The outcome of an application for leave to sue the State of Victoria at common law in the County Court of Victoria was reported on the website of Melbourne’s The Age newspaper on 13 August 2013.
Many thanks to my friend and colleague Jenna Stewart for pointing this decision out.
The plaintiff worked as a detective with the Victoria Police major crime squad for nine years with significant exposure to the aftermath of acts of violence. It was alleged that he had developed post traumatic stress disorder.
The plaintiff left Victoria Police on a date not stated in the report. He had subsequently operated a successful insurance business, been an investigator for the government of Papua New Guinea and been a senior manager with a number of private security companies. His skills were in sufficient demand for him to have been recently headhunted and offered a role paying $200,000 per annum. He had also established a new personal relationship and written a lengthy memoir.
Under §134AB of the Accident Compensation Act 1985 (Vic.), an employee may only sue and claim damages at common law for an injury sustained in employment if they are accepted by their employer’s insurer or by the County Court as having suffered a “serious injury”. A serious injury is defined by the Act as being a “permanent severe mental or behavioural disturbance or disorder”.
Mr Noonan’s application was heard by Judge McInerney of the Victorian County Court.
In evidence the plaintiff asserted that the mental stresses involved caused him to drink heavily and to have interpersonal difficulties. However, it was also admitted that he was by nature “argumentative, violent and aggressive” and that the Police Force had allowed him to work at his own pace. He proffered psychiatric evidence that his work-related mental state had had a severe effect on social, recreational and domestic life and caused him to lose his marriage, his friendships and his job.
The evidence relied upon by the State included psychiatric opinions that while the plaintiff had symptoms of PTSD, he was not depressed and presented in a normal manner, notwithstanding that he would benefit from mental health care.
His Honour rejected the plaintiff’s application. Central to the Court’s decision was that, while the plaintiff had suffered PTSD, his psychiatric evidence irreconcilable with his own activities after leaving the Police force. These activities indicated that the effects of the injury were not ‘severe’.
The plaintiff has announced his intention to appeal.
The defendant was represented by Mr Paul Jens of counsel.