Plaintiff v Defendants

Plaintiff v Defendants - [2017] VSC 657 - VSC 2017 case summary — Zoe

[53]

Question 1

What is the nature of the [first defendant's] medical condition relevant to the following alleged injuries:

(a) fracture to the cervical spine

(b) injury to the head

(c) injury to the back

(d) injury to the leg

(e) injury to the arms

(f) injury to the stomach

(g) damage to eyesight

(h) memory loss

(i) blood pressure/hypertension

(j) diabetes

(k) psychiatric condition

('the alleged injuries')

Answer

In the Panel's opinion the [first defendant] has a now healed fracture of the lamina of the C6 vertebra, no current conditions of the head, back, leg, arms, stomach or eyes, and no currently identifiable memory loss or psychiatric condition relevant to the alleged injuries.

The Panel also concluded that the [first defendant] has hypertension and diabetes, but concluded that both of these conditions are constitutional in origin and not attributable to the alleged injuries.

Question 2

Was the [first defendant]'s employment with the [plaintiff] in fact, or could it possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation and/or deterioration of any and if so which of the alleged injuries?

Answer

In the Panel's opinion [the first defendant]'s employment with the defendant was in fact a significant contributing factor to a fracture of the lamina of the C6 vertebra, which has now healed.

In the Panel's opinion the [first defendant]'s employment could not possibly have been and was not in fact a significant contributing factor to any other alleged injury or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any alleged pre-existing injury or disease, in any way.

Question 3

What is the extent to which any physical or mental condition results from or is materially contributed to by the alleged injuries?

Answer

In the Panel's opinion the [first defendant] is not now suffering from any physical or mental condition which results from or is materially contributed to by any alleged injury.

Question 4

In the period 24 October 2014 to date, did the [first defendant] have:

(a) a 'current work capacity'

(b) 'no current work capacity'

Answer

In the Panel's opinion the [first defendant] had no present inability arising from an injury such that he was not able return to his pre-injury employment in the period 24 October 2014 to date.

Question 5

Does the [first defendant] currently have:

(a) a 'current work capacity'

(b) 'no current work capacity'

In the Panel's opinion the [first defendant] has no present inability arising from an injury such that he is not able return to his pre-injury employment.

Question 6

Does the [first defendant's] incapacity (if any) result from or is it materially contributed to by any and if so which of the alleged injuries?

Answer

Not applicable

Question 7

If 'yes' to question 5(b), is the incapacity likely to continue indefinitely?

Answer

Not applicable

Question 8

Are the following medical services appropriate treatments for the alleged injuries, and if so with what frequency should they take place?

(a) Panadeine forte

(b) Tenormin

(c) Zoloft

(d) Coversyl

(e) Medication for diabetes

(f) Diazepam

(g) Physiotherapy

(h) Chiropractic treatment

(i) Massage

Answer

Not applicable

[66]

Question 1

As at the date of the Medical Panel examination, does the [first defendant] have any:

(a) Medical condition of the head?

(b) Medical condition of the neck?

(c) Psychiatric Condition?

Answer

(a) no

(b) no

(c) In the Panel's opinion, as at the date of the Medical Panel's examination, the [first defendant] is suffering from a dissociative disorder not otherwise specified and dissociative fugues.

Question 2

If 'yes' to question 1(c), was the fall on 1 November 2000 in fact, or could it possibly have been, a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any psychiatric condition?

Answer

In the Panel's opinion the [first defendant's] psychiatric condition is not a recurrence, aggravation, acceleration, exacerbation, or deterioration of any psychiatric condition.

Question 3

Does any, and if so what physical or mental condition enquired of in Question 1 result from or is materially contributed to by the fall on 1 November 2000?

Answer

In the Panel's opinion the [first defendant's] dissociative disorder not otherwise specified (DDNOS) with dissociative fugue episodes results from and is materially contributed to by the fall on November 1, 2000.

Question 4

Is any, and if so what physical or mental condition enquired of in Question 1 permanent (i.e. likely to persist for the foreseeable future)?

Answer

In the Panel's opinion the [first defendant's] dissociative disorder not otherwise specified (DDNOS) with dissociative fugue episodes is permanent.

Question 5

Disregarding any psychiatric consequences of physical injury:

(a) does the [first defendant] have:

(i) a capacity to undertake his pre-injury employment?

(ii) a current work capacity?

(iii) no current work capacity?

(b) does any incapacity for work result from or is materially contributed to by any:

(i) medical condition of the neck?

(ii) medical condition of the head?

(c) if 'yes' to question 5(b) is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

Answer

(a) (i) Yes

(ii) Yes

(iii) No

(b) Not applicable

(c) Not applicable

Question 6

Taking into account only any psychiatric condition (including any physical consequences of the psychiatric condition):

(a) does the [first defendant] have:

(i) a capacity to undertake his pre-injury employment?

(ii) a current work capacity?

(iii) no current work capacity?

(b) does any incapacity for work result from or is materially contributed to by any psychiatric condition?

(c) if 'yes' to question 6(b) is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

Answer

(a) (i) No

(ii) No

(iii) Yes

(b) In the Panel's opinion the [first defendant's] incapacity for work results from and is materially contributed to by his psychiatric condition

(c) Yes

Question 7

If the [first defendant] is capable of performing suitable employment

(a) for how many days and hours per week can he perform this employment?

(b) what restrictions (if any) would be placed on the work that he can do?

Answer

Not applicable

[74]

In the Panel's opinion the [first defendant] is suffering from a dissociative disorder not otherwise specified and dissociative fugues. The Panel noted the dissociative symptoms presented for many years, including dissociative fugues and memory gaps, some of which indicated extreme behaviour such as the destruction within his home, the nature of the auditory hallucinations which are of a different quality to those seen in schizophrenia, the somatic symptoms including numbness and paralysis, and disorientation in both time and place. The Panel concluded, on the basis of its expertise and experience, that these symptoms and behaviours represented a known clinical picture and the complexity and comorbidity typical of dissociative disorder and not suggestive of malingering.

The Panel noted that the [first defendant] ceased work after the fugue episodes ensued.

The Panel noted the variety of psychiatric diagnoses obtained by the independent medical examiners, ranging from a psychotic disorder to a malingered amnestic condition and noted that the previous Panel considered that the [first defendant] had 'a contrived presentation of cognitive impairment which the Panel attributes to the injury sustained on 1 November 2000', and further that the 'Panel concluded that the [first defendant] had no current psychiatric condition relevant to the claimed injuries'.

The Panel is of the view that the diagnoses of dissociative disorder not otherwise specified and dissociative fugues are an appropriate diagnoses and that the [first defendant] prior to the injury had a successful career and that following the injury the dissociative disorder gradually became manifest. The Panel noted that a past history of severe physical, emotional or sexual abuse is characteristic of the developmental history of people with dissociative disorders and that this history was not obtained in any detail in any previous examination.

The Panel understands a Medical Panel gives its opinion upon the questions that are referred to it. In accordance with the Court of Appeal decision of McVey v Smith [2014],[1] while it is open to a Medical Panel to have regard to an earlier Medical Panel opinion, it is not bound to apply any of its conclusions, and when forming its opinion the Panel must consider only the contemporaneous facts and examination findings of the current Medical Panel (citation added).

[75]

The Panel was also concerned that the aforementioned diagnosis may not have been reasonably anticipated and the Panel therefore requested further submissions from the parties before finalising its opinion. The Panel noted the [first defendant's] further submissions which essentially relied on a report of Dr Nathan Serry dated 12 September 2016 ...

The Panel carefully considered the [plaintiff's] further submissions dated 2 September 2016. The Panel noted the [plaintiff's] contention that when regard was had to all the available evidence, including the observations and opinions of the [first defendant's] treating GP, treating psychiatrist and the previous Panel opinion, any symptoms are most likely attributable to the differential diagnosis of malingering. The Panel carefully considered the opinion of the Previous Panel and other reports referred to by the defendant in this regard but recognised that it is characteristic of the dissociative processes that the person presents different history and symptoms at different times. In the panel's opinion and in the context of the full psychiatric picture, such different presentations do not suggest malingering or deliberate changes to any information provided. The Panel concluded therefore that the [first defendant's] symptoms are not attributable to the differential diagnosis of malingering.

The Panel also noted the [plaintiff's] submission that any Dissociative disorder, if one is present, has no relationship to the transient physical injury that occurred at work. The defendant instead points to what it calls a number of significant unrelated personal stressors in the [first defendant's] life in recent years. The Defendant submits that his developmental history and subsequent life stressors are more likely to be the cause of his Dissociative Disorder. The Panel carefully considered the [first defendant's] developmental history and stressors in his early life and his subsequent successful University and sporting achievements and his teaching career with the development of a significant psychiatric disorder after a relatively minor head injury. In the Panel's opinion it is likely that the dissociative disorder was precipitated in circumstances triggered in this potentially vulnerable man by the head injury essentially repeating the past history of extensive physical abuse including his being thrown through a window headfirst as a child. It is common that a Dissociative Disorder manifests when an injury is sustained which replicates or closely resembles an injury sustained in the course of childhood abuse and the resulting dissociative symptoms are often exacerbated by further stress in the adult's life.

The Panel therefore disagreed with the [Plaintiff's] submission and concluded that the [first defendant's] psychiatric condition results from and is materially contributed to by the fall on 1 November 2000.

[113]

I do not consider that the decision in McVey,[17] which was the subject of considerable discussion, is decisive to the determination in this case. Rather, it is an example of a second Panel being required to decide a different question or matter than those answered by an earlier Panel. Moreover, I do not consider that the second Panel erred in its reference to that decision, as it was obliged to answer the medical questions as at the date of its medical examination. It is clear enough that it considered the history of Mr Longham's condition and not just its presentation at the date of the examination.
The second Panel had the additional medical opinion of Dr Serry and the second opinion of Dr Nathar before it, as well as the results of its own examination and assessment of Mr Longham. The reports of Dr Nathar and Dr Serry, as well as the medical reports of Dr Kornan and Dr Entwisle, supported a finding that Mr Longman had suffered a significant psychiatric illness.
As to the effect of inconsistencies contained in Mr Longham's histories, I consider that there was evidence to support the second Panel's conclusions and they were open to it to reach. For example, Mr Longham had mentioned the important matter of childhood abuse to Dr Le Bas and Dr Entwisle, and to the second Panel, but not to all doctors. The first Medical Panel's reasons do not appear to contain a history of Mr Longham's childhood.
Mr Longham described his childhood to the second Panel as characterised by extreme violence and that on one occasion as a child he was thrown head first through a plate-glass window. He said that his father had been a violent alcoholic and heroin addict, who often threatened to kill him, his 'sibs' and his mother; and that he was frequently beaten; that the police were often at the family home; and that when he grew a little older, he attempted to protect his mother and his young siblings against his father's attacks.
The second Panel placed weight on Mr Longham's childhood history stating that it was likely that the dissociative disorder was precipitated in circumstances triggered in this 'potentially vulnerable man' by the head injury, essentially repeating the past history of extensive physical abuse, including being thrown through a window head first as a child. The second Panel stated:

[130]

There is then the question of whether the second Panel in its reasons explained its diagnosis, which was 'dissociative disorder not otherwise specified and dissociative fugues'. Although this diagnosis does not exactly adopt the title of any combined condition described in the DSM-IV or DSM-5, it clearly is related to those diagnoses discussed by Dr Nathar and Dr Serry and is similar to those described in the DSMs. In my opinion, the second Panel did not err or fail to explain how it reached its diagnosis as the Panel failed to do in Clarke's Case.[21] In the paragraph of its reasons that I have set out above and in other paragraphs to which I have previously referred, it concluded that Mr Longham was suffering from a dissociative disorder not otherwise specified and dissociative fugues. It gave reasons for that conclusion, which brought the disorder within the DSMs' descriptions of the particular disorders to which it referred. As previously stated, it also considered, but rejected, the differential diagnosis of malingering.
True it is that the second Panel did not refer specifically to the criteria in the DSM-IV or DSM-5 but neither did the psychiatrists, Dr Nathar or Dr Serry, both independent psychiatric examiners, who made a diagnosis of dissociative fugue or recurring episodes of fugues. Rather, they referred to features of Mr Longham's condition that brought it within those diagnoses. I do not understand the passage in Clarke's Case[22], which I have set out above, to require anything more than a statement of matters that would satisfy the diagnosis reached and the basis for the Panel's conclusion. The second Panel did that.
Mr Longham informed the second Panel that he was often told that he had done things but lacked a clear memory of them, that he frequently lost time, for example on one occasion ending up in Sydney and on another occasion he had taken out the interior walls of his kitchen and bathroom. He said that he had heard voices talking about him and to him, often arguing, and that he had recently fallen through a window thinking that he was sitting at a bus stop, and when he came to found that he was lying on the grass.
It was open to the second Panel to conclude that these features brought Mr Longham's condition within the diagnosis of dissociative disorders as disruptions of the usually integrated functions of consciousness, memory, identity or perception of the environment as described in DSM-1V. Again on that evidence, it was open to the second Panel to reach a diagnosis of a dissociative fugue being a sudden, unexpected travel away from home accompanied by an inability to recall one's past and confusion about one's identity.
I have referred in considering the first and second grounds to inconsistencies in Mr Longham's account of matters in his history for instance in his accounts to the Panels of his removal of his kitchen and bathroom fittings. However, that was not a matter that the second Panel had to reconcile in the manner in which a court would. Its task was to answer the questions put to it and that is what it did.
There was evidence on which the second Panel could find that Mr Longham had experienced abuse as a child. In addition, the confusion about whether Mr Longham's mother was dead was not necessarily the result of his misstatement and was not a matter that the second Panel had to reconcile.
In my opinion, the second Panel provided adequate reasons for its answers to the questions referred to it that satisfied its statutory obligations.

At a glance

Court

Decision date

Before

Source

Judgment (148 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)