates that from about 26 February 2016 there was improvement in the Plaintiff's mood on antidepressant medication. In addition, the impression one gets out of Dr Butler's report is that at the material time proximal to the event there are notes reflecting response to antidepressant medication in improvement in mental state; 3. Complaints about work cannot be concluded as related to depression but appears to also be possibly be related to stressful situations, like being in Mudgee and being away from the family; and 4. Whilst Dr Butler is best to speak to his own notes, his impression is that Dr Butler noted a deterioration in his mental state more significantly after the index injury. This corresponded with the history he recorded in his report of 27 March 2017. [800]
5. It was put to Dr John Roberts that he had not taken into account that Dr Butler's reference to previous psychological concerned symptoms were contextualised around specific events such as family and work demands. He responded that the Plaintiff's symptoms were such that he required different types of antidepressants to manage them. Dr John Roberts added that it is not the usual state of affairs that the stressors under consideration require intervention with pharmacotherapy of various types to control the normal vicissitudes of life. [801]
6. Dr John Roberts was next taken to the contents of Dr Butler's report where he noted in relation to pre-fire events:- Mr Ganassin was commenced on medication to assist him, he was initially managed on Pristiq/desvenalafaxine but he experienced weight gain and so was switched to vortioxetine, and was maintained on a low dose of 5mg (lowest dose available). He responded well to the medication and his mood stabilised. It was during the period of managing the mental health that the underground fire occurred. [802]
7. Dr John Roberts responded stating that major depression is defined as a primary disorder of the mood characterised by periodicity. He stated that if the Plaintiff has major depression then you would expect fluctuations of mood regardless of the circumstances and you would expect there would also be fluctuation in responses to treatment. He stated that what was apparent from the history is the current depressive episodes over time. [803]
8. Dr Allnutt agreed with this assessment, adding that pre-existing depression increased vulnerability to the development of PTSD as he was less likely and capable of dealing with stress. [804] He stated that the GP notes were supportive of at least an aggravation at minimum that emerges in the form of panic attacks which were noted as not there previously. [805] Despite accepting that panic goes with depression, he indicated that this signified a change as panic episodes and anxiety suggested aggravation which was consistent with change. [806] This was a reference to Dr Butler's clinical notes of 22 September 2016 where he records:- currently panic episodes and anxiety - not as preveious [sic] prev diagnosis of depression only [807]
9. Dr John Roberts responded that anxiety was an integral part of major depression and that he did not think the isolated observation of the GP enabled any conclusion to be drawn. [808]
10. It was then put to Dr John Roberts that the report of Dr Butler of July 2019 demonstrates a fundamental change in the Plaintiff's psychological presentation consistent with the development of another psychiatric condition in addition to a depressive disorder. He did not accept this, stating that he could not find any evidence in terms of the Plaintiff's behaviour which is as a presentable person in terms of the way he presents in terms of self-care, personal hygiene, his capacity to be a house father and his ability to concentrate and perform appropriately at interview. [809] Dr John Roberts added that you would expect fluctuations in his performance simply on the basis of a history of him suffering from a depressive illness. He stated that if it is assumed that the Plaintiff was exposed to a dangerous situation such as to have the potential to give rise to PTSD in peace time, the statistic is that between one in three and one in four such episodes do so. He added that many people with PTSD can preserve function and fulfil their normal roles. Dr John Roberts stated that in this case he could not detect any dysfunctionality that cannot be explained by the pre-incident recurrent major depression. [810] Dr John Roberts stated that the Plaintiff was undertaking activities equivalent with employment in that he is basically in a "role switch with his wife" and now he's working full-time as a househusband.
11. According to Dr John Roberts the Plaintiff was doing all the duties which would equate with a capacity to undertake work. His manner of interaction suggested intelligence and an ability to concentrate. He could not be satisfied there was any evidence of any change of significance in terms of his function. In that respect, he took into account the assessment of Dr Wendy Roberts in supporting his view that there did not appear to be a good basis for a diagnosis of PTSD. [811]
12. Dr Allnutt disagreed. He reiterated that the level of impairment on the information that he had available to him was different post injury. In particular, his understanding of the relationship between the Plaintiff and his wife was not previously as impaired as it is now. His understanding of the Plaintiff's ability to care for his children was not as impacted as it is now and it is more dependent on his wife. Dr Allnutt drew attention to the fact that the Plaintiff has seen his GP some 90 times since 2008 suggesting that there has been a change and noted that he saw a psychologist once in about 2011. Accepting the evidence of persons who were in more frequent in close contact with the Plaintiff and his wife about the change, he stated provides collateral sources confirming change. He stated that the change in the self-report was more persistent and quite significantly more subdued than preceding the index injury, given that he was exposed to a significant stressor and that would appear to meet Criterion A. Dr Allnutt opined that as the Plaintiff described post-traumatic stress symptoms then it is therefore attributable to PTSD. [812]
13. Dr John Roberts was asked if he had taken into account the reports of Dr Jonathon Osborne. He stated without elaboration that he had not read them and they contain very little that he considered would be of assistance to him in arriving at his conclusion. He concurred with what he asserted was the opinion of Dr Wendy Roberts, that there was very little to take into account and there is no information that would assist him. [813] Later in his evidence however Dr John Roberts stated that he did consider the "psychologist's report." [814] Dr John Roberts was further asked if he had sought information from Mrs Ganassin. He responded stating that he hadn't take into account her opinion and she participated in the interview to a minimal degree. [815] Later Dr John Roberts was again asked if he made any attempt to consider the accounts of Mrs Ganassin. On that occasion he stated he had, although he had not recorded her opinion in his report but relied on what is in his report not what she said. [816]
14. Dr John Roberts was next taken to the symptomatology that he elicited in his interview with the Plaintiff the subject of his report of 8 December 2016, which is outlined at [493].
15. Assuming that the statement of severe anxiety is correct, he stated that heightened anxiety to an inappropriate degree was a feature of any associated condition of which major depression was one and PTSD was another. If, however, the person was suffering from severe levels of anxiety, he stated that it would be manifested in function and there was no evidence that that has occurred in this case. [817] Dr John Roberts reiterated that to him the ultimate decision as to whether the condition and the dysfunctionality is present is evidence of dysfunctionality. He stated that the Plaintiff was occupying himself full-time as a househusband looking after his children. In this way he was functioning in a manner which was inconsistent with incapacity. [818]
16. Despite the fact that his report made no reference to the PTSD criteria, Dr John Roberts stated that he had in mind the definition and did consider it. He accepted that if the Plaintiff had intrusive symptoms that indicated preoccupation which would be consistent with PTSD. However he stated that he was not convinced a change had occurred and that the condition developed. He accepted the opinion of Dr Wendy Roberts based not only on the MMPI-2 testing but also on her detailed history and evaluation. [819]
17. Dr Allnutt stated that evidence of being underground where there is a fire and feeling yourself to be under threat of serious harm or death could be regarded as meeting Criterion A but does not inevitably mean that PTSD will result. He stated that whether PTSD will result depends upon the objective nature of the incident and the person's interpretation of the level of threat and psychological vulnerabilities as to how the person may perceive the threat. Dr Allnutt accepted that he didn't see any other way of getting information about subjective matters other than their history. He stated that that depends upon the person's accuracy and honesty in reporting that history. [820]
18. So far as Dr Butler's clinical note of 22 September 2016 was concerned (see [569]), Dr Allnutt accepted that the doctor was interpreting what he was told and was dependent upon the accuracy of what he was told. [821] Dr Allnutt's attention was then drawn to the opinion that he expressed in his report of 21 December 2018 stating:- While inaccuracies in history and poor performance on MMPI and validity testing raise concern about the validity of an individual's account, other factors need to be taken into consideration in conjunction with those results before ruling out a condition (it should not be ruled out based on results of testing alone). …… While my opinion could change with further information, on balance, I remain of the view that he has chronic PTSD as the information I have today in insufficient for me to change my view. [822]
19. Dr Allnutt's attention was next drawn to his report of 16 June 2020 where he refers to:- …I have come to a conclusion that, on balance, if the observations of other collateral informants are regarded as reliable by the adjudicator, then despite the problems with self-reported details about his history and difficulties with MMPI, he experienced an psychiatric injury as a consequence of the index injury - manifesting a constellation of symptoms consistent with PTSD. [823]
20. It was put to Dr Allnutt that by using the term "on balance" he was by no means confident of the view that he was putting forward and rather was taking the view that on balance it just got over the line. Dr Allnutt disagreed. He stated that the symptomatology described to various people over time meets the criteria for PTSD and he had taken into account concerns about the Plaintiff's veracity and poor performance on MMPI. However, having regard to the entirety of the information, which involved all the documentation available, he opined on the side of accepting the account of symptomatology. He opined that therefore the Plaintiff definitely has PTSD. [824]
21. Dr Allnutt was asked to assume that even when the Plaintiff was working with five and four day breaks he was contemplating changing his job situation. He accepted that this meant that the increased job stress could be greater. He was asked to assume that there was a change in his roster about a month before the fire that allowed only two days off and the Plaintiff was complaining about it regularly to the point of being told to take it up with the union. It was put to Dr Allnutt that this meant that the history that he obtained was unreliable. He responded that that could be implied. [825]
22. It was then put to Dr Allnutt that the Plaintiff denied having diarrhoea prior to the index incident. If this were not so it was suggested that this would be a further inaccuracy to the information recorded in his report of 27 March 2017. [826] Dr Allnutt accepted that it would be a further inaccuracy, however he stated that he was looking at symptoms more proximal to the injury that could suggest carcinoid syndrome. Dr Allnutt's attention was next drawn to Dr Butler's consultation on 16 June 2016 which refers to the Plaintiff coughing up green mucus and coaldust with increasing sputum and increasing cough. Dr Allnutt stated that he did not recall asking the Plaintiff about coughing but about shortness of breath. He stated that many people cough up sputum but do not complain of breathing problems. It was put to Dr Allnutt that if there were pre-existing difficulties with diarrhoea and difficulties with breathing then that part of the history recorded in his report would be inaccurate. Dr Allnutt stated that it could be, although he was looking at symptoms proximal to the injury that could suggest carcinoid syndrome. [827]
23. Dr Allnutt's attention was drawn to the history he recorded as to the Plaintiff's involvement with his cousin (earlier discussed at [301]) in his report of 26 May 2020. [828] Dr Allnutt was asked to assume that that history was incorrect and that Dr Butler recorded in a consultation that the Plaintiff indicated that the problem lay with his cousin because he was lazy and disorganised. Based on this assumption Dr Allnutt accepted that it would indicate a further inaccuracy. [829] Factoring in all those inaccuracies he was asked whether that caused him to have real doubt about the correctness of his view about PTSD. Dr Allnutt stated that there was cause to have doubt but if the collateral information is accepted then on balance he would accept that the Plaintiff suffered a PTSD. [830] It was then put to him that given the subjective nature of the symptoms, the inaccuracies that he referred to, the MMPI-2 test results and the additional matters that it may well be that the Plaintiff did not have PTSD. He responded it may well be, but on balance he thought he did suffer from PTSD. [831]
24. It was next put to Dr Allnutt, taking into account the matters to which his attention was drawn, the reality would be that the Plaintiff's symptoms are less than moderate. He stated that it was possible and when he said moderate he would put it at the lower level of impairment. He stated that he lies somewhere between moderate to severe, but that he at least "gets over the line with moderate." [832]
25. Dr Allnutt accepted that his reference to the Plaintiff being unfit for his pre-injury work as an underground miner did not mean that he was totally incapacitated for any work. He stated that he would recommend an occupational therapist report. However, in his view Plaintiff was reporting significant symptoms and was probably compromised on the open labour market. If he did get a job he would have difficulty securing it and maintaining it. [833]
26. Next, it was put to Dr Allnutt that his understanding was that the Plaintiff had become a househusband and carer for his children whilst his wife works. He stated that what he was told on 26 May 2020 was that the quality of the relationship between the Plaintiff and his children was poor, he had become impatient and cranky and was not spending time with them unless he had to. [834] Dr Allnutt was asked to accept that whilst there was evidence of strain from time-to-time, the Plaintiff looks after the children whilst his wife is working by giving them breakfast, getting them to school and picking them up, and generally a "househusband" looking after the domestic situation. He was asked, if those assumptions are accepted, whether that indicated some capacity for work. Dr Allnutt stated that it was a difficult question to respond to based on the amount of information. [835] Dr Allnutt accepted that performance of paid work could be a mitigating factor against mental disorders and he would encourage the Plaintiff to seek work within his capabilities even if he needed to retrain. [836]
27. Dr Allnutt's attention was next drawn to the contents of the statement in his report of 27 March 2017 (reproduced at [274]). It was put to Dr Allnutt that in the last sentence he fed the Plaintiff a question which enabled him to give an answer favourable to his case. He accepted that he sought Plaintiff clarification but completely disagreed with the suggestion that he did this to enable the Plaintiff to give favourable evidence. [837]
28. Next Dr Allnutt's attention was drawn to his report of 27 March 2017 where he stated that the Plaintiff "must see a psychiatrist for a duration and at a frequency to be determined in collaboration with the treating psychiatrist, depending upon clinical need". [838] Dr Allnutt's attention was also drawn to his report of 26 May 2020 where he stated "I recommend he sees a psychiatrist for a duration and at a frequency to be determined in collaboration with the treating psychiatrist, depending on clinical need." [839] It was put to Dr Allnutt that he didn't put in the same imperative, compulsory language, and that he watered it down because the Plaintiff had not acted upon the earlier imperative. Dr Allnutt completely rejected the assumption that he fed the Plaintiff or watered things down. He stated that in his opinion treatment was required for the Plaintiff to see a psychologist and psychiatrist. [840]
29. Dr Allnutt's attention was next drawn to Dr Butler's letter of 20 September 2016 where he states: - Full recovery will be expected but in his current position he is not appropriate to be working underground and we are developing a return to work plan initially on surface. Return to full pre-injury duties is and always has been the goal. [841]
30. It was put to Dr Allnutt that if the Plaintiff had appropriate treatment and perhaps a psychiatrist there would have been an early and full recovery. He responded stating that the Plaintiff had a pre-existing condition that had been fluctuating and continuing preceding the index injury so it was probable that even with treatment he would have continued with the condition afterward. He stated, however, that he couldn't say definitively. He further stated that if he had treatment it would have been fair to say that severity of the symptoms may have been attenuated and also fair to say that he might have recovered depending on the type of treatment but he couldn't say definitively that he would have recovered. He accepted, however, that the earlier one has treatment, the more likely one is going to respond. [842]
31. Dr Allnutt stated the injury could not be separated from the manner in which CMI dealt with the Plaintiff in relation to the injury, the impact of injury and the effect on his mental state. He stated that the injury and the manner in which they are dealt with form part of the same thing. [843] He accepted that if the Plaintiff perceived himself to have been treated badly by CMI, given that he perceived himself to have suffered an injury as a consequence of working with them, he would feel naturally angry. He stated that this would have aggravated his condition because of the anger, irritability, dissatisfaction, and feeling as if he were not being dealt with properly. [844]
32. In re-examination, Dr Allnutt explained that it was artificial to separate injury from the consequences of how it was. Two things aggravated his symptomatology or, put another way, would not be helpful to his recovery; the discontinuation of treatment and feeling that he was not being believed, not being managed properly and not being dealt with fairly by a company he perceived to have been involved in the injury causing his condition. [845] Generally, the longer treatment is delayed then the worse the prognosis is. However, he stated that it can vary from individual to individual and in this case the Plaintiff had major depression and he developed PTSD, such that it is unlikely he would have experienced a full recovery. [846]

Failure to Seek Treatment

1. In cross-examination it was also put to the Plaintiff that he was aware that for people who really need it psychiatric treatment was available free in the community. He stated that he didn't know this. He admitted that he did not make inquiries from public hospitals and health facilities. [847] He also admitted that he did not seek to have psychiatric treatment funded by worker's compensation. He stated that no one told him that that was something that would be offered. Nor did he discuss it with his lawyers. Whilst he acknowledged having top up workers' compensation at the time of the accident, he stated that it came on and went off a few times and the monies he received went to paying bills and feeding his family. [848] He stated that neither Dr Butler nor Dr Osborne recommended that he see a psychiatrist. [849] Nor could he recall Dr Allnutt stating that he must see a psychiatrist. [850]

Findings - Smoke Inhalation Injury

1. The Plaintiff contended that he sustained a smoke inhalation injury leading to a persistent cough together with sensations of breathlessness. It was conceded that lung function was currently normal. Reference was made to Professor Bryant who diagnosed ongoing cough syndrome indicative of persistent bronchitis but without evidence of bacterial infection, together with the likelihood that some residual symptoms would persist although it may take further time to see whether that would resolve.
2. The Plaintiff drew attention to the fact that Professor Bryant indicated that the Plaintiff's respiratory health was such that a return to pre-injury employment was inadvisable, and that if his cough continued he should not undertake work which involves him controlling machinery, which were he to lose control because of a bout of coughing, could result in damage to other items of equipment or injury to himself and other people.
3. Although the Defendant had the Plaintiff examined in respect of his respiratory conditions by a Dr Johnson, no report was forthcoming.
4. The evidence in Dr Butler's report documents that the Plaintiff was seen in relation to coughing on 22 August 2008 and 16 June 2016. On the former occasion, brown phlegm was noted and on the latter occasion green mucus and coal dust. However, a chest x-ray obtained later on 16 June revealed no pulmonary parenchymal opacities or any pleural pathology evident. I accept that the Plaintiff did suffer from smoke inhalation consequent to the subject incident.
5. Dr Butler's report of 29 July 2019 stated that the respiratory symptoms had settled. In evidence, Dr Butler stated that he was not asserting that the symptoms had ceased. Whether that be the case or not, the Plaintiff conceded that he had not complained to Dr Butler recently as having coughing fits as he had a "pretty good run" this winter and there has been no specialist follow up since Professor Bryant's review. Further, he accepted that he was doing three days a week exercise class for 45 minutes at a time including manhandling weights and kettle-bells, and doing push ups.
6. I have difficulty in accepting that the Plaintiff still has coughing fits that knock him out. Mrs Ganassin did not give evidence of the Plaintiff continuing to experience coughing fits. Whilst I am satisfied that the Plaintiff did suffer a smoke inhalation injury a smoke inhalation injury leading to a persistent cough together with sensations of breathlessness, I am satisfied that that this condition has largely resolved and that the Plaintiff in fact has minimal, if any symptoms in this regard.
7. Such a finding accords with what Mrs Ganassin is recorded to have stated to Dr Moses on 8 August 2017, namely that there was a large anxiety overlay that contributed to the Plaintiff's problems. It also accords the evidence of Dr Butler who stated that as respiratory symptoms settled something that was brewing in the background would come more to the head.
8. There was relatively little challenge to the Plaintiff's evidence as to his disengagement from activities with Wollongong Surf Club, his children's activities and his reluctance to socialise. I do not regard the fact that the Plaintiff planned a trip away with his family to Samoa as detracting from his evidence. Dr Osborne, when cross-examined, did not accept that this indicated an inconsistency with social inhibition. Whilst going to a location with his family may lead to contact with tourist and locals, whether and to what extent that occurred would be dependent on how the Plaintiff chose to spend any time away.
9. Furthermore the Plaintiff's evidence as to social interaction and irritability is consistent with at least some of the reasons recorded by Mr Bass as leading to him cease work with his cousin including poor interpersonal skills.
10. The Defendant pointed out that no corroborative witness in the Plaintiff's case who were at arms-length were called, in particular his friends that he's lost to say there had been a change in him, and his cousin was not called to say that the problem was with the Plaintiff rather the other way round. [851]
11. I have previously addressed the latter issue (see [296] onwards). I see no reason not to accept the Plaintiff's evidence on the issue of social isolation as in my view it accords with the complaints made to both Drs Butler and Osborne and the other evidence I have referred to.
12. The Defendant submitted that the Plaintiff's initial evidence as to the duration of his involvement in group exercise confined it to "some months". [852] When it was returned to in cross-examination, he increased it to three and a half years. [853] It was submitted that this would further cause the court to question the Plaintiff's credit.
13. The Plaintiff submitted that the evidence in chief relating to group exercise needs to be viewed in context, and that what he was stating was that his wife had been taking him to that exercise for some months, and the Plaintiff was not referring to the total duration of his exercise. [854]
14. Whilst the question put in evidence in chief was broad, relating to whether the Plaintiff since 2016 had engaged in other forms of physical activity, I do not accept that the Plaintiff's answers support the Defendant's contention. This is particularly where the Plaintiff in chief was not asked as to the duration of his involvement in the activity and the reference to "some months" was referrable to when his wife was taking him.
15. Mrs Ganassin was challenged in relation to her observations of the Plaintiff both before and after the accident. In cross-examination, she stated that she did not see any evidence that the Plaintiff was previously having trouble coping with his working life and home life; his capacity to parent, work and come to from and work and home; or that he was having any problems coping and was struggling. Following the incident she described him as having poor energy levels, memory problems and poor concentration. I accept this evidence, which accords with what she told Dr Allnutt and the Plaintiff's own evidence.
16. I accept that the Plaintiff suffers from intrusive nightmares about the accident. He was not challenged on this aspect of his evidence which accords with the complaints made to Drs Butler and Osborne and also the account given by Mrs Ganassin to Dr Allnutt. The Plaintiff's evidence as to panic attacks was supported by the account given by Mrs Ganassin to Dr Allnutt and also Mr Bass as well as the complaints recorded by Drs Butler and Osborne.

Findings - Psychological Injury

1. In assessing the evidence, Dr Butler's opinion was that the Plaintiff's pre-existing anxiety and depression were contextualised at those moments and there was a resolution. He accepted that that diagnosing any condition depended upon the truth and honesty of a patient to obtain an accurate diagnosis. Nevertheless, he stated that there were non-verbal communications relating to high adrenalin drive, which would be evident on examination. The specific aspect of the Plaintiff's history asserted to be inaccurate were put to Dr Butler as a basis for undermining his opinion. He was not challenged in relation to his assertion that whilst the Plaintiff had previous episodes of mild depression, he had no significant anxiety and panic attacks prior to the underground fire. Nor was it suggested that his reliance on the Plaintiff's complaint of experiencing a significant impact on his ability to sleep at night, experiencing flash backs of the underground fire and reliving the experience and decisions he had made was inaccurate. Dr Butler was of the view that he was expected improvement in the correct environment, which he identified as providing triggers for continuing PTSD. He accepted that if the Plaintiff did not have to talk to doctors and give evidence about it that would lead to expectations of significant improvement. All in all, his opinion stands and was not undermined. He regularly saw the Plaintiff both prior to and subsequent to the events of 6 August 2016.
2. I have noted the Defendant's submissions that so far as Dr Allnutt's evidence is concerned, when he first was brought into the case, he didn't get a full and accurate history. [855]
3. However in preparing his report of 27 March 2017, Dr Allnutt did not have access to Dr Butler's practice clinical notes from 2008 to 2015. He did have access to Dr Butler's letter to CMI of 16 November 2016, which asserted that the Plaintiff had experienced some psychological symptoms prior to the underground fire that were contextualised around specific events that would be considered appropriate. This included events such as when the twins were born and the Plaintiff having to manage family and work demands as he looked after the children whilst his wife was based at the Sydney Children's Hospital. Notwithstanding this, the history recorded by Dr Allnutt was inaccurate in the following respects:-

• It was asserted that the Plaintiff had been taking Pristiq only from about one and a half years before the fire (2013) when in fact he appears to have taken it from December 2011; and
• It recorded that the only time that he had seen a health professional was as a teenager in the context of a relationship breakdown. He spoke to her on one occasion and had no further contact with health professionals prior to the index injury. In fact the Plaintiff had seen Dr Osborne on 9 November 2011 when he was assessed as suffering and adjustment response to life stressors and grief. [856]

1. I do not accept that in its context the history as recorded by Dr Allnutt relevant to the Plaintiff not having diarrhoea and shortness of breath were inaccurate. The evidence in relation to the Plaintiff previously having episodes of diarrhoea in 2007 appears at best isolated. The 2015 circumstance was more significant. However in writing the report Dr Allnutt had access to the GP clinical notes from 2 July 2015 to 24 September 2016. I accept that Dr Allnutt's report of 27 March 2017 and oral evidence makes it clear that he was seeking a history proximal to the injury in the context of possible carcinoid syndrome; something it is accepted that the Plaintiff does not have.
2. I do not see the reference in Dr Butler's note on 16 June 2016 referring to coughing up sputum as evidence of breathing problems for the reason Dr Allnutt gave (see [583]).
3. In his report of 8 December 2016, Dr John Roberts stated that although the Plaintiff described symptoms that could be deemed to be related to heightened anxiety of an inappropriate degree, he could not form a definitive opinion until a full neuroendocrinological assessment was carried out to exclude carcinoid syndrome or other common endocrine abnormalities. No suggestion of the Plaintiff having such abnormalities was subsequently advanced.
4. Dr John Roberts thereafter commented on the Plaintiff's keenness to describe the incident in detail, describing it as peculiar without suggesting that it ruled out a diagnosis of PTSD. I accept Dr Allnutt's opinion that this is not inconsistent with a diagnosis of PTSD.
5. I do not attach significance to Dr John Roberts' statement that the Plaintiff in his first consultation only provided limited descriptions of areas of dysfunction. This consultation was also at a time that the Plaintiff was hoping to return to work and eventually to underground mining. That did not occur and the Plaintiff gave Dr John Roberts a more fulsome description of dysfunction as documented in his subsequent reports. The coincides with the dissipation of the Plaintiff's physical symptoms as Dr Butler described in his evidence,
6. Nor do I ascribe any weight to the Plaintiff's description to Dr John Roberts of his pre-existing depressive condition as being mild. Whatever view Dr John Roberts had based on his review of the GP clinical notes, in light of his limited questioning of the Plaintiff (conceded in cross-examination), I cannot be satisfied that the Plaintiff was understating his previous condition. Nor was that suggested in cross-examination. Moreover, I accept Dr Allnutt's opinion that whilst there were ongoing residual depressive symptoms at the material time of 5 August 2016, they were not to the extent that they were impacting significantly on the Plaintiff's functioning. In particular, the Plaintiff was able to work and to the extent that he contemplated leaving his employment as documented in the clinical notes of Dr Butler, I am not satisfied that this was a consequence of his depression as opposed to his dissatisfaction over his work arrangements and the impact on his family time.

Dealings with CMI and the Defendant

1. In cross-examination it was put to the Plaintiff that he found his dealings with CMI since he went back to work very stressful, unpleasant and incompetent. [871] He conceded that this has impacted on his life. [872] He acknowledged that he and his wife had had conversations with CMI in which anger and stress have been expressed. [873] The Plaintiff did not recall complaining to Mr Wilson about the treatment he received from CMI. Nor did he recall being told by Mr Wilson there was nothing he could do about it and suggesting that the Plaintiff might go to the union if he was so upset. [874]
2. The Plaintiff conceded that he hoped the need to have dealings with CMI and to talk to persons about the case will shortly come to an end. [875] When asked if he was looking forward to being able to move on when he no longer had those things hanging over his life, he stated that he just wanted his life back. [876] He hoped he would improve but didn't think he would. [877]
3. Mrs Ganassin accepted that there were some dealings with CMI between August and November 2016 and that she had spoken to a Mr James Dean. Ms Ganassin conceded that the Plaintiff had been stressed by his dealings with CMI. When this matter comes to an end she stated that the family would wish the Plaintiff well but she could not say that they would be there. She hoped that he gets better but if he doesn't the marriage is probably finished. [878]
4. I accept that the Plaintiff's dealings with the Defendant and its insurer have exacerbated his condition and contributed to his symptomatology and incapacity.
5. The Defendant contended that there was a further question of causation in relation to the perpetuation of his psychological complaints. Accepting them as genuine, it was argued that the evidence of Dr Butler was that there should have been reasonably speedy resolution. His evidence was that the respiratory symptoms settled and it seems apparent on a consideration of all the evidence that the Plaintiff developed an attitude towards CMI if not the Defendant which related exclusively to events comfortably after the fire connected with his claims for benefits on CMI in particular. It was contended that he experienced stress, anger and frustration and that Dr Butler, Dr Wendy Roberts, Dr John Roberts and Mrs Ganassin ascribed significance in maintaining or perpetuating his state of mind to that. Attention was drawn to the fact that Mrs Ganassin in the last consultation with Dr Moses on 8 August 2017 accepted this as a continuing adverse factor given the apparent resolution of respiratory difficulty and reasonable lung function test found on testing. The Defendant contended that the Plaintiff's lung function is satisfactory since he last saw Dr Moses. [879]
6. The Defendant further argued that the Plaintiff's attitude and reaction to CMI is so marked as a matter of evidence that it expects the Plaintiff will contend that the causation of his continuing psychological condition, to any extent which flows from his interaction with CMI, is a foreseeable consequence of having had any sort of injury in the first place which gave rise to question of statutory workers compensation. It contended that the decision was distinguishable from Mahony v J Kruschich (Demolitions) Pty Ltd [880] adding that dealing with insurance companies are not routine. Further there was no evidence that whatever CMI did was negligent or improper. Statutory benefits were declined when the Plaintiff though he was entitled to them and the denial was unfair. However, it was contended that the Plaintiff had a remedy which he embarked on but he did not ultimately press. [881]
7. The Plaintiff contended that the assertion that the Plaintiff's dispute with CMI which perpetuated his symptoms operated as an independent cause of his injuries should be rejected because such conduct is to be considered at the level of damage, not causation. It contended that the negligently inflicted injury is complete once the Plaintiff sustains injury and develops symptoms. Ongoing disputes thereafter with the insurer are simply part of the foreseeable consequences. [882]
8. The Plaintiff argued that it would be unjust to find that the Plaintiff's acrimonious dealings with the Defendant's insurer which denied his claim for compensation should defeat a claim for damages for serious injury sustained in consequence of the Defendant's negligence. It argued that if anything, the aggravation of the Plaintiff's PTSD caused by his dealing with CMI is not too remote and is a foreseeable consequence of the initial injury inflicted by the Defendant. [883]
9. Mahony was followed in Skea v NRMA Insurance Ltd. [884] That was a case that involved a Plaintiff who sustained nervous shock as a result of a motor accident involving members of her family whose condition was aggravated and exacerbated by caring for her seriously injured husband and daughter. Crispin P referred to Mahony stating:- 3. In Mahony v J Kruschich (Demolitions) Pty Ltd & Anor [1985] HCA 37; (1985) 156 CLR 522 at 527 Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ explained that the relevant damage includes "both the injury itself and other foreseeable consequences suffered by the plaintiff". Hence, as their Honours explained at 528, A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfesor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone. (Citations omitted) 4. If it is reasonably foreseeable that the psychiatric illness caused by the shock might be aggravated by some other factor then the further damage will also be compensable unless that factor can be regarded as a novus actus interveniens. The mere fact that the defendant would not otherwise be liable for any injury attributable to that factor is not sufficient to break the chain of causation. Hence, as their Honours observed at 529, even negligence in the provision of medical treatment for the injuries may not relieve an initial tortfeasor of liability for the plaintiff's subsequent condition. When subsequent stresses have led to an aggravation of a psychiatric illness, the aggravation may well be attributable to the psychological vulnerability arising from the initial illness and hence the very kind of thing that was likely to occur as a result of the defendant's negligence. 5. It is open to a defendant to attempt to show that some or all of the plaintiff's continuing disabilities are not attributable to the initial illness but to subsequent non-compensable stresses. However, in that event, the defendant bears the onus of "disentangling" the non-compensable from the compensable components of his or her condition: see Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
10. In the instant case I am satisfied that the Plaintiff exacerbation of his condition by his dispute with the Defendant and its insurer were foreseeable consequences of the PTSD sustained by the Plaintiff. It matters not whether the interactions was tortious. I accept Dr Allnutt's evidence view the injury, its impact, and what followed could not be separated in terms of it's the effect on his mental state. I accept that the Plaintiff's condition brought about by the injury meant the subsequent stress was the very thing likely to occur.
11. I also accept based principally on Dr Butler's view that there is an expectation of significant improvement in the Plaintiff's condition following the finalisation of this matter, although as Dr Allnutt stated, full recovery is unlikely.

Non-Economic Loss

1. It was not in issue between the parties that the Plaintiff would be entitled to receive damages for injuries sustained, subject to the constraints in s 151H of the 1987 Act. [885] That provided a threshold for the receipt of damages being that there was a serious injury which was defined in s 151H(2A) as:- (a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66(1), or (b) an injury for which damages for non-economic loss of not less than $48,000 [$73,351] are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).
2. Non-economic loss is defined in s 149 as:- (a) pain and suffering, and (b) loss of amenities of life, and (c) loss of expectation of life, and (d) disfigurement
3. Section 151G, as it applies in this case, provides:- (1) (Repealed) (2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non-economic loss is $204,000 [$416,733], but the maximum amount may be awarded only in a most extreme case. (4) If the amount of non-economic loss is assessed to be $36,000 [$73,541] or less, no damages are to be awarded (5) If the amount of non-economic loss is assessed to be between $36,000 [$73,541] and $48,000 [98,055], the amount of damages to be awarded for non-economic loss is as follows: Damages = [Amount so assessed - $36,000 [$73,541]] x 4
4. The Plaintiff submitted that his injury should be assessed at 45% of a most extreme case.
5. The Defendant schedule submitted that the Plaintiff's case fell between 17.5% and 25% of a most extreme case.
6. Bearing in mind my findings the case in my view falls at one third of a most extreme case, being an amount of $138,911 for non-economic loss.

Past Out of Pocket Expenses

1. Past out of Pocket expenses were agreed arithmetically at $16,189.22. [886]
2. Dr Osborne opined that the treatment identified was most likely in response to the incident itself but not from any pre-existing psychological conditions. He noted that the focus of the treatment was primarily on his major depressive symptoms. Dr Allnutt noted that prior to the index injury, the Plaintiff received antidepressant medication which was indicated for depressive conditions and was appropriate. Since the 5 August 2016 incident, Dr Allnutt noted that antidepressant medication was continued for the treatment of post-traumatic stress and depressive symptoms and the Plaintiff was also referred to a psychologist. This referral, in his view, seemed to indicate that the GP perceived an aggravation in the form of post-traumatic stress requiring both psychological treatment and medication as a consequence of the injury.
3. Dr Wendy Roberts stated that the treatment that arose prior to 5 August 2016 was due to his chronic emotional problems. Dr John Roberts was of the opinion previous treatment as identified GPs medical records was reasonable and appropriate and consistent with a diagnosis of recurrent major depressive disorders, and was unable to identify any basis for treatment arising from the incident of 5 August 2016.
4. Consistent with my findings as to causation I accept the opinions of Dr Osborne and Dr Allnutt and award the sum of $16,189.22 for past out of pocket expenses.

Future treatment

1. The Plaintiff acknowledged that the amount of treatment that the Plaintiff will need in the future is uncertain, such that the Court must make allowance for uncertainties in the award of a sum for future out of pocket expenses. To this end the Plaintiff sought the sum of $34,206.69 incorporating an overall 15% reduction [887] and based on the following amounts:- 1. GP review of 6 consultations per year at $90 a year $10.38 a week x 893.6 (37 year multiplier) = $9275.56 2. Psychiatrist review of 12 consultations for one year at $350 per hour = $4,200 3. Psychologist review 26 consultations for one year at $250 per hour of one year and 12 consultations per year for a further 2 years at $250 per session = $12,500 4. Medication at $600 per year ($11.54 a week x 893.6 (37 year multiplier)) = $10,312.14 5. Lung function test $500 per year (2 tests at $9.61 per week at 231.5 (5 year multiplier) = $2,224.71 6. Respiratory Physician attendances $300 per year (2 attendances at $5.76 x 231.5 (5 year multiplier)) - $1,730.76 [888]
2. The Defendant proposed a buffer amount in the maximum sum of $10,000.
3. Based on Dr Butler's evidence that the Plaintiff's physical symptoms have largely settled, I do not consider that it is reasonable and necessary for lung function tests and respiratory physician attendances and I would not allow any amount for such services.
4. So far as pharmaceuticals are concerned, the evidence of the Plaintiff is that he pays $75 each 2 to 3 week. [889] Dr Allnutt stated the cost was between $30 to $60 a month, and up to $100 a month if adjunct medication is required. [890] The Plaintiff's claim based on $11.54 a week totals $10,312.14.
5. So far as psychological treatment is concerned, Dr Allnutt envisaged 6 months to 12 months of weekly to 2 weekly consultations, dependent on clinical response. [891] Dr Osborne stated that ongoing cognitive behaviour therapy for depressive and anxiety symptoms was appropriate. He stated that prolonged exposure therapy for PTSD and/or EMDR therapy for his PTSD would be appropriate. [892]
6. Dr Osborne recommended 20 sessions a year. In 2018, Dr Wendy Roberts recommended ten sessions of treatment from a clinical psychologist. Dr Osborne opined that the treatment expense arose from the incident, whereas Dr Wendy Roberts opined that the treatment would relate to pre-existing issues. [893]
7. Dr Allnutt considered that the Plaintiff also needed to see a psychiatrist at a frequency to be determined in collaboration with the psychiatrist depending on clinical need. Although he accepted that the earlier treatment was advanced the more likely it would be beneficial, it was not suggested that such treatment, even if delayed, would not be beneficial. He envisaged four to six weekly consultations until stabilisation on medications was obtained, with less frequent contacts thereafter over a period of 12 months. In addition his GP would be required to continue monitoring physical and mental states and undertake usual investigations to rule out underlying physical causes of anxiety and depression. [894] Dr Allnutt was of the view that it was not possible to meaningfully attribute relative contribution to the expenses relating to pre- and post-5 August 2016 conditions as the conditions interact with each other. As to cost, he opined that this would be in the region of $225 to $350 an hour. [895]
8. Dr John Roberts was of the opinion that the subject incident did not give rise to a need for psychiatric treatment beyond that which was provided prior to 5 August 2016. [896]
9. Psychiatric treatment had not been previously recommended to the Plaintiff, except in a medico legal context by Dr Allnutt. The Plaintiff did not previously avail himself of any such treatment. Whilst I accept Dr Allnutt's opinion I note the uncertainty as to the extent of the treatment.
10. So far as the need for GP services, Dr Butler expected that when triggers associated with the case are removed then it would be clear for significant improvement in the Plaintiff's condition over time.
11. Overall accepting the difficulty with any precision and allowing for contingencies as the Plaintiff has conceded I would allow a buffer amount of $18,000 for future out of pocket expenses which is broadly calculated taking into account the views expressed by Drs Allnutt, Osborne and Butler.

Capacity for Employment

1. By reason of my findings in relation to non-economic loss, the Plaintiff has occasioned a "serious injury" as defined in s 151H(2A)(b) of the 1987 Act enabling an award for economic loss. [897] The Plaintiff relied on a report of Mr Kain Esmore from Vincents Chartered Accountants dated 12 March 2019 to claim past economic loss of $286,312. [898] However in oral submissions it accepted that the past economic loss is calculated at the net figure of $1700 a week based on earnings with the Defendant. [899] This figure was agreed arithmetically.
2. Based on these figures, the contents of Vincents Report employment earnings documented in Schedule A, [900] and the Plaintiff's tax returns, the Plaintiff would have earned $88,400 net in 2017 however his actual earnings were $73,826. This would equate with a loss during that period of $14,574. For the 2018 year he would have earned $88,400 net but earned only $2,300 incurring a loss of $86,100. From 1 July 2019 to date is 69 weeks being an amount of $117,300 (at $1,700 a week). This would equate to a total of $217,974. I do not see anything in the report of Ms Tamara Lindsay [901] that would dispute these calculations.
3. The Defendant contended that because of the Plaintiff's pre-existing vulnerability he was at risk at any time of being confronted with any situation satisfying Criterion A of the DSM-V, such that it should be accounted for in contingencies. Furthermore, the Plaintiff's ongoing depression was something that had to be considered as warranting a greater discount than 15% for the future. [902]
4. Consistent with my findings I am satisfied that the Plaintiff has been incapacitated from working by reason of him having developed PTSD, although his symptomatology will be reduced following the conclusion of the case and consequent interactions with the Defendant and its insurer. I do not accept that the Plaintiff's ability to work in the future would be affected by chronic cough syndrome as contended by Dr Bryant.
5. The Plaintiff concedes a 15% deduction for past contingencies bringing the figure to $185,277.90. To this the Plaintiff would be entitled to past superannuation at 9% being $16,675.01.
6. For the future the Plaintiff claimed 40% of $1700 being an amount of $680, which to age 67 (multiplier of 666.4) would amount to $453,152. Less 15% for vicissitudes, this would come to $385,179.20. It was contended that the figure was referrable to the difference with the median earnings of referred to in the Bass report.
7. The Defendant reiterated that it had no prior knowledge of the Plaintiff's prior vulnerability, a matter which was fatal on the question of liability. However, assuming that that issue went against it, the Defendant submitted that the condition of the Plaintiff meant that if he could get PTSD when confronted with this fire, he was at risk of getting PTSD at "any tick of the clock" if confronted with any situation satisfying Criterion A in the DSM-V. Accordingly, it was submitted that a high level of discount for the vicissitudes of life should be mandated then ordinary, at 50%, although it was conceded that it was probably short of that. [903]
8. The relevant principles as to vicissitudes were summarised by Beasley JA (as her Excellency was at the time), in Nestle Australia Ltd v McDougall. [904] Her Honour in that case noted that the possibility of tortious injury is to be disregarded in determining the appropriate deduction and whilst the usual deduction is 15%, a survey of authorities reveals that discounts of up to 40% are dependent on the particular circumstances of the case. She noted, however, that a 40% discount has been described as 'high'.
9. Malcolm CJ in Kember v Thackrah [905] also provided a summary of the relevant principles, noting 15% was a very heavy discount and that the contingency assessment in a prediction based on an inference from fact. His Honour stated:- 26 In Bresatz v Przibilla (1962) 108 CLR 541 at 547 - 544 Windeyer J strongly disapproved of the then South Australian practice of reducing awards for loss of future earning capacity by 25 per cent for contingencies. In New South Wales the practice has been to deduct 15 per cent for contingencies, while recognising that there may be circumstances justifying variations from this figure: Burnicle v Cutelli [1982] 2 NSWLR 26 at 30; Moran v McMahon (1985) 3 NSWLR 700 at 706. 27 In my opinion, a 15 per cent discount is a very heavy discount and quite sufficient to cater for the uncertainties in this case. In this respect I note that in Koeck v Persic (1996) Aust Torts Reports 81 - 386 at 63,359, Miles CJ said at 63,358 - 63,359: "It is a well established principle that, consonant with the aim being to put the plaintiff in the position he or she would have been in if not injured by the defendant's wrongdoing, the assessment of damages must have regard to relevant events which might have occurred regardless of such wrongdoing. This is most clearly necessary when assessing damages for loss of future earning capacity, in which case if the loss is to be assessed by arithmetical calculation of the present value of a periodic loss over a finite period in the future, that calculation should include a proportionate or percentage reduction for so-called vicissitudes which, if they were to occur, would reduce the plaintiff's earning capacity in any event. Those contingencies are mainly adverse and fall under the four main heads of sickness, accident, unemployment and industrial disputes. Logically, vicissitudes should also include the possibility of increases in earning capacity by way of such factors as promotion, general economic prosperity and the like. These are somewhat elusive and speculative matters. As a matter of thumb, a figure of 15 per cent is usually applied by way of reduction of the arithmetical calculation of the present value for future periodic loss: see Burnicle v Cutelli [1982] 2 NSWLR 26, Moran v McMahon (1985) Aust Torts Reports 80 - 762; (1985) 3 NSWLR 700. The reduction by such an amount is regarded as applicable to the 'ordinary' vicissitudes, but there is nothing sacrosanct about that percentage and the calculation of the loss may be reduced or increased, as it commonly is, having regard to the particular circumstances of the case: see Djapa v Comalco Aluminium (NSW Court of Appeal, 3 July 1987, No. CA 64 of 1986). In addition to the 'ordinary' vicissitudes, regard must be had also to other contingencies of a particular kind which occur not infrequently in actions for personal injuries." 28 Miles CJ went on to say at 63,360: "However, the question whether a reduction for contingencies is inadequate or excessive in a particular case is one that should be approached with considerable caution by an appeal court. The decision of the trial Judge on the issue of contingencies is essentially an exercise in value judgment or in nature, 'quasi discretionary': See Moran v McMahon, per Priestley JA at Aust Torts Rep 69,586; NSWLR 723. It is an assessment of the impact of hypothetical events which may occur in the future or which may have occurred in the past or both. The trial Judge must base the prediction on the facts as found. In that sense the prediction is an inference, but it is not an inference of fact. It is an inference from fact. Hence whilst the finding as to the plaintiff's capacity to earn immediately before the injury is a finding of fact, any finding as to what the plaintiff was likely to have earned, if not so injured, either in the past between the date of injury and the hearing, and in the future after the date of the hearing, is a prediction and not a finding of fact. Hence, in my view, this Court as a court of appeal is not in a position like that in Warren v Coombes (1979) 142 CLR 531 where it was said that the appellate court is as able to draw inferences from primary facts as is the trial Judge. Rather the position is like that in Gronow v Gronow (1979) 144 CLR 513 where the primary decision being one essentially of discretion, the appellate court will not substitute its own view for that of the trial Judge except in the wellestablished categories of demonstrable error of fact or law or manifest unreasonableness or injustice."(emphasis added)
10. Accepting that a 15% discount is already a high amount, I would allow a deduction for future contingencies in the amount of 20%.
11. As noted earlier, the Plaintiff saw Mr Bass on 13 February 2018. [906] Mr Bass opined that as the Plaintiff was able to perform above-ground duties at the colliery. Irrespective of diagnoses, he opined that the Plaintiff would be a suitable candidate for similar work either operating stationary plant equipment or working as an Operator in an open cut setting. The positions and the net weekly earnings were identified as follows:- [907] Drillers, Miners and Shot Firers $1,775.30 Other Construction and Mining Labourers $1,360.70 Earthmoving Plant Operators $1,266.60 Other Mobile Plant Operators $1,218.80 Stationary Plant Operators $1,382.80 Plumbers $1,273.70 Truck Drivers $1,166.40 Automobile Drivers $1,081.20 Other Miscellaneous Labourers $1,103.40
12. Mr Bass noted that these weekly earnings may vary quite widely dependent on individual factors, such as number of dependents, Medicare levy, tax deductions etc.
13. Mr Bass recorded that a review of the currently-advertised vacancies in the Mining Industry did not return any jobs which were suitable for the Plaintiff within the Illawarra region, however, on the basis that he was willing to commute to Gulgong for work, there were over forty available Mining Industry jobs at collieries close to his home than the Ulan Coal Mine. Within the Illawarra region, on the day of the search there were over twelve Mobile Plant Operator vacancies, over twenty Truck Driver vacancies and numerous vacancies for plumbers, some of which were in a Leading Hand capacity. [908]
14. Overall, Mr Bass opined that the Plaintiff was employable and some suitable positions were noted, as outlined above. [909] I accept this opinion which was unchallenged. No argument was presented by the Plaintiff that the types of employment would not be open to a person in his position following finalisation of this matter. I accept that he will not be able to undertake underground mining activities in the future but do not accept that he will not be able to operate plant equipment at ground level.
15. Consistent with my findings as to the future, the agreed pre accident earnings, the positions in the Bass report, doing the best I can I would estimate his loss at an average of $400 net a week which for 20 years (666.4 multiplier) comes to a figure of $266,560. Less 20% for vicissitudes, that figure comes to $213,248.
16. To that figure I would add loss of superannuation in the sum of 12% being an amount of $25,589.76. This figure accords with the rate allowed in the Vincent Report.
17. In total the Plaintiff's award will be as follows:- 1. Non-Economic Loss $ 138,911.00 2. Past Out of Pocket Expenses (agreed) $ 16,189.22 3. Future Out of Pocket Expenses $ 18,000.00 4. Past Economic Loss $ 185,277.90 5. Past Loss of Superannuation $ 16,675.01 6. Future Economic Loss $ 213,248.00 7. Future Loss of Superannuation $ 25,589.76
18. This comes to a total of $613,890.89.
19. In addition the Plaintiff would be entitled to a component for Fox v Wood. [910] The Defendant indicated a credit would be sought for workers' compensation payments. [911] I will, in the circumstances, defer entry of final orders to enable the parties to check my calculations and advise of any outstanding amounts and proposed orders as to costs.

ORDERS

1. Accordingly, I make the following orders:- 1. There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated. 2. I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days. 3. Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders. 4. In the event of any disagreement, the parties are to: 1. Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days. 2. Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon.

Endnotes

1. See T 223.25-.7 and Exhibit 3 at [11].
2. T 230.15-.24.
3. T 213.47-.48.
4. T 02.41-.43.
5. T 63.15.
6. T 62.15-.16.
7. T 62.32-63.07.
8. See T 62.42-63.07.
9. See Amended Statement of Claim at [13]-[17C].
10. See MFI 5, Plaintiff's Written Submissions at [203]-[205].
11. T 411.19-.21.
12. T 412.29-.39.
13. T 412.35-.36.
14. MFI 5, Plaintiff's Written Submissions at [207].
15. Exhibit D1, Tab 22 at 364.
16. MFI 5, Plaintiff's Written Submissions at [206].
17. T 19.10-.49.
18. T 20.04-.41.
19. T 21.14-.20.
20. T 21.30-22.31; Exhibit B.
21. T 22.37-.50.
22. T 33.45-.50.
23. It appears DAC is a commonly used term to refer to these intercoms. It was not defined throughout the proceedings.
24. T 23.15-24.10.
25. T 23.08-.17.
26. Also referred to as a "self-rescuer"
27. T 34.01-.05.
28. T 24.32-.50.
29. T 25.16-.41.
30. T 52.27-.36.
31. T 52.42-.46.
32. T 53.24-.28.
33. T 53.33-54.05.
34. T 54.07-.15.
35. T 72.48-73.03.
36. T 54.17-.19.
37. T 54.21-.26.
38. T 54.29.
39. T 54.28-.30.
40. T 54.32-.41.
41. T 54.43-55.07.
42. T 55.10.
43. T 151.09-.15.
44. T 151.21-.24.
45. T 55.29-.32.
46. T 73.05-.17.
47. Exhibit D1, Tab 20 at 270.
48. T 152.14-.22.
49. T 152.43-153.1
50. T 153.14-.32.
51. T 153.38-.42.
52. T 68.45-69.29.
53. T 69.45-70.05.
54. T 70.07-.12.
55. T 70.14-71.41.
56. T 134.14-.16.
57. T 134.27-.44.
58. T 135.39-.44.
59. T 135.46-.48
60. T 136.04-.12
61. T 137.01-.03.
62. T 137.05-.15.
63. T 137.17-.46.
64. T 71.23-.48.
65. T 71.50-72.06.
66. Also referred to as Anthony Chapman.
67. T 73.19-.22.
68. T 73.33-.35.
69. T 149.49-.150.01.
70. T 150.03-.06.
71. T 150.08-.10.
72. T 74.14-.20.
73. Exhibit 3 at [19].
74. T 230.49-231.04.
75. Exhibit 3 at [14].
76. Exhibit 3 at [26].
77. Exhibit 3 at [26]-[28].
78. T 225.07-.13.
79. T 225.13-.18.
80. T 225.20-.23.
81. T 229.14-.20.
82. T 232.07-.11.
83. T 232.10-.15.
84. T 229.01-.12.
85. T 225.27-.28.
86. T 225.36-.39.
87. T 225.41-.48.
88. T 225.50-226.12.
89. Exhibit 3 at [39].
90. T 232.26-.46.
91. T 232.47-233.02 and Exhibit 3 at [37].
92. T 233.04-.09.
93. T 232.17-.24.
94. T 234.40-.45. See also Exhibit 3 at [39].
95. T 226.21-.26.
96. T 68.26-.33.
97. T 68.47-.50.
98. T 155.46-.50.
99. T 156.01-.15.
100. Exhibit D1, Tab 20 at 279.
101. T 156.41-.43.
102. T 157.12-.14; T 157.21-.22.
103. T 157.16-.18.
104. T 158.14-.17.
105. T 159.38-.40.
106. T 158.42-159.12.
107. T 160.10-.20.
108. T 160.22-.27.
109. T 25.43-.46.
110. T 27.07-.09.
111. T 27.18-.41.
112. T 27.43-.45.
113. T 28.44-29.20.
114. T 30.01-.17.
115. T 30.21-31.09.
116. T 30.21-.24.
117. T 65.05-.10.
118. T 34.28-.40.
119. T 34.15-.22.
120. T 65.19-.42.
121. Exhibit C at 51-7.
122. Exhibit C at 53, Question 8.
123. Exhibit C at 53, Question 9.
124. T 67.20-.23.
125. Exhibit C at 31-3.
126. Exhibit C at 31-2, Question 4.
127. T 66.25-.27.
128. Exhibit C at 9-13.
129. Exhibit C at 11, Question 12(a).
130. T 31.32-.37.
131. T 31.39-.45.
132. T 32.08-31.
133. Exhibit C at 11, Question 10.
134. Exhibit C at 20-5.
135. Exhibit C at 23, Question 12.
136. T 32.36-37.01.
137. T 34.42-35.30.
138. Exhibit C at 77-81.
139. Exhibit C at 80, Question 10.
140. T 131.45-132.19.
141. T 132.21-.40.
142. T 179.25-.43.
143. T 179.45-.46.
144. T 226.41-.46.
145. T 227.07-.09.
146. T 233.41-234.03.
147. T 227.11-.12; T 228.35-.37.
148. T 227.18-.20.
149. T 228.19-.33.
150. T 214.11-.18.
151. T 214.28-.42.
152. T 214.44-.45.
153. T 214.47-215.02.
154. T 218.33-.36.
155. T 217.35-.47.
156. T 217.49-218.15.
157. T 219.20-.29.
158. T 220.22-.25.
159. T 220.41-221.14.
160. T 72.05-.20.
161. T 153.44-.47.
162. T 154.08-.13.
163. T 155.03-.04.
164. T 72.17-.24.
165. T 70.23-.25.
166. T 227.26-.45.
167. T 227.49-228.11; Exhibit 3 at [38].
168. T 234.28-.36.
169. T 74.14-.20.
170. Exhibit D1, Tab 8 at 74.
171. T 161.03-.22.
172. T 74.31-75.02.
173. T 75.20-.28.
174. T 75.30-.37.
175. T 137.48-138.15.
176. T 75.39-76.18.
177. T 76.24-.29.
178. T 77.01-.06.
179. T 166.45-167.25.
180. T 167.27-.29.
181. Exhibit D1, Tab 10 at 87.
182. Exhibit D1, Tab 10 at 87-9.
183. Exhibit D1, Tab 19 at 245.
184. Exhibit D1, Tab 19 at 256.
185. Exhibit D1, Tab 19 at 257.
186. Exhibit D1, Tab 19 at 253.
187. Exhibit D1, Tab 19 at 258.
188. Exhibit D1, Tab 13 at 101-3.
189. Exhibit D1, Tab 18 at 192.
190. Exhibit D1, Tab 11 at 91.
191. Exhibit D1, Tab 18 at 190.
192. Exhibit D1, Tab 15 at 114.
193. Exhibit D1, Tab 15 at 114.
194. Exhibit D1, Tab 15 at 116.
195. Exhibit D1, Tab 15 at 117.
196. Exhibit D1, Tab 15 at 118.
197. Exhibit D1, Tab 15 at 120.
198. Exhibit D1, Tab 16 at 123.
199. Exhibit D1, Tab 16 at 123-4.
200. Exhibit D1, Tab 16 at 124.
201. Exhibit D1, Tab 16 at 127.
202. Exhibit D1, Tab 16 at 127.
203. Exhibit D1, Tab 16 at 128.
204. Exhibit D1, Tab 16 at 131.
205. Exhibit D1, Tab 16 at 132.
206. Exhibit D1, Tab 27 at 456.
207. Exhibit D1, Tab 25 at 400.
208. Exhibit D1, Tab 25 at 401.
209. Exhibit D1, Tab 26 at 457.
210. Exhibit D1, Tab 26 at 473
211. Exhibit D1, Tab 26 at 445
212. Exhibit D1, Tab 22 at 359-360.
213. Exhibit D1, Tab 22 at 363.
214. Exhibit D1, Tab 23 at 373.
215. Exhibit D1, Tab 23 at 385.
216. Exhibit D1, Tab 20 at 264.
217. Exhibit D1, Tab 20 at 270.
218. Exhibit D1, Tab 20 at 278.
219. Exhibit D1, Tab 20 at 279.
220. Exhibit D1, Tab 20 at 280.
221. Exhibit D1, Tab 20 at 279-80.
222. Exhibit D1, Tab 20 at 280.
223. Exhibit D1, Tab 20 at 282.
224. Exhibit D1, Tab 20 at 282.
225. Exhibit D1, Tab 47 at 886.
226. Exhibit D1, Tab 47 at 912.
227. Exhibit D1, Tab 47 at 903.
228. Exhibit D1, Tab 47 at 904.
229. Exhibit D1, Tab 47 at 906.
230. Exhibit D1, Tab 47 at 908.
231. Exhibit D1, Tab 47 at 908.
232. Exhibit D1, Tab 47 at 908.
233. Exhibit D1, Tab 47 at 909.
234. Exhibit D1, Tab 47 at 909.
235. Exhibit D1, Tab 47 at 911.
236. Exhibit D1, Tab 21 at 340.
237. Exhibit D1, Tab 21 at 348.
238. Exhibit D1, Tab 21 at 349.
239. Exhibit D1, Tab 21 at 349.
240. Exhibit D1, Tab 21 at 351.
241. Exhibit D1, Tab 47 at 925.
242. Exhibit D1, Tab 47 at 927.
243. Exhibit D1, Tab 47 at 928.
244. Exhibit D1, Tab 47 at 930.
245. Exhibit D1, Tab 47 at 930.
246. Exhibit D1, Tab 47 at 930-1.
247. T 371.50-372.31.
248. T 372.33-.38.
249. T 372.40-.47
250. T 372.49-373.04.
251. T 379.33-.40.
252. T 373.27-.378.10.
253. T 374.34-.49.
254. T 388.29-.37.
255. T 375.09-.28.
256. T 375.34-.49.
257. T 378.33-.46.
258. T 380.32-.46.
259. T 381.22-.29.
260. T 381.31-.40.
261. T 382.13-.21.
262. T 383.22-384.03.
263. T 383.05-.14.
264. T 384.16-.18.
265. T 385.19-.47.
266. T 390.36-.45.
267. T 391.19-.22.
268. T 391.01-.17.
269. T 392.30-393.18.
270. T 393.35-.43.
271. T 393.48-394.04.
272. T 394.12-.20.
273. T 394.49-395.01.
274. T 395.44-396.05.
275. T 396.44-397.02.
276. T 397.09-.15.
277. T 397.22-.40.
278. T 398.02-.05.
279. T 398.13-.18.
280. T 308.16-.24.
281. MFI 4, Defendant's Written Submissions at [11].
282. T 70.21-71.05.
283. T 138.17-.27.
284. T 138.29-.31.
285. T 138.33-.41.
286. T 140.20-.30.
287. T 119.38-.41
288. T 139.09-.17.
289. T 139.19-.23.
290. T 139.36-.43.
291. MFI 4, Defendant's Written Submissions at [13].
292. MFI 5, Plaintiff's Written Submissions at [28]-[29].
293. MFI 5, Plaintiff's Written Submissions at [30].
294. (2009) 52 MVR 492. See also SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56, Ward JA (with whom Macfarlan JA and Sackar J agreed) at [115].
295. Exhibit D1, Tab 8 at 59 and 69; Exhibit D1, Tab 43 at 819 [4.2].
296. Exhibit D1, Tab 44 at 865.
297. T 135.43-.47.
298. T 137.01-.07.
299. T 137.09-.46.
300. Exhibit D1, Tab 19 at 245.
301. Exhibit D1, Tab 18 at 192.
302. Exhibit D1, Tab 15 at 115
303. Exhibit 3 at [42].
304. Exhibit D1, Tab 25 at 400; Exhibit D1, Tab 26 at 456.
305. Exhibit D1, Tab 22 at 359.
306. Exhibit D1, Tab 22 at 364.
307. MFI 4, Defendant's Written Submissions at [12].
308. Exhibit 3 at [40].
309. Exhibit 3 at [38].
310. T 73.33-.35; Exhibit 3 at [38].
311. Exhibit D1, Tab 42 at 765.
312. T 234.24-.45.
313. Exhibit D1, Tab 14 at 115.
314. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 (Dixon CJ and Kitto J), cited with approval in Turner v South Australia (1982) 56 ALJR 839, 840 (Gibbs CJ).
315. O'Connor v Cmr for Government Transport (1958) 100 CLR 225 at 229.
316. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 44 (Wilson and Dawson JJ).
317. Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313 ; Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 at 172 (Barwick CJ)
318. See, for example, Lincoln Electric Co Pty Ltd v Taylor (CA(NSW), 8 September 1981, unreported).
319. MFI 4,Defendant's written submissions at [4b].
320. (2005) 222 CLR 44; [2005] HCA 15 (Koehler). See MFI 4, Defendant's Written Submissions at [4(iv].
321. (1996) 41 NSWLR 389 (Mclean). per Handley and Beazley JJA, at 407
322. MFI 5, Plaintiff's Written Submissions at [216].
323. MFI 4, Defendant's Written Submissions at [4(iv)(b)].
324. MFI 4, Defendant's Written Submissions at [28(b)].
325. MFI 4, Defendant's Written Submissions at [4(iv)(b)].
326. (2002) 211 CLR 317; [2002] HCA 35 (Tame).
327. See Tame at [18] (Gleeson CJ).
328. See Tame at [15]-[16] (Gleeson CJ), [51]-[52] (Gaudron J), [199]-[203] (Gummow and Kirby J), [273]-[283] (Hayne J). See also Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [211] (Beazley JA).
329. Tame at [277] (Hayne J).
330. [2017] QCA 211; (2017) 270 IR 304.
331. MFI 5, Plaintiff's Written Submissions at [232].
332. T 5.24-.6.01.
333. MFI 4, Defendant's written submissions at [5].
334. MFI 4, Defendant's written submissions at [3].
335. MFI 4, Defendant's written submissions at [7].
336. (1991) 171 CLR 506 (March).
337. MFI 5, Plaintiff's written submissions at [5].
338. MFI 5, Plaintiff's written submissions at [197] and [198].
339. MFI 5, Plaintiff's written submissions at [246].
340. MFI 5, Plaintiff's written submissions at [199].
341. MFI 5, Plaintiff's written submissions at [247].
342. MFI 5, Plaintiff's written submissions at [252].
343. See Carolyn Sapideen and Prue (eds), Fleming's The Law of Torts (Lawbook Co, 10th ed, 2011), 242 [9.140].
344. See also the remarks of Deane J at 523 in March.
345. T 27.11-34.49.
346. T 133.42-134.44 and T 135.07-.44.
347. T 424.24-.29
348. MFI 4, Defendant's Written Submissions at [28(a)].
349. T 413.08-.15.
350. T 348.35-.46.
351. Exhibit D1, Tab 21 at 349
352. MFI 5, Defendant's Written Submissions at [25].
353. T 156.41-.43.
354. T 158.38-.40.
355. T 159.09-.12; MFI 5, Defendant's Written Submissions at [26].
356. T 404.26-.30.
357. MFI 5, Plaintiff's written submissions at [112].
358. T 417.23-.32.
359. MFI 5, Plaintiff's Written Submissions at [260]-[261].
360. MFI 5, Plaintiff's Written Submissions at [262]-[265].
361. Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492.
362. MFI 5, Plaintiff's Written Submissions at [267]-[268].
363. (1878) 4 PD 219.
364. (1957) 75 WN (NSW) 173. at 175
365. [2012] NSWCA 186.
366. See, for instance, Abdallah v Newton (1998) 28 MVR 364 at 365-366 (Stein JA, with Meagher and Beazley JJA agreeing); Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] (Ipp AJA with whom Hodgson JA and Rolf AJA agreed); Byrnes v Snare (1986) 4 MVR 97 at 99 (Gibbs CJ with Mason, Wilson, Deane and Dawson JJ agreeing).
367. [2014] NSWCA 94. at [142] (Preston CJ of LEC and Tobias AJA agreeing)
368. [2020] NSWCA 219, with Macfarlan JA and Simpson AJA agreeing.
369. See [57]-[60] for discussion of these documents.
370. T 161.03-.17.
371. T 14.18-15.09. See also Exhibit A.
372. T 15.46-47.05.
373. T 100.11-.15.
374. T 100.35-.36.
375. Exhibit 2.
376. T 100.50-102.04.
377. T 102.37-103.07.
378. T 16.12-.32
379. T 16.46-.49
380. T 17.01-.03.
381. T 17.14-.16.
382. T 17.05-.12.
383. T 17.27-.36.
384. T 17.41-18.03.
385. T 18.09-.40.
386. T 18.42-.48.
387. T 106.41-107.19.
388. T 19.04-.08.
389. T 36.14-.21.
390. T 37.26-.33.
391. T 36.21-.32.
392. T 36.37-.41.
393. T 36.46-.49
394. Exhibit D1, Tab 8 at 53.
395. T 115.47-116.05.
396. T 116.17-.23.
397. T 128.32-.36.
398. T 116.32-.41.
399. T 116.49-117.01.
400. T 117.21-.26.
401. T 117.33-.47.
402. T 117.49-118.03.
403. T 118.05-.21.
404. T 118.23-.31.
405. T 133.31-.34.
406. T 128.32-.41.
407. T 119.05-.08.
408. T 130.45-.50.
409. Exhibit D1, Tab 18 at 196.
410. T 131.30-.38.
411. Exhibit D1, Tab 18 at 195.
412. T 131.01-.05.
413. T 130.08-.25.
414. T 39.03-.19.
415. T 39.21-.23.
416. T 48.03-.31.
417. T 199.28-.36.
418. T 200.05-.30.
419. T 200.37-201.11.
420. T 201.30-.39.
421. T 201.45-.48.
422. T 201.50-202.03
423. T 207.39-208.17.
424. T 215.22-.23; T 215.33-.35.
425. T 215.47-218.04.
426. T 216.09-.13.
427. T 216.15-.17.
428. T 216.46-217.19.
429. T 216.28-.33.
430. T 216.35-.42.
431. T 44.33-.36.
432. T 44.38-45.01. See also Exhibit D1, Tab 27 at 539-544.
433. T 45.03-.13. See also Exhibit D1, Tab 27 at 545.
434. T 47.01-.20. See also Exhibit D1, Tab 27 at 574.
435. T 47.23-.30.
436. T 77.08-.45.
437. T 78.26-.31.
438. T 78.32-.36.
439. T 80.22-81.03.
440. T 81.05-.10.
441. T 81.12-82.02.
442. T 89.34-.38.
443. T 89.40-90.15.
444. T 178.18-.21; T 178.27-.30.
445. T 178.05-.08.
446. T 178.23-.30.
447. T 178.36-.39.
448. T 178.41-179.02.
449. Exhibit D1, Tab 8 at 55.
450. Exhibit D1, Tab 43 at 815 [2.15].
451. Exhibit D1 at 864.
452. T 203.39-.42.
453. T 205.11-.14.
454. Exhibit D1, Tab 8 at 67.
455. MFI 4, Defendant's Written Submissions at [17].
456. MFI 4, Defendant's Written Submissions at [12].
457. T 90.09-.15.
458. MFI 4, Defendant's Written Submissions at [20].
459. T 406.18-.21.
460. MFI 4, Defendant's Written Submissions at [22].
461. T 419.18-.21.
462. T 419.32-.40.
463. T 419.44-420.02.
464. Exhibit D1, Tab 8 at 67.
465. Exhibit D1, Tab 43 at 822, [6.29].
466. T 90.23-.25.
467. Exhibit D1, Tab 27 at 485.
468. T 90.19-.38.
469. T 171.04-.11.
470. T 171.17-.21.
471. T 171.23-.27.
472. T 171.37-.38; T 172.04-.05.
473. T 171.40-.43.
474. Exhibit D1, Tab 18 at 165.
475. Exhibit D1, Tab 18 at 165.
476. Exhibit D1, Tab 8 at 55.
477. Exhibit D1, Tab 8 at 74.
478. Exhibit D1, Tab 44 at 864. The report is discussed more fully below at [690].
479. Exhibit D1, Tab 43 at 815, [2.17].
480. Exhibit D1, Tab 42 at 791.
481. MFI 4, Defendant's Written Submissions at [12].
482. T 92.36-93.07.
483. T 93.09-.15.
484. T 170.27-.30.
485. T 170.32-.35.
486. T 170.40-171.02.
487. T 172.07-.22. See also Exhibit D1, Tab 43 at 812, [1.11].
488. T 172.24-.32.
489. T 110.36-.38.
490. T 110.40-.43.
491. T 119.25-.28.
492. T 110.45-.50.
493. T 111.01-.17.
494. T 111.34-.38.
495. T 172.34-173.17.
496. Exhibit D1, Tab 43 at 824-848.
497. Exhibit D1, Tab 17 at 135H-135I.
498. MFI 4, Defendant's Written Submissions at [21].
499. T 419.40-.44.
500. Exhibit 7.
501. T 12.09-.34.
502. T 12.46-.50.
503. T 13.39-.41.
504. T 51.33-.50.
505. T 51.01-.06.
506. T 13.01-.06.
507. T 13.18-.22.
508. T 88.43-.47.
509. T 87.34-88.14.
510. T 89.05-.09.
511. T 82.50-83.06.
512. T 52.01-.21.
513. T 146.05-.41.
514. T 13.24-.37.
515. T 146.43-.46.
516. T 147.04-.10.
517. T 147.38-.42.
518. T 148.01-.04.
519. T 148.14-.18.
520. T 148.20-.44.
521. T 149.39-.47.
522. T 149.14-.17
523. T 82.28-.48.
524. T 97.17-.22.
525. T 83.47-84.02.
526. T 84.46-.85.05
527. T 85.06-.39.
528. T 84.21-.45.
529. T 85.48-86.36.
530. T 87.08-.12.
531. Exhibit D1, Tab 18 at 232.
532. T 115.20-.23.
533. Exhibit D1, Tab 18 at 194.
534. T 115.39-.41.
535. Exhibit D1, Tab 18 at 194.
536. T 119.17-.23.
537. Exhibit D1, Tab 18 at 241.
538. T 120.10-.27.
539. T 38.18-.30.
540. T 39.32-40.01.
541. T 107.21-.31.
542. Exhibit D1, Tab 18 at 219.
543. T 121.34-122.06.
544. Exhibit D1, Tab 18 at 219.
545. Exhibit D1, Tab 18 at 218.
546. T 122.48-123.22.
547. Exhibit D1, Tab 18 at 218.
548. T 122.36-.47.
549. Exhibit D1, Tab 18 at 217.
550. T 123.24-.34.
551. Exhibit D1, Tab 18 at 216.
552. T 123.36-124.05.
553. Exhibit D1, Tab 18 at 215.
554. T 124.19-.36.
555. Exhibit D1, Tab 18 at 215.
556. T 124.07-.17.
557. Exhibit D1, Tab 18 at 214.
558. T 124.38-.42.
559. Exhibit D1, Tab 18 at 209.
560. T 124.49-125.15.
561. T 126.15-.18.
562. T 126.24-.27.
563. Exhibit D1, Tab 18 at 239; T 120.39-.44.
564. T 120.3949
565. Exhibit D1, Tab 18 at 221; T 121.23-.28.
566. T 121.30-.32.
567. T 49.15-.47.
568. Exhibit D1, Tab 18 at 235.
569. T 51.13-.15.
570. T 162.09-.12.
571. T 163.18-.47.
572. Exhibit D1, Tab 8 at 53.
573. T 112.25-.27.
574. Exhibit D1, Tab 18 at 241.
575. T 112.33-113.16.
576. T 112.29-.31.
577. Exhibit D1, Tab 45 at 881.
578. T 114.25-.29.
579. T 114.36-.38.
580. T 129.08-.41.
581. Exhibit D1, Tab 18 at 201.
582. T 129.43-.49.
583. Exhibit D1, Tab 18 at 198.
584. T 204.03-.07.
585. T 202.15-.24.
586. T 202.26-.46.
587. T 202.48-.49.
588. T 203.01-.02.
589. T 203.04-.25.
590. T 203.27-.34.
591. T 205.49-206.07.
592. T 206.25-.28.
593. T 207.30-.39.
594. T 206.42-207.02.
595. T 204.23-.38
596. Exhibit D1, Tab 44 at 865.
597. Exhibit D1, Tab 8 at 67.
598. Exhibit D1, Tab 13 at 98.
599. Exhibit D1, Tab 13 at 99.
600. Exhibit D1, Tab 13 at 101. A further report of 12 May 2020 appears to reproduce the same contents: see Exhibit D1, Tab 13 at 104.
601. Exhibit D1, Tab 13 at 101-3.
602. Exhibit D1, Tab 13 at 99.
603. T 192.48-193.02.
604. Exhibit D1, Tab 13 at 101.
605. T 193.19-.25.
606. T 193.27-.34.
607. T 194.11-.13.
608. T 194.20-.28.
609. T 194.41-.49.
610. T 195.27-.37.
611. T 195.39-.44.
612. T 195.46-.50.
613. T 196.01-.08.
614. T 196.22-.25.
615. T 196.27-.31.
616. Exhibit D1, Tab 18 at 185.
617. Exhibit D1, Tab 18 at 184.
618. Exhibit D1, Tab 12 at 92.
619. Exhibit D1, Tab 12 at 92-3.
620. Exhibit D1, Tab 12 at 94.
621. Exhibit D1, Tab 12 at 95.
622. Exhibit D1, Tab 12 at 95.
623. Exhibit D1, Tab 12 at 97.
624. Exhibit D1, Tab 46 at 885.
625. Exhibit D1, Tab 9 at 80.
626. Exhibit D1, Tab 9 at 81.
627. Exhibit D1, Tab 9 at 82.
628. Exhibit D1, Tab 9 at 82-3.
629. Exhibit D1, Tab 9 at 83.
630. Exhibit D1, Tab 9 at 84.
631. T 167.31-168.17.
632. T 168.37-169.19.
633. T 169.21-.26.
634. T 169.28-.37.
635. T 169.39-.41.
636. Exhibit D1, Tab 17 at 135a.
637. Exhibit D1, Tab 17 at 135a.
638. Exhibit D1, Tab 17 at 135a-135i.
639. Exhibit D1, Tab 14 at 107.
640. Exhibit D1, Tab 14 at 107.
641. Exhibit D1, Tab 14 at 108.
642. Exhibit D1, Tab 14 at 108.
643. Exhibit D1, Tab 15 at 110.
644. Dr Osborne referred to this date as 2012. As Dr Osborne only saw the Plaintiff in 2011 prior to the 5 August 2016 incident, it is believed this date should be a reference to 2011, not 2012.
645. Exhibit D1, Tab 14 at 112.
646. Exhibit D1, Tab 14 at 113.
647. Exhibit D1, Tab 43 at 807.
648. Exhibit D1, Tab 43 at 858.
649. Exhibit 4.
650. Exhibit D1, Tab 43 at 854-5, [10.15].
651. Exhibit D1, Tab 43 at 855, [10.16] and [10.18].
652. Exhibit D1, Tab 43 at 855, [10.19].
653. Exhibit D1, Tab 43 at 855-6, [10.20].
654. Exhibit D1, Tab 43 at 856, [10.23].
655. Exhibit D1, Tab 43 at 856, [10.25]-[10.27].
656. Exhibit D1, Tab 43 at 858.
657. Exhibit D1, Tab 43 at 859-60, [3.1].
658. Exhibit D1, Tab 43 at 860, [3.2].
659. T 248.16-249.03.
660. T 249.13-.21.
661. T 249.50-250.08.
662. Exhibit 4.
663. Exhibit 5E at 17.
664. T 252.23-253.47.
665. Exhibit F.
666. T 254.35-.40.
667. T 254.44-.49.
668. T 255.13-.18.
669. T 255.41-.48.
670. T 255.50-256.03.
671. T 256.05-.10.
672. T 256.14-.45.
673. T 257.06-.19.
674. Exhibit F at 6.
675. T 258.47-.50.
676. T 259.04-.07.
677. T 259.11-.12.
678. T 260.31-.35.
679. T 261.10-.11.
680. T 261.13-.19.
681. T 261.21-.30.
682. T 261.38-.47.
683. T 261.49-262.04.
684. T 262.05-.16.
685. T 263.39-264.11.
686. T 264.13-.23.
687. T 264.25-.34.
688. T 264.36-.49.
689. T 265.27.-30.
690. T 265.32-.36.
691. T 265.38-.42.
692. T 265.48-.49.
693. T 266.15-267.11.
694. Exhibit D1, Tab 13 at 103.
695. T 267.13-.26.
696. T 267.28-.32.
697. T 267.43-268.07.
698. T 268.09-.26.
699. T 268.39-269.18.
700. T 269.20-270.02.
701. T 270.27-.43.
702. T 270.50-271.07.
703. T 271.21-.31.
704. T 272.01-.11.
705. T 272.17-.26.
706. T 272.28-.46.
707. T 273.09-.14.
708. T 273.48-.50.
709. T 284.01-.04.
710. T 274.06-.15.
711. T 274.31-.34.
712. T 274.23-.29.
713. T 275.29-276.05.
714. T 276.14-.41.
715. T 277.01-.08.
716. T 277.11-.34.
717. T 278.23-.36.
718. T 278.38-.45.
719. T 278.47-279.35.
720. T 279.41-.45.
721. T 280.12-.31.
722. T 280.37-.44.
723. T 280.46-281.15.
724. T 281.17-.26.
725. T 281.28-.45.
726. T 282.05-.12.
727. T 282.26-.40.
728. Exhibit D1, Tab 42 at 751.
729. Exhibit D1, Tab 42 at 773.
730. Exhibit D1, Tab 42 at 786, 788 and 805.
731. Exhibit D1, Tab 42 at 752-3.
732. Exhibit D1, Tab 42 at 753-4.
733. Exhibit D1, Tab 42 at 754.
734. Exhibit D1, Tab 42 at 755.
735. Exhibit D1, Tab 42 at 756.
736. Exhibit D1, Tab 42 at 756.
737. Exhibit D1, Tab 42 at 758.
738. Exhibit D1, Tab 42 at 759.
739. Exhibit D1, Tab 42 at 761.
740. Exhibit D1, Tab 42 at 762.
741. Exhibit D1, Tab 42 at 764-5. See also Exhibit D1, Tab 13 at 98.
742. Exhibit D1, Tab 42 at 765-6.
743. Exhibit D1, Tab 42 at 766.
744. Exhibit D1, Tab 42 at 767.
745. Exhibit D1, Tab 42 at 768.
746. Exhibit D1, Tab 42 at 784.
747. Exhibit D1, Tab 42 at 786-7.
748. Exhibit D1, Tab 42 at 786-7.
749. Exhibit D1, Tab 42 at 788-804.
750. Exhibit D1, Tab 42 at 790.
751. Exhibit D1, Tab 42 at 791.
752. Exhibit D1, Tab 42 at 791.
753. Exhibit D1, Tab 42 at 792-3.
754. Exhibit D1, Tab 42 at 794-5.
755. Exhibit D1, Tab 42 at 795.
756. Exhibit D1, Tab 42 at 803.
757. Exhibit D1, Tab 42 at 799.
758. Exhibit D1, Tab 42 at 798.
759. Exhibit D1, Tab 42 at 798-9.
760. Exhibit D1, Tab 42 at 803-4.
761. Exhibit D1, Tab 42 at 805-6.
762. Exhibit D1, Tab 8 at 51.
763. Exhibit D1, Tab 8 at 64.
764. Exhibit D1, Tab 8 at 71.
765. Exhibit G.
766. Exhibit D1, Tab 8 at 52.
767. Exhibit D1, Tab 8 at 53.
768. Exhibit D1, Tab 8 at 53.
769. Exhibit D1, Tab 8 at 53-4.
770. Exhibit D1, Tab 8 at 54.
771. Exhibit D1, Tab 8 at 54.
772. Exhibit D1, Tab 8 at 55.
773. Exhibit D1, Tab 8 at 57.
774. Exhibit D1, Tab 8 at 60.
775. Exhibit D1, Tab 8 at 61.
776. Exhibit D1, Tab 8 at 62.
777. Exhibit D1, Tab 8 at 62.
778. Exhibit D1, Tab 8 at 65.
779. Exhibit D1, Tab 8 at 66.
780. Exhibit D1, Tab 8 at 67. See also [386], where this evidence is discussed further.
781. Exhibit D1, Tab 8 at 68.
782. Exhibit D1, Tab 8 at 69.
783. Exhibit D1, Tab 8 at 71.
784. Exhibit D1, Tab 8 at 72.
785. Exhibit D1, Tab 8 at 72-3.
786. Exhibit D1, Tab 8 at 73.
787. Exhibit D1, Tab 8 at 74.
788. Exhibit D1, Tab 8 at 77-8.
789. Exhibit D1, Tab 8 at 79.
790. This was incorrectly referred to in his report as 2017: see Exhibit G at 2.
791. Exhibit G at 2.
792. Exhibit G at 3.
793. Exhibit H6.
794. T 305.33-.35.
795. T 306.44-307.07.
796. T 307.24-.31.
797. T 308.16-.37.
798. T 309.08-.32.
799. T 309.41-310-.08.
800. T 310.21-311.17.
801. T 311.21-.39
802. Exhibit D1, Tab 13 at 102.
803. T 311.41-312.16.
804. T 312.20-.31.
805. T 312.31-.39.
806. T 324.07-.19.
807. Exhibit D1, Tab 18 at 182.
808. T 323.47-324.03.
809. T 313.25-.44
810. T 314.05-.27.
811. T 315.21-.46.
812. T 314.31-315.09.
813. T 315.48-316.24.
814. T 321.03-.05.
815. T 316.34-.40.
816. T 321.14-.39.
817. T 318.14-.21.
818. T 323.16-.24.
819. T 323.02-.25.
820. T 325.37-326.06.
821. T 326.27-.40.
822. Exhibit D1, Tab 8 at 69
823. Exhibit G at 3.
824. T 327.47-328.05.
825. T 329.26-.40.
826. Exhibit D1, Tab 8 at 53.
827. T 329.44-330.44.
828. Exhibit D1, Tab 8 at 74.
829. T 331.04-.22.
830. T 331.23-.35.
831. T 331.37-.42.
832. T 332.11-.15.
833. T 332.43-333.03.
834. T 333.05-.19.
835. T 333.44-334.07.
836. T 334.43-.37.
837. T 336.17-.30.
838. Exhibit D1, Tab 8 at 61.
839. Exhibit D1, Tab 8 at 78.
840. T 337.01-338.02.
841. Exhibit D1, Tab 13 at 99.
842. T 338.17-.35.
843. T 339.35-.49.
844. T 340.40-341.06.
845. T 341.16-.39.
846. T 342.12-.22.
847. T 163.49-150.45.
848. T 170.01-.19.
849. T 165.44-.166.01.
850. T 166.05-.07.
851. T 412.50-413.06.
852. T 13.28-.31.
853. T 146.43-.46.
854. T 418.17-419.12.
855. T 404.39-.50.
856. Exhibit D1, Tab 17 at 135b.
857. All of the experts, bar Dr John Roberts, accepted that if the event was life threatening, this criterion would be established. See [471] (Dr Osborne and Dr Wendy Roberts), [544] (Dr Allnutt).
858. T 405.02-.25.
859. Exhibit D1, Tab 8 at 72.
860. T 404.32-.37.
861. MFI 5, Plaintiff's Written Submissions at [144].
862. MFI 5, Plaintiff's Written Submissions at [145].
863. [2019] NSWCA 168 at [75]-[79] (with Gleeson and Brereton JJA agreeing).
864. [2018] NSWDC 67 at [259]-[289].
865. [2009] NSWDC 193 at [314].
866. MFI 5, Plaintiff's Written Submissions at [147]-[158].
867. MFI 5, Plaintiff's Written Submissions at [170]-[172].
868. See for example T 256.34-.45 and 258.18-.28
869. T 255.41-256.3
870. T 280.29-.31
871. T 176.48-177.05.
872. T 177.07-.09.
873. T 177.15-.18.
874. T 118.37-.45.
875. T 177.20-.26.
876. T 177.28-.30.
877. T 177.32-.34/
878. T 210.12-.48.
879. MFI 4, Defendant's Written Submissions at [8].
880. (1985) 156 CLR 522 (Mahony).
881. MFI 4, Defendant's Written Submissions at [9].
882. MFI 5, Plaintiff's Written Submissions at [253]-[254].
883. MFI 5, Plaintiff's Written Submissions at [255]-[256].
884. [2005] ACTCA 9
885. As it applied prior to December 2001: see Schedule 6, Part 18, Clause 3(1) of the 1987 Act, and Schedule 4 of Workers Compensation Legislation Further Amendment Act 2001 (NSW).
886. T 414.1-.30and MFI 5, Plaintiff's Schedule of Damages.
887. Plaintiff's Written Submissions at [289].
888. MFI 5, Plaintiff's Schedule of Damages.
889. T 91.50-.92.02
890. Exhibit D1, Tab 8 at 62.
891. Exhibit D1, Tab 8 at 78.
892. Exhibit D1, Tab 14 at 112; Exhibit 5E at 11.
893. Exhibit 5E at 10-12.
894. Exhibit D1, Tab 8 at 62.
895. Exhibit H6 at 14.
896. Exhibit H6 at 13-4.
897. s 151H(1) of the 1987 Act.
898. Exhibit D1, Tab 27.
899. T 414.39-.45.
900. Exhibit D1, Tab 27 at 503.
901. Exhibit D1, Tab 48.
902. T 405.38-.48,
903. T 405.30-406.02.
904. [1998] NSWCA 158 at 2-4.
905. [2000] WASCA 198 at [26]-[29] (Kennedy and Murray JJ agreeing).
906. Exhibit D1, Tab 44 at 861.
907. Exhibit D1, Tab 44 at 870.
908. Exhibit D1, Tab 44 at 870.
909. Exhibit D1, Tab 44 at 871.
910. (1981) 148 CLR 438.
911. Amended Defence at [18]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2020