background....

The Short Version:

Until our motor vehicle accident in 2003, I was an international airline pilot with over 12.000 accident free flying hours. It was a profession that gave me great pleasure and satisfaction. Since the accident, I have not been able to return to work and the aviation authorities have cancelled my licences because of my health problems. What followed is an ongoing nine-years-battle for compensation which has left us without any compensation, broke and with legal bills amounting to hundreds of thousands of dollars.

My case and research has shown the following serious faults in the system:

• The WA Insurance Commission will withhold, as standard practice, ALL expert or medical evidence that supports a claimant's case
• It will allow and actively support its lawyers to argue a case knowing from the outset that it is incorrect, includes false accusations and claims with the purpose of misleading and misinforming the judge

• It allowed the responsible Case Manager to use his brother to compile an "expert" medical report on behalf of ICWA
• ICWA's CEO admits that he is powerless to reassign or dismiss an out of control case manager, because he is a public servant
• ICWA's CEO is aware of intimidation by one of his case managers who has a grudge with two barristers associated with my case, but is unable to do anything

• ICWA is allowed use its superior financial resources to break a claimant
• 90% of large claims will go before a court for settlement
• Claims and supporting medical evidence is assessed by a public service case manager without any medical training.
• The amount of compensation offered, if any, will be decided by a case manger without any medical training

• The WA Ombudsman actively suppresses his own investigators' highly critical findings into the actions of ICWA in its handling of claims
• The WA Ombudsman goes as far as to deny the existence of any negative findings by his investigators against ICWA
• The WA Ombudsman finds that it is "a legitimate tactic in an adversarial system" for ICWA to withhold evidence from the court and use its superior resources to the detriment of the claimant.

• Any court ruling is therefore arbitary because the judge never gets to see all the facts
• The judge assigned to hear a case is based on the luck of the draw and he/she might have no experience in personal injury law and would therefore be unsuitable to preside over the case
• The no compensation - no fee claim that many personal injury lawyers like to sell to their clients, has some possibly ruinous trappings
• Unlike the Eastern States, Western Australia has no Judicial Review Commission to oversee the performance of the  Judiciary as a whole and particularly the performance of individual judges.

The Long and Detailed Version:

My problems started on the evening of Saturday the 10^th of May 2003 when my wife, three of our children and myself had gone out for dinner in Northbridge to celebrate Mother's Day. We were seated in the alfresco area of the Vino Vino Restaurant on James Street and had just finished our meal when a delivery van came crashing through the fence which surrounded the outside dining area, felling a tree in its path, hitting our table and pushing it along until it became wedged against a post. While the rest of my family was able to free themselves, I was wedged in between the delivery van's rear, the table’s edge and the post. My then 10 year old daughter Samantha was the first to free herself and seeing that I was stuck tightly and unable to breath, started to jump up and down on what was left of the table and got it to collapse and thereby setting me free. We were eventually all taken to various hospitals, My older daughter Amanda and myself were transferred to Royal Perth Hospital while Princess Margaret Magaret Hospital took care our son Christopher and daughter Samantha accompanied by my wife Esther. 

The van driver, it turned out, had never possessed a driver's licence, had been caught three times driving under the influence and without a licence. In  addition, at the time of the accident he was driving unsupervised with a learner's permit. Approximately three weeks after our MVA, the driver was caught again driving under the influence. He has never faced any charges as a result of our MVA. 

The Royal Perth Emergency Department was overwhelmed by patients; many drunk and abusive towards staff and a lack of beds. I was eventually diagnosed with severe atrial fibrillation (an electrical problem of the heart). The severity of the MVA'a impact was missed as were the six broken ribs I had suffered. As a result I was not admitted to the ICU section for monitoring. The next morning, Sunday, I was released from RPH and sent home without any medication or aftercare instructions. It was not until Monday morning, that our GP Dr. Neil Ozanne examined us all thoroughly and discovered that we had all suffered various injuries including Samantha’s compressed bladder and various cuts and bruises. In mymy own six broken ribs were overlooked and that I was still suffering from atrial fibrillation of the heart. It was Dr. Ozanne that then referred me to a cardiologist for treatment and ordered MRI’s and Chest Scans etc. 

Until the accident, I had been a professional pilot, trained in WA back in the late 70’s, working first as a “bush" and coastal surveillance pilot flying off the North West Coast. After marrying my Swiss wife Esther in 1979, we moved back to Switzerland in 1981, where I worked first in Libya, flying for the oil industry and later flying VIP jets based in Geneva. Finally in 1986, I joined the Swissair Group flying large commercial airliners and in 1989, I was promoted to Captain and Fleet Technical Pilot. I remained with Swissair until 2002, when the company collapsed as a result of the 9/11 terrorist attacks and their effects on the airline industry. During a routine medical examination I had been diagnosed with episodes of atrial fibrillation back in August 2001 and was placed on sick leave to get the necessary treatment. Eventually I was diagnosed with the mildest and most easily treatable type of AF, lone paroxysmal atrial fibrillation. After receiving this diagnosis and the assurance that I would be able to fly again, my wife and I made the fateful decision to return to Perth in mid 2002, where I would complete treatment and then return to flying as a captain with a Middle Eastern airline such as Emirates, Qatar or Etihad. My Airline Transport Licence was reissued in February 2003 by the Australian Civil Aviation and Safety Administration (CASA)  whereupon I applied to Qatar Airways. Before I could attend the employment interview with Qatar Airways, I suffered the MVA on 10 May 2003 and my licence was again suspended. After the MVA, I was diagnosed with a more severe type of atrial fibrillation called Persistent Atrial Fibrillation. This more serious type of AF was resistant to all medication and eventually  I required two radio frequency ablation procedures to cure the AF. The first procedure took place in November 2003 and the second in February 2004.  

However, after the second ablation procedure, symptoms such as perspiration, rapid fatigue, chest tightness, dizziness and shortness of breath remained and in some cases intensified as time went on. It was as a result of my continued atrial fibrillation/angina like symptoms after the second ablation procedure in January 2004 that I was investigated for other possible cardiac related causes, such as pulmonary vein stenosis (narrowing of vein) angina and continuing atrial fibrillation etc. By 2007, all possible cardiac causes had been eliminated and yet the well documented symptoms remained. It was then that ICWA’s Dr. Paul Langton, in his first report for ICWA dated 10 January 2008, put forward the idea that my symptoms were not cardiac related but instead caused by stress.

When one of my own doctors also suggested my symptoms could have a psychological cause, I was referred first to the psychiatrist Dr. Ng for a medical legal report and as a result of his findings, further referred to psychiatrist Dr. Lawrence Blumberg for treatment. When the psychological medication started to work, it confirmed that my symptoms were of a psychological nature and not cardiac related. This diagnosis and a very detailed explanation on how the mental illness had developed over time was confirmed and contained in the report obtained by ICWA from its Dr. Peter McCarthy. Furthermore, it confirmed that the second ablation procedure back in February 2004 had been a success and cured my atrial fibrillation.  

We now were in the situation that six months before trial begin in March 2009, all the experts, including ICWA’s, agreed to the cause of my symptoms. A cardiac cause had been finally eliminated, the cure of the atrial fibrillation had been confirmed, three psychiatrists including ICWA’s Dr. Peter McCarthy, agreed that I was suffering from Anxiety and Panic attacks and Post Traumatic Stress Disorder and this diagnosis was confirmed by the fact that the psychotropic medication which had been prescribed was working and reducing the symptoms I was suffering from.

Furthermore, both the Australian Aviation and Safety Administration (CASA) and the European Joint Aviation Authority (JAA) confirmed that as a result of the symptoms I was suffering from, I would no longer be able to fly again. Although it was ICWA and its medical expert Dr Paul Langton (his report dated 10 January 2008) that had first suggested my symptoms were stress related and not cardiac related, they now disputed the psychiatric evidence. It seems that after opening Pandora’s box, they didn’t like what they found and started to search for a cardiac cause as the psychiatric diagnosis was now being rejected by ICWA. As a result, as late as August 2008, I was forced by ICWA, under threat of a further trial postponement, to undergo an invasive Thallium scan test. According to my doctors and ICWA’s Dr. Peter McCarthy, is this not only an outdated test, but it also had the unnecessary risk of causing a cardiac event, such as a heart attack. 

Here are the  doctors ICWA had obtained medical reports from: 

Dealing with ICWA:

Any third party injured in an MVA becomes a case for the Insurance Commission of Western Australia (ICWA.) Initially, I dealt with them only in regard to my medical expenses which in itself was a nightmare. Doctors refuse to bill ICWA directly, because they wait years for payment and sometimes don’t get paid at all. As a result, I initially paid for my medical expenses out of my own pocket and asked ICWA for a refund. For months ICWA refused to refund any of my expenses because they were unable to locate the driver of the van and get a signed statement from him. After about six months, they did start paying some of my medical expenses, however, incorrect amounts were refunded and again only after long delays.

This is when I first contacted a lawyer and he eventually asked for ICWA to pay for the required two procedures to the heart. ICWA refused because they felt there was no connection with the MVA. Salary continuance was refused and  - as any salary continuance payments are at the sole discretion of ICWA - I had no chance to force them by other means. My solicitor explained to me at the time that ICWA virtually never agrees to salary continuance because it takes pressure off victims and they, ICWA, want to maintain maximum pressure on claimants to force them to agree to a low payout.

I was naïve enough to think at the time that this was not going to happen to me. We had sizeable savings and assets and I would not allow myself to be pushed into a corner. What followed was years of delays by ICWA and its legal representatives. Compulsory settlement conferences were purposefully sabotaged, supported by arguments such as: "We have lost some of the documentation and had not found time to speak with the client."

During one of these settlement conferences in 2007, ICWA solicitor, Mr. Roger Sands, made an offer of $500.000 and was asked how they derived that figure. His reply was that he had had insufficient time (4 years) to to discuss the claim with with his client and that he was unable to provide a breakdown of how he arrived at this figure. Eventually the trial was scheduled for mid January 2008. By this time ICWA had only sent me to a single expert of theirs, an Occupational Health Specialist and authorised Civil Aviation Medical Examiner, by the name of Dr. Andrew Marsden. His report supported my claim fully and confirmed that I would be unable to fly again. ICWA went as far to confirm in a letter to our party that the MVA was the cause of why I could no longer return to flying. Asked if they required me to attend further medical examinations before trial  commencement, ICWA’s lawyers answered with no. Just weeks before trial begin - with the Christmas/New Year break in between - ICWA’s lawyers demanded that I attend three additional medical examinations. As a result, the one week trial was postponed and I was left with $30.000 to $40.000 in legal preparation costs. ICWA refused to reimburse me and  instead insisted on “cost in the cause”, meaning that this would be settled at the end of the case. Again, I had to pay these costs and in the meantime, the financial pressure was increasing. By this time we had to make the difficult decision to sell our beautiful family home in Kalamunda.

The trial had been rescheduled for March 2008, when just before a pre trial conference scheduled for February 2008, ICWA announced that it had replaced its legal team and also made an offer of $1.250.000. Again, ICWA was unable to substantiate the figure. Right at the beginning of the pre trial conference, a very nasty and personal verbal fight broke out between ICWA’s new barrister and my barrister. The situation escalated to the extent that even the head registrar of the district court could hardly get the situation under control. At this point, ICWA’s new team insisted on a lengthening of the trial from one to two weeks. I replaced my barrister as there was open hostility between the two and my case was suffering as a consequence. Then the trial date was further postponed to August 2008, further preparation costs arose and of course ICWA insisted the costs should be settled at the end of the case.

History of settlement and trial postponements: 

Please note an email from my solicitors John D’Angelo to Talbot & Olivier, dated  26 August 2008, listing all the delays caused by them, including settlement conferences etc. 

Reasons for trial postponements: 

Trial:

Up until the trial, the parties had had to appear a number of times before judge Goetze. He had made it abundantly clear that he was not going to be  put through having to listen to seven cardiologists, instead requesting “hot tubbing" all the experts in a particular medical field get together and make up a list of what they can agree on and what they can’t and the condensed results are then presented to the judge. It is meant to streamline testimony and avoid duplication of testimony and reduces costs. Although agreed to by ICWA’s barrister John Staude, he went on to request a trial lengthening from two to three weeks during the final hearing before judge Goetze. In the lead up to the trial ICWA’s legal team informed us that all previous consent given for documents and reports to be entered into evidence without need to call the experts in person was withdrawn. This meant that we now had to call every single expert which resulted in substantial additional court cost. Furthermore, the critical psychiatric report from ICWA’s Dr. Peter McCarthy was now covered by privilege and therefore could not be used at trial. In addition any discussions or notes taken during meetings with Dr. Paul Langton, the brother of the ICWA case manager responsible for my case, were also privileged.

This had the result that my budgeted cost of the trial went from $90.000 to around $280.000, of which $120.000 were for witness fees, accommodation, airline tickets, video conferences facilities etc, etc. It had been suggested that I could have simply called ICWA’s experts as well at trial. This was out of question; after six years of having no regular income, the extra trial costs broke us financially. After already having to sell our home in Kalamunda we now had to sell my wife’s car and I still owe $19.000 in fees for my own experts. There was simply no way that I could afford to pay for the appearance of ICWA’s experts as well. It is important to realise that a medical specialist will charge around $8.000/day for a trial appearance. In addition, Dr. Peter McCarthy’s report was off limits due to privilege. Furthermore, the party that calls the witness has limitations on what he can ask “his” witness. The cross examining barrister on the other hand has no such limits and can tear into the witness as he pleases. This would have lead to the perverse situation, were I would have paid for ICWA’s witnesses to appear, been limited in what we could ask thewitness and give the ICWA’s legal team the opportunity to try and discredit their own expert/witness.  

Some examples of discrepancies/contradictions in the judge’s decision:

The expert evidence was both complex and overwhelming as a result of the sheer amount of testimony. The judge’s findings were often contradictory:

 Example 1:

 256          Although Dr Ozanne notes symptoms relating to back pain and other ailments, obviously unconnected with the accident, there is no specific note at all of the plaintiff experiencing nightmares, fluctuating appetite decreased libido, diminishment in pleasurable activities, social withdrawal, tightness in the chest, shortness of breath, angina‑like symptoms, anticipatory anxiety, fluctuating moods or lack of confidence and concentration.

 Contradiction:

 258          The first mention in Dr Ozanne's notes of anything resembling any psychological symptoms is on7 December 2004 when the plaintiff consulted Dr Ozanne for dermatitis and Dr Ozanne's notes reads:

• "Multiple stresses incl. retirement issues". On 10 December 2004, Dr Ozanne notes "Lethargy. Discussed exercise to reduce body fat to reduce insulin resistance".

• The next relevant note was made at the consultation on 7 December 2006 as follows: "Tired & a little bit cranky", with the diagnosis recorded as "Feeling; tired".

• On 17 April 2007 the notes read:"Waking up 10 times/night with pins & needles in both upper limbs> Intermittent dizzy spells and headache every day from midday onwards irrespective of when he eats lunch."

259       Dr Ozanne prescribed Endep. (anti depressant and can assist with sleep issues) 

260       On 13 March 2008, Dr Ozanne's notes read: 

• "Anxious+++/insomnia re pending court case. Endep>2 nights ‑ >nightmares. Try dose dothiepin/nortrypliline."

Example 2:

320          The absence of complaints to the treating doctors about the debilitating and distressing symptoms as described to the psychiatrists, the delay in diagnosis and the quality of the evidence relied on by the psychiatrists to make the specific diagnosis which caused me to reject the diagnosis, create an insurmountable doubt in my mind that the accident was a material cause of the psychological condition.

 and

 127        As I observe later in this judgment, I doubt that the plaintiff is an accurate historian and it is not clear when he experienced the onset of the symptoms he described.

 and

 282          Two psychiatrists diagnosed the plaintiff with chronic adjustment disorder. Assuming that the plaintiff experienced the

symptoms he reported to the psychiatrists shortly after and since the accident; the exclusion of physiological causes; and the identification and application of the criteria in the DSM‑IV I could not doubt the diagnosis.

 Contradiction:

 309          The plaintiff’s evidence generally reveals a continuous history of symptoms, consistent with the disorder since the accident although some  symptoms were also consistent with AF. However, the AF was "cured" by the second ablation and yet the symptoms persevered

 In my opinion, judge O’Brien failed to understand, in her decision, the very similar and in some cases identical symptoms that occur with i.e. broken ribs, AF, Angina like symptoms, Pulmonary Vein Stenosis and Anxiety/Panic attacks.

 This is confirmed by her statements in Example 2 above:

Example 3:

 187      At the end of the trial the defendant's position is that it is not disputed that the plaintiff suffers from a stress related psychological condition but the diagnosis is disputed and the defendant asserts that the condition was not caused by the accident.

 Contradiction:        

               ICWA presented no evidence to support the above argument. This argument was also completely opposite to the findings of ICWA’s psychiatrist Dr. Peter McCarthy. ICWA went as far as to claim privlidge over his report so that none of it could be used during the trial. 

Example 4:

 257          However, Dr Wright, a doctor practising from the same practice as Dr Ozanne referred the plaintiff to Dr Bremner for investigation of his dyspnoea in May 2005. I infer that the plaintiff complained of dyspnoea warrant the referral.

Contradiction 1:

Dr. Wright was the orthopaedic surgeon that ICWA sent me to regarding my back. Dr. Wright neither referred me to Dr. Bremner nor did he work at the same clinic as Dr. Ozanne nor did the two know each other. I was referred to Dr. Bremner a respiratory specialist by a CASA aviation medical examiner Dr. Phillip Martin, because I had failed the CASA required Spirometry test repeatedly. Dr. Martin was practising in Fremantle at the time and neither knew Dr. Ozanne nor had they ever worked from the same practice.

• Dr. Martin referred me to Dr. Bremner in February 2007

• Dr. Wright reviewed me the first time on the 12 November 2007

Contradiction 2:

Here she gives the name of a second doctor who is supposed to have reffered me to Dr. Bremner. Again she is wrong!

112                Dr Bateman referred the plaintiff to Dr Peter Bremner, a respiratory pysician, whom he saw on 5 May 2005.

Example 5: 

339          The  plaintiff's  employability  having  regard  to  his  age,  medical history, the time period he had not worked prior to the accident and the limited license endorsements (for example, he had no training to fly  Boeing  aircraft  and  would  have  to  be  retrained  to  fly  that aircraft); 

Contradiction: 

                I have in fact two Boeing endorsements on my licence. She also misses the point that at Qatar airways I had applied for an Airbus aircraft position of which I had four endorsements. The judge completely failed to understand my level of experience and qualifications. 

Example 6: 

323                  I find that: 

          The plaintiff suffered a very traumatic event on 10 May 2003. He suffered a crush injury of the chest which did not damage any internal organs. The plaintiff suffered fractured ribs and bruising to the upper abdomen which was very painful. The ribs healed within six to eight weeks. There remains some minor diminution of chest wall compliance which probably contributes in a minor way to shortness of breath on exertion; 

•      The accident caused the acute episode of AF and continuing episodes of AF until the ablation in January 2004;

•      The symptoms of AF before the second ablation were distressing and concerning;

 Contradiction: 

323            I am not satisfied that it is more probable than not that the accident caused the psychological condition.

Example 7: 

139          In this case to the extent that the defendant alleges that any incapacity to fly (which is denied)

 Contradiction: 

                How can the judge and ICWA not accept that I am not fit to fly, when the two aviation authorities Australia and Europe, both say I cannot fly as a result of the MVA. 

Example 8: 

 312          The psychiatrists' views are that the accident was the main precipitating factor for the anxiety symptoms and panic attacks. I­ observe that this is of minor weight as that is the ultimate issue for determination by the Court.

 Contradiction:

 137          As well as considering the relevant expert evidence on the issue, a  court is entitled to start with "presumptive inference" which the "sequence of events would naturally inspire in the mind of any commonsense person  uninstructed in pathology": Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563; and Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 3 03. (137)

 138          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: Amaca Pty Ltd v Hannell [2007] WASCA 158; Amaca Pty Ltd v Moss [2007] WASCA 162. (138)

 The defendant ICWA never produced any argument or expert to disprove the connection between the MVA and the psychological condition. How could they with Dr. Peter McCarthy’s report fully supporting our arguments! No onus was placed on ICWA and no negative inference was taken by the court for the lack of evidence from ICWA’s side.

Anxiety, Panic and Post Traumatic Stress Disorder:

 According to my legal team (see also some of the examples above), the judge completely failed to understand the psychiatric evidence and the contents of DSM IV (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition). On one hand she acknowledges the presence of an Anxiety and Panic Disorder after the MVA, but fails to allow the connection to the MVA as the cause. On the other hand she fails to realise that the diagnosis is not possible without an “identifiable stressor”, neither the judge nor ICWA were able to identify an alternative stressor other than the MVA.   

Furthermore, the trial judge failed to understand that according to DSM IV, the MVA can be the initial trigger(s), but that the psychological condition can develop over time as a result of the consequences of the initial the initial trigger(s) (MVA). DSM lists a number of possible consequences such as marital problems, financial problems and professional problems that develop as a result of the initial trigger. 

According to DSM IV a diagnosis of:

Adjustment Disorder, Anxiety and Panic Disorder requires

•  The development of emotional or behavioural symptoms in response to an identifiable Stressor(s) occurring within 3 months of the onset of the stressor(s).

•  By definition, Adjustment Disorder must resolve within 6 months of the termination of the stressor or its consequences) (Criteria E). However, the symptoms may persist for a prolonged period (i.e. longer than 6 months) if they occur in response to a chronic stressor (e.g., a chronic, disabling general medical condition) or to a stressor that has enduring consequences (e.g., the financial and emotional difficulties resulting from a divorce.) (I certainly full fill the financial difficulties part and again the loss of my profession would qualify)

•  The stressor may be a single event (e.g., termination of a romantic relationship, or there may be multiple stressors (e.g., marked business difficulties and marital problems).(In my case that would surely be the long term financial difficulties, medical problems/uncertainties and loss of profession)

•  Adjustment Disorder, Posttraumatic Stress Disorder and Acute Stress Disorder are characterized by the presence of an extreme stressor and a specific constellation of symptoms (Diagnosis Dr. McCarthy/ICWA Psychiatrist).

•  In contrast, Adjustment Disorder can be triggered by a stressor of any severity and may involve a wide range of possible symptoms (Diagnosis Dr. Ng & Dr. Blumberg).

•  In Adjustment Disorder, the relationship is in reverse i.e., the psychological symptoms develop in response to the stress of having being diagnosed with a general medical condition (In my case that would logically be the broken ribs and uncontrollable AF, requirement for two ablation procedures and the resulting loss of profession).

 Supreme Court Appeal:

 According to my barrister Theo Lampropoulos SC, the Supreme Court failed to consider most of his arguments and went as far as to label the entire appeal as:

 60           Unsatisfactory grounds of appeal (which, lamentably, are not unusual in personal injuries  appeals  in this court) obscure the real issues and, almost inevitably, occasion wasted time and expense for the parties and inconvenience the court. (60 WASCA)

The fact that the appeal was heard by three judges with a background in commercial law didn’t help, as the participation of a judge with experience in Personal Injury Law would have been more balanced and better suited!

High Court Appeal:

The two High Courts were initially split on whether my case should be heard or not. After a short recess ,however, the court decided not to grant Special Leave to appeal. According to my barrister Theo Lampropoulos SC this was because my appeal contained factual issues which the Supreme Court had failed to address. The High Court however wont hear cases that involve factual issues and as a result rejected our application. 

Court Decisions: 

ICWA’s Actions:

In a letter from ICWA’s managing director Mr. Vic Evans he answered my question as to why ICWA took my case to trial and wrote; "As promised, I now formally confirm that the Insurance Commission’s position in defending your claim was that the atrial fibrillation and psychological problems, which you were diagnosed with, were matters that remained “in Issue” because we questioned their casual relationship to your motor vehicle accident". This is precisely the argumentation the brother (Dr. Paul Langton) of the responsible case manager (Mr. John Langton) put forward in his reports and to which he testified. The problem is that my "atrial fibrillation" was cured by two ablation procedures at the end of 2003 and the beginning of 2004. In a report ICWA requested from its psychiatric expert Dr. Peter McCarthy, Dr. Peter McCarthy states that the "psychiatric issues" developed as a direct result of the MVA and its consequences. I appreciated Mr. Vic Evans honest response in his letter, however he actually confirms my argument, that ICWA and its lawyers will disregard, withhold or try to privilege even evidence, it has obtained from its own independent medical experts and instead rely on the medical report, ICWA's responsible Case Manager obtained from his brother. A doctor is not a psychiatrist, has never seen or spoken to me and has since been fined $30'000 and struck off for 18 months, for supplying his drug addicted teenage girlfriend with morphine and administering the same drug to himself and a cocktail of others. This is also a perfect example of why ICWA will not settle large claims out of court, because by going to court, ICWA can withhold and ignore evidence that supports a claimants case. As the Attorney General states in his letter dated the 23rd of October 2012, he confirms that ICWA is actually permitted to treat evidence/claimants differently if their claim goes to court for settlement. It is therefore no wonder that ICWA has no interest in settling large claims out of court.

Based on the medical evidence that ICWA had obtained themselves, the "issues" Mr Vic Evans states were the reasons for taking my claim to court, were purposely made an issue by ICWA’s decision to withhold (claim of privilege) over the psychiatric report ICWA obtained from Dr. Peter McCarthy and ignoring the fact that my "atrial fibrillation" was cured 5 years before my claim went to court. In Europe, atrial fibrillation  is split into three categories and referred to as the three P’s; Paroxysmal (occasional), Persistent and Permanent. Before the MVA, I was categorised as a paroxysmal sufferer and after the MVA, as a result of the more frequent and longer episodes, as a persistent sufferer. Only then did I become a candidate for the ablation procedures performed in November 2003 and January 2004. My atrial fibrillation symptoms were severe perspiration, rapid fatigue, chest tightness, dizziness and shortness of breath. It was as a result of my continued atrial fibrillation/angina like symptoms after the second ablation procedure in January 2004 that I was investigated for other possible cardiac related causes such as pulmonary vein stenosis, angina and continuing atrial fibrillation etc.

By 2007, all possible cardiac causes had been eliminated and yet the well documented symptoms remained. It was then that Dr. Paul Langton in his first report for ICWA, dated the 10 January 2010, put forward the idea that my symptoms were not cardiac related but instead stress related. When one of my own doctors also suggested my symptoms could have a psychological cause, I was referred first to the psychiatrist Dr. Ng for a medical legal report and as a result of his findings, iI was further  referred to psychiatrist Dr. Lawrence Blumberg for treatment. When the psychopharma started to work, it confirmed that my symptoms were of a psychological nature and not cardiac related. This diagnosis and a very detailed explanation on how the mental illness had developed over time was confirmed/contained in the report obtained by ICWA from Dr. Peter McCarthy. Furthermore, it became clear that the second ablation procedure back in 2004 had been a success and cured my atrial fibrillation. 

Based on all the medical evidence available to ICWA before the trial from its own experts neither the cure of the AF back in 2004 nor the MVA as the cause of the psychiatric diagnosis could be disputed by ICWA.

The decision by ICWA not call a single expert witness of theirs, with the  exception of Dr. Paul Langton's (the cardiologist brother of my ICWA Case Manager), was meant to hide the truth and their own evidence fully supporting my case. 

Dr. Paul Langton had never reviewed me in person and testified at trial that he had never spoken to his brother regarding my case and yet his reports contained intimate knowledge and information which went far beyond anything any other expert was supplied with. ICWA and its lawyers have to this day refused to let us know exactly what information was given to Dr. Paul Langton and claimed privilege over all information, notes and meetings regarding their dealings with Dr. Paul Langton. It is important to know that a further cardiologist report that ICWA obtained from Dr. Oswald Tofler was withheld from the judge. Dr. Tofler not only supported my case but also reviewed me in person. 

I lost my case, not because of lack of evidence, but because of the crushing amount of evidence, an inexperienced judge in personal injury cases and a judge that was overwhelmed by the amount and complexity of the medical evidence. The judge's failure to understand her application of the DSM IV in that there can be multiple stressors that eventually lead to an Acute Anxiety or PTSD condition. The DSM IV states that: The development of emotional or behavioural symptoms in response to an identifiable Stressor(s) occurring within 3 months of the onset of the stressor(s). The key words in this DSM IV requirement are stressor and stressors. In her judgement Kate O'Brien stated that because the symptoms were not identified within three months of the MVA on 10 May 2003, the MVA was not the cause of my Acute Anxiety/PTSD condition. Her lack of understanding of the DSM IV caused her to fail to understand that anyone of the stressors I encountered after the MVA could have been the stressor that ultimately broke the camels back! These additional stressors included the requirement to undergo two ablation procedures to the heart, the loss of my pilot licences, the financial problems, the sale of our home and the many medical reviews and the six long years of a  legal case!

I also lost my case actions with ICWA to hide and withhold evidence and testimony from its own experts; arguing a case not supported by their own evidence and the actions taken by ICWA with the intent to break me financially to the point were I could no longer present my case properly. 

• I was invited by ICWA’s General Manager, Mr. Vic Evans, to a meeting on the 13 December 2010. The meeting was conducted in a very friendly and open atmosphere and Mr. Evans was very sympathetic to my situation. The following is a short summary: 

• He said that the ICWA case manager that handled my case, Mr. John Langton, has been reprimanded for using his brother as an expert witness

• I received an apology for the handling and outcome of my case

• He did however feel it was a legitimate tactic to withhold evidence at court, as “he would otherwise be tying the hands of ICWA’s legal team behind their backs  and thereby prevent them from being able to minimise ICWA’s exposure”.

• He also said that he could not help me in getting this settled fairly “without getting myself (Vic Evans) into a lot of trouble”.

• He confirmed that in the six years between the MVA and the court case ICWA never made an offer based on the economic losses I had suffered.

• He stated that the two offers made by ICWA to settle the matter before trial were based on ICWA’s risk assessment of letting this matter go to trial and not on the true economic loss I suffered. This makes a mockery of ICWA’s own guidelines as published in its brochure for claimants “A guide for people injured in a motor vehicle  crash” page 14 “How is my claim finalised” "Once we receive a medical report confirming you have recovered, or your injuries have stabilised, we will assess ALL the medical reports and other relevant documentation to determine your entitlement to compensation."

• If the assessment for compensation for pain and suffering exceeds the minimum allowable award (threshold) we will make you an offer of settlement (compensation). Any offer made will include a break down of everything we have included. If you don’t agree with the offer you can discuss it with your case manager and/or make a counter offer.

• He confirmed that although ICWA had won the case on the grounds that I could fly if I wanted to and had suffered no long term damage as a result of the MVA. ICWA has no intention of making use of the courts findings and prosecuting me for making a fraudulent claim. Although the courts decision finds that my claim was fraudulent, ICWA won’t pursue the matter because they know the evidence in their possession actually supports the genuine nature of my claim and not the courts findings. ICWA is trying to have their cake and eat it to! Or as two other proverbs say, "you can't have it both ways" and "you can't have the best of both worlds."

I contacted both the Ombudsman of WA and CCC regarding my dispute. The CCC believed there was insufficient evidence of wrongdoing by the ICWA’s Case Manager Mr. John Langton handling my case and the involvement of his brother as ICWA’s only expert witness. However, they felt the Ombudsman would have been the correct way to proceed. The Ombudsman however refused to investigate, because I had contacted my local member of parliament, Mr. John Day. This produced a response from Colin Barnett’s office, which in fact had been written by ICWA on behalf of the premier and simply printed on the premiers letterhead. The Ombudsman argued that it had no jurisdiction if a government Minister was involved and as a result would'nt take any action. For more detailed information regarding my dealings with the CCC and the Ombudsman of WA.

Conclusion: 

Although there are mountains of expert evidence and hundreds of pages of testimony, my case can be limited to some simple indisputable facts: 

• Before the MVA on 10 May 2003, I had a valid Airline Transport Licence, I had applied for and had excellent job prospects based on my experience and qualifications.

• After the MVA, my licence was initially suspended and two aviation authorities have since testified that I will never be able to fly again as a result of the MVA.

• The loss of licence according to these authorities is due to the symptoms I displayed after the MVA which since 2008 have been attributed to the psychological condition I suffer from since the accident and the medication that I have to take as a result.

• The aviation authorities don’t care if the judge agrees with ICWA that I could fly if I wished to do so.

• The judge disregarded admissions made by ICWA during the trial; such as their concession that I was suffering from a mental disorder since the MVA.

• The judge failed to understand that, as she found in 309 of her decision “The plaintiff’s evidence generally reveals a continuous history of symptoms, consistent with the disorder since the accident although some  symptoms were also consistent with AF”, are also consistent with Adjustment Disorders such as Anxiety, Panic and Post Traumatic Stress Disorder.

• The judge failed to understand that there are no unique set of symptoms for Adjustment Disorder  such as Anxiety, Panic and Post Traumatic Stress Disorder.

• The judge failed to place any onus on the defendant/ICWA to show expert testimony to disprove our evidence.

• The judge’s and ICWA’s failure to identify an alternative “identifiable stressor”, as required by DSM IV as the cause of the Adjustment Disorder that both the judge and ICWA agreed that I had developed since the MVA. In this context it is important to note that I was not suffering from any stress or psychological problems before the MVA.

• The judge's inability to understand her application of the DSM IV that there can be multiple stressors that eventually lead to an Acute Anxiety or PTSD condition. The DSM IV states that: The development of emotional or behavioural symptoms in response to an identifiable Stressor(s) occurring within 3 months of the onset of the stressor(s). The key words in this DSM IV requirement are stressor and stressors. In her judgement Kate O'Brien stated that because the symptoms were not identified within three months of the MVA on 10 May 2003, the MVA was not the cause of my Acute Anxiety/PTSD condition. Her lack of understanding of the DSM IV caused her to fail to understand that any one of the stressors I encountered after the MVA  could have been the stressor that ultimately broke the camels back! These additional stressors included the requirement to undergo two ablation procedures to the heart, the loss of my pilot licences, the financial problems, the sale of our hom and the many medical reviews and the six long years of a legal battle!

• My credibility was attacked not because of anything I did or said, but because of the judge's failure to understand the expert evidence, her contradictory findings and her confusion with factual issues such as who referred me to which doctor and for what reason.

• ICWA's actionsof claiming privilege over key reports and its refusal to call any of its experts who had reviewed me in person was simply made to stop the judge from knowing that all these experts agreed with our side that the MVA was the trigger for the domino effect of symptoms that I suffered as a result of the MVA and that they all agreed that I would be able to return to my profession as a result.

ICWA experts covered all medical fields covered during the trial:

• An Aviation Medical examiner

• An Occupational Health Specialist

• A Cardiologist

• A Psychiatrist

• An Orthopaedic back surgeon

ICWA also suppressed reports they had commissioned from other sources:

• Qantas Pilot Association report regarding my level of experience and employment prospects

• A Labour market expert regarding my earning capacity and industry benefits

• Two private investigation services

The judge failed to take any negative inference as a result of ICWA’s refusal to table these reports.

The judge's finding in 312 that the “The psychiatrists' views are that the accident was the main precipitating factor for the anxiety symptoms and panic attacks. I observe that this is of minor weight as that is the ultimate issue for determination by the Court”, totally ignores the rules she as a judge is meant to abide by when considering expert evidence. Including:

• 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 thatnegligence: Amaca  Pty Ltd  v Hannell   [2007] WASCA 158; Amaca Pty Ltd v Moss [2007] WASCA 162.

• The defendant (ICWA) never supported evidence in support of the judges decision, instead Kate O'Brien ignored concessions made by the ICWA's legal team and argued the case on behalf of the the defendant (ICWA).

• As well as considering the relevant expert evidence on the issue, a court is entitled to start with "presumptive inference" which the "sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology": Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563; and Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303.

I and my family have to deal every day with not only the consequences of the MVA and the health problems, but also with legal systems failure to resolve the matter. Personal Injury Cases have a stigma attached to them. this is not only the case in the public’s view, but also by many members of the legal system (See Court of Appeal’s comment). ICWA used this to this full advantage and brought about a result that is not supported by their own evidence. Imagine for a moment if a private insurer or Synergy,  in the case of the Toodyay Bush Fires, withheld expert reports supporting the victims claims, simply to avoid liability. There would be such a public outcry that the government of the day would immediately legislate forbidding such practices. As a government insurance body  ICWA should lead by example and if they are unable to fulfill this fair and not unreasonable expectation, they should be made to do so.

ICWA won the case, with the judge finding that my claim was fraudulent, including that I could continue to fly if I wished to so. ICWA however, refuses to investigate me for making such a fraudulent claim and also refuses to this day to answer the complaints that I have filed with their Online Complaints System to supply information regarding documents and information supplied to Dr. Paul Langton used by him to compile his reports. Instead they have offered that I don’t have to pay their costs, although I nice gesture, the consequences of the MVA for me and my family won’t end with that. According to my doctor and psychiatrist the only chance that I have to improve my health  is for the consequences of the MVA to end and having the means to rebuild my life.