THE DISTRICT COURT OF JOHN PAUL STERNDALE …...JOHN PAUL STERNDALE and FREDERICK JAMES JOHN LAURIE...

14/04/2009 1 National Transcription Services

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THE DISTRICT COURT OF

WESTERN AUSTRALIA

262 of 2007

JOHN PAUL STERNDALE

and

FREDERICK JAMES JOHN LAURIE

O'BRIEN DCJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 14 APRIL 2009 AT 10.33 AM

MR T. LAMPROPOULOS WITH MR J. D'ANGELO appeared for the

Plaintiff

MR J. STAUDE appeared for the Defendant

D5/1/CAJ/WADC/CIV/PER/CIV262/2007

14/04/2009 10:33 HER HONOUR 2

National Transcription Services LAMPROPOULOS, MR

STAUDE, MR

O'BRIEN DCJ: Please be seated.

THE CLERK OF ARRAIGNS: Calling Civil matter 262 of 2007

between John Paul Sterndale v Fredrick James John Laurie.

O'BRIEN DCJ: Yes, Mr Lampropoulos.

LAMPROPOULOS, MR: May it please your Honour, with

Mr D'Angelo, I appear for the plaintiff.

O'BRIEN DCJ: Thank you. Yes, Mr Staude?

STAUDE, MR: If your Honour pleases, I appear for the

defendant.

O'BRIEN DCJ: Yes, thanks very much. Now, I see that

there's been a lot of documents provided, if you could put

all of those things perhaps up on the Bench please, thanks

- just there would be fine.

LAMPROPOULOS, MR: I hope you're not overwhelmed with all

that, your Honour, you won't be expected to read all of

that, I think it's just bits and pieces that are relevant,

but - - -

O'BRIEN DCJ: All right, that's okay.

LAMPROPOULOS, MR: - - - it needed to be put, for the sake

of completeness.

O'BRIEN DCJ: As long as they're within reach.

LAMPROPOULOS, MR: Yes.

O'BRIEN DCJ: Did you want to begin by perhaps checking

that I've got everything that I need to have?

LAMPROPOULOS, MR: That might be useful, your Honour,

yes. Your Honour first of all should have a consolidated

book of trial documents, of non medical trial documents,

and that should be three volumes.

O'BRIEN DCJ: Yes.

LAMPROPOULOS, MR: Next your Honour should have what's

called the Australian Government Civil Aviation Safety

Authority Designated Aviation Medical Examiner's Handbook,

single volume, one of those.


14/04/2009 10:33 HER HONOUR 3


STAUDE, MR

O'BRIEN DCJ: I've got that; can't wait to read it.

LAMPROPOULOS, MR: And probably most importantly there's a

consolidated book of medical reports, which is another

thick volume.

O'BRIEN DCJ: There's a - before you get onto it, there's

a supplementary book of trial documents as well.

LAMPROPOULOS, MR: Yes, that I think was filed this

morning. I think your Honour's got it before I got it.

O'BRIEN DCJ: Okay. And then there's the consolidated

book of medical reports, yes.

LAMPROPOULOS, MR: Yes, your Honour.

O'BRIEN DCJ: And so is it proposed to have that book

tendered?

LAMPROPOULOS, MR: Yes, in due course, yes, your Honour.

O'BRIEN DCJ: Right, okay. Yes.

STAUDE, MR: There will be a problem as far as we're

concerned, your Honour.

O'BRIEN DCJ: Beg your pardon?

STAUDE, MR: There'll be a problem with that course as far

as the defendant's concerned.

O'BRIEN DCJ: Right, yes.

STAUDE, MR: Because there's at least two reports in there

that we would object to being put in without the makers

being called.

O'BRIEN DCJ: Right.

STAUDE, MR: I don’t know how they got into the medical

book, but I'll talk to my friends about it at an

appropriate juncture.

O'BRIEN DCJ: All right, thanks. Yes.

LAMPROPOULOS, MR: There should also be, your Honour, the

updated list of witnesses, there's the chronology of

medical consultations, and a list of documents being

tendered by consent.


14/04/2009 10:33 HER HONOUR 4


STAUDE, MR

O'BRIEN DCJ: And what was the last one?

LAMPROPOULOS, MR: A list of documents being tendered by

consent, your Honour.

O'BRIEN DCJ: My associate might have that somewhere, or -

no hang on - yes, I've got that.

LAMPROPOULOS, MR: Okay. And there's a medical

chronology, your Honour?

O'BRIEN DCJ: Yes.

LAMPROPOULOS, MR: Good. And there should also be, I'm

told, a glossary.

O'BRIEN DCJ: Yes. So that's agreed is it, the glossary?

LAMPROPOULOS, MR: I've not heard anything to the contrary

from my learned friend.

O'BRIEN DCJ: Right. Mr Staude, can I rely on the

definitions in the medical glossary?

STAUDE, MR: Your Honour, I don’t think there's any issue

with any of them, but if there are any I'll let you know.

O'BRIEN DCJ: All right.

STAUDE, MR: I've only just got it myself.

O'BRIEN DCJ: And have the medical - the chronology,

there's one dated 14 April, is that the one I should rely

on? Because there's one called preliminary medical

chronology.

LAMPROPOULOS, MR: I'm told the 14 April one is the one to

rely on, your Honour, because that's also got cross

referencing to the trial bundle.

O'BRIEN DCJ: Yes, yes.

LAMPROPOULOS, MR: So it might be more useful.

O'BRIEN DCJ: So can I hand that other one to my

associate?

LAMPROPOULOS, MR: I think so, yes.

D5/2/JD/WADC/CIV/PER/CIV262/2007

14/04/2009 10:40 HER HONOUR 5


O'BRIEN DCJ: All right, thank you. Thanks, yes. Yes.

LAMPROPOULOS, MR: Is it convenient if I open now,

your Honour?

O'BRIEN DCJ: Yes, it is, thank you.

LAMPROPOULOS, MR: Thank you, your Honour. If I could

first of all take your Honour to the papers for the Judge,

which are dated October 2008, and to the statement of claim

dated 8 September 2008. And if I could just briefly take

your Honour through that. You'll see that the plaintiff

was born on 7 August 1956, he was born in Australia.

Your Honour will hear that his father was a pilot, and in

about 1960 the family relocated to Switzerland and lived

there for a period of time until the plaintiff's parents

divorced in about 1970.

You'll hear that - from the plaintiff that basically he

can't remember a time that he didn't want to become a pilot

and you'll hear him describe the way he went about becoming

a pilot and himself gaining employment and working his way

up through the ranks, both in Australia and then in

Switzerland.

As the statement of claim says, between about 1980 and 2001

he held both an Australian and Swiss pilot's licence. You

will hear, your Honour, that he managed to work his way up

to being a commercial captain and all went well and you'll

hear that as part of being a captain he is required to

undertake regular medical check-ups.

It was during one of these routine check-ups in about

September 2001 atrial fibrillation was detected. The

plaintiff didn't have any particular symptoms, but it

showed up on one of the tests and as a consequence his

Australian and Swiss pilot's licences were suspended

pending treatment of the atrial fibrillation. And the

atrial fibrillation, your Honour, is a form of abnormal

heartbeat; is triggered by the electrical conductors in the

heart and of all the different forms of atrial

fibrillation, you will hear that the plaintiff had the

mildest possible form, the one most treatable.

In any event, as the statement of claim says, between 1983

and 2001 he is employed as a pilot in Switzerland and then

with this atrial fibrillation being detected in September

2001, his licence was suspended whilst he had the

treatment.


14/04/2009 10:40 LAMPROPOULOS, MR 6 National Transcription Services

Your Honour will hear that he returned to Australia in

about July 2002 and basically he gave himself two years to

get back to flying. And while he was off he planned to

also have some surgery to his back arising from a

parachuting accident back in about 1985 and that surgery

had been planned for about May of 2003.

You will hear that after he got back to Australia he

applied to have his pilot's certification reinstated and in

August of 2002 the Australian aviation authority, CASA, did

give him a conditional certification which allowed him to

fly with a co-pilot.

There were then some further tests and further applications

to CASA and in February 2003 CASA certified the plaintiff

fit to fly as an Australian - well, as a pilot without the

condition that he had to be as - or with a co-pilot, so at

that time in February 2003 the evidence will be that the

plaintiff's AF was under control simply with medication,

some exercise and a reduction in the consumption of

caffeine and at that stage he was looking for a position as

a pilot overseas.

You will hear that on 10 May 2003 the plaintiff was seated

at a table outside Vino Vino restaurant in Northbridge when

a van driven by the defendant reversed into the patrons at

the restaurant. The defendant was then on a learner's

permit, and it seems under the influence of alcohol,

pressed hard on the accelerator rather than the brake and

went into the patrons at some speed and the plaintiff was

crushed with his chest being crushed between the van and

the table which had been pushed up against the wall.

Your Honour will hear that he sustained a number of

fractured ribs and you will see in paragraph 5 under the

injuries identified crushing to the chest, six fractured

ribs, two on the right, four on the left and importantly at

that stage his AF went into uncontrolled and rapid - his

heart went into uncontrolled rapid atrial fibrillation

which lasted for some 12 hours whilst he was in hospital.

He sustained also bruising of the abdomen and the thorax

and the lumbar spine. He was taken to Royal Perth Hospital

by ambulance. As I mentioned, his AF was no longer under

control and as set out in paragraph 6, as a result of the

AF not being able to be controlled with medication, he

required a radio-frequency ablation procedure to his heart.

The first one was carried out on 6 November 2003. That

wasn't entirely successful and a second one was carried out

on 17 January 2004 and, as your Honour can imagine, this



was a stressful time for the plaintiff with these serious

procedures being carried out upon his heart and he was

suffering symptoms associated with heart problems and your

Honour will hear that even with the second ablation

procedure, he continued to suffer symptoms of shortness of

breath, angina and like symptoms and other symptoms,

including anxiety.

Various physical examinations were undertaken to try and

identify the cause of those symptoms. Tests were

undertaken to see whether or not he had suffered stenosis

in his heart which was one of the possible complications of

ablation procedure, but that seemed to be negative and

various other tests were undertaken, but a physical cause

for the symptoms was not identified.

Then in 2008 at the suggestion of Professor Pretr, who you

will hear more about, he was referred to a psychologist - I

beg your pardon, a psychiatrist who made a psychological

diagnosis of chronic anxiety and associated depression and

as a result of the delay in identifying the psychological

problems associated with the injuries suffered in the

accident, his condition has become more difficult to treat

and is more resistant to medications.

Now, in terms of the ongoing symptoms, they are mentioned

in paragraph 9. He does continue to suffer shortness of

breath, angina-like symptoms, throat and chest discomfort

with emotional stress. He suffers panic attacks and

anxiety attacks and a sense of losing control. He's

developed pathological anxiety particularly about his

cardiac status and associated symptoms being depression,

forgetfulness, fatigue, tiredness, sleep disturbance and

excessive perspiration.

Then in the statement of claim the basis of the damages

claim which is set out in paragraphs 10 onwards including a

claim for loss of income as a pilot which is effectively on

the evidence – he said that he’s been incapacitated since

the date of the motor vehicle accident and hasn’t been fit

to fly as a pilot.



And therefore he has suffered a loss.

There are various benefits that go with being a pilot and

those benefits are set out in paragraph 12 of the statement

of claim in addition to the superannuation benefits

mentioned in paragraph 11 and as a result of his symptoms,

the plaintiff, as said in paragraph 13, has suffered a

reduction in his quality of life and will continue to

require treatment and the basis of the claim as set out in

the schedule of damages which I will take your Honour to in

a moment.

In relation to the defence, if I can take your Honour to

the defence, your Honour will see in paragraph 2 of the

defence, the negligence is admitted by the defendant and in

paragraph 3 the defendant otherwise denies every statement

of fact and allegation in the balance of the statement of

claim.

Then in paragraph 4 the defendant says that in the

alternative the symptoms and disabilities complained of by

the plaintiff are caused or contributed to by various

pre-existing conditions which are alleged in the defence.

4.1 is the atrial fibrillation, but as I said earlier, your

Honour, that was under control before the motor vehicle

accident.

Then there's a reference to a lumbar injury sustained in a

parachuting accident. That accident was in the mid 1980s

and didn't stop the plaintiff from working his way up to

captain and working as a captain in commercial airlines.

There is then reference to lumbar spinal degeneration.

I am not sure exactly what that's a reference to. 4.4

refers to hypertension which the plaintiff had before the

motor vehicle accident, but that was controlled with

medications and he was certified fit to fly and he was fit

to fly. 4.5, high cholesterol, that's the same as the

hypertension. Then 4.6, it's said that he had anxiety, 4.7

depression, 4.8 panic type symptoms. They are all symptoms

that he suffered post the motor vehicle accident. He

didn't have any pathological anxiety before the motor

vehicle accident.

Certainly he would have been anxious about different things

at different times, as we all are, but the pathological

anxiety only manifested itself after the motor vehicle

accident, the same with the depression and the panic type

symptoms and 4.9, the psychological stress, as I said, only

became pathological after and as a result of the motor

vehicle accident, not before.



So it's alleged by the defendant that all those conditions

somehow pre-existed the motor vehicle accident and those

symptoms are not due to any injuries sustained in the motor

vehicle accident in question and it's said that any

injuries sustained in the accident were temporary and have

resolved.

4A, it's alleged by the defendant that if the plaintiff is

unfit for work as a pilot as a result of the motor vehicle

accident, then it's alleged the plaintiff has failed to

mitigate his loss by choosing not to pursue employment or

business activities in office administrative duties to

industry work or other income earning activities

commensurate with his capacity and his experience.

In that regard, your Honour, as I mentioned earlier, the

plaintiff was undergoing various medical tests to identify

the cause of his symptoms and it was only in 2008 that the

psychological problems have been identified and that's when

treatment commenced, but in any event, in relation to

failure to mitigate, the onus is on the defendant to prove

two things, first the rule that there has been a failure to

mitigate and secondly that that failure is unreasonable.

If I could next take your Honour to the outline of

submissions, firstly the plaintiff's submissions on the law

dated 3 April 2009, you will see that under the heading

“overview” a brief outline is given of the background and

the basis of the claim and there's reference to the

accident on 10 May.

There is reference in paragraph 4 to the AF which was

aggravated and became uncontrolled, 5, the ongoing

symptoms, 6, the psychiatric diagnosis and then 7, there's

reference to the medications that the plaintiff is taking

and as a combination of the symptoms and the medications,

it's alleged that the plaintiff is permanently unfit to

return to work as a commercial pilot.

Then 8 is a reference to the defence and the alternative

pleas made in the defence which I've taken your Honour to

and then under legal principles we deal with the test of

causation. There's reference to March v Stramare and as we

say in the outline, what the plaintiff needs to prove is

that the defendant's negligence caused or materially

contributed to the damage claimed and that negligence is a

material contributing factor if it's shown on the evidence

not to have been negligible and there's authority of WA v

Watson directly on point.



In paragraph 10 we refer to the presumptive inference which

the sequence of events would naturally inspire in the mind

of any person uninstructed in pathology and for that we

refer to the Adelaide Stevedoring Company case and we

mention also when the plaintiff establishes harm within the

sphere of risk caused by the defendant's negligence, an

onus shifts to the defendant to show it is unrelated to

that negligence and we refer to Amica v Hannell(?), a

recent case in the Court of Appeal confirming that

principle.

In relation to the allegation of pre-existing or

non-tortious concurrent conditions, paragraph 11, we

mention that the onus is upon the defendant to disentangle

and quantify the extent of the plaintiff's disability by

such pre-existing concurrent conditions and we refer in

particular to WA v Watson for that proposition.

12, the defendant carries an onus to show that the

plaintiff is fit for alternative work and the availability

of such work so that if the plaintiff was fit for work as a

pilot before the motor vehicle accident, as a result of the

accident he's no longer fit to work as a pilot, then at

least an evidential onus shifts to the defendant to

identify alternative work that's available to the plaintiff

and the sort of pay that he can expect to receive. And I

refer to Thomas v O'Shea, which is a WA Full Court

decision, and Bowen v Tutt, which was also a WA Full Court

decision.

And paragraph 13, defendant alleging a failure to mitigate

must prove, and in this case it's not just an evidential

onus but the final onus of proof upon the defendant to

prove that there's a failure on the part of the plaintiff

to mitigate, and that the failure has been unreasonable.

We then under the heading application of principles in this

case, attempt to mould the legal principles with the

overview given in the earlier paragraphs. We say in the

outline, immediately prior to the motor vehicle accident

the plaintiff was fit and certified fit by CASA to work as

a commercial pilot and his AF was well controlled simply

with medication.

As a pilot he was required to undergo regular medical

examinations. Before the age of 40, your Honour, those

examinations were yearly, after the age of 40 they were

biannual. So it was a fairly regular regime that he was

required to comply with, like any other pilot, to make sure

that he was fully fit to fly.



No other medical conditions had been identified which would

have prevented him from being certified and being fit to

fly. He did have the elevated cholesterol levels and the

high blood pressure, but they were controlled, and didn't

prevent him from flying. And immediately before the

accident not only was he certified fit to fly, but we say

he was also in fact fit to fly and therefore had a

substantial capacity as a pilot.

And then as we say in 15, immediately after the accident he

went into uncontrolled Atrial Fibrillation, continued for

some 12 hours in Royal Perth Hospital. Even after that his

AF could no longer be controlled with medication that

naturally made the plaintiff concerned about the state of

his heart. He will describe that how before the motor

vehicle accident he occasionally had flutters in his heart

or in his chest like butterflies, but after the motor

vehicle accident it was more like having a bird in his

chest, is the way that he described it.

He suffered various symptoms associated with his

uncontrolled AF. He underwent the ablation procedures,

which were a fairly new procedure in WA at that time. He

continued to suffer symptoms, he had the medical

examinations to try and identify the cause of those

symptoms, and eventually a psychiatric diagnosis was made.

So as we say in the submissions, based on that sequence of

events there's first of all a presumptive inference that

the motor vehicle accident aggravated the physical AF.

There will also be medical evidence, particularly from

Professor Pretr, in support of that conclusion. So the

motor vehicle accident did aggravate the AF, did cause

symptoms, did - and there was a physical basis for that

which required the ablation procedures. The defendant, as

we say, will be adducing evidence from a Dr Langton to try

and counter that.

Further we say there's a second presumptive inference that

the motor vehicle accident contributed to the plaintiff's

anxiety, which developed into a condition of chronic

adjustment disorder with anxiety and depressed mood, and

Dr Ng and Dr Blumberg will also give evidence to that

effect. The defendant had the plaintiff reviewed by their

own psychiatrist, a Dr McCarthy, but they aren't calling

him to contradict the evidence of Dr Ng and Dr Blumberg.

And at 16 we say that the plaintiff is now permanently

unfit to work as a commercial pilot and has therefore

suffered loss and damage. We mention that despite the

plaintiff's symptoms and the opinions of his cardiologist



and his designated aviation medical examiner in Australia,

Dr Bateman, CASA certified him fit to fly in 2004, whilst

he was having all these symptoms. As we say in the

submissions, that was obviously a mistake, because he's

obviously not fit to fly with those symptoms.

In any event, CASA have now decertified him based on the

plaintiff's psychological condition. And in the end

result, the motor vehicle accident we say has therefore

caused or contributed to the loss and damage suffered by

the plaintiff. And then we say in 17, to the extent that

there's an allegation of pre-existing conditions, there's

an onus upon the defendant similarly in relation to

alternative work and failure to mitigate.

If I could then take your Honour to the defendant's outline

of submissions. First of all there's background to the

legal proceedings, and unfortunately this matter was

adjourned initially in March of last year, and then in

August of last year, when the matter was adjourned because

the - partly because the defendant wanted to get some of

their own psychiatric evidence to deal with Dr Ng and

Dr Blumberg. As I mentioned earlier, they did get their

own psychiatric evidence in the form of Dr McCarthy, but

they aren't calling him.

And then under “issues”, they deal with their position in

relation to the accident and the certification prior to the

motor vehicle accident. And in paragraph 8 they say that

the accident on 10 May 2003 they accept did cause a crush

injury to the plaintiff's lower chest resulting in

un-displaced fractures of the 7th and 8th ribs on the

right, and then 6th, 7th, 8th and 9th ribs on the left, and

bruising, which they say resolved uneventfully, which is

obviously disputed by the plaintiff.

It's said that during the observation in Royal Perth

Hospital the plaintiff was found to be in AF, but it's said

that that also resolved spontaneously. But they do go on

and say in paragraph 10 that the plaintiff reported more

frequent and symptomatic episodes of AF after the motor

vehicle accident and that led to two catheter ablation

procedures being carried out by Dr Weerasooriya.

And those procedures basically involve, your Honour,

zapping the electrical conductors on the heart to send a

signal to the different parts of the heart to activate it.

And there was one carried out on November '03 and the

second in January '04. It's said in paragraph 11 that

since the lifting by CASA of the endorsement the plaintiff

has not been denied a medical certificate for a pilot's



licence by CASA on the grounds of his cardiac condition.

There will be a dispute about that.

And then it's said in paragraph 13, prior to June 2008, the

plaintiff had not received any psychiatric diagnosis or

treatment. And that's correct, because it hadn't been

identified. That was subsequently identified, as it's said

in there, based on the reports of Drs Blumberg and Ng. And

it's said that the plaintiff now attributes this

psychiatric disorder as a cause of his alleged incapacity

for work a as pilot. Well, it's not so much the plaintiff,

it's the doctors who have identified it and who explained

it.

D5/5/DJ/WADC/CIV/PER/CIV262/2007


And then, under causation at the bottom of that page, it’s

said that:

Although the accident may have precipitated an

episode of AF, it did not cause any chronic

aggravation of the plaintiff’s pre-existing

condition.

b. Alternatively, if there is an accident - caused

aggravation of the pre-existing AF, it was

successfully treated by catheter ablation and since

2004, has been controlled to the same extent as it

was prior to the accident.

Then:

c. In the further alternative, even if the accident

caused an aggravation of the AF and it’s said he was

at considerable risk of this condition becoming

refractory -

Which I understand to mean “resistant to treatment”:

- in any event before his expected retirement age.

And then:

d. It’s said the plaintiff’s poor general health and

fitness due to pre-existing and concurrent conditions

also signal early retirement.

I’m not sure what the reference to “poor general health”

is, because he was otherwise in good health, apart from the

AF. It’s said in (e) that:

The plaintiff’s psychiatric complaints are

self-serving and misattributed. They did not arise

until five years after the accident in question.

It’s interesting that the submission is made that the

plaintiff’s psychiatric complaints are “self-serving and

misattributed”. In these circumstances, your Honour, where

the defendant has had the plaintiff reviewed by the

psychiatrist of choice, Dr McCarthy, and they aren’t

calling Dr McCarthy or any other psychiatrist in support of

the suggestion or allegation, that the complaints are

“self-serving and misattributed”.

It’s said that they did not arise until five years after

the accident in question. Well, that’s not entirely

accurate, with respect, because he was complaining of



symptoms. It’s just that the cause of the symptoms wasn’t

properly identified until some five years after the

accident in question.

And then it says that the plaintiff’s reliance on his

psychiatric disorder as a disqualifying medical condition,

merely underlines the extent to which the reliance on the

AF condition has been shown to have been misplaced. At

first, I don’t quite understand that and then in (f), it’s

said that:

The defendant disputes that the plaintiff’s alleged

past incapacity can be attributed to any psychiatric

disorder and submits that the plaintiff’s recent

submission to CASA was tactical.

Well, with respect, your Honour, it’s a case where he was

complaining of symptoms. The medical diagnosis was made.

All the evidence, including the evidence of Dr Langton and

the medical reports that the defendant seeks to rely on,

were provided to CASA. They were asked whether or not they

would certify in those circumstances and they said, “No”

and for the defendant to say that that’s “tactical”, with

respect, is a bit artificial when they aren’t proposing to

call any psychiatric evidence, to counter the evidence

being called on behalf of the plaintiff.

Then under the heading “Loss of earning capacity”, it’s

mentioned that although he’d been certified fit to fly

before the motor vehicle accident, he hadn’t been

successful in obtaining a position as a pilot in the short

period between the certification and the motor vehicle

accident.

It’s said that he’s also due to have lumbar surgery, which

was eventually carried out in August 2003 and he would have

been incapacitated in any event, until early 2004. Now,

the evidence in that regard, your Honour, will be from the

neurosurgeon, Mr Miles, who will be giving evidence today.

He says that he was sad that the surgery was initially

planned for May of ’03, because of the motor vehicle

accident, had to be delayed until August ’03. The surgery

proceeded and was successful and that would only have

incapacitated the plaintiff from flying for two or three

months.

Then in (i), it’s said that:

The plaintiff has not been unfit to hold a pilot’s

licence at any time since the accident.


14/04/2009 11:10 LAMPROPOULOS, MR 16

National Transcription Services HER HONOUR

LAMPPROPOULOS, MR

Then it goes on to say:

This is not to say that he was employable, as his

medical history was significant and the plaintiff

would have had to pass a medical test on employment

as a pilot.

I think my learned friend must be drawing a distinction

between being fit and passing a medical test with his

history, as if they would have produced different results,

it seems. In any event, in (j), it’s said that:

To the extent that the plaintiff claims to be unfit

because of shortness of breath or chest pain, it’s

said such conditions are not due to the accident, but

are of long-standing and not incapacitating.

Well, it seems that shortness of breath and chest pain,

it’s said are not incapacitating to work as a pilot, when

really, with respect, one only needs to consider the

position of a pilot. You’re sitting in the back and you

know the pilot at the front suffers with shortness of

breath and chest pain, you’d be rather concerned having him

at the controls, with respect.

Then in (k), with reference to hypertension and over the

page there’s some other submissions in relation to various

losses and then under “principles”, paragraph 18, there’s

reference to March v Stramare and there’s reference in the

other paragraphs to a shifting onus in relation to other

pre-existing conditions.

This morning, my learned friend just before we commenced

also provided what’s described as the defendant’s response

to the plaintiff’s particulars of damage. I don’t know

whether your Honour’s had an opportunity to peruse that or

not. I’ve only had a quick look at it.

Basically, they address their response to the claim for

special damages, future treatment, past economic loss and

various benefits and perhaps I’ll come back to that briefly

when I address the plaintiff’s schedule of damages,

your Honour.

O'BRIEN DCJ: I’m just trying to find out. What’s it

called? What’s it titled?

LAMPPROPOULOS, MR: “Defendant’s response to plaintiff’s

particulars of damages”, dated 3 April 2009. Yes, I only


14/04/2009 11:20 LAMPPROPOULOS, MR 17

National Transcription Services STAUDE, MR

HER HONOUR

LAMPROPOULOS, MR

got it this morning. I don’t know whether it’s been filed

or not.

STAUDE, MR: I’ve got an extra copy. I think it might

have been sent to your Honour’s associate electronically.

O'BRIEN DCJ: It probably was. I’m just trying to find

it, that’s all. Yes, I’ve got that.

STAUDE, MR: Thank you.

LAMPPROPOULOS, MR: Thank you. So from that, your Honour,

if I could then move to the issues and briefly identify the

evidence which supports the conclusion that we would submit

to your Honour in due course. That’s in a background

where, as I said, the plaintiff always wanted to be a

pilot.

You’ll hear that he did it tough to get to being a

certified and qualified as a pilot. You’ll gauge from his

evidence that he’s very proud of his achievements in that

regard and as I mentioned, all was going well until

September ’01, when the AF was diagnosed.

The first issue that your Honour will need to address, is

whether or not the AF was under control before the motor

vehicle accident and in that regard, we’d refer your Honour

to half a dozen cases of evidence at this stage. First of

all, we’d refer your Honour to the consolidated book of

medical reports.

The first piece of evidence we’d refer your Honour to is

the report of Dr Hockings, a cardiologist, at page 20 and

that’s a report dated 12 August 2002.

O'BRIEN DCJ: Just a minute. What page did you say?

LAMPPROPOULOS, MR: Page 20, your Honour.

O'BRIEN DCJ: Yes. That’s a report to Dr Wilkins.

LAMPROPOULOS, MR: That's right, of CASA, your Honour, and

Dr Hockings deals with some test results and he concludes

in the final paragraph by saying:

In view of Mr Sterndale's normal coronary angiogram

in 1996, essential normal echo cardiogram and lack of

symptoms even when he is in atrial fibrillation, in


14/04/2009 11:20 LAMPROPOULOS, MR 18


my opinion it would be reasonable to consider the

return of his ATPL.

That's his pilot's licence and it says:

Mr Sterndale is prepared to undergo any further tests

you may feel are necessary.

In response to that, your Honour, if I could take you to

page 360 of the same book, this is a report under the hand

of Dr Sham who is an internal medical officer at CASA.

It's dated 22 August 2002 and your Honour will see from the

end of the first paragraph that the plaintiff is given his

certification to fly as a pilot, class 1 and 2 with the

condition that I mentioned earlier in my opening, as or

with a co-pilot and valid for 12 months.

O'BRIEN DCJ: I am sorry, I can't find that. Page 260?

LAMPROPOULOS, MR: 360, your Honour. Do you see the first

paragraph:

Your case has been discussed by our panel of doctors.

There's a waiver of medical standards has been made and it

says:

An aero medical certificate will be issued.

Which then allows him to be certified to fly and says:

Your medical certificate will have the following

endorsement, class 1 and 2 as or with co-pilot, valid

for 12 months.

Then if I could take you back to page 19, your Honour,

because there was then an application to remove that

restriction. On page 19 there's a report from Dr Hockings

dated 25 September 2002, again to Dr Wilkins at the Civil

Aviation Safety Authority and in the first paragraph it's

said that:

Mr Sterndale received a letter from CASA on 22 August

2002 notifying the following endorsement would be

place on his licence, as or with co-pilot.

And you will see that there's a discussion about that and

then in the fourth last paragraph Dr Hockings says:

In my opinion Mr Sterndale is at very low risk for

embolic events, less than one per cent and I don't


14/04/2009 11:20 LAMPROPOULOS, MR 19


consider he needs to take Warfarin long-term. It may

even be possible for him to discontinue the Sotalol

as he is totally unaware whenever he is in atrial

fibrillation.

And then:

I wondered if you would reconsider the endorsement on

his licence, given that Mr Sterndale is prepared to

discontinue Warfarin and I consider the risk of

embolic events to be less than 1 per cent.

There's then a response to that at page 359, your Honour.

O'BRIEN DCJ: Sorry, what page?

LAMPROPOULOS, MR: 359 and this is a letter dated

15 October 2002 from Dr Sham where he says:

Before a decision can be made regarding your current

certification with multi-crew restriction of class 1

certificate, a second cardiological opinion is

required with particular reference to risk of embolic

events and risk of cerebral bleed. Please see your

designated aviation medical examiner, Dr Bateman, to

arrange a referral for the second cardiological

assessment and opinion.

If I could then take your Honour to page 79 of the book,

that's a hand-written referral by Dr Bateman dated

29 October 2002 and I can tell your Honour Dr Bateman will

be called so he'll be able to decipher some of this

handwriting, but this is a referral to Dr Cook and that

appears at page 242 of the book and Dr Cook I understand is

being called by the defendant and you will see at page 242

there's a report dated 30 January 2003. He deals with the

history of the AF. Towards the middle of the page he says:

Atrial fibrillation has been documented by Holter

monitoring and generally the only symptoms that

Mr Sterndale experiences during atrial fibrillation

are a mild fluttering in his chest and occasionally

fatigue.

The fluttering is the butterfly effect that the plaintiff

will describe. He then goes on, explains the history,

cardiac history, including hypertension and the like and

then over the page at page 243 towards the middle of the

page he says:



In summary Mr Sterndale is a 46-year-old with

paroxysmal atrial fibrillation, treated hypertension

and mild left atrial dilatation demonstrated by echo

cardiogram in September 2001. Assuming good control

of blood pressure, I would estimate Mr Sterndale's

annual risk of a cerebro-vascular event at one per

cent or less.

And a bit further down:

In the presence of well controlled anti-coagulation

with Warfarin, I would estimate the risk of

intra-cranial haemorrhage at less than 0.5 per cent

per year.

That was then sent back to CASA and if I could take your

Honour to page 358, there's a letter from Dr Sham dated

12 February 2003. It says:

Your case has been reconsidered following a second

cardiologist's opinion. A class 1 and 2 medical

certificate valid for 12 months has been issued. The

previous -

I think there's a typographical error there, it should be

“multi-crew restriction”:

- has been removed and this will be sent to you under

separate cover.

And it says in the final paragraph:

Your medical certificate has been endorsed, renewed

by CASA.

Which means that it needed to go through CASA for approval

in future, so the condition was removed so as at February

2003 he had the unconditional medical certification in

relation to the AF to enable him to fly and, indeed, your

Honour, you will see that - if I could take you to the

volume 1 of the consolidated book of trial documents

non-medical and at page 197 there's an employment

application completed by the plaintiff, which was completed

in anticipation of being fully certified, because the

application date - and you'll see page 197 - is 22 November

2002.

And so he was actively looking at getting back to flying,

which is supported by the contemporaneous documents. And

you'll see at page 199, your Honour, the question is asked

towards the middle of page:



You may be asked to work overtime, are you able to do

so?---Yes.

Are you willing to relocate?---Yes.

Explain?---We have lived in different countries and

are used to being flexible and adjusting to new

surroundings, climates and cultures.

And then you'll see that the employment history is set out,

going back from his time at Swissair, which was his most

recent employment, back to when he was working in general

aviation in Western Australia, which appears at page 201.

And those three pages contain a useful summary of his

experience in different places that he worked over his

career as a pilot.

So, in our submission, the evidence suggests - and this is

evidence before the motor vehicle accident - suggests that

his AF was well under control and he was certified fit to

fly. Then the question arises as to the effect of the

motor vehicle accident, and in that regard it, as I

mentioned earlier, there was the - the circumstances of the

accident needs to be taken into account, which was a fairly

dramatic accident, the plaintiff being crushed between the

table and the van, with the table across his chest. So he

suffered crush injuries to his chest.

And in terms of his admission to Royal Perth Hospital, the

Royal Perth Hospital documentation appears in the

consolidated book of medical reports. And if I could take

your Honour first of all to page 262. And that should be a

Royal Perth Hospital department of emergency medicine

summary, your Honour. And you'll see under history and

findings:

Crush injury, truck reversed into patient. Mild

chest pain, also in rapid AF.

And then investigations and results:

ECG rapid AF.

And diagnosis:

Crush injury.

With an arrow - meaning leading to:

AF.



And then over the page, which is the interim final

discharge letter. The very first entry:

Principal diagnosis, rapid AF post trauma and soft

tissue injury.

And then paragraph 3, principal operation procedure refers

to:

ECG, fast AF.

And then if I could take your Honour two pages further on,

which would be page 265, which hasn't come out clearly in

my book, but it's there. And they are the emergency

department case notes, and your Honour will see handwritten

there a reference to:

Chest injury.

And then a bit further down it says:

Reversing truck pushed table and patient into wall,

wedged between the wall and table.

And then the following page your Honour will see that there

are a couple of diagrams on that page. And if I could take

you to the diagram towards the bottom of the page,

your Honour will see that it's a diagram which includes the

left abdominal chest area, and it says:

Slight bruising, tender plus plus over ribs, plus

percussion tenderness and slight guarding.

And then at page 267, a continuation of the case notes,

dealing with the history:

Crush injury, truck reversed into table outside

restaurant crushing patient between truck, table and

fence. Injury mainly to -

Something:

- longitudinal band across upper abdomen.

And then towards the bottom of the page under examination,

it says:

Chest clear.

And then it says:


14/04/2009 11:30 LAMPROPOULOS, MR 23


Pain on ribs 9 - 11 on both sides.

And finally on the notes, page 269 you'll see there's an

entry about a third of the way down, your Honour:

Will need admission under general med as unable to

control fast AF.

Whilst the plaintiff is in hospital, your Honour, X-rays

were taken and they appear at page 275 of the book. First

of all medical imaging report dated 12 May 2003 at page 275

of the book. And then comment made there is:

As pathology in the left lower chest can't be

excluded a repeat PA film is suggested.

And then at page 276 there's a medical imaging report dated

15 May 2003, under findings it says:

No signs of osseous pathology, no rib fractures.

And it says:

A fairly small atrophic left kidney.

Was identified. Conclusion:

No signs of post traumatic pathology, normal liver

and spleen, no free fluid, an incidental finding is a

very small atrophic left kidney with a hypertrophic

right kidney.

Now - - -

O'BRIEN DCJ: What's atrophic mean?

LAMPROPOULOS, MR: I think we're going to have to come

back to that, your Honour. I do know, but - but that

really is neither here nor there that part of it,

your Honour.

O'BRIEN DCJ: No.

LAMPROPOULOS, MR: So you don't need to consider that.

But the important thing from those X-rays is that it says

that there are no rib fractures and these X-rays didn't

pick up the rib fractures. But the plaintiff continued to

suffer significant symptoms suggesting rib fractures, and

his GP referred him for a bone scan in order to assess

D5/8/JLT/WADC/CIV/PER/CIV262/2007


that, because a bone scan is more sensitive then X-rays in

picking up fractures.

And the bone scan appears at page 256 of the book. And

this was undertaken on 3 May 2003 on a referral from

Dr Ozanne, the plaintiff's GP. And you'll see under

comment what's been:

Anterior rib fractures are demonstrated involving the

anterior ends of the right 7th and 8th and the left

6th and 9th ribs. No posterior rib fractures are

identified

And the incidental note is the very small left kidney. So

it’s clear that the plaintiff did suffer fractures to the

ribs; it wasn’t picked up initially by the X-rays at Royal

Perth Hospital but was picked up by the bone scan within a

couple of weeks.

So in relation to whether or not the motor vehicle accident

did aggravate the AF which was previously under control, we

say that there’s a presumptive inference that first of all

arises from that sequence of events where it was

controlled. Then he suffers a crush injury to the chest

which had involved a fractured rib, so it was a significant

crush injury. And then his AF became uncontrolled at the

hospital. There’s a presumptive inference that the motor

vehicle accident aggravated that and that inference is then

supported by the evidence of just about all the relevant

medical practitioners with the exception of Dr Langton.

Now, if I could briefly take your Honour to that evidence

starting with Dr Hockings, the cardiologist who, of course,

saw the plaintiff before the motor vehicle accident and

also after. So if I could take your Honour to page 18 of

the consolidated book of medical records. This is a report

from Dr Hockings on 16 June 2003. He says:

I saw John for review on 16 June -

So the month after the accident:

He is gradually improving from the point of view of

the fractured ribs but his atrial fibrillation

continues to be troublesome. He seems to be in AF

much more since the accident.

Then going back at page 17 is a reported dated 8 October

2003. The second paragraph he says:



At one stage, we almost had the AF under control with

Sotalol but John was involved in a crush injury when

he was hit by a truck as a pedestrian and, since that

time, his atrial fibrillation has been much more

frequent and is now occurring with minimal exertion.

If I could then take your Honour to page 15, the report of

Dr Hocking, and is dated 26 November 2003. He says in the

second paragraph:

This arrhythmia was well controlled with medications

to the point that he was able to have his ATPL

licence renewed. On 10 May 2003, he was involved in

a motor vehicle accident where he received

significant crush injury. Following this accident,

his atrial fibrillation became much more severe, to

the point where it was no longer able to be

controlled adequately with medication. He has

subsequently undergone a radiofrequency ablation

procedure to try and improve his arrhythmia control.

That is the first ablation; this report was written before

the second ablation procedure. If I could then take

your Honour to page 14, to the report dated 17 May 2004

which was after the second ablation procedure which, as I

mentioned earlier, was in January 2004. And in the second

paragraph, he says:

Unfortunately, since the pulmonary vein isolation,

although his atrial fibrillation has been essentially

controlled, he is aware of chest and throat

discomfort with emotional stress. This comes on

within seconds and will last 5 or 10 minutes.

Sometimes with physical exertion, he will develop

chest discomfort which starts low down and spread

upwards but does not reach the shoulder or jaw.

Now, that observation is interesting, your Honour, in the

context of the defendant’s suggestion that the reference to

emotional or psychological factors came on 5 years after

the event. Here is a report from Dr Hockings in May 2004

where he refers to the ablation procedures which had his

atrial fibrillation essentially controlled but he was aware

of - that’s the plaintiff - complaining of chest and throat

discomfort with emotional stress.

And then if I could take your Honour to page 9 of the book,

which is the third page of a report of Dr Hockings dated

11 May 2005. You’ll see the last paragraph on page 9, he

says:



In my opinion, Mr Sterndale’s medical condition had

been aggravated by the motor vehicle crash. I am

unable to comment as to whether his pre-existing back

had been exacerbated but his cardiac arrhythmia had

increased in severity following the accident.

If I could then take your Honour to Dr Cook(?), the other

cardiologist that saw the plaintiff before the motor

vehicle accident. And if I could take your Honour to

page 240, which is a report dated 22 April 2005, addressed

to the defendant’s solicitors. And he’s referred to the

documentation, the medical documentation, and two-thirds of

the way down he says:

I note, however, from Dr Hockings’s correspondence of

26 November 2003 and Dr Weerasooriya’s correspondence

of 1 April 2005, the control of Mr Sterndale’s

pre-accident atrial fibrillation appeared to

deteriorate following his involvement in a motor

vehicle incident of 10 May 2003.

And he says:

It is probable that Mr Sterndale was offered catheter

ablation for atrial fibrillation due to a

deterioration in his symptoms following the motor

vehicle incident of 10 May 2003.

And then, dealing with Dr Weerasooriya - the doctor who

carried out the ablation procedures - if I could take

your Honour to page 24, a report from Dr Weerasooriya dated

15 March 2004. And he mentions that he’d been seeing

Mr Sterndale since October 2003 and he says:

The history which I have obtained would indicate that

John had well controlled atrial fibrillation on

medical treatment prior to an accident on 10 May 2003

when he received significant injuries. The history

certainly suggests a marked increase in the severity

of his palpitations following this accident.

And then in the final paragraph:

While there is no published data suggestive that

physical trauma can make atrial fibrillation worse,

the history obtained by myself and my colleague

Dr Hockings would suggest that, in this case, the

stress of a motor vehicle accident did worsen

Mr Sterndale’s atrial fibrillation.



And at page 22 is a report, again from Dr Weerasooriya,

dated 14 September 2004 and the second main paragraph it

says:

Pulmonary vein ablation is generally considered for

patients with highly symptomatic drug-refractory

atrial fibrillation -

Which is what the plaintiff had after the motor vehicle

accident, not before. And he says:

Prior to his accident, Mr Sterndale would not have

been considered a suitable candidate for pulmonary

vein ablation as his symptoms were far too well

controlled on anti-arrhythmic medication.

And then says he went on to have two ablations and he says:

I believe that there is a clear temporal relationship

between the worsening of atrial fibrillation and the

accident. Although there is, no doubt, in the

literature to firmly support a severe crush injury

for worsening atrial fibrillation, the history is

clear and I believe it is reasonable to propose that

the accident did aggravate the atrial fibrillation.

If I could then take your Honour to page 46 of the book

which is a report of Dr Ozanne, the plaintiff's GP. It's a

report dated 28 November 2005 and at page 46, this is the

second page of the report, it says:

There is both a temporal relationship and a causative

relationship between the MVA and the aggravation of

Mr Sterndale's atrial fibrillation. Evidence of

temporal relationship includes -

And then he identifies the evidence as well as an article

in the New England Journal of Medicine co-authored by

Professor Pretr entitled "Blunt Trauma To The Heart and

Great Vessels," and then over the page the evidence of the

causative relationship is there also and he identifies the

publications which would support that.

If I can next take your Honour to page 226, the report from

Dr Peter Bremner, a respiratory physician who I understand

is being called by the defendant and your Honour will see

in the second paragraph Dr Bremner says that:

He, the plaintiff, fractured several ribs as a result

of his accident and there is no doubt that they will

result in some reduction in chest wall compliance.


14/04/2009 11:50 LAMPROPOULOS, MR 28


And then at the end his evidence may offer an explanation

for some of this reduction in his exercise capacity for

reasons outlined above.

O'BRIEN DCJ: What does that relate to? His

breathlessness?

LAMPROPOULOS, MR: Yes, your Honour. If I could next take

your Honour to page 160 which is the second page of a

report from Dr Vohra who is also a cardiologist and at the

top of the page he says:

I agree that Mr Sterndale's atrial fibrillation was

under reasonable control before the MVA.

And he says:

There is, of course, no doubt that atrial

fibrillation that occurred immediately following the

accident was related to the accident and this is

amply supported by the medical literature on chest

wall trauma and I agree that rapid atrial

fibrillation is not uncommon following a chest injury

like this.

And then the end of the next paragraph he said:

It is likely that the condition was aggravated by the

significant chest injury that he suffered.

If I could then take your Honour to page 138 which is part

of a report, on the second page of a report by Professor

Pretr who has an international reputation as a cardiac

surgeon and just as an aside, he is one of the doctors

called in when Princess Diana suffered her accident, so he

is a well known expert with a substantial reputation and

you will see at page 138, your Honour - - -

O'BRIEN DCJ: Just a minute while I get this in context,

so this is a report dated when?

LAMPROPOULOS, MR: It's not dated, but I understand it's

at the end of 2006. Yes, the end of 2006, yes, your

Honour.

O'BRIEN DCJ: I don't think it follows. Does it start at

136?


14/04/2009 11:50 LAMPROPOULOS, MR 29


LAMPROPOULOS, MR: No, your Honour. There's one at 135

which answers two questions, then there's an email, some

email correspondence at the end of 2006 and then there's

this part of the report and that's what makes me think it's

the end of 2006 that it was obtained.

O'BRIEN DCJ: Just a minute. Is this all going to be

explained?

LAMPROPOULOS, MR: Yes, Professor Pretr is being called,

yes, your Honour.

O'BRIEN DCJ: Yes, so I am looking at page 138?

LAMPROPOULOS, MR: Yes, your Honour. He first of all

deals with blunt chest trauma and he mentions that the

correct evaluation of a blunt chest trauma is one of the

most difficult tasks of a trauma doctor and, of course,

it's the doctors in trauma that come across as the most

first-hand in the early stages and he gives some

explanation of the difficulty, then over the page the first

question:

Was Mr Sterndale fit to fly as a commercial airline

pilot at the time of the MVA?

He deals with that and importantly for present purposes,

the second question:

Relationship between the MVA and the worsening of

atrial fibrillation.

And your Honour will see the second paragraph under that

heading, Professor Pretr says:

A chest crush like the one experienced by

Mr Sterndale can trigger atrial fibrillation in a few

ways.

He explains that both in terms of the stress and the

increase in the venous pulmonary veins, pressure. And then

the next paragraph he says:

To me there is no doubt that the accident was

responsible for the episode of atrial fibrillation

documented in the emergency room.

And he describes that and then the next paragraph:

The available documents convince -



He points out to a definitive exacerbation of the atrial

fibrillation following the accident:

The situation was extremely stable before with very

short episodes and spontaneous termination and

minimal requirement for medication, aimed almost

exclusively at reducing the slight tachycardia

noticed during the episodes. After the accident,

both the rate of occurrence and the duration of the

episodes had definitively worsened, requiring an

aggressive approach to try to bring the arrhythmia

under control. The dramatic worsening has been

clearly caused by the chest injury, by inducing the

very long episode and probably by increasing the rate

of episodes; it has increased the susceptibility of

the atrium to other triggers or to previously

subliminal triggers.

And then he goes on the explain that and at the end of that

heading he deals with the radio frequency ablation and then

he says:

Although these symptoms cannot be directly attributed

to the MVA, the MVA triggered the initial

decompensation which, with a domino effect, led to

further deterioration of Mr Sterndale's condition.

So all the evidence from those various doctors supports the

conclusion that there was an aggravation by the motor

vehicle accident, it didn't resolve spontaneously within a

matter of hours, the symptoms continued and the plaintiff

required ablation procedures as a result of that.

The one doctor who basically stands alone in that regard is

a Doctor Langton who is being called by the defendant and

his reports appear at page 244 and 246 of the book. The

report from Dr Langton was commissioned by the Insurance

Commission and the letter of referral will be produced in

due course.


14/04/2009 12:00 LAMPROPOULOS, MR 31


It's important to note, your Honour, that Dr Langton has

never seen or examined the plaintiff. His reports contain

a number of factual errors. His reports contain a number

of cynical - what we would say are cynical comments, which

would be inadmissible in any event. And the report in

large part reads more like a submission than an objective

report. We'll be making submissions in that regard in due

course.

But the effect of what he says is that the - he doesn't

accept that the motor vehicle accident caused the AF that

the plaintiff suffered in hospital; it may have been just a

coincidence. He suggests that even if it did it improved

spontaneously. And even if it didn't improve spontaneously

and it was necessary to have the ablation procedures

because of the effect of the motor vehicle accident, that

the ablation procedures were successful and therefore the

plaintiff went back to the way he was before the motor

vehicle accident.

So on the basis of that evidence and the history of the

accident and the aggravation; we'd be inviting your Honour

to conclude in due course that the motor vehicle accident

obviously did aggravate the atrial fibrillation. It did

make the condition refractory, it did increase the

symptoms, and that it did cause the plaintiff anxiety, and

that the effects of the motor vehicle accident did

contribute to the need for the two ablation procedures.

The next question then, your Honour, would be whether - or

did the symptoms caused by the motor vehicle accident, that

is the aggravation of the AF and the associated symptoms

and treatment, did that cause psychological harm. You'll

hear Professor Pretr suggest that in 2008 to have the

plaintiff's neurovegetative state examined or explored,

which is a reference to the psychological state.

The plaintiff was initially sent off to see Dr Ng. He made

a psychological diagnosis, he said that the plaintiff did

require psychological treatment, and the plaintiff was then

referred by the GP to Dr Blumberg, who has provided reports

which are in the main book. And just recently last week he

provided an updated report which is in the - or should be

in the supplementary book. And that's a report dated - - -

O'BRIEN DCJ: The supplementary book of documents?

LAMPROPOULOS, MR: Pardon, your Honour?


14/04/2009 12:00 HER HONOUR 32


O'BRIEN DCJ: Supplementary - - -

LAMPROPOULOS, MR: It's in the supplementary book, yes,

your Honour. It's a report from Dr Blumberg dated

8 April 2009.

O'BRIEN DCJ: Yes, let me just find that.

LAMPROPOULOS, MR: I'm told that may have come in after

the book.

O'BRIEN DCJ: I've got a single report, but I don’t seem

to have a supplementary book.

LAMPROPOULOS, MR: Well, perhaps I can look into that in a

moment, your Honour. But if I could take - - -

O'BRIEN DCJ: Yes, I've got this.

LAMPROPOULOS, MR: Is that a report dated 8 April 2009?

O'BRIEN DCJ: Yes, I've got that.

LAMPROPOULOS, MR: Yes, thank you, your Honour.

O'BRIEN DCJ: So should I have the supplementary book of

medical reports? No, just this.

LAMPROPOULOS, MR: The supplementary book only contained

then the - - -

O'BRIEN DCJ: Non medical.

LAMPROPOULOS, MR: - - - non medical, yes, your Honour.

O'BRIEN DCJ: Yes, all right. I've certainly got the

report of Mr Blumberg on April 8.

LAMPROPOULOS, MR: Thank you, your Honour. You'll see

from that report, your Honour, that on the second page he

mentions some further documentation that's been provided to

him since the previous - his previous report, including the

report authored by Dr McCarthy, the consultant

psychiatrist.

He deals with the plaintiff's current psychiatric

symptoms. He mentions the antidepressants that the

plaintiff has been taking. Then over the page he

specifically deals with the dosages of the medications. He

deals with the definition of a psychotropic drug, which is

a drug which is capable of affecting the mind, emotions and


14/04/2009 12:00 LAMPROPOULOS, MR 33


behaviour. And he says that the antidepressant medications

are psychotropic medications, that's both the Effexor and

the Dothep.

He then deals with the antihypertensive cardiac

medications. Deals with the mental state examination and

the current functioning of the plaintiff. And then over

the page he says using the internationally recognised

diagnostic system of the American Psychiatry Association,

known as DSM-IV, he makes a diagnosis of chronic adjustment

disorder with anxiety and depressed mood, or I should say

he maintains his diagnosis, because he made that diagnosis

earlier.

And then at the bottom under the heading of opinion he says

that:

Mr Sterndale still continues to suffer from

pathological anxiety and depressive symptoms.

And he - - -

O'BRIEN DCJ: I'm not following.

LAMPROPOULOS, MR: That’s at page 4 of the report,

your Honour, at the bottom under the heading opinion.

O'BRIEN DCJ: Yes.

LAMPROPOULOS, MR:



O'BRIEN DCJ: Yes, the page 4 is not here, that's why I

can't find it.

LAMPROPOULOS, MR: Okay. If I could hand up a complete

copy of the report, thank you, your Honour.

O'BRIEN DCJ: Thanks. Yes.

LAMPROPOULOS, MR: Your Honour will see there first of all

he's got the psychiatric diagnosis.

O'BRIEN DCJ: Yes.

LAMPROPOULOS, MR: And then at the bottom it's got

opinion:





And that's explained. And then he refers over the page to

the review by Dr McCarthy. He refers to the history of the

plaintiff's problem. And then if I could take you to page

6, he then deals with the - first of all deals with the

diagnosis, confirms that his opinion is still that of - a

diagnosis of a chronic adjustment disorder with anxiety and

depressed mood. Refers to Dr McCarthy's diagnosis of a

more serious condition, a major depressive disorder of

moderate severity in partial remission. But Dr Blumberg is

still of the view that it's a milder version, the chronic

adjustment disorder with anxiety.

Then in terms of the current state of Mr Sterndale's

psychiatric condition and the medications, it refers back

to the body of the report. And then future treatment and

medication requirements over the page. He says:

In my opinion, Mr Sterndale needs to continue with

regular psychiatric..........his mental state will

need to continue to be reviewed on a monthly basis.

And that:

He should continue to see Mr Wygill in relation to

behavioural therapy every four to six weeks for

ongoing follow up to help deal and address his

ongoing anxiety symptoms and panic attacks.

And then under prognosis he says:

Mr Sterndale still continues to experience anxiety

symptoms and panic..........the long term to prevent

any further decompensation in his mental state.

Then he says:

In my opinion, Mr Sterndale’s crush injury was the

main precipitating factor for his anxiety symptoms

and panic attacks. His psychiatric presentation was

not addressed, until he was reviewed Dr Ng, in

June 2008, who recommended a pharmacological and

psychological treatment.

And then a bit further down:

In my opinion, from a psychiatric perspective,

Mr Sterndale will be unable to return to his

pre-injury occupation as a commercial pilot, due to



the possibility of having further panic attacks in

the future.

And then the next paragraph:

In my opinion, Mr Sterndale’s psychiatric condition

is likely to be permanent, in the sense that he

possibly will continue to experience further panic

attacks, which could occur spontaneously or when

under stress and he’ll continue to be at risk of

having future having panic attacks, despite being on

appropriate medication.

And then over the page, towards the middle of the page, it

says:

In my opinion, the delay in diagnosing the

psychiatric condition did have an effect on

Mr Sterndale’s mental state. By delaying the

diagnosis, Mr Sterndale continued to experience

“panic symptoms” and panic attacks and was under the

impression these symptoms were cardiac symptoms from

his atrial fibrillation.

Due to the delay in diagnosis, Mr Sterndale was only

commenced on psychotropic medications at the time of

his psychiatric diagnosis. Since being commenced on

medications, his mental state has improved. He

presents less anxious and has responded positively to

a combination of psychotropic medications and

psychotherapy. He unfortunately does still

experience “unpredictable panic attacks”, which occur

spontaneously and in response to stress.

And then in relation to capacity to work as a pilot. It

says:

As stated in my report, Mr Sterndale continues to

experience unpredictable panic attacks and thus, will

not fulfil CASA’s criteria to get an aviation

clearance. Mr Sterndale has been prescribed

antidepressant psychotropic medications and in my

opinion, will need to continue to take this

medication in the foreseeable future.

Then he says:

I’m also of the opinion that Mr Sterndale will not be

able to engage in work that involves significant

stress, as significant stress is a trigger for future

panic attacks.



And then, over the page to the question the relevance of

the motor vehicle accident to the current psychological

condition, he says:

From the history and collateral history available,

Mr Sterndale did not describe experiencing panic

attacks, anxiety attacks or depressive symptoms,

prior to the accident on 10 May 2003. Mr Sterndale’s

motor vehicle accident and resulting chest wall

injury, which had an effect on his chest wall

compliance and breathing difficulties, seem to have

been major precipitating factors for the genesis of

his anxiety and panic symptoms. Not being able to

fly is further perpetuating his depressive

symptomatology.

In our submission, based on that psychiatric evidence we

say there’s a clear cause of connection between the motor

vehicle accident and his anxiety state. The motor vehicle

accident was at least a material contributing factor and

flowing on from that we would say that as a matter of

common experience and common sense, that the anxiety

attacks and shortness of breath would mean that the

person’s not fit to fly a plane, because he needs to be in

a position to address stressful situations like landing in

difficult weather conditions or addressing any emergency

that should arise and he really doesn’t fit that criteria.

I should also perhaps refer your Honour to the booklet,

“The designated aviation medical examiners’ handbook”,

which your Honour mentioned earlier you were eager to

read. If I could just take your Honour to that. This is

basically a book designed to assist designated aviation

medical examiners and it deals with the system overall and

then identifies various medical aspects that a medical

examiner needs to take into account.

It deals, for example, at 2.2.1 with cardiology. It deals

at 2.2.5 with hypertension and mentions that controlled

adequately treated hypertension is allowable at all levels

of licence, provided there is no significant organ damage

and the like, but then, at 2.6.1, it deals with psychiatry.

In the introduction, your Honour will see it says that the

aim of the psychiatric assessment within the aero-medical

examination is to ensure that applicants do not suffer from

psychological disorders or psychiatric disease which places

them at an increased risk of incapacitation, which may

produce a decrement - in detriment in psychological or

higher cortical function, which may jeopardise the safety


14/04/2009 12:20 LAMPROPOULOS, MR 37


of air navigation. That particular concern is the

potential from an affected individual to commit an unsafe

act and impairs a safe operation of an aircraft.

Identifies the activities a pilot would need to undertake.

It also mentions interestingly enough at the bottom, a

number of these stresses may also affect air traffic

controllers. I say that’s interesting your Honour, because

I think that’s one of the alternative occupations that’s

suggested by the defendant, but the medical requirements

are basically the same for air traffic controllers and they

have similar stress levels.

Then at 2.6.3, it talks about psychiatric assessment and

how that is to be undertaken and it mentions towards the

end of that page, that CASA may require a pilot or an air

traffic controller to be assessed by a consultant

psychiatrist as part of its consideration of an applicant’s

fitness for aero-medical certification.

Then over the page, 2.6.4, “Documentation of psychiatric

conditions”. There’s their reference to DSM4 as being the

basis upon which the assessment’s done and that’s of course

what both doctors Ng and Dr Blumberg used and it says:

A DSM4 categorises psychiatric disorders and disease

along several axes. Axis 1, clinical syndromes.

Axis 2, developmental disorders, personality

disorders -

And it says that:

- the first three axes constitute the diagnostic

assessment of a patient for psychiatric condition and

it says that conditions in axis 1 are the most likely

to be of aero-medical concern in the flying safety

context.

Of course, the diagnosis made by Dr Blumberg is under

axis 1. If I could then take your Honour to 2.6.10,

dealing with the different types of psychological

disorders, there's a first reference to heading, mood

disorders and then depression.

O'BRIEN DCJ: I can't find depression.

LAMPROPOULOS, MR: 2.6.10, your Honour.

O'BRIEN DCJ: It seems to go from - tell me if your book

is the same, 6.8 and then the next page down the bottom is

2.6.11, I think.


14/04/2009 12:20 LAMPROPOULOS, MR 38


LAMPROPOULOS, MR: Further on from that, your Honour,

there should be - - -

O'BRIEN DCJ: Yes, I am misled by the numbers at the

bottom.

LAMPROPOULOS, MR: The numbers at the bottom.

O'BRIEN DCJ: Yes, I've got it.

LAMPROPOULOS, MR: So that's got the mood disorders and

then two pages further on it deals with the use of

anti-depressant medication by depressed pilots and air

traffic controllers and then over the page and most

relevantly for present purposes there's 2.6.11, the heading

anxiety disorders and your Honour will see under the

heading anxiety disorders it says that:

DSM4 has eliminated the term neurosis and dispersed

the diagnosis from this former category of disorders

amongst four other headings.

The second bullet point is “anxiety disorders”, then it

goes on to say:

Because panic attacks and agoraphobia may occur in

the context of any anxiety disorder as well as an

association with other mental disorders, they are

defined separately hereunder.

And then there's a heading “panic attacks” and at the end

of that heading your Honour will see the sentence:

CASA will not usually grant aero-medical

certification to an individual who suffers from

non-specific or unpredictable panic attacks.

And Dr Blumberg was specifically asked about that and

concluded that the plaintiff does come within that

description and then if I could finally take your Honour to

2.13 and at the bottom, 2.13-7, your Honour.

O'BRIEN DCJ: Sorry, could you give me the numbers again,

please?

LAMPROPOULOS, MR: At the bottom right-hand corner should

be a page 2.13-7.

O'BRIEN DCJ: Thank you.



LAMPROPOULOS, MR: And that should have a heading, your

Honour, “medications not acceptable for/not compatible with

aviation related duties”. It says:

The following medications are not compatible with

aviation related duties and are never to be approved

for use by a medical certificate holder without prior

specific written approval by CASA.

And the fifth bullet point down is psychotropic medications

and again Dr Blumberg was specifically asked about that and

he said that the medications that the plaintiff is on and

will need to continue to take are psychotropic medications,

so based on that it will be our submission that the

plaintiff is unfit to work as a pilot and is also unfit to

be certified to work as a pilot.

The medical requirements for an air traffic controllers are

similar, so he's effectively unfit for that as well. The

defendant suggests that the plaintiff may be fit for

alternative duties and with respect it seems that he would

be fit for mundane clerical type work not involving undue

stress, but then again the plaintiff needs to - I beg your

pardon, the defendant needs to identify alternative

positions or the alternative job market and demonstrate, at

least discharge an evidential onus to show that the

plaintiff would be able to secure that sort of employment.

The defendant's case is otherwise that there's no causal

connection between this unfitness and the motor vehicle

accident and in any event pre-existing conditions. I

should also mention in weighing up the defendant's case

with regard to this and bearing in mind the onus the

defendant carries that the defendant also had the plaintiff

reviewed by a number of other medical practitioners.

The defendant had the plaintiff reviewed by Dr Marsden, an

occupational physician, had him reviewed on two occasions

and obtained reports from Dr Marsden, but the defendant is

choosing not to call that doctor. They also had the

plaintiff reviewed by yet another cardiologist, a

Dr Tofler, but they aren't calling him.

As I mentioned earlier, they had him reviewed by

Dr McCarthy, not calling him. They had him reviewed by

Dr Wright, an orthopaedic surgeon, but they aren't calling

him either. Basically they're pinning their whole case on

Dr Langton who has never seen the plaintiff.

The defendant on this shifting onus in terms of alternative

duties also obtained a report from a Mr Hopkins in relation

D5/13/GE/WADC/CIV/PER/CIV262/2007


to job opportunities and the economy and the like. They

are choosing not to call him as well, but the plaintiff

will be calling Mr Hawkins to give evidence in that regard

together with Professor Langdon and Mr Cox.

Now, in that context if I could take your Honour to the

schedule of damages which is dated 3 April 2009. The first

heading is “special damages” and perhaps going through

that, if I can also refer to the defendant's response to

plaintiff's particulars of damages. I notice that under

this heading it's said by the defendant that the defendant

does not dispute the quantum of the amounts claimed, but

disputes that the claimed expenses were incurred for

accident related treatment, so it seems we're not put to

the proof of the quantum, but your Honour will need to

determine whether or not the accident played a part in

worsening the AF and also in causing the need for

psychological treatment and then if your Honour were to

make those findings, then it seems the defendant wou

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