ed
IN THE COUNTY COURT OF VICTORIA
AT melbourne
COMMON LAW DIVISION
serious injury list	Revised
Not Restricted
Suitable for Publication	

Case No.  CI-20-00152 

PETER V SERBEC	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	HIS HONOUR JUDGE MISSO	
WHERE HELD:	Melbourne (via Zoom hearing)	
DATE OF HEARING:	17 August 2020 	
DATE OF JUDGMENT:	8 September 2020	
CASE MAY BE CITED AS:	Serbec v Transport Accident Commission	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1372		

REASONS FOR JUDGMENT
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Subject:		TRANSPORT ACCIDENT
Catchwords: 	Psychiatric injury – whether an aggravation of pre-existing psychiatric condition – whether the plaintiff suffered an intervening incident contributing to his psychiatric injury – whether the plaintiff’s consequences are “severe” – meaning of “severe”
Legislation Cited:	Transport Accident Act 1986, s93; Evidence (Miscellaneous Provisions) Act 1958, s42
Cases Cited:	Humphries & Anor v Poljak (1992) 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas [2017] HCA 32; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:	The plaintiff is granted leave to bring a common law proceeding.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A McNab with
Mr C A Sidebottom	Shine Lawyers Pty Ltd	
			
For the Defendant	Mr A D Clements QC with
Ms A L Wood	Solicitor for the Transport Accident Commission	

HIS HONOUR:

Introduction	
1	On 12 February 2016, the plaintiff’s mother was tragically killed in a transport accident at an intersection in Deer Park.  The plaintiff’s mother was standing at a bus stop when the driver of a car attempted to execute a U-turn and accelerated to the extent that she must have lost control of the car, resulting in the plaintiff’s mother being crushed between the car and a nearby brick wall.  The plaintiff’s mother died at the scene.
2	At the time of the transport accident, the plaintiff was living in Queensland on a 35-acre hobby farm near Dagun, which is in the Gympie region of Queensland.  The plaintiff’s sister, Kat, lived in Melbourne at the time.  She rang the plaintiff and informed him of the tragic death of their mother.  It was the event of his mother’s tragic death and the surrounding circumstances of being informed of her death that resulted in the plaintiff suffering a psychiatric injury.
3	The plaintiff deposed to the shock which he experienced following the telephone call from his sister.  It is not necessary to set out the nature and extent of his reaction because the defendant did not contest that the plaintiff suffered the onset of a psychiatric condition.  It challenged the plaintiff’s case on a different basis altogether, which I will refer to later in these reasons.
4	The plaintiff submitted that the psychiatric condition he suffered constitutes a mental or behavioural disturbance or disorder.  The defendant conceded that to be so.  The plaintiff submitted that the psychiatric injury was long term, again conceded to be so by the defendant.  Where the plaintiff and the defendant parted company was whether the impairment consequences of the psychiatric injury are “severe”.
Appearances
5	Mr A McNab of counsel appeared with Mr C Sidebottom of counsel for the plaintiff.  Mr A Clements QC appeared with Ms A Wood of counsel for the defendant.
6	Both parties consented to the proceeding being conducted remotely.  I was satisfied that the technical requirements referred to in s42G of the Evidence (Miscellaneous Provisions) Act 1958 were met.  I then directed that pursuant to s42E(1) of that Act, that the parties appear, give evidence and make submissions in the application by audio-visual link.
The issues
7	The defendant submitted that if the only issue before the Court was whether the impairment consequences are “severe”, then I cannot be satisfied that the plaintiff has established that to be so.
8	The defendant then submitted that if I was satisfied that the plaintiff had established that the impairment consequences are “severe”, then there were a number of sub issues which, when weighed into consideration, militate against that finding being sustained.
Executive summary
9	I have considered the whole of the evidence adduced by the plaintiff and the defendant in the context of the issues raised by the defendant.  I am satisfied that it is more likely than not that the plaintiff has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder.
Severe
10	This Court has a steady and daily diet of serious injury applications.  The task of determining whether an injury is “serious” is often difficult, and this application is a clear illustration of that.  
11	The starting point is to recognise that in Humphries & Anor v Poljak, Crockett and Southwell JJ provided the enduring guidance in serious injury applications arising out of a transport accident.  That was referred to by the defendant in the context of the plaintiff’s retention of his employment, and that he has not suffered any pecuniary disadvantage:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant.  Those consequences will relate to pecuniary disadvantage and/or pain and suffering.  In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?  … .”
12	The question of what is meant by “severe” in the relevant definition was considered in Mobilio v Balliotis & Ors.  Brooking JA made the following relevant observations:
“… the change in language from ‘serious’ to ‘severe’ betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.  I refer to what was said in this regard by McGarvie J. in his dissenting judgment in Humphries v Poljak at 159, without, as I say, adopting any particular adjective to mark the distinction.”
13	The only further assistance I have found in interpreting what is meant by “severe” is the reference to Mobilio is in Noonan v State of Victoria in which Osborn JA (with whom Santamaria JA agreed) made the following relevant observations:
“… Because ‘severe’ is a stronger word than ‘serious’ the consequences of the relevant injury must be relatively more significant under part (c) of the definition than under part (a) or (b).”
14	In Papamanos v Commonwealth Bank of Australia, the Court of Appeal referred to the primary judge’s reasons, observing: 
“… The judge correctly noted that there were no symptoms or consequences in the … [case before him] that are ordinarily seen in psychological disorders at the more severe and of the spectrum.  Specifically, there was no relevant hospitalisation, significant psychiatric treatment and medication or evidence of the more serious symptoms of suicidal ideation or attempts or other psychotic symptoms.  … .”
15	I do not accept that the Court of Appeal intended to demonstrate that if those features are not present in an application under paragraph (c), that the application must fail.  My interpretation of what the Court of Appeal intended was that for the consequences to be “severe”, that there are features in the evidence which may readily demonstrate that the consequences are more than “very considerable” and equate with “severe”.  It occurs to me that if all of the features referred to by the Court of Appeal were present in any case under paragraph (c), that I would be driven to describe those consequences as not being just severe, but very severe.
16	In Katanas v Transport Accident Commission, Kaye JA made similar observations relevant to an assessment of consequences, but not to the same intensity as was observed in Papamanos:
“In essence, such an assessment would ordinarily involve an evaluation of the diagnosed disorder, its symptoms, and the nature and extent of the treatment undertaken, or required, in respect of the disorder, together with the effects of the disorder on the capacity of the applicant to undertake his or her usual occupational, recreational, social and domestic activities.  In that evaluation, the nature and extent of the treatment necessitated by the disorder is relevant to a proper appreciation of the degree of its seriousness.  Equally, such an appreciation is ordinarily also informed by an analysis of the ordinary activities of the applicant before the disorder, as compared with the activities able to be undertaken by the applicant after the disorder.”
17	Ashley and Osborn JJA, in a joint judgment in the same case, referred to a methodology in identifying the spectrum of disorders when making the required comparison with other cases in the range of possible impairments or losses in the context of the standards set by “severe”:
“We do not doubt that the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be accounted as severe.  But in our view the spectrum which the judge described was only one amongst a number of ways in which the question of severity might be approached, each of them being incomplete in itself.  For instance, one might frame a spectrum, in a particular case, by reference to the accepted frequency and severity of the claimant’s symptoms (or consequences) such as flashbacks or nightmares, or by reference to the extent of inhibitions upon the claimant’s daily activities, or by reference to the extent of inhibitions upon the claimant’s occupation or further education.  In each instance, a spectrum could be set up, ranging from zero to very great.  But whilst each spectrum would be relevant to determination whether the statutory test was satisfied in the particular case, no one of them, by itself, would answer the critical question.  In our opinion, the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage cited at [9] above.  In making that value judgment, a judge must give to each identified relevant circumstance the weight which appears to be appropriate.  He or she will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other.” 
18	Katanas was appealed to the High Court.  It endorsed the observations made by the Court of Appeal.  In doing so, it endorsed a particular observation made by Ashley and Osborn JJA, which I think has importance here:
“… a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment … [and] the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly call for that level of treatment.  … .”
19	Lastly, the defendant placed particular emphasis on the fact that the plaintiff has continued to work without any discernible pecuniary disadvantage, and has had little medical treatment save in more recent days, and no treatment by a psychiatrist.  In relation to pecuniary disadvantage, it is important to note that in Haden Engineering Pty Ltd v McKinnon, the Court of Appeal referred to capacity for work, and observed that the fact that a plaintiff has been able to return to full-time work does not preclude an affirmative finding of serious injury.  It said that it is simply one of the matters to be taken into account. 
20	I have set out these observations which I think are relevant here because the plaintiff has continued to work without any actual pecuniary disadvantage, and has otherwise not had a high level of medical treatment, but contends that what he has lost by way of pain and suffering consequences are nonetheless severe, warranting the leave he seeks.
The Plaintiff’s pre-existing psychiatric condition
21	Under cross-examination, the plaintiff was referred to a report of Dr Mark Newell, general practitioner, dated 7 December 2016.  Dr Newell has been the plaintiff’s treating general practitioner for a very long time.  The plaintiff was referred to an observation made by Dr Newell that “He [referring to the plaintiff] had some mood disorder approximately since 2013”.
22	The plaintiff denied that he suffered any mood disorder in 2013.  He said that the only occasion he had seen Dr Newell for anything to do with his mood was in 2015, and that the first time he had any “mental issues” was in 2015.  He denied that Dr Newell had prepared a mental health treatment plan for him in August 2012.  He was referred to Dr Newell’s clinical note of 12 October 2015 in which there is a cryptic reference to a mental health treatment plan and in brackets “(Aug 2012)”.
23	Under cross-examination, the plaintiff was referred to the same report in which Dr Newell observed that “There was a deterioration in 2015 resulting from marital dysharmony [sic]”. The plaintiff said that his mental health did deteriorate.  His long-term partner, Mandy, had been admitted to the psychiatric ward of a hospital, which was a period of great stress and anxiety for him.  The deterioration in her mental health persisted for some months.
24	The plaintiff was referred to a mental health treatment plan prepared by Dr Newell in October 2015.  It is dated 7 October 2015.  It refers to the plaintiff’s “Problem/Diagnosis” as “Mixed anxiety and depression”.  He was then referred to a section headed “Personal History/Lifestyle Issues …” which I will set out in full, because it gives some context to Mandy’s psychiatric predicament and his reaction to it:
“Onset of severe anxiety / depression symptoms recently
 - wife admitted to NGH under Mental Hea[l]th Act after sudden decompensation
 - while in LGE she befriended a substance abuser and has maintained contact with him since discharge
 Peter is feeling emotions of anger, frustration, vulnerability
 He feels he has always been prone to being intolearant [sic] and prone to anger outbursts.
 LGE staff advised him to have a MHCP and to see a counsellor.”
25	The plaintiff essentially agreed that the circumstances of the deterioration in his mental health was linked to Mandy’s psychiatric problems, and otherwise he agreed that the notations in the mental health plan were an accurate summary of the circumstances of Mandy’s psychiatric condition and his reaction to them; however, he did not agree that he was intolerant and prone to anger outbursts in a general sense, but that they occurred because of a reaction to Mandy’s psychiatric problems.  He did concede that he might have demonstrated intolerance and anger at work.
26	Under cross-examination, the plaintiff said that he was given a medical certificate by Dr Newell to have time off work in October 2015, in particular, from 5 to 14 October 2015.  He denied having any other time off work.
27	Under further cross-examination, the plaintiff was referred to treatment that he was provided for the consequences of the deterioration of his mental health from October 2015.  He was referred to Mr Craig Sawes, psychologist, who he saw once.  He did not see any other mental health practitioner.  At the consultation with Dr Newell on 12 October 2015, he was prescribed Endep at a dosage of 10 milligrams to be taken at night. He was then referred to a consultation with Dr Newell on 1 December 2015, at which time he was given a further prescription for Endep at the same dosage.  The plaintiff agreed that he was prescribed Endep on both occasions.  
28	The plaintiff was referred to another mental health treatment plan prepared by Dr Newell dated 1 December 2015. The plaintiff said that he was “getting better” by December 2015, but he continued to be “worried”.  He was referred to entries in the mental health plan which noted that he was suffering from depression.  It also noted that he was feeling much happier; that his relationship with Mandy was improving; that he was making good progress in rebuilding his relationship with her, and he was less intolerant and short tempered at work.  The plaintiff agreed that what was noted there were the circumstances which prevailed at the time Dr Newell prepared the mental health treatment plan.  He said that the reference to his short temper at work related to his reaction to Mandy’s psychiatric problems.
29	Under cross-examination, the plaintiff was asked whether he was in the process of weaning himself off Endep in February 2016.  He was adamant that he was well and off Endep by January 2016.  He denied that the clinical note made by Dr Newell of 20 April 2016 that he was weaning himself off Endep prior to his mother’s death demonstrated that he was still taking Endep beyond January 2016.
30	The purpose of the cross-examination regarding whether the plaintiff had a prior history of mental health problems, had a prior history of angry outbursts, and the deterioration in his mental health in October 2015, was to demonstrate that the plaintiff suffered a pre-existing psychiatric condition.  I was invited to determine whether that was so, and to contrast the consequences of that pre-existing psychiatric condition with the onset of the plaintiff’s psychiatric condition after the occurrence of the transport accident.  The defendant made oblique reference to the onus being on the plaintiff to demonstrate that any aggravation resulting from the transport accident needed to satisfy well-known legal principles. 
31	I will return to this issue after I have reviewed other very relevant evidence, and in particular, the medical evidence.
The Plaintiff’s domestic background
32	It is convenient to say something about the plaintiff’s residence in Queensland.  He moved to Queensland when he was about twenty years of age.  At the time of the transport accident, the plaintiff was working for a company known as Cleanaway Industrial Solutions.  He was employed as a manager at a depot in Marcoola.  In about mid 2019, the state manager informed the plaintiff that the Cleanaway depot managed by the plaintiff was no longer financially viable and that it was to be shut down.  The plaintiff obtained alternative employment with Pipe Management Australia which essentially took over the operations previously undertaken by Cleanaway.  There was little gap between the cessation of his employment and taking up his new employment.
33	The plaintiff met Mandy about nineteen years ago.  Apart from Mandy’s unfortunate psychiatric condition which interrupted their relationship on two occasions, disclosed in the evidence, they have otherwise lived as husband and wife.  Mandy has a daughter named Tilly who the plaintiff has treated as his daughter.
The aftermath
34	The plaintiff came straight to Melbourne after receiving the news of his mother’s death.  His account of how he was feeling at the time of her funeral and in the ensuing short period thereafter is best described by him as “the period after Mum’s death is a blur”.  He had four weeks off work before returning to work in Queensland.
35	The plaintiff returned to Queensland and resumed his employment and domestic routine.  He first saw Dr Newell following the occurrence of the transport accident on 20 April 2016.  Dr Newell’s clinical note of that consultation reads as follows:
“Death of mother - pedestrian hit by car 12/2/16
 - has noticed deterioration of symptoms
 - STM, concentration failing
 - easily agitated, frustrated w[ith] people
 - sleeping poorly
 - loss of confidence
 ENDEP - was weaning off this prior to death of mother,
 - was feeling on top of things
 - now needing to take them again.
 … .” 
36	Dr Newell prescribed the plaintiff Endep at a dosage of 10 milligrams to be taken at night.
37	The plaintiff subsequently consulted Dr Newell on a further five occasions, including 15 September 2016, which appears to be the last occasion he was prescribed Endep at the same dosage.  On each occasion, he appears to have told Dr Newell that he was experiencing ongoing symptoms of his reaction to his mother’s tragic death.  
38	Dr Newell prepared another mental health treatment plan dated 26 April 2016.  It would appear that it stemmed from the consultation of 20 April 2016.  Dr Newell diagnosed that the plaintiff was suffering from depression, and he made the following very relevant note: 
“Had been well, and had ceased Endep several months ago
 - recent deterioration since mother’s death in MVA
 - feeling irritable, feels STM has declined, easily agitated, sleeping poorly
 - easily overwhelmed.” 
39	Under cross-examination, the plaintiff was referred to the consultation with Dr Newell of 15 September 2016 and was informed that there was no reference in the clinical notes to any subsequent prescription of Endep until February 2018.  He gave a non-responsive answer, which I interpreted to mean that he did not disagree; however, he denied that the reason why he did not obtain any further prescriptions was because his mental health had improved.
40	Dr Newell referred the plaintiff to Dr Kirsty Olds, psychologist.  The plaintiff first saw her on 2 November 2016.  She provided a report dated 15 May 2017. When he was first examined by Dr Olds, she noted that he had the following symptoms:
•	stress
•	anxiety and depressed mood
•	low mood
•	difficulties with anger management
•	irritability
•	mental and physical agitation
•	a negative outlook on life
•	low motivation
•	rumination about his mother’s death
•	social withdrawal
•	sleep disturbance
•	withdrawal from enjoyable activities; and 
•	difficulty winding down after work.  
41	Dr Olds considered that the plaintiff was suffering from Major Depression, related to the death of his mother, and she noted that many of his depressive symptoms were reactive to the way in which his mother had died.  The plaintiff saw Dr Olds on four occasions in 2016 and four occasions in 2017 up to the date of the writing of her report.
42	Dr Olds considered that it would be advantageous for the plaintiff to be offered further psychological treatment sessions in the form of cognitive behaviour therapy and coping skills relevant to anger management and to assist him in processing his grief.  She considered that the plaintiff’s symptoms of depression were negatively impacting on his functioning at work and his interpersonal relationships with family and work colleagues.  She noted that he had withdrawn socially and was no longer engaging in leisure activities which he had previously enjoyed, although, she noted that he was still able to maintain employment and close interpersonal relationships.
43	It is relevant to pause here to note that the plaintiff’s treatment between the first occasion he saw Dr Newell on 2 February 2018 comprised the prescription of Endep for a limited period of time, and then treatment provided by Dr Olds.  Dr Olds’ clinical notes demonstrate that the plaintiff saw her on a further two occasions in 2017, then on 13 February 2018, and then on two occasions in late 2018.  It is clear enough to me from Dr Olds’ report that the plaintiff was labouring under a series of symptoms which she considered deserved the diagnosis of Depression.
44	In February 2018, Mandy suffered a further deterioration in her mental health.  It must have been of some real gravity because she was readmitted to a psychiatric ward at a hospital for a period of 40 days.
45	The plaintiff consulted Dr Newell on 13 and 15 February 2018.  On 15 February 2018, Dr Newell recorded that the plaintiff told him that Mandy was in a psychiatric ward again and was having an affair with a drug user.  He also recorded that the plaintiff was angry, not sleeping, depressed and was not eating.  He also recorded that the plaintiff was “Seeing Kirsty at Flourish”.  The reference to Kirsty is a reference to Dr Olds. 
46	Under cross-examination, the plaintiff was referred to a particular clinical note of Dr Olds of 13 February 2018, which read as follows:
“- Mandy in mental health ward; has lodged a DVO against him (denies violence towards her; states she is making it up to get supported accommodation when she leaves the ward); Pete stated that Mandy is sleeping with someone else in the ward and no longer wants to be with Pete.  He is struggling with je[a]lousy and anger
- he put the house on the market due to them splitting up.
 … .”
47	The plaintiff was also referred to the fact that Dr Newell prescribed him Diazepam on 15 February 2018 and ceased his use of Endep.  The fact that Dr Newell ceased the plaintiff’s use of Endep suggests that the plaintiff had been using Endep for some period prior to 15 February 2018.  My reading of the clinical notes does not point to an occasion after September 2016 when the plaintiff received a prescription for Endep; however, what I make of the clinical notes is that the plaintiff was commenced on Diazepam.
48	What I have just summarised became relevant to the cross-examination of the plaintiff of his reaction to the deterioration in Mandy’s mental state in February 2018.  In response to the cross-examination based upon the foregoing, the plaintiff denied that the prescription for Diazepam was directly related to treatment for his reaction to the deterioration in Mandy’s mental state; that the symptoms that he was evidencing at that time of depression, anger and inability to sleep were the result of such a reaction, and that her situation was stressful and distressing for him, and was causing him some anxiety, depression and anger.
49	Allied to the foregoing was cross-examination about whether the plaintiff and Mandy had split up, and whether the proposed sale of their property was due to the dissolution of their relationship.  He said that the property had been put up for sale before the deterioration in Mandy’s mental health.  He added that they reconciled, and lived at a beach property before buying their present farm property at North Deep Creek where they currently live happily. 
50	Although, neither the plaintiff nor the defendant referred me very extensively to Dr Newell’s clinical notes through the balance of 2018 and going into 2019, it became very apparent to me on reading the clinical notes that the plaintiff consistently complained of the same or similar symptoms that he had complained of much earlier throughout 2018 and going well into 2019.  His situation appears, based upon those clinical notes, to have suffered a downward spiral because at the consultation with Dr Newell on 3 September 2019, Dr Newell prescribed him Effexor, with a dosage of 75 milligrams to be taken at night, and Temazepam, with a dosage of 10 milligrams to be taken at night. 
51	The clinical notes also demonstrate that at the consultation with Dr Newell on 16 October 2019, the plaintiff was obviously not faring well with his work.  Dr Newell noted that the plaintiff was only able to work 12 to 15 hours per week and that the plaintiff was frustrated with himself at not being able to work full time; that he was apathetic to work; had no libido; was socially avoidant, and had no interest in doing anything.  He continued to complain of those same or similar problems at subsequent consultations with Dr Newell.  The plaintiff took a leave of absence from his work for about nine weeks without pay somewhere around June 2019 due to his depression. 
52	Dr Newell’s clinical notes around the time which I have just referred to, also refer to the plaintiff having psychological treatment provided by Dr Cathy McDonald, clinical psychologist, who practices from the same clinic where Dr Olds practised.  Dr McDonald initially treated the plaintiff from 3 September 2019.  She provided two reports, dated 25 October 2019 and 20 May 2020. 
53	Dr McDonald treated the plaintiff on thirteen occasions between 3 September 2019 and 20 May 2020, which is the date of her second report, and according to the plaintiff, he continues to see her for treatment about every three weeks.  He last saw her in the week prior to the trial of this application.
54	At the time of the trial of the application, the plaintiff’s treatment comprised the prescription of Effexor, with a dosage of 150 milligrams.  He has been prescribed it over the last year.  He takes it every day.  He also has been prescribed Temazepam, which he uses as a sleeping tablet.  He uses it about three times per week on average.  He finds medication disagreeable, particularly, Temazepam. In addition to seeing Dr McDonald, he sees Dr Newell about every six to eight weeks. 
55	Under cross-examination, it was suggested that there were circumstances pointing to the plaintiff seeking medical treatment to buttress his prospects of obtaining the leave of the Court to bring a common law proceeding.  He agreed that he submitted an application for serious injury to the defendant in the middle of 2019.  He agreed that the defendant rejected his application by letter dated 7 August 2019 addressed to his solicitors. 
56	In allied cross-examination, the plaintiff agreed that he consulted Dr Newell on 3 September 2019 after a lapse in treatment of some ten months.  He was referred to Dr Newell’s clinical notes which demonstrate that he saw Dr Newell on 26 November 2018, and after a significant lapse, on 3 September 2019.  It is clear that on 3 September 2019, he was first prescribed Effexor and Temazepam.  He denied that in some way he was contriving a case.  He made that denial in the context of a notation made by Dr Newell on a mental health treatment plan dated September 2019.  
57	As a result of the consultation on 3 September 2019, Dr Newell prepared a mental health treatment plan.  He noted that the problem/diagnosis relevant to that consultation was Mixed Anxiety and Depression.  He then noted the following:
“Significant recent flare of symptoms
 Started with new employer recently and has already required 4 weeks off work due to anxiety and depression
 - low mood, anxiety
 - low libido
 - amotivation
 - apathy towards work
 - sleeping poorly
 Has recommenced sessions with psychologist
 trying to adopt healthy lifestyle regarding diet and exercise
 Non-drinker
 Patient request that a copy of this visit be sent to his lawyer.”
58	I will firstly deal with the cross-examination about the request to send a copy of the notes of that visit to the plaintiff’s lawyer.  The plaintiff denied that he asked Dr Newell to do that, and he denied that he was having more treatment to increase his chances of winning his serious injury application. 
59	I will next deal with the symptoms identified by the plaintiff to observe that they are the same or similar to the symptoms which the plaintiff had complained about to Dr Newell, Dr Olds and Dr McDonald at some length.
60	I will now return to the treatment provided by Dr McDonald.  Dr McDonald obtained a consistent history from the plaintiff as it was recounted by the plaintiff to Dr Newell and Dr Olds.  Dr McDonald considered that what the plaintiff was reporting to her were severe symptoms of Depression and Anxiety and severe to extremely severe levels of stress.  Additionally, he reported to her feelings of anger surrounding the circumstances of his mother’s death, increasing frustration relevant to his work relationships and social life, and a diminishing sense of hope for his future.
61	Dr McDonald recommended that the plaintiff continue with a lengthier course of therapy.  Although, Dr McDonald was asked to provide a prognosis, she does not appear to have done so, except that I think a fair inference can be drawn that her opinion that the plaintiff should undergo a lengthier course of therapy points to her considering that he currently suffers from Depression, Anxiety and stress which requires treatment for some time in the future.
62	It is evident from my summary of the evidence, within the context of the defendant’s challenge to the plaintiff’s evidence, that Dr Newell has figured prominently in the plaintiff’s treatment.  He provided a number of reports, all of which are very short and not overly informative; however, they appear to me to confirm that the onset of the plaintiff’s psychiatric condition resulted from his reaction to his mother’s tragic death.
63	In Dr Newell’s first report dated 24 July 2016, he noted that the plaintiff first presented to him on 20 April 2016.  He diagnosed the plaintiff’s psychiatric condition as Mixed Anxiety and Depression and he then prescribed him Endep.  He observed that the plaintiff’s psychiatric condition –
“… had a profound impact on his ability to perform his occupation, with poor concentration and a reduced capacity to deal with the normal work stresses.  … .”  
64	Dr Newell also noted the negative impact of the psychiatric condition on the plaintiff’s relationship with Mandy.
65	Dr Newell’s report dated 15 September 2016, his letter of referral to Dr Olds dated 27 October 2016, and his reports dated 7 December 2016, 22 November 2018, 16 October 2019 and 19 May 2020 have a consistent theme of reference to the same diagnosis, and impact upon the plaintiff’s working and non-working life as Dr Newell rather more shortly noted in his first report.
66	Dr Newell’s last report dated 19 May 2020 is a significant expansion upon the rather shorter reports he provided up until that time.  It paints a very gloomy picture of the plaintiff.  Dr Newell considered that the plaintiff was suffering from severe ongoing symptoms which included social avoidance, apathy, amotivation, anhedonia, anger, guilt, low libido and frustration.  He referred to increasing his dosage of Effexor from 75 milligrams to 150 milligrams from 27 April 2020 and his treatment by a psychologist (Dr McDonald) twice per month since approximately 2018.  He referred to the plaintiff as having “optimal treatment”; however, he gave consideration to the therapeutic value of changing the plaintiff’s medication if the use of Effexor did not yield improvement over the following months.  He ultimately considered that the plaintiff’s depressive symptoms could quite possibly be permanent.
67	In relation to the plaintiff’s working and non-working life, Dr Newell painted an equally gloomy picture.  He described the plaintiff’s interpersonal relationships as having suffered dramatically, mood problems leading to estrangement from friends, domestic activities having suffered due to his lethargy and amotivation, and leisure activities which had suffered due to his anhedonia and amotivation.  Very relevantly to a submission made by the defendant, Dr Newell also referred to the significant negative impact that his symptoms were having on his capacity for work.
The medico-legal opinions
68	Dr Aswani Garg, psychiatrist, examined the plaintiff on 6 June 2019.  He provided a report dated 19 June 2019.  He recorded an extensive volume of symptoms about which the plaintiff complained.  He was aware of the plaintiff’s reaction to the deterioration in Mandy’s mental health in 2015, and the treatment that he was provided by Dr Newell.  Neither the plaintiff nor the defendant challenged the accuracy of the history recorded by Dr Garg, nor indeed, the histories recorded by Dr Weissman, psychiatrist, or Associate Professor Peter Doherty, psychiatrist.  
69	Dr Garg considered that the plaintiff had developed clinical features of Post-Traumatic Stress Disorder within two weeks of the death of his mother, and that he continued to demonstrate symptoms of that condition.  He considered that the finalisation of a proceeding relevant to the driver of the car which collided into his mother had seen the plaintiff experience some relief from his symptoms; however, he added that the plaintiff continued –
“… to have considerable psychiatric symptoms, which are causing distress and impairment of his social and occupational functioning.  … .”
70	In relation to the plaintiff’s reaction to the deterioration in Mandy’s mental state in 2015, Dr Garg considered that the plaintiff had developed some anxiety and depressive symptoms which he considered had completely resolved before the transport accident.
71	Dr Garg considered that the plaintiff would benefit from consultation with a psychiatrist, trauma specific psychotherapy by a trained psychologist, psychiatric medication as recommended, and continued support from his employer.  He considered that his prognosis was for improvement if he received specific recommended treatment.  Although, he considered that the plaintiff’s concentration and capacity to undertake complex work was lessened, he considered that he was able to perform “most of the duties” of his employment with informal accommodation by his current manager.
72	Dr David Weissman, psychiatrist, examined the plaintiff on 15 June 2017, and provided a report bearing the same date.  He reviewed the plaintiff on 20 May 2020 and provided a further report bearing the same date.  On both occasions that he examined the plaintiff, he was only able to do so by telephone on the first occasion, and on the second occasion by video-link.  He acknowledged the difficulties in making an assessment of the plaintiff by not having him physically present in his rooms.
73	Dr Weissman considered that the plaintiff had some premorbid psychological and emotional vulnerability factors and possibly some maladaptive personality traits.  He considered that the plaintiff was suffering from a Chronic Adjustment Disorder with mixed disturbance of emotions, conduct and behaviour; subthreshold, subsyndromal Chronic Post-Traumatic Stress Disorder, and an unresolved grief reaction and complex/complicated bereavement process/ disorder.  He added that the depressive symptoms which he diagnosed probably satisfied the diagnostic criteria for a Chronic Major Depressive Disorder; however, Dr Weissman preferred a diagnosis of Chronic Adjustment Disorder with each of the other features.
74	Dr Weissman considered, after examining the plaintiff on the second occasion, that he had an increased psychiatric capacity for work than he did when he first examined him.  On the first occasion he examined him, he considered that the plaintiff had some degree of functional impairment and some occasional, mild psychiatric incapacity for work.  He considered that the plaintiff continued to experience a moderate decline, deterioration and impairment of his day-to-day social, leisure and recreational activities, hobbies and functioning in that respect.
75	Dr Weissman considered that the plaintiff should continue seeing Dr McDonald for treatment on a regular basis and Dr Newell for supportive therapy.  He also considered that the plaintiff would benefit from an increase in his medication (Venlafaxine) up to 300 milligrams daily if that were tolerated, and that he would benefit from the addition of a mood stabilising agent to alleviate the plaintiff’s agitation and distress.  He considered that his overall prognosis was uncertain and guarded and probably only fair at best.
76	Associate Professor Peter Doherty, psychiatrist, examined the plaintiff on 11 June 2020, and provided a report dated 5 July 2020.  He reviewed the plaintiff on 11 June 2020 and provided a report dated 21 July 2020.  On both occasions he examined the plaintiff by video-link.
77	Associate Professor Doherty considered the plaintiff’s reaction to his mother’s tragic death was a worsening of pre-existing anxiety and depressive symptoms which he had experienced due to the deterioration in Mandy’s psychiatric state in 2015.  He considered that the plaintiff had suffered an Adjustment Disorder with Depressed and Anxious Mood, accompanied by a change in demeanour and some conduct issues.  He considered that the Adjustment Disorder would fade with time once the plaintiff had re-established coping mechanisms, and that his prognosis was satisfactory.  He did not accept that the plaintiff had suffered a Post-Traumatic Stress Disorder or a diagnosable Major Depressive Disorder.
78	Associate Professor Doherty considered that the plaintiff’s previous depressive condition in 2015 resulted in a vulnerability in him which was aggravated by the transport accident.
79	Associate Professor Doherty did not consider that the plaintiff’s psychiatric condition had and would interfere with his capacity for work, and did not consider that the plaintiff had suffered any interference with his domestic and leisure activities based upon the plaintiff telling him that there had been no such reduction or impairment.  That is inconsistent with the entirety of the plaintiff’s case.  I will return to this later in these reasons.
80	The defendant provided Associate Professor Doherty with the reports of Dr Newell, Dr McDonald, Dr Garg and Dr Weissman, and asked him to comment on their content and the opinions expressed in those reports.  He was asked whether any of what he read caused him to change his opinion.  He did not change opinion, and repeated in rather more emphatic terms that the plaintiff had pre-existing maladaptive personality traits and a vulnerability to mental deterioration in stressful circumstances; that anger was the plaintiff’s predominant symptom following the transport accident; that the plaintiff’s mood changes warranted a diagnosis of Adjustment Disorder, and that there had not been any interference with his work capacity and no significant interference with domestic, leisure or recreational activities.
The Plaintiff’s consequences
81	The plaintiff swore three affidavits: on 14 November 2019, 14 November 2019 and 18 March 2020.  The affidavits are extensive and repetitive of what the plaintiff says are the consequences of the shock he experienced on hearing of the tragic death of his mother.  I have endeavoured to breakdown each of those consequences for a purpose which I will come to later in these reasons.
Mood
82	The death of the plaintiff’s mother has left him devastated.  He feels isolated.  Conversations with his sisters about his mother are painful.
83	The plaintiff is “not being good to be around”.  He experiences peaks and troughs in his mood from being extremely low to peaks which are below normal.  He suffers anxiety and anger around the time of his mother’s anniversary and birthday.
84	The plaintiff does not want to see anyone or talk to anyone.  He gets sweaty palms even with basic interaction with people.  He also feels “completely flat” and cannot be bothered with anything, no longer seeing the point in anything.
85	When referring to the loss of recreational activities, the plaintiff described himself as something of a hermit because of the loss of recreational activities, and also having lost his drive, leading to what he described as “a barebones existence”.
86	The plaintiff described his bond with his mother as an unbreakable bond.  His reaction to her death was to “just shut down”.  It was a source of anger and caused interruption to his relationship with Mandy.
Sleep
87	The plaintiff struggles to maintain a sleeping pattern.  His sleep is broken, with him averaging four to five hours’ sleep per night.  He is troubled by his mind racing with thoughts and images, and feelings of despair and hopelessness.  When he rises from bed, he feels ill often, feeling like he needs to vomit.
88	The plaintiff is principally using Temazepam to aid him in meeting the problems that he has with sleep.  It is evident from the analysis of the medical evidence that I have undertaken that Dr Newell prescribed that medication for the plaintiff to treat that specific problem.
Hobby farm
89	The plaintiff and Mandy had a hobby farm at Dagun for about twelve to thirteen  years.  He spent a couple of hours each day, both before and after going to work, feeding horses, cows and maintaining the property.  After the transport accident, he tended to go home and sit down away from his family and just stare, feeling completely flat and without energy to engage in conversation or being bothered to do anything that he would normally do.
Hunting
90	The plaintiff had a great love of hunting.  He was the secretary of the Australian Pig, Dog and Hunting Association.  He estimates that he spent about 10 to 15 hours per week on work for the Association.
91	Through the Association he met people from all around Australia.  He formed a particularly strong relationship with an indigenous child in the Tiwi Islands who he supported through his sporting and vocational pursuits.  It was through that association that he went to the Tiwi Islands on seven or eight occasions which he found to be enjoyable experiences where he would go shooting and fishing with the indigenous community.
92	The plaintiff was in the habit of going shooting once or twice a week and on weekends in Western Queensland.  The plaintiff bred pig dogs for sale and for his own purposes.  The plaintiff and Mandy now have two dogs which were acquired by Mandy as rescue dogs from the RSPCA.
93	The plaintiff has lost his desire to go hunting.  He has ceased his involvement with the Association.  He handed all of his four high-powered rifles in, and I assume that means that he no longer possesses any rifles which he previously used on his shooting expeditions.
Fishing
94	The plaintiff loved fishing.  He had a 4.8-metre boat worth about $50,000 which he used to go on fishing expeditions in and around the area where he then lived in Queensland.  There were times when he would go out fishing three nights per week fishing for snapper.  
95	The plaintiff no longer goes fishing, although, often invited to do so by friends.  He sold the 4.8-metre boat.  He bought a “tinny” about one-and-a-half years ago.  He has used it once to go fishing.  He does not believe he is capable of using it to go fishing in his present state of mind.
Caravanning
96	The plaintiff and Mandy spent about four to five weeks each year travelling using their caravan.  He also travelled to a very large rural property at Saxby Downs doing mustering work over several days which he described as “wonderful times”.  He no longer goes on caravan trips nor mustering expeditions.
Work
97	The plaintiff continues to work with Pipe Management Australia.  It was unclear to me what the plaintiff’s job involved.  He expanded upon the little he said in his affidavits, that he is a project manager.  He works in a specific geographic location, acting as the contact point for his employer.  The work undertaken by the employer is, for example, cleaning away road spills.  The work is undertaken under contracts with, for example, municipalities.  The actual physical work is undertaken by a road crew comprising a leading hand and “a heap of drivers”.
98	The plaintiff’s depression and stress have led to him missing work when he is not feeling well enough to perform his expected work.  He was absent for nine weeks without pay in 2019.  His job is a flexible one where he is able to work from home with flexible hours.  He does not believe he could work in a job which is less flexible because his mental state is likely to make him unreliable.  He believes that he would struggle to get a job elsewhere if his present position were not available to him.
Medical treatment
99	The plaintiff was not challenged about the medical treatment he sought and obtained following the occurrence of the transport accident.  I think the summary I have given thus far is adequate to demonstrate what that medical treatment was; however, under re-examination, he described a number of matters concerning his medical treatment which are of importance.
100	The plaintiff said that the reason he returned to Dr Newell in September 2019 for treatment was because he realised that he needed help.  He added that he needed to “get on the medication”.  He understood that the reason why the dosage of Effexor was increased was because his state of agitation was occurring more, and it was worsening.  He described his mental health as “going north” and that it was not good and it was getting worse. 
101	The plaintiff described the side-effects of taking the medication – the loss of about 20 kilograms in weight, interference with sexual activity, interference with sleep and feeling frustrated and anxious, clouding his whole day and making it difficult for him to function during the day.
What the Plaintiff has retained
102	Despite the gloomy picture of the plaintiff’s evidence and the medical evidence, save for Associate Professor Doherty, the plaintiff has retained his employment and is earning a significant income which is referred to in a summary of his taxation position between the years ending 2013 through to 2019.  He is presently earning a gross income of $124,903 per annum.
103	The plaintiff’s relationship with Mandy is now stable and he described his relationship with her as being “great”, but added that his “libido is not there”. Otherwise, he is living on their farm property with Mandy and Tilly, who the plaintiff regards as his daughter.
The issues
104	I will now deal with the issues and will start by recounting some of them that are not in issue.
105	Firstly, I think it is probable that the deterioration in Mandy’s mental health in 2015 was an incident which the plaintiff confronted, and dealt with after having what appears to me to be relatively modest medical treatment by the prescription of medication.
106	The clinical notes of Dr Newell demonstrate that the plaintiff ceased using the medication some time prior to the occurrence of the transport accident.  Furthermore, I accept the plaintiff’s evidence that by January 2016, he had ceased using the medication, and I infer that he did so because the issue that it was there to treat resolved satisfactorily.
107	I think it is less probable that the plaintiff’s reaction to his mother’s tragic death and the psychiatric condition which resulted from that reaction is an aggravation of a pre-existing vulnerability as Associate Professor Doherty considered it to be.
108	Dr Newell is probably in the best position to determine whether the plaintiff recovered from his reaction to the deterioration in Mandy’s mental health.  There is no unequivocal statement made by him to that effect which can lead me to conclude that the psychiatric condition the plaintiff suffered following the transport accident is an aggravation.
109	Secondly, I think it is probable that the plaintiff reacted to the deterioration in Mandy’s mental health in February 2018 in an understandable way.  There is no evidence which demonstrates to me that it is in some way an intervening event.
110	I think the prescription of Diazepam as a substitute for Endep has been dealt with by me earlier in these reasons.  I think that it is less probable that it was prescribed to treat the plaintiff’s reaction to the deterioration in Mandy’s mental state at that time.  Again, Dr Newell is probably in the best position to say why it was prescribed at that time.  I think it is probable that the prescription of Diazepam was part of his ongoing treatment of the plaintiff.
111	In any event, the plaintiff would appear to have recovered from his reaction to the deterioration in Mandy’s mental state at that time.  I think that is reasonably clear from his evidence and an analysis of Dr Newell’s clinical notes and reports.
112	Thirdly, I think it is less probable that the denial of the plaintiff’s serious injury application to the defendant resulted in him taking steps to improve his prospects of obtaining serious injury by importuning Dr Newell to prepare a mental health treatment plan and to provide it to the plaintiff’s lawyers.
113	The plaintiff was involved in litigation at that time.  He had obviously instructed solicitors to act on his behalf, who must have advised him that he had some prospect of persuading the defendant to provide him with a certificate permitting him to bring a common law proceeding.  The fact that he wanted his solicitors to have medical evidence which would aid him in that pursuit seems to me to be part and parcel of his pursuit of that outcome, and not some venal, conniving exercise on his part to contrive a result.
114	Fourthly, I think it is probable that the reason why the plaintiff returned to Dr Newell in September 2019 is consistent with the plaintiff’s explanation.  He felt that his mental state was deteriorating to such an extent that he needed medical treatment.  I think that is very probably the case, because Dr Newell treated the plaintiff by the prescription of medication, and referral to Dr McDonald.  It is simply an unreasonable proposition to suggest that Dr Newell and Dr McDonald would have been treating the plaintiff when that has not been necessary.  There is no suggestion that they are other than competent practitioners in their particular fields, and have made reasonable clinical judgements in diagnosing the nature and extent of the plaintiff’s psychiatric condition, and providing him with relevant and necessary treatment.
115	Fifthly, I think it is probable that the plaintiff has suffered all of the consequences which he has given evidence about in his affidavits and under cross-examination and re-examination.  I will leave his work history to one side for the moment.
116	I think it is probable that the plaintiff was in an enduring and tolerably happy relationship with Mandy, despite her great misfortunes in being plagued by a mental health state which erupted badly on two occasions in 2015 and then again in 2018.  His relationship with Mandy has suffered almost irreparably because of his loss of interest in social, domestic and recreational activities which they had in common, and also their sexual relationship, which I do not think I need to say any more than it is of central importance to a relationship.
117	I think it is probable that the plaintiff was a very active man through his pursuit of hunting, his significant and long-standing relationship with a hunting association, fishing, caravanning, and enjoying the fruits of life on a hobby farm property which I accept was a significant part of his life before the occurrence the transport accident and would have continued to be if the transport accident had not occurred.
118	The descriptions given by the plaintiff of his mood and his general attitude to life give the impression of someone who is in a miserable mental state.  I think it worsened to the point where he now requires the medical treatment provided by Dr Newell and Dr McDonald.  
119	I am fortified in accepting the plaintiff’s evidence because it is supported by the evidence of his sister, Ms Katarina McKeown, who swore and affidavit on 6 August 2020, and the evidence of Mr Scott Rumler, who swore an affidavit on 12 August 2020.  Ms McKeown saw the plaintiff infrequently, but spoke to him on the phone regularly.  She contrasted what he was like before as being “full of life” and what he was like after the transport accident as being “withdrawn from our family emotionally”.  She provided many examples of his personality and interaction with her family, demonstrating that he was a very different person before the transport accident occurred.
120	Mr Rumler has known the plaintiff for about ten years through his work with Cleanaway.  He noticed a dramatic change in the plaintiff’s overall demeanour and personality at work.  He described him as lacking drive, appearing to be withdrawn and flat, and appearing not to care anymore.  The substance of a comparison he made is that those observations are significant when compared to what he was like before the occurrence of the transport accident.
121	Sixthly, the defendant submitted that to be “severe” the consequences need to include a number of factors.  I have spent some time reviewing a number of authorities which I think point to the fact that I am to consider all of the evidence.  Consistent with Katanas, the fact that the plaintiff has not been treated by a psychiatrist and has not been treated in a psychiatric hospital, or been enveloped in more dramatic and extensive psychiatric treatment, is not of itself a factor which weighs against the plaintiff.  It may be part of the balancing exercise, but it would be contrary to authority to treat it otherwise.
122	I should return to the evidence of Dr Garg and Dr Weissman, who have recommended that the plaintiff be treated by psychiatrists, a psychologist and by the use of other medication.  The fact that Dr Newell has not considered it appropriate to do so is a call made by him, not by the plaintiff.  I think to fix the plaintiff with the treatment he is undergoing as falling short of what one would expect is to ignore the fact that there is another dimension of treatment which other well-qualified medical practitioners consider appropriate in treatment which he should be provided.
123	It is probably appropriate to deal, at this point, with the difference in the medical opinions.  Dr Newell, Dr McDonald, Dr Garg and Dr Weissman, in general terms, appear to have worked on the same or similar history of complaints made by the plaintiff and who have come to broadly similar diagnoses, prognosis and consideration of the treatment which the plaintiff requires.  Their opinions are in contrast to that of Associate Professor Doherty, who considers that the plaintiff’s psychiatric condition is operating at a much lower level and is not having a particular impact upon his working and non-working life.
124	It is always difficult to reconcile differences in medical opinions where they differ so markedly.  It is obviously not a matter of looking to the numerical superiority of opinions, but that is not necessarily an incorrect approach.  I have read the opinions of Dr Newell, Dr McDonald, Dr Garg and Dr Weissman carefully.  I see nothing in them which suggests that they are unreliable or lacking substance.  Nor indeed did the defendant seek to do so.  Putting it simply, I prefer the evidence of Dr Newell and Dr McDonald, who have had reasonably close contact with the plaintiff for a significant enough period of time to understand him and the psychiatric condition under which he is labouring.  I am fortified in accepting their opinions, because Dr Garg and Dr Weissman also developed that level of understanding of the plaintiff and have arrived at opinions which I also prefer.  I do not accept that Associate Professor Doherty’s opinion can overwhelm this strong body of evidence.  I reject his evidence in whole.
125	Seventhly, there is no doubt that the plaintiff is working and has been able to maintain his employment; however, the impression I have is that the nature and extent of the psychiatric condition he developed has impacted upon his capacity to work, and by September 2019 and to the present time, has further impacted upon that capacity.  Dr Newell has expressed his opinion relevant to the plaintiff’s capacity for work in very strong terms.  In his last report, he described that the plaintiff’s symptoms were having “a significant negative impact on his work”.  That is consistent with the evidence given by the plaintiff.
126	I think it is probable that the plaintiff is labouring under quite serious difficulties with his work, but the nature of the project management work he undertakes gives him the flexibility which enables him to tolerate the issues he has with maintaining his employment.  I accept the plaintiff’s evidence that if he were in other employment circumstances he might do far less well.
127	Eighthly, I am more inclined to accept the plaintiff’s evidence of the difficulties he is having with his work because I think he is a stoic.  The reference to stoicism arose in Dwyer v Calco Timbers Pty Ltd (No 2).  Nettle JA (as he was then) observed that it would be unfortunate and wrong if an applicant for serious injury were treated less favourably than another who, being of less strength of character simply resigned himself to his injury.
128	The impression I am left with from the medical evidence I accept is that the plaintiff has symptoms of a psychiatric condition which are disabling, both with respect to his working and non-working life.  They are, in my view, probably very disabling.  If the plaintiff were no longer able to work, then I think that would probably be within keeping of the impact of those symptoms.  As it is, he has maintained his employment for two reasons – firstly, because it is employment with the flexibility which the plaintiff speaks, and, secondly, because of his stoicism.
129	Ninthly, I have identified all of the relevant personal circumstances of the plaintiff in terms of his working and non-working life as directed by the majority in Katanas.  I have made a value judgement of each of the identified relevant circumstances by giving to them the weight which I think is appropriate.  The degree of weight that I think is appropriate is to accept the full extent of the plaintiff’s evidence.  In doing that, and in being assisted by my experience in sitting as a judge in this jurisdiction, and the guidance provided by a wealth of decisions relevant to which side of the line a case falls, I am satisfied that the consequences to the plaintiff in this case easily meet the standard of being “severe”.
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