Jones v Transport Accident Commission [2025] VCC 1004

1. Mr Jones said that after this incident he found himself "shaking in the police vehicle on the way to accident scenes", and, in contrast to the reasonable way he had been able to interact with errant motorists, he found himself "getting angry" with them, and his "interactions with them were distracted and short". In his personal life he found himself "stressed, anxious, agitated and irritable". His relationship with his two children suffered. He has resided on a long-term basis at what he describes as a "small hobby farm at Smokeytown ... on the edge of Creswick". (PCB 21, paragraph 12) Therefore, he had been seeking for many years a posting to the station at Creswick. He took up that posting shortly after the accident, hoping he would be able to "work through [his] difficulties", attending a group psychology session at a clinic known as Mind@Home Psychiatry in Ballarat, and "broke into tears" when he tried to introduce himself. He commenced treatment with psychiatrist Dr Robert Proctor on 17 August 2018, who prescribed Deralin for panic attacks; Efexor; Imovane; and Inderal for depression, anxiety, and insomnia. Dr Proctor referred Mr Jones to the Post-Traumatic Stress Disorder Clinic at Austin Hospital, Melbourne. (Ibid, paragraph 21-22)
2. Mr Jones lodged a claim form under the WorkCover scheme dated 23-24 August 2018, nominating his injury as having occurred on 11 August 2018 and complaining of injury by way of post-traumatic stress disorder. (Defendant's Court Book ("DCB") 21-22)
3. Following the group psychology meeting at which he broke down, which occurred in August 2018, Mr Jones took three weeks' leave in October 2018. He returned to duties in December 2018, which entailed him "attending the station, not in uniform, not answering phones and just doing admin." (Transcript ("T") 7, Lines ("L") 26 - T8, L2) Eventually an acting sergeant insisted that he wear uniform and deal with counter enquiries and telephones. Mr Jones said he "couldn't handle it", and resigned from Victoria Police in July 2020. (T8, L7-13)
4. Solicitors acting for Mr Jones brought this application by originating motion pursuant to s93(17) of the Transport Accident Act 1986, seeking findings that, pursuant to paragraph (c) of that section, he suffers a "severe long-term mental or severe long-term behavioural disturbance or disorder", being:

(a) Post traumatic stress disorder; and

(b) Major Depressive Disorder associated with Anxiety and Panic Attacks. (PCB 14)

1. Solicitors for the Victorian WorkCover Authority, by letter dated 3 July 2025 addressed to Mr Jones' solicitors, advised that for the purposes of s330(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 the Authority had determined that Mr Jones had "a whole person impairment of 30% or greater and is therefore deemed to have a serious injury within the meaning of Section 335(1) of the Act." This determination by the WorkCover Authority opens the way for Mr Jones to bring a damages claim against his former employer within the regime for common law damages claims established by the 2013 Act.
2. The Authority's determination describes Mr Jones' date of injury as "throughout course of employment". The present application seeks a similar determination in favour of Mr Jones under the regime of compensation and damages established by the Transport Accident Act 1986.
3. Whilst the two schemes broadly resemble one another, restricting the right of injured workers or those injured in transport accidents from bringing damages claims for negligence relative to their injuries to situations where prospective plaintiffs have suffered a "serious injury" as defined in the statute, whilst claims may be brought under the 2013 Act against employers alleging injury as a result of employer negligence through the entire course of employment (which is the basis of the finding of serious injury made by the WorkCover Authority here), claims for negligence damages under the Transport Accident Act must be related to a particular incident. Where a potential plaintiff is injured in a series of separate transport accidents with each individual injury falling short of the criteria for a serious injury, the impairments could not be added or combined so as collectively to constitute a serious injury.
4. Ms F Ryan SC, who appeared with Ms M Williams on behalf of the Transport Accident Commission to oppose a finding of serious injury under the Transport Accident Act, conceded that Mr Jones now suffers severe post-traumatic stress disorder which is sufficient to meet the criteria of "serious injury" both under the Transport Accident Act and the WorkCover regime. She said:

"The issue for this court is whether he [Mr Jones] can establish that the consequences of any injury sustained by reason of the transport accident that occurred on 22 August 2017 are in themselves severe." (T3, L9-13)

1. She noted that the medical records indicated that prior to the 2017 incident Mr Jones "had already been diagnosed with PTSD", and "by reason of the nature of his work, [he had] been exposed to a great number of traumatic incidents, which he's described to various doctors over the years, and ... at least four treating psychiatrists have opined that his condition, namely PTSD, was caused by reason of the accumulation of exposure to traumatic incidents." (T3, L5-27)
2. An applicant for a finding of serious injury, whether under the Transport Accident Act 1986 or the WorkCover regime, carries a heavy burden. "Serious" organic injuries are defined by the case law and by statute by reference to a criterion of seriousness. In contrast, psychiatric injuries will only meet the statutory standard if they are not merely "serious" but severe. This is a heavy burden to discharge, but it is conceded here, subject to the issue of causation.
3. As to the "other incidents" referred to by Ms Ryan and encompassed in the "entire course of employment" determination made by the WorkCover Authority, Mr Jones said that during the course of his general police work and his work in the highway patrol he was "exposed to many events including motor vehicle accidents and weapons being pulled" on him, and following some of these incidents he "accessed the counselling service through Victoria Police". (PCB 20, paragraph 5) He referred in particular to an accident which he attended in the course of his duties in 2014; once again a single-vehicle accident where he was required to take a statement from the victim's wife. He said:

"After this incident I was anxious and distracted. I went off work for a number of weeks. I submitted a WorkCover claim which was not accepted on the basis that I had not suffered any work related psychiatric condition."

1. He said he returned to work and "continued on as normal", having received a limited amount of counselling. (Ibid, paragraphs 7-8)
2. The WorkCover claim was received by the WorkCover claims agent on 25 July 2014, and complained of an injury constituted by "post-traumatic stress disorder". (DCB 5-6)
3. Over the years, Mr Jones was treated and/or assessed for psychiatric injury by a number of practitioners. He provided a history to a number of those practitioners that during a single 12-month period he was required as part of his duties to attend the scene of no fewer than seventeen fatal accidents.
4. As part of the process of seeking a pension under the Emergency Services Superannuation Scheme (presumably based on psychological disability), Mr Jones made a handwritten list of traumatic incidents which he had been required to witness as part of his duties with Victoria Police. This covers some six and a half handwritten A4 pages, and refers not merely to fatal road accidents but also, for instance, to attending shooting scenes. (DCB 82-88) In the period 2014 to 2017 no fewer than twelve incidents are described; the last of them being on 20 September 2017. (DCB 85-88) According to Mr Jones, there were significant differences between these incidents. Those in which he had acted as "informant" required him to become closely involved with the traumatic features of the events. In other instances, such as the September 2017 event, he had been involved only on the periphery, as, for instance, directing traffic around the accident scene. (T23, L10-13; T34, L21-26; T54, L6-9)
5. Making a personal statement after the close of his evidence, Mr Jones said:

"I'm not denying that I haven't been to a lot of incidents but ... that accident [the September 2017 accident], to go to see someone actually incinerated, to go talk to a wife whose had a mental brain injury as a result of a previous accident and try to take a statement from her, trying to take DNA samples from two young girls, one a six year old jumping around the house with her dad's football shirt on, the other one sitting there crying, these are the things that impact. They are the things that stopped the rest of my career." (T54, L19-29)

1. Given the concession made by counsel for the defendant Commission, it is unnecessary to rehearse in detail the statutory provisions concerning findings of serious injury and the giving of leave to bring damages claims relative to injuries in transport accidents.
2. The mixed issues of fact and law upon which this application will turn relate to causation.
3. In Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, the applicant for a finding of serious injury was injured in a car accident by an aggravation of his pre-existing back injury. The primary judge gave leave to commence a damages claim. An appeal to the Full Court of the Supreme Court was dismissed. Southwell and Teague JJ (with whom Brooking J (as he then was) agreed), said:

"In the present case, the preponderance of medical evidence, in our opinion, establishes that the aggravation of the pre-existing condition of the applicant's lumbar spine constituted a serious long-term impairment of a body function - the function of the spine. The unassailed evidence established that before the accident the applicant was able to work full-time and effectively, albeit interrupted on occasions by back problems." ([1994] 1 VR 436, 444)

"The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury."

1. Despite dismissing the appeal, the Court disapproved of the primary judge's reasoning, where the judge had proceeded on the basis that it was sufficient for leave to be granted to bring a damages claim for an applicant to establish that he or she was at the time of the application suffering from a "serious injury". ([1994] 1 VR 436, 443)
2. The Court's decision is regarded as standing for the proposition that where a pre-existing injury is aggravated there will only be a "serious injury" finding relative to the aggravation if the aggravation in itself constitutes a serious injury.
3. Ms Ryan and Ms Williams referred to and relied upon a decision of the Court of Appeal, Rowe v Transport Accident Commission [2017] VSCA 377. In Rowe's case, Mr Rowe drove a truck which was involved in a collision with a police divisional van in 2007. He sought leave in the County Court to commence a common law claim for damages on the basis that he had suffered a serious injury in the 2007 collision. Judge Wischusen dismissed his application, despite finding that Mr Rowe suffered a severe psychological condition. The Court (Osborn, Priest and Beach JJA) dismissed the appeal. They said:

"The judge was correct to reject the applicant's submission that all the applicant need establish was that the 2007 collision was a cause of the applicant's current total psychiatric condition. As s 93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s 93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense." ([2017] VSCA 377 [82])

"That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding." ([83])

"The applicant's contention that the judge should have asked himself, as a determinative question whether, but for the 2007 collision, the applicant would have gone on to develop his present psychiatric condition, must also be rejected. To pose such a question would be to fall into the error identified in the authorities to which we have already referred. Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition." ([86])

1. Forensic psychiatrist Dr Alan Gallogly conducted a medico-legal assessment of Mr Jones' psychiatric condition via Zoom on 21 September 2022, reporting to "ESSSuper" by letter dated 18 October 2022. This report appears to have been obtained by the trustee of the superannuation fund in connection with Mr Jones' application for a disability pension under the terms of the fund. (PCB 193) The doctor took a history of Mr Jones' career with Victoria Police, noting:

"Mr Jones told me that there have been a number of stressors over the course of his career that have impacted on his mental state. He said that his last year at highway patrol there were '17 fatalities and 30 serious injury collisions'. He added 'I also attended two police shootings ... a stabbing ... had a gun pointed at me ...'." (PCB 195)

"Mr Jones continues to suffer from Post-Traumatic Stress Disorder. It continues to be in the moderate to severe range. There is Comorbid Major Depression." (PCB 196)

1. Mr Jones was assessed by psychiatrist Dr Barry J Williamson on referral from Mr Jones' general practitioner, Dr Birch, relative to "episodes of comorbid major depressive disorder". In a letter to Dr Birch dated 29 November 2022, Dr Williamson stated:

"[Mr Jones'] past history is well documented. He has post-traumatic stress disorder as a result of a number of very traumatic experiences over several years in Victoria Police duties. He developed major depressive disorder as a comorbid condition.

He has been treated at the Austin post-traumatic stress disorder unit with some degree of success but he remains significantly disabled and is in fact now retired and living on a superannuation pension. This is very appropriate as he is very damaged by his experiences." (PCB 200)

1. The doctor determined not to make any "early change" to Mr Jones' medication, making a series of additional observations and recommendations, stating, inter alia:

"He impressed as someone who was very fragile and requires careful supportive management." (PCB 201)

1. In a letter of referral to Dr Harish Kalra, Mr Jones' treating general practitioner, Dr Richard J Patterson, informed Dr Kalra in a letter dated 28 August 2014:

"Thankyou for seeing Wayne for diagnostic opinion and treatment advice.

Wayne is a Policeman and recently has noticed various symptoms that have been impacting on his general well being. Over his career he has had many stressful events occur, including life threatening events. For a long time he has found that he would re-live these events when reminded of them.

Recently these have become more problematic to the point that he has begun to seek help about them.

... He tells me that he had a workcover arranged assessment from a doctor, that did not think he had PTSD, which surprised me." (PCB 203)

1. Dr Patterson also referred Mr Jones for treatment to psychologist Ms Margot Murphy by letter dated 17 July 2014. Dr Patterson said:

"Thankyou for seeing Wayne who I understand has begun to see you through work for symptoms that sound consistent with PTSD after a cumulation of work related incidences." (PCB 202)

1. On 11 June 2019, consulting psychiatrist Dr Robert Proctor reviewed Mr Jones and reported to his general practitioner Dr Michael Veal by letter of the same date. He advised Dr Veal:

"I reviewed Wayne today who is a former Police Officer and was based at Creswick who is suffering from very severe PTSD. He has attended the PTSD clinic at the Austin Hospital and has had some benefit from that, however, he still has numerous triggers and is far from recovered. In fact, I think that it's highly unlikely that he would ever be able to return to the Police Force." (PCB 220)

1. Dr David Birch referred Mr Jones for treatment to the "Austin Hospital - PTRS Inpatient Unit" by letter dated 9 October 2018. He described Mr Jones as "suffering with quite debilitating PTSD", noting that Mr Jones had "experienced significant traumas, most noticeably in the past 6 years", remarking:

"in the past 3 months his condition has deteriorated. He has been experiencing ongoing flashbacks, high levels of anxiety, hypervigilence [sic], heightened startled [sic] response, and persistance [sic] irritability." (PCB 188)

1. Dr Harish Kalra, consultant psychiatrist, provided a report dated 28 January 2015 to the "Accident Compensation Conciliation Service", noting that he had an initial consultation with Mr Jones on 6 October 2014 on referral from general practitioner Dr Richard Patterson. (PCB 228) According to the doctor:

"Mr Jones described a decline in his health in early 2014. His blood pressure was rising. He was having recurrent and increased intensity of migraine attacks. He reportedly has had migraines and headaches previously but noticed marked increase in intensity and frequency early this year. He could not control his emotions. He was emotional and tearful easily with reduced tolerance at home. He described mood swings and easy irritability. He could not watch anything related to accidents such as TAC advertisements or news around MVA. He struggled a great deal in his meeting with the father of the victim in June 2014." (PCB 229)

"various traumatic incidences as a part of his job such as the Creswick shooting in 1993/1994, Ballarat shooting incidence in 2004, domestic violence incidences and his standoff with alleged criminals at times. He particularly mentioned about an incident where he intercepted an unregistered car in late 2013. The rear passengers apparently had loaded firearms though did not shoot. In addition to these incidences, Mr Jones was also involved in a fatal motor vehicle accident on Labour Day weekend last year, where he witnessed almost decapitated victims in Creswick." (PCB 229)

"Mr Jones was already on treatment under his GP care along with treatment from private psychologist for anxiety and mood problems. There was no personal or family history of psychiatric illness reported. Mr Jones strongly believes that the experience of witnessing multiple traumatic events over the years in his job in Victoria Police led to the onset of anxiety and depression symptoms. There was no single triggering incidence as such reported. Nevertheless, it is possible not to have any single event triggering the onset of his problems." (PCB 231)

1. Austin Health Clinical Services Unit reported in a treatment plan dated 29 March 2021:

"Wayne was diagnosed with PTSD in 2018. He has a long career in operational policing. This included Highway Patrol. Wayne's PTSD can be attributed to an accumulation of exposure to traumatic events, including a period of acute trauma exposure when he was a member of Highway Patrol. For example, he attended 17 fatalities in one 12-month period." (PCB 252)

1. Dr Nawal Attiya, psychiatry registrar, Psychological Trauma Recovery Service at Austin Health, in a letter of referral dated 12 April 2021 to Dr Daciana D'Abaco, a clinical psychologist, stated inter alia:

"Wayne was diagnosed with PTSD in 2018. He has a long career in operational policing. ..."

1. The letter included the same words as were found in the treatment plan and quoted above. (PCB 254)
2. Dr David Birch of Mind@Home Services Pty Ltd provided a report on Mr Jones' condition and psychological history to his solicitors by letter dated 9 August 2024. Dr Birch stated, inter alia:

"Mr. Jones has relayed to me during numerous visits a number of incidents associated with his long term role in the Victorian Police Force, particularly as a Highway Patrol Officer for six years (including a reported attendance at 17 fatalities in a 12 month period). He reported this resulted in further deterioration of his mental health over this time." (PCB 269-270)

"From initial contact in 2018 with Mr. Jones and discussion with treating psychiatrists, I assess Mr. Jones to be disabled by symptoms typically associated with unresolved trauma- PTSD. He presents with acute symptoms including insomnia, hyper-vigilance and agitation. His affect is somewhat blunted and he reports irritability and mood swings consistent with the psychiatric diagnosis." (PCB 270)

1. Psychologist April Daltonalomes provided a report on her treatment of Mr Jones by way of letter dated 13 November 2023 addressed to his solicitors. The questions posed to the psychologist by the solicitors were specifically directed to the incident on 22 August 2017. The first question posed was:

"1. Your diagnosis of the psychological injury suffered by our client as a result of the incident on 22 August 2017."

"Wayne meets the criteria for posttraumatic stress disorder (PTSD) as defined in the Diagnostic and Statistical Manual Mental Disorders Fifth Edition (DSM-5)." (PCB 273)

1. In a second report to the solicitors dated 4 July 2024, the psychologist reported the "initial relevant consultation" as being 18 July 2022, continuing:

"Wayne has attended 46 appointments over the last two years spaced roughly two weeks apart." (PCB 276)

"Wayne has been exposed to a significant number of traumatic events across his career in Victoria Police. Wayne reports that he was not provided with support to manage the impact of being a first responder to scenes. Wayne was also not provided with strategies to manage the impacts of both the graphic details of the scenes and the psychological impacts of working with the friends and family impacted by the scenes. During the early years of his career, Wayne used alcohol and partying too [sic] cope with the distressing scenes he was exposed to at work." (PCB 277)

"Wayne has spent most of his working life as a Victoria Police member. During this time, he has been exposed to consistent traumatic events which have contributed to his post-traumatic stress disorder. However, the event incident on 22 August 2017 has consistently caused Wayne the highest amount of emotional distress and most frequently triggers re-experiencing and hyperarousal symptoms. All EMDR processing to date has been related to the incident." (PCB 280)

1. Mr Jones was assessed on three occasions for medico-legal purposes by consultant psychiatrist Dr Albert Kaplan. Dr Kaplan saw Mr Jones for the first time on 29 August 2022 "via video conferencing" and provided his assessment by letter to Mr Jones' solicitors dated 7 September 2022. Dr Kaplan had a lengthy list of documents available to him for the purposes of providing background to his assessment, including the report from Dr Kalra dated 28 January 2015. The doctor took a detailed history of Mr Jones' attendance as a police officer at a single-vehicle collision in 2014 where, according to the history, Mr Jones initially believed the deceased driver:

"had suffered a gunshot wound to his head, however he [Mr Jones] then found the victim's brain on the floor behind the front seats of the dual-cab utility vehicle. He commented 'It was a horrific scene'." (PCB 283)

1. Next, the doctor took a detailed history of the incident of 22 August 2017, noting that the deceased driver had been incinerated, and quoting Mr Jones as saying:

"I still see the scene. I still smell the scene. I still see that figure in the vehicle." (PCB 284)

1. The doctor took a detailed family history and marital history as part of a lengthy and detailed account of Mr Jones' symptoms. The doctor recorded:

"Mr Jones stated that he experiences flashbacks, usually of the 2017 accident and sometimes of other accident scenes he attended and of talking to the families of victims. Reminders will trigger the flashbacks." (PCB 288)

"Mr Jones has continued to suffer from moderate to severe symptoms of a Post-Traumatic Stress Disorder, depression, anxiety and panic attacks and he now leads a restricted and circumscribed existence. ...

Given the long duration of Mr Jones' psychiatric conditions, his prognosis is likely to be unfavourable and his conditions are likely to persist for a prolonged and to some extent indefinite period of time." (PCB 290-291)

1. The doctor related these conditions to the incident of 22 August 2017, which he said was "a significant contributing factor to the development of his psychiatric conditions". (PCB 291) He observed:

"It is likely that Mr Jones' involvement in the incident of 2014 and his other traumatic experiences in the Victoria Police created a vulnerability to the development of his condition following 22 August 2017 incident." (PCB 292)

1. Dr Kaplan carried out a further assessment by video conferencing on 11 June 2024, reporting his assessment to Mr Jones' solicitors by letter dated 13 June 2024. The doctor opined:

"Mr Jones' psychiatric condition appeared to have improved since I last examined him almost two years ago and he continues to suffer from a Post-Traumatic Stress Disorder (PTSD). He describes a range of symptoms including intrusive thoughts, flashbacks and recurring nightmares related to his traumatic experiences, avoidance features and increased arousal." (PCB 299-300)

1. He said that apart from PTSD, Mr Jones suffered from a "Major Depressive Disorder Associated with Anxiety and Panic Attacks", though they could be viewed as symptoms of the PTSD. (PCB 300) According to the doctor:

"Mr Jones' PTSD developed after the incident of 22 August 2017 and his condition has had a major impact upon his daily functioning and the quality of his life ..." (PCB 301)

1. Dr Kaplan's final assessment took place on 13 March this year, and he provided a report to Mr Jones' solicitors dated 26 March 2025. Dr Kaplan recorded Mr Jones as telling him:

"that in the year or so prior to the August 2017 transport accident he [Mr Jones] had, through work, attended several counselling sessions, however he cannot recall what symptoms, if any, he had at the time. He stated that prior to the August 2017 accident, he was functioning effectively at work and was performing his normal duties." (PCB 307)

"Mr Jones' psychiatric condition does not appear to have undergone any significant improvement since I last examined him although he now expresses a wish to return to the workforce in some limited capacity. He continues to suffer from a Post-Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder Associated with Anxiety and Panic Attacks ..." (PCB 310)

1. He said that the 2017 incident and surrounding circumstances were "the event that triggered and precipitated his PTSD and Major Depressive Disorder" and that he had been:

"sensitised by the numerous car accident scenes and other traumatic events he attended prior to the 22 August 2017 accident, however it is likely that the 22 August 2017 car accident is the major cause of his PTSD. ... he [Mr Jones] reports that prior to that accident, he was able to discharge his normal duties and that there was a dramatic change in his mental state and behaviour following that accident." (PCB 311)

1. Consultant psychiatrist Dr Nathan Serry also conducted a medico-legal assessment by videolink of Mr Jones on 9 July 2024, and reported to his solicitors by a letter of the same date. Dr Serry had available to him a lengthy list of prior reports, including a number of reports relied upon by the defendant in this case which were based on assessments carried out before 22 August 2017. The doctor took a specific history of the 2014 incident which led to the unsuccessful WorkCover claim. (PCB 315) The doctor took a history that:

"after attending a subsequent less-significant accident in August 2018, an accident in which an individual had driven into a parked car and had then attempted to leave the scene, the claimant found himself feeling extremely anxious and unable to cope." (PCB 316)

1. He took a similar history to the one taken by other practitioners as to Mr Jones' psychiatric difficulties. The doctor said:

"From a diagnostic perspective, the claimant presents with the following:

1. Chronic PTSD;
2. Chronic major depressive disorder with anxious features." (PCB 322)
3. He said:

"Considering the transport accident of 22 August 2017 in isolation of other events, it is my opinion that it is more probable than not that the condition of the claimant's injury was caused as a direct result of that transport accident." (PCB 323)

1. Dr Serry carried out a re-examination of Mr Jones by videolink on 27 March 2025, providing a report to his solicitors of the same date. He said:

"You have asked me to determine whether this specific incident [viz, the incident of 22 August 2017] above all others in his extensive career involving exposure to traumatic events, was the seminal event causing his psychiatric condition." (PCB 325)

1. The doctor recorded Mr Jones as telling him that "he had never had any significant mental health issues before attending a major collision in 2014, a single-vehicle-versus-tree accident", following which Mr Jones "took 12 weeks of sick leave". (PCB 328) He reached the same diagnostic conclusion as previously. (PCB 333-4) The doctor repeated his opinion that the 22 August 2017 accident was "the seminal event that triggered his current diagnosed psychiatric conditions". (PCB 334)
2. On 18 August 2014, Mr Jones was assessed by psychiatrist Dr Chris Grant at the request of the WorkCover claims agent. The doctor provided a report on this assessment bearing the same date. The assessment was said to relate to an injury suffered or alleged to be suffered on 1 July 2014. Dr Grant recorded that Mr Jones told him "his health began to deteriorate from May 2014, without any particular trigger or precipitant". (DCB 8) The doctor reported a complaint of "more frequent migraines than usual since May 2014" and raised blood pressure. (Ibid) Mr Jones reported erratic emotions, "with tearfulness, fragility, lowered coping capacity and resilience. He said he felt more irritable at home. He said there was no specific pattern to his moods." (DCB 9) The doctor recorded that Mr Jones "attends a medical centre in Creswick and has seen an EAP psychologist in Ballarat on two occasions recently, but has no other referrals". (Ibid)
3. The doctor took a history of a series of traumatic events dating back to 1992 when Mr Jones was working at D24 Ballarat:

"when a shooting took place in Creswick. He said he heard the five fatal shots fired over the police radio and was not sure whether it was the policeman or the assailant who had been killed ..." (DCB 10)

1. He referred to another incident with "a knife-wielding assailant", and a later incident with a man "wielding a 22 calibre weapon". The doctor recorded a complaint by Mr Jones of bullying by a supervisor at Daylesford and a false accusation of an inappropriate relationship with a colleague. (DCB 10) The doctor concluded:

"Mr Jones describes symptoms since May 2014 consistent with the onset of a Major Depressive Disorder, moderately severe, non-psychotic type." (DCB 12)

1. The doctor said he "could not establish any particular precipitant or trigger". He referred to "a background of a probable mild post-traumatic stress disorder (PTSD) which arises from various traumatic incidents in his policing career". (DCB 12) The doctor suggested in light of the length and nature of Mr Jones' symptoms:

"he should be under supervision of a psychiatrist to assess further treatment needs, which would include antidepressant medication." (DCB 12)

1. Whilst the doctor did not clear Mr Jones as fit to return to pre-injury duties, he said:

"one would be cautiously hopeful that in the next 4-6 weeks he might be able to return to work part-time, in modified duties." (DCB 12)

1. In a letter dated 11 November 2014, consultant psychiatrist Dr Kalra thanked Dr Richard Patterson of the Creswick Medical Centre "for referring Wayne Jones for psychiatric opinion and management". According to Dr Kalra, Mr Jones had described:

"a decline in his health in early 2014. His blood pressure was rising. He was having recurrent and increased intensity of migraine attacks. ... He could not control his emotions. He was emotional and tearful easily with reduced tolerance at home. He described mood swings and easy irritability. He could not watch anything related to accidents such as TAC advertisements or news around MVA. He struggled a great deal in his meeting with the father of the victim in June 2014." (DCB 13)

1. The doctor took a history of a series of traumatic events in Mr Jones' career as a police officer, again reaching back to a shooting in Creswick in 1993/94. (DCB 13) The doctor recorded that Mr Jones had seen psychologist Margot Murphy "for 4 sessions in July" and was diagnosed with "post-traumatic stress disorder", but Mr Jones had recommenced work "last week after being off work for 2 months". (DCB 14) The doctor referred to "the gradual resolution and his recommencement of duties", but said he would have benefited by "continuing with the psychologist". Dr Kalra saw no need for "pharmacotherapy". (DCB 15)
2. By a report in tabular form dated 17 August 2018, the practitioners at Mind@Home Psychiatry reported on Mr Jones' progress. Under the heading "Presenting problem" was a history of traumatic events including confrontation with armed criminals over the entire period of Mr Jones' police career. The history concluded:

"The last brief Wayne has been dealing with involved a driver being incinerated and having to deal with the 2 children for DNA for confirmation and the mother who was compromised with an ABI. High levels of anxiety, mood depressed and extremely emotional with heightened arousal, flashbacks and avoidance defense mechanisms." (DCB 16)

1. Under the heading "Formulation" of the statement:

"Wayne presents as suffering with post traumatic stress disorder stemming from multiple traumatic events arising from his work as a police officer. Recent experience as a highway patrol man from 2012 up until current where he has attended 17 fatalities, and numerous MVA's have led to Wayne experiencing significant PTSD symptoms ..." (DCB 16)

1. Dr Robert Proctor, treating psychiatrist, reported on Mr Jones' progress to general practitioner Dr Michael Veal of Creswick Medical Centre in a letter dated 17 August 2018, stating:

"Wayne has been struggling for quite some time and on seeing him today his mood is extremely labile, with many triggers that leave him very tearful. He is suffering from the classic symptoms of Post Traumatic Stress Disorder (PTSD) scoring 84/100 in testing. The cut-off for diagnosis is 50 so he is quite severely affected by the PTSD. This is the result of witnessing many extremely traumatic events over the years, particularly working in Highway Patrol unit seeing many people injured, killed and even immolated." (DCB 19)

1. Associate Professor Varma, consultant psychiatrist, provided a medico-legal assessment to the WorkCover Authority's claims agent by letter dated 24 September 2018. This referred to an injury "11.08.2018". Mr Jones was assessed in the professor's rooms on 19 September 2018. The doctor reported that in the course of 29 years of service with Victoria Police "there have been a number of incidents which have affected [Mr Jones] mentally". The events were encountered, according to the professor, "while working in the job where he has to face death and other traumas". The professor referred to Mr Jones' service on highway patrol for six years, and having attended ten fatalities: "The last one was a single vehicle driver who was incarcerated" [sic, scil incinerated]. The professor noted that Mr Jones had been "the informant to the family" and had to take DNA samples from the children. The doctor referred to other traumatic highway events, without ascribing a particular date to them. He recorded Mr Jones telling him:

"that driving is so difficult for him. Most of the streets remind him of the incidents which happened and the jobs he did on those streets and that gives him flashbacks of accidents and deaths. Even talking to people triggers some flashbacks. The other day he was taking his son to football and while driving back that reminded him of another incident, several years back ..." (DCB 17)

1. The professor noted that Mr Jones was being treated by Dr Robert Proctor of Ballarat and that as a Victoria Police officer "he was exposed to traumas, critical incidents, police shootings and life threatening operations and the cumulative effect of it has had a very negative effect on his mental state". (DCB 26) The doctor recorded a list of typical PTSD symptoms.
2. In a clinical assessment form completed in the Psychological Trauma Recovery Service of Austin Health it was reported as at 9 January 2019 that:

"Wayne reports a number of incidents that meet criterion A [presumably a reference to DSM-5]. He recalls a number than [sic] occurred in 2017, but can date traumatic incidents and some symptoms back to his early career. The traumatic events include but are not limited to" -

and there is a reference to six traumatic incidents ranging from motor vehicle accidents to domestic violence incidents and threats by armed criminals. (DCB 33)

1. In the section on "Past psychiatric history" it is recorded:

"Wayne went off work in 2014, for similar reasons, at the time his claim for PTSD was rejected and GB said it was depression unrelated to work. Saw a psychologist briefly at the time, found this helpful and returned to work." (DCB 35)

1. Under the heading "Formulation", there is once again reference to Mr Jones' attendance at "17 fatalities in 12 months when his symptoms became overwhelming, which undoubtedly precipitated his symptoms' emergence." (DCB 36)
2. Austin Health's Psychological Trauma Recovery Service provided a report to the WorkCover Authority's claims agent by letter dated 4 April 2019. According to this report, Mr Jones "described exposure to cumulative trauma in his work role." (DCB 39) The report, over the signatures of a consultant psychiatrist and a clinical psychologist, stated that Mr Jones had "achieved some significant positive outcomes". (DCB 41)
3. Associate Professor Damodaran assessed Mr Jones on 15 August 2019 and provided a report to the WorkCover claims agent by letter dated 23 August 2019. He recorded:

"Mr Jones was quite distraught while he was talking about his difficulties, and the examination needed to be paused for a period to assist him to compose himself." (DCB 42)

1. In the "History" section, the professor recorded that Mr Jones:

"reported that during his career he attended a series of incidents which included suicides, deaths, fatalities, various transport accidents and significantly traumatic incidents. He reported that from his early career onwards there were multiple incidents where he was emotionally traumatised and physically threatened and there were occasions where he almost had to use a firearm. He reported that each time, these were affecting him emotionally, although he continued to work as there was no let-up on these kinds of experiences. According to him, as far as he could recall he was becoming progressively more unwell." (DCB 43)

"Based on the available information, I am of the opinion that Mr Jones is suffering from post-traumatic stress disorder along with major depressive disorder of moderate severity." (DCB 47)

1. Dr Timothy J Entwisle, consultant psychiatrist, saw Mr Jones for assessment on 27 July 2020 relative to his WorkCover claim. The doctor took the usual, though somewhat abbreviated, history of Mr Jones' life and work history, and recorded the frequently-referenced statement:

"Mr Jones said that he had witnessed numerous incidents, accidents, shootings and holdups and confirmed that he attended some 17 fatalities in the last 12 months of highway patrol." (DCB 52)

1. The doctor also recorded the unsuccessful WorkCover claim in 2014 which involved nevertheless 12 months of highway patrol. He mentioned and recorded the 2017 incident which is the subject of the present proceeding, describing it as one "in which the driver was incinerated". (DCB 52) The doctor diagnosed post-traumatic stress disorder. He attributed this to Mr Jones' work, remarking:

"He was first diagnosed with a Major Depressive Illness in 2014 and more recently with PTSD in the context of his current claim." (DCB 54)

1. Also assessing for medico-legal purposes in connection with Mr Jones' WorkCover claim was Dr Steven Adlard, consultant psychiatrist, who assessed Mr Jones on 5 October 2021. As part of the detailed history which he took, Dr Adlard recorded the following:

"In 2016-17 Mr Jones said that he attended 17 fatalities over a 12-month period. There were two distressing fatal incidents and his symptoms increased. He said in August 2018 he saw a psychiatrist by the name of Dr Robert Proctor in Ballarat and he was diagnosed with PTSD and commenced on medication. Mr Jones said that in October 2018 he was very anxious, struggling, and felt unsafe at work, and his symptoms were affecting his family life as well. He stopped work at that time and has not worked since. He said he was ill-health retired in 2020 and went onto the ESSS pension." (DCB 61)

1. The two "fatal incidents" referred to in the history were apparently the subject transport accident in August 2017 and the earlier event in 2014 which led to the unsuccessful WorkCover claim. The doctor diagnosed Mr Jones as suffering from post-traumatic stress disorder and major depressive disorder. (DCB 65)
2. In reasons dated 12 April 2022, a Medical Panel constituted pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 assessed Mr Jones as suffering a whole person permanent impairment of 30 per cent. (DCB 77) The Panel took the history that Mr Jones "whilst performing his duties within the Highway Patrol Unit ... attended multiple fatalities over the 12 months prior to his injury, attended 30 serious injury collisions and 17 fatalities in the same period." (DCB 73)

1. The issue therefore is one of causation. In prosecuting his applications for a 30 per cent permanent impairment rating under the WorkCover regime and a disability pension under the superannuation scheme, Mr Jones was at liberty to rely not upon a single incident of injury but upon a gradual process arising under the course of employment. He said referring to a multiplicity of incidents, and not fewer than three, accorded with the guidance given to police members by the Police Association. (T35, L3-10)
2. Ms Ryan and Ms Williams, on behalf of the Commission, contended that for the purposes of s93 of the Transport Accident Act 1986 the normal common law rules as to causation as exemplified in the High Court's decision of March v Stramare [1991] HCA 12; (1981) 171 CLR 506 did not apply. (T68, L13-17) Causation had to be determined, they said, on a different basis from the one which ruled in a normal civil jury negligence trial where the first question which the jury is called upon to answer is "Was there any negligence on the part of the defendant which was a cause of the plaintiff's injury?" I am sceptical as to whether this is the case.
3. However, in my view, the resolution of the present application should be guided by the form of analysis adopted by the Full Court in Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, which was fundamental to the defendant's case. It will be recalled that in that instance the plaintiff suffered a pre-existing back condition. The vehicle in which he was a passenger was struck from behind by a vehicle driven by the defendant. The Court rejected the primary judge's approach that it was sufficient for the proposed plaintiff to demonstrate that he suffered a serious injury and that the subject incident was a cause of his injury. It was necessary, the Court found, for the injury inflicted by the subject incident in itself to be a serious injury.
4. Applying those principles, however, the Court dismissed the appeal from the judge's determination to grant leave to bring a common law damages claim. Crucially, the plaintiff, or perhaps more accurately the proposed plaintiff, had given evidence that immediately prior to the subject accident he was:

"able to work in [his] occupation with the Melbourne and Metropolitan Board of Works as a supervisor. Save for the odd occasional twinge as at June of 1987 [he] was able to perform [his] work duties without any real difficulty and without experiencing any significant back discomfort."

1. On the basis of the entirety of the evidence, the Full Court accepted this as a true account and referred to unassailed evidence establishing that before the accident the prospective plaintiff was able to work full-time and effectively. I quoted that passage from the joint judgment of Southwell and Teague JJ earlier in these reasons.
2. The same may be said of Mr Jones. His psychological difficulties were perhaps more significant than the "odd twinge" in the low back which was suffered by the proposed plaintiff in Petkovski v Galletti, but the outcome was materially the same. Despite having to struggle at times, Mr Jones was able to live a normal life and discharge his normal duties as a police officer before the August 2017 accident. His application for WorkCover benefits based upon a finding of post-traumatic stress disorder as of 2014 was rejected. He returned to duties. Plainly by July 2017 he was especially vulnerable to psychological injury, or, as some of the medical examiners have put it, "sensitised" to the traumatic incidents which regrettably form part of a police officer's day-to-day duties. The "eggshell skull rule", or perhaps in the present context the "eggshell psyche rule", means that a defendant or potential defendant is not entitled to rely in defence or mitigation of his, her, or its liability in negligence upon the special vulnerability of the plaintiff if the other elements of a cause of action in damages for negligence are present.
3. It follows that leave should be granted to Mr Jones. Leave is granted to Mr Jones pursuant to s93 of the Transport Accident Act 1986 to bring a claim for damages in negligence relative to the August 2017 transport accident. As a result of this finding, the way is open for him to bring a damages claim both under the WorkCover regime and under the transport accident regime.
4. Assuming, as I think Mr Harrison indicated, that Mr Jones will prefer to press on under the Transport Accident Act regime, it will be a matter for the Court at trial to determine whether under the provisions of the Wrongs Act 1958 the defendant will have any entitlement to contribution or relief by reference to the liability or potential liability of Victoria Police as Mr Jones' employer.

1. I have heard no submissions on the question of costs and so I will reserve them.

I certify that these 25 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 18 July 2025.