Keay v TAC [2023] VCC 18

1. The defendant submitted that the plaintiff's psychological presentation (with post-traumatic stress disorder ("PTSD")) has been caused by all of the traumatic incidents to which he was exposed as a train driver while working for Metro Trains; that while his pre-existing chronic PTSD (as diagnosed in the clinical records and the reports of Dr Epstein) was worsened by the transport accident of 17 November 2014, the extent of that worsening does not meet the narrative test for serious injury. In particular, the defendant noted that after each of the traumatic incidents, including the transport accident, the plaintiff had a few weeks off work, had no psychological treatment, and then returned to work. Mr Smith noted that Mr Keay's nightmares and flashbacks are of a number of gruesome incidents involving death over the course of his employment as a train driver with Metro Trains, and not just of the near miss on 17 November 2014. The defendant also relied on the opinion of Dr Epstein that prior to the transport accident the plaintiff had chronic PTSD which had a poor prognosis and that his employment with Metro Trains was a significant contributing factor to his current psychiatric issues.[2]
2. In addition, the defendant submitted that the plaintiff ceased work in April 2015, not as a result of a worsened psychological condition flowing from the transport accident, but rather as a result of the complications by way of permanent cognitive impairment of the pernicious anaemia he suffered at the time, as well as the loss of his brother in early April 2015. The defendant relied on the expert evidence of Professor Richard Fox, haematologist,[3] to the effect that the pernicious anaemia developed over a number of years, resulting in the lowering of the level B12 prior to the transport accident, and was not related to the transport accident, nor to stress or psychiatric illness. Professor Fox opined that while severe pernicious anaemia could lead to neuropsychiatric conditions such as cognitive impairment, it was difficult to determine whether Mr Keay's post-traumatic stress syndrome also contributed to his cognitive impairment.
3. The defendant also noted that there was a paucity of evidence of medical consultations regarding mental health issues in the first part of 2015.

1. The plaintiff's evidence was to the following effect. He is 68 years old,[4] completed Year 11 at school, and commenced work as a train driver at the age of 17. He worked as a train driver for 46 years until he stopped work in April 2015. He loved his work, had planned to work at least to the age of 70, and socialised mainly with train drivers. Over the course of his employment as a train driver, and not just during the period he worked for Metro Trains (between 2005 and April 2015), Mr Keay was exposed to a number of traumatic events, including fatalities and near misses. He recalled a number of traumatic near misses in 2009, 2013 and early 2014 whilst working for Metro Trains. The pattern in relation to the aftermath of each of the traumatic incidents is that he would have nightmares and ruminate about the incident, talk to his doctor, obtain counselling through his employer, and return to work after a few weeks once his symptoms abated.
2. On 17 November 2014, while approaching a crossing, he saw a car containing a mother and two children become trapped on the railway tracks in between the boom gates. He saw the mother "frantically trying to move the car".[5] He was very distressed at seeing the children bouncing on the back seat. He knew there was a diesel train coming in the opposite direction that was not slowing down. He applied his brakes to the maximum possible, and managed to stop the train just in time to avoid a head-on collision. He then got out of the train and gestured to the driver to alert her to the oncoming diesel train. She managed to drive forwards off the railway tracks when the boom gates opened, and then drove away. Mr Keay's "heart felt as though it had stopped".[6] He was extremely upset, experienced diarrhoea, and was relieved at the next station. He then reported the incident and was sent home. He saw his doctor.
3. He had one month off work and saw his doctor because he was not sleeping. He was prescribed some medication. He resumed work on 16 December 2014 and worked until early April 2015. He continued to have nightmares related to the transport accident and his sleep was disturbed. He also had flashbacks of the incident during the day, and found them disturbing. He was put off work by his general practitioner, Dr Harris, who diagnosed and treated him for his anaemia, as well as being referred to a psychologist, Mr David Sullivan.
4. Unfortunately, he could not get over the November 2014 incident and return to work, even though he had previously been involved in worse incidents. He is incapacitated from his psychological symptoms, which include depression, and he cannot stop thinking about the transport accident. He has nightmares about it at least 2-3 times per week, after which he cannot get back to sleep for 3-4 hours. He also has weekly flashbacks to the event. He used to enjoy gardening and socialising with his train driver colleagues. He no longer goes out, nor gardens, and he has reduced concentration because of poor sleep. He has bad mood swings that he cannot control, and socialises less because of them. He becomes teary easily, which never would have happened prior to the transport accident. He ceased psychological treatment when the WorkCover insurer stopped paying for it as he cannot afford it on his pension. He does not like to take antidepressants because he is reluctant to change the way his mind works. He has a mortgage and says that, but for the transport accident, he would still be working. He goes for short walks when he feels up to it. He is unable to work due to his exhaustion and the mood swings which affect his social interactions. His psychological condition has taken away his quality and enjoyment of life.
5. When cross-examined at the hearing, Mr Keay did not recall a near miss incident in June 2010 when a car full of youths was on the crossing, requiring him to use his emergency brake. He recalled an incident in October 2012 when there was a passenger on his train who was carrying a gun. He recalled seeing his doctor and agreed that at some point he had been diagnosed with PTSD. He did not recall a further near miss incident in February 2013 but agreed that he saw his doctor for his psychological problems. He recalled a further near miss incident in September 2013 when he had to warn an oncoming train of a truck on the tracks. He did not recall that he had five weeks off work at that time but said that after each incident he returned to work when pronounced fit to do so. He recalled the near miss incident in January 2014, when there was a trespasser on the train tracks, but did not recall taking a month off.
6. He agreed that he returned to work after the transport accident on 16 December 2014 but said that he was not as well as on his previous returns to work. He said that he had not had flashbacks in the past concerning past incidents. He said that the flashbacks in relation to the transport accident began after he recovered physically from his pernicious anaemia and they continued to bother him. In his words: "I was getting physically well and then mentally I was - I was going the other direction".[7] He said that he was very physically unwell at the time he stopped work. His conditioned worsened in the early part of 2015. He agreed that his brother died in late March 2015 but said that he had been unwell for a long time. He denied that it was the combination of his own deteriorating physical health along with the death of his brother which rendered him unable to work.
7. In re-examination, Mr Keay said that his flashbacks related to the transport accident as well as to a much earlier fatality involving a young man.

Medical and other expert evidence relied upon by the plaintiff

1. Mr David Sullivan, psychologist, assessed Mr Keay on 5 June 2015 on referral from Dr Harris, and had concerns about his cognitive functioning. He took a history of trauma associated with earlier workplace incidents including workplace fatalities and near misses. He wrote to Dr Harris in March 2016 that the transport accident would "continue to have an impact upon his general adjustment and his emotional responsivities".[8] In a psychological report dated 13 November 2017, Mr Sullivan indicated that the cumulative impact of the traumatic incidents to which he had been exposed during his employment with Metro Trains resulted in a permanent fluctuating chronic adjustment disorder with anxiety and depressed mood which would require long term if not life-long psychological treatment,[9] and which rendered him unfit for all employment.[10] Mr Sullivan recommended ongoing medical, pharmacological and skilled trauma focused psychological treatment for the foreseeable future.
2. Dr Dominic Harris, general practitioner, saw Mr Keay in June 2015, and after a delay obtaining test results, treated his pernicious anaemia with B12 injections. He reported on 30 November 2017 that within 10 days of receiving the injections,[11] he had recovered albeit with residual, irreversible cognitive impairment which enabled him to self-care and live independently but not to work. Dr Harris opined that the trauma suffered in the transport accident was the "last straw",[12] which set off a chain of events in the form of deterioration in mental state, resulting in lack of self-care and poor diet which led to pernicious anaemia and a need for ongoing psychological support. He concluded that Mr Keay's injuries "arose out of and during the course of his employment with Metro Trains".[13]
3. In a further report dated 20 December 2019, Dr Harris stated that after recovering from his anaemia, Mr Keay was able to provide a coherent account of the trauma suffered as a result of witnessing fatalities and near-misses while working as a train driver. Dr Harris diagnosed a severe adjustment disorder, triggered by the transport accident, "on a background of having witnessed fatalities on multiple occasions in his train driving role over the years".[14] On 25 March 2021, Dr Harris confirmed that after six years Mr Keay was still suffering with significant anxiety and insomnia which had worsened in the year since he stopped seeing his psychologist and which impacted on his quality of life. Mr Keay described "waking early in a sweat, experiencing flashbacks of work related accidents, unable to get back to sleep".[15] Dr Harris recommended long-term psychologist support.[16] In a further report dated 20 July 2022, Dr Harris opined that the transport accident caused Mr Keay to "finally decompensate mentally and physically", against a background of work related trauma.[17] Dr Harris noted he continues to suffer significant anxiety, sleep disturbance and nightmares, "all related to work related trauma".[18]
4. On 10 May 2019, Professor Jennie L Ponsford, neuropsychologist, assessed Mr Keay and reported receiving a history from him of exposure to several traumatic incidents during his work as a train driver,[19] including one where a young man had his legs severed by the train, the most recent of which was the transport accident in late 2014. He had a few weeks off work but these incidents stay on his mind. Professor Ponsford assessed Mr Keay as being of average intelligence, with improved cognitive function after treatment for his anaemia. She noted some mild residual impairments of abstract verbal and perceptual reasoning and a moderate reduction in speed of information processing. She considered that his cognitive impairment was largely linked with the pernicious anaemia, but opined that the impairment may have been exacerbated by his PTSD, anxiety and depression associated with his work as a train driver.
5. On 16 September 2019, Associate Professor Richard Stark, neurologist, examined Mr Keay and concluded that his cognitive function was significantly impaired when he first presented with B12 deficiency, and improved considerably after treatment for that condition. However, assuming that Mr Keay's poor dietary intake prior to treatment was partially attributable to psychological factors (the impact of the transport accident), he considered that transport accident contributed to the severity of his vitamin B12 deficiency.
6. On 3 May 2019, Dr Michael Epstein, psychiatrist, reported to the plaintiff's solicitors taking a history from Mr Keay to the effect that prior to, and after, the transport accident he had been exposed to a number of fatalities and/or near misses while working as a train driver.[20] Those incidents occurred in 1987 (fatality), 1990 (near-miss), 1992 (pedestrian ran on to tracks and was cut in half), 1993 (suicide), 2008 (fatality), 2009 (near miss) and 2010 (near miss). The transport accident occurred on 17 November 2014. In January 2015, his train clipped a track trespasser but the man walked away. In February 2015, he braked in order to avoid a person standing on the tracks.
7. After each of these incidents, he took a few weeks off work and had a few sessions of mandatory counselling. Mr Keay complained of nightmares "about incidents at work",[21] difficulty sleeping, flashbacks to "various events at work at least twice per week, especially to the" transport accident and the incident in which a man was cut in half.[22] He had lost self-esteem and confidence and had problems with reading and concentration. He was seeing his psychologist every two or three months. Dr Epstein diagnosed chronic PTSD "arising out of repeated exposures to traumatic incidents that occurred during the course of his employment as a train driver" (on country and suburban lines).[23] He also diagnosed a mild chronic adjustment disorder with depressed mood arising from the effects of his PTSD and his anaemia. Dr Epstein noted that his mental state was not interfering with his social, domestic and recreational activities, but opined that psychological factors along with his residual cognitive impairment made him permanently unfit for employment.
8. On 17 March 2021, Dr Epstein reported that when he reviewed Mr Keay, Mr Keay complained of difficulty sleeping, exhaustion during the day, flashbacks to "various events at work", [24] especially to the transport accident daily and the fatality in 1992, which caused him distress and some concern for his own safety. He was rarely seeing his former colleague friends, rarely played tennis or went fishing. Dr Epstein considered that he was still suffering from PTSD and an adjustment disorder with depressed mood, and required ongoing psychological counselling. Dr Epstein considered that his prognosis with respect to his psychological injuries was poor. He considered that Mr Keay's work-related psychiatric injuries along would preclude a return to pre-injury duties or other employment.
9. On 31 March 2021, Dr Epstein provided a brief report in which he responded to the opinion of Dr Justin Lewis dated 2 February 2021 and to Mr Keay's second affidavit.[25] Dr Epstein disagreed with the diagnosis by Dr Lewis of a "recurrence of a pre-existing adjustment disorder with traumatisation features" and reaffirmed his diagnosis of PTSD.[26] However, he agreed with Dr Lewis that the transport accident appeared to have been the "final straw" resulting in persistent traumatisation symptoms.[27] Dr Epstein noted that Mr Keay was still seeing Mr Sullivan.
10. On 31 May 2022, Dr Epstein reported when reviewing Mr Keay, Mr Keay continued to complain of nightmares "about three of the fatalities and near misses",[28] recurrent intrusive thoughts about work most nights, and poor sleep which meant that some days he did not get up due to fatigue. He was still cooking, cleaning and gardening, and was walking daily, but rarely went out expect to go shopping or to appointments. He avoided crowds. He no longer played tennis or went fishing due to fatigue. He felt lonely and isolated and rarely experienced any pleasure. He had little motivation. He saw his psychologist once in 2021 but then funding was stopped. Dr Epstein confirmed his diagnosis of PTSD which, in combination with his vitamin B12 deficiency, has led to a mild chronic adjustment disorder with depressed mood. He noted that Mr Keay's social, domestic and recreational activities have deteriorated since he was last seen, due to his psychological condition. He felt that his psychological condition may worsen as he becomes more isolated. He recommended psychological counselling. He opined that Mr Keay's work-related psychiatric injuries alone would prevent him returning to his pre-injury duties and limit his capacity to work in other employment.
11. On 20 July 2022, Dr Epstein responded to questions from the plaintiff's solicitor to the following effect.[29] Firstly, that Mr Keay has a chronic PTSD that was exacerbated by the transport accident. Secondly, that he has a poor prognosis with respect to his psychiatric condition. Thirdly, that his employment with Metro Trains up until the transport accident has been a significant contributing factor to his current psychiatric condition. Finally, that his incapacity for any employment arises out of the injury "sustained throughout the course of his employment from 20 October 1999 until 17 November 2014".[30]
12. A number of psychiatrists provided reports to the defendant's solicitors. Dr Justin Lewis reported on 2 February 2021 obtaining a history from Mr Keay of traumatic incidents prior to the transport accident including:[31] a fatal accident in 1987; a dual suicide attempt in 1990; an incident in 1992 when a young man was cut in half when he tripped under a train; an incident in 1993 when a man jumped in front of his train; an incident in 2018 when a young man ran in front of his train; and two further near misses in early 2015. He told Dr Lewis that he went into a "meltdown" after the transport accident,[32] and that this was the first time he recalled having ever developed traumatisation symptoms. He complained of recurrent nightmares and intrusive recollections of the accident as well as other incidents, and could not understand why this transport accident could have affected him so greatly when previous incident had not had the same effect. He told Dr Lewis that his symptoms of sleep disturbance, recurrent nightmares and intrusive memories of traumatic events had affected his general functioning and quality of life. He had also become irritable, agitated and angry since the transport accident. He was independent but socially isolated and spent most of his time at home. His mood was 5/10. He also complained of cognitive difficulties including difficulty focusing and maintaining information.
13. On the basis of general practice records from 2010 referring to multiple presentations with pre-existing but intermittent work-related "traumatisation symptoms", Dr Lewis diagnosed chronic adjustment disorder with traumatisation features, but noted a differential diagnosis of PTSD of mild severity.[33] He felt that Mr Keay's prognosis was poor as his symptoms had not abated. Dr Lewis considered that Mr Keay was totally incapacitated for all employment due to his cognitive difficulties, lowered mood, poor motivation, sleep disturbance and fatigue. He noted that Mr Keay remained active with gardening and daily walking, shopping, driving and cooking.
14. Dr Martin van der Linden saw Mr Keay on 25 May 2017 and 4 August 2021. He reported that when he first saw Mr Keay in 2017, Mr Keay gave a history of witnessing numerous traumatic events including deaths and near misses during his work as a train driver.[34] At that time, Dr van der Linden diagnosed an Adjustment Disorder. In August 2021, Mr Keay reported that after recovering from pernicious anaemia his psychological symptoms had intensified and become more distressing. He reported waking with nightmares of past traumatic events two or three times per night, feeling sleepy during the day, and experiencing flashbacks of seeing body parts after train accidents. He was moody, irritable, hypersensitive, cried easily and therefore avoided socialising. Dr van der Linden concluded that Mr Keay continued to suffer from an adjustment disorder with depressed and anxious Mood (subsyndromal PTSD). He noted that Mr Keay gave a long history of some symptoms of PTSD, namely flashbacks, but was able to continue working. He considered that in the light of his current psychological symptoms, which produced chronic insomnia and excessive fatigue, Mr Keay could not return to his pre-injury job, and had suffered detriment to his social activities, but remained capable of performing his domestic duties. He recommended that Mr Keay receive psychiatric treatment for his nightmares.
15. Dr Alan Jager examined Mr Keay over Zoom on 17 May 2022. He took a history from Mr Keay of involvement in about 18 fatalities during his career as a train driver. Mr Keay told him he last felt completely well in 2016, although there had been two incidents earlier incidents. In the 2014 transport accident, Mr Keay reported seeing a small car on the tracks, braking heavily, noticing young girls bouncing up and down in the back seat. He managed to make eye contact with the driver of the car so that she could see the oncoming diesel train and drive forward rather than into it. He had a few weeks off and returned to work but developed pernicious anaemia and was put off work in 2017. He saw a psychologist between 2017 and 2020, which he found very beneficial, however he could not afford to continue treatment when the insurer stopped paying.
16. Mr Keay reported having nightmares, most commonly about an incident in which the train cut a person in half. He avoided train travel. Dr Jager diagnosed PTSD caused by a number of "critical incidents in the workplace" which precluded him from returning to work.[35]

1. Dr Richard Prytula, psychiatrist, examined Mr Keay on 7 July 2015 and reported on 7 and 11 July 2015 that he presented with cognitive difficulties which complicated an assessment of his mental state.[36] He recommended neuropsychological assessment. Overall, Dr Prytula considered that Mr Keay had been exposed to multiple incidents during the course of his employment and may have suffered accumulative traumatisation, with a further aggravation occurring after the transport accident. In a supplementary report dated 7 July 2015, Dr Prytula opined that Mr Keay continued to "suffer from symptoms of traumatisation as part of an adjustment disorder with mixed anxious and depressed mood with features of traumatisation or as a mild form of PTSD".[37] Dr Prytula did not consider the death of Mr Keay's brother as likely to be of significance in comparison to the work-related exposure to trauma.[38]
2. Professor Simon Crowe, neuropsychologist, assessed Mr Keay in August 2015 when he was undergoing treatment for pernicious anaemia.[39] He took a history of a series of workplace stresses due to suicides and railway accidents whilst he was driving his train. He noted the substantial degree of cognitive impairment found by Dr Prytula in July 2015, but considered that Mr Keay's condition had improved since then, with a comprehensive neuropsychological assessment revealing mild attenuation of processing speed, working memory, memory functioning and perceptual reasoning in comparison with estimates of his pre-injury functioning. Professor Crowe considered that Mr Keay's condition was not yet stable.
3. Dr John Gill, psychiatrist, examined Mr Keay on 27 January 2016 and reported taking a history of four incidents prior to the transport accident.[40] After the transport accident, he reported an acute onset of disturbance, visualising that incident and others and being unable to sleep. His mood declined. His vitamin B deficiency was diagnosed and treated but his sleep remained impaired. He was a very poor historian. Dr Gill diagnosed elements of an adjustment disorder with anxiety, depression and post-traumatic stress symptomatology. Dr Gill attributed his condition to exposure to numerous traumatic incidents while working as a train driver, and particularly in the year prior to injury. At that time, Dr Gill did not consider that Mr Keay's condition had stabilised. In a supplementary report in February 2016, Dr Gill noted, after reading further material supplied to him, that although Mr Keay suffered some personal stressors which aggravated his psychological condition, a significant contributing factor to his psychological presentation was his exposure to work-related traumatic incidents.
4. Dr Gill re-examined Mr Keay on 7 July 2016 and found him to be more coherent than on the previous occasion.[41] He noted that Mr Keay had suffered post-traumatic stress symptoms in relation to various incidents over the year prior to his ceasing work in April/June 2016. He considered that Mr Keay still had some mild residual cognitive sequelae to vitamin B12 deficiency as well as an adjustment disorder with features of traumatisation. He considered that Mr Keay's psychological condition remained a significant factor in his incapacity for work, which Dr Gill felt would be permanent.
5. On 11 September 2017, Dr Jude Ugwu, occupational physician, opined that Mr Keay's vitamin B12 deficiency was the primary cause of his cognitive impairment and inability to work in suitable employment.[42] He also opined that Mr Keay was not psychologically fit to work, or, rather "he is mentally psyched to retire".[43]
6. Dr Matthew Tagkalidis, psychiatrist, performed an impairment assessment on 3 June 2019.[44] He took a history from Mr Keay of involvement in around 8 collisions and numerous near misses while working for Metro Trains. At times after these incidents he took a few weeks off work and experienced dreams and intrusive recollections of the incident but then returned to work. He did the same after the transport accident of 17 November 2014, but stopped work in December due to the effects of pernicious anaemia, which was treated in mid-2015. He felt that he had been left with some residual cognitive problems. He described disrupted sleep, with nightmares of incidents a few times per week, and some tearfulness. He said he walked long distances daily and spent time in his garden. He was independent in his daily living activities. Dr Tagkalidis diagnosed a mild adjustment disorder with depressed mood and features of traumatisation, relevant to the transport accident.
7. Professor Richard Fox, haematologist and oncologist, reported on 2 March 2021 that it was "likely/certain" that Mr Keay had developed pernicious anaemia prior to the transport accident,[45] as the condition is one which would have developed over several years before then. He noted that there is no known relationship between emotional stress or psychiatric illness to the development of pernicious anaemia and concluded that the suggestion that Mr Keay might not have eaten as well as usual because of his PTSD was speculative. For this reason, he opined that the transport accident did not contribute to the pernicious anaemia.

1. I found Mr Keay's evidence (as contained in the transcript) consistent with the histories given to the various treating and examining experts, and I accept it. In particular I accept that after previous incidents, he saw his doctor, had some psychological symptoms, but returned to work within a few weeks and was able to keep working full time until the transport accident. This is in sharp contrast to the acute onset of ongoing and intrusive psychological symptoms following the transport accident, which have contributed to an inability to work in his lifelong occupation, and a loss of enjoyment of life.
2. I consider that the weight of the recent treating (Dr Harris) and expert psychiatric opinion (Dr Jager, Dr Lewis, Dr Epstein) canvassed above is to the effect that, given the acute onset of ongoing symptoms after the transport accident, which persisted long beyond the recovery from pernicious anaemia and continue to date, the transport accident is a cause of Mr Keay's current psychiatric condition (whether characterised as chronic PTSD and/or or a severe adjustment disorder with anxiety and depressed mood and features of traumatisation), the consequences of which include frequent nightmares, flashbacks, poor sleep, social isolation, a cessation of recreational activities, and a permanent incapacity for any employment. I acknowledge that Dr Jager and Dr Van der Linden opined that he retains a residual work capacity, but, in the light of his education, lifelong employment as a train driver, negligible transferrable skills and the extent of his psychological symptoms, I consider that he has no work capacity. The medico-legal experts as well as the treating practitioners (Dr Harris and Mr Sullivan) thought his prognosis was poor and recommended ongoing psychological treatment or psychiatric treatment.
3. I accept the opinion of Professor Fox, who is the best qualified specialist to comment on pernicious anaemia, to the effect that this organic condition takes considerable time to develop and was not caused by the incident.
4. I am satisfied on the evidence that the 2014 transport accident is a cause of Mr Keay's current psychiatric condition. I consider on all of the evidence that in terms of pain and suffering and pecuniary loss, the consequences of his permanent psychiatric condition meet the narrative test for serious injury.

1. Leave is granted to the plaintiff to issue common law proceedings in respect of the psychiatric injury suffered as a result of the transport accident on 17 November 2014. I reserve the question of costs.

[1] At the conclusion of the TAC matter, I proceeded to hear the application under s 134AB of the Accident

[2] Transcript of Proceedings, Keay v TAC (County Court of Victoria, CI-20-03693, Judge Davis, 28

[3] His report dated 2 March 2021 is at Defendant Court Book ("DCB") 5.

[4] As at the date of the hearing on 30 April 2021 before his Honour Judge Coish.

[16] He repeated these conclusions in a further report dated 8 April 2022 (Ibid 103).