Worker allowed to pursue damages for 1995 injury

Worker allowed to pursue damages for 1995 injury

Written by OHSAlert and reproduced with permission, this article refers to a case run by Adviceline Injury Lawyers' Associate Linda Hanley.

A worker whose psychiatric injury - sustained after a colleague was killed in a 1995 fire - resurged after a cycling incident 16 years later, has been granted leave to sue his former employer for damages.

The Victorian County Court found the resurgence of his symptoms was directly related to the workplace fire.

In 1995, the former Berry Street Victoria Inc resident carer was working at its Diamond Creek premises when a fire broke out during an overnight shift. The worker and the residents evacuated, but a co-worker was killed.

The worker suffered post-traumatic stress disorder and other behavioural disorders as a result of the fire, and underwent ongoing psychological treatment. He gained qualifications as an occupational therapist and by 2013 was employed as a senior lecturer in health at Deakin University.

The worker told the County Court he was able to keep his PTSD and depressive symptoms at a manageable level by engaging in a variety of physical activities, but he sustained a serious shoulder injury in the 2011 cycling incident that prevented him from keeping active.

His psychological state subsequently deteriorated and he went on medical leave in 2013, before seeking damages from Berry Street in 2015.

Berry Street argued there was insufficient evidence that his current condition arose from the 1995 fire rather than the cycling incident.

It also argued that he knew of his incapacity prior to March 2012, meaning he failed to claim compensation within the three-year period required by s135AC(b) of the State Accident Compensation Act 1985.

Further, Berry Street argued that two non-work-related incidents the worker experienced prior to 2011, including being assaulted on a trip to Vietnam, contributed to his deterioration.

County Court Judge John Bowman found that medical experts were "close to unanimous" on the worker's PTSD and depressive symptoms being "consequential upon the fire".

He found the constraints his cycling injuries placed on his mechanisms for dealing with PTSD exacerbated his psychological symptoms.

"I accept that his PTSD and the other immediate sequelae of the fire may well have improved significantly and effectively lain dormant for many years, but that they rose to the surface and manifested themselves after the cycling incident," he said.

"It is not suggested that the relevant mental injury is the aggravation of a pre-existing condition. Rather the argument is that the consequences of the fire have been brought to light or aggravated by a subsequent injury."

Judge Bowman also found the earliest date the worker could have known about the nature of his current mental incapacitation was in February 2013, when he was referred to a psychologist who diagnosed him with a resurgence of the fire-related symptoms.

"The originating motion was issued in August 2015. That is comfortably within the three-year period," the Judge said.

Judge Bowman granted the worker leave to sue for damages under s135A of the Act.

Ebden v Berry Street Victoria Inc [2016] VCC 617 (19 May 2016)

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