Abdelkawy v ANL Container Line Pty Ltd
[2017] VCC 319
•30 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01788
| AMRO ABDELKAWY | Plaintiff |
| v | |
| ANL CONTAINER LINE PTY LTD | First Defendant |
| AND | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 February 2017 | |
DATE OF JUDGMENT: | 30 March 2017 | |
CASE MAY BE CITED AS: | Abdelkawy v ANL Container Line Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 319 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – permanent severe mental or behavioural disturbance or disorder – adjustment disorder with depressed mood – alleged stress, discrimination, bullying and the like in the course of employment – no argument as to liability – leave sought in relation to pain and suffering and economic loss damages – evidence of treating psychologist – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski | Adviceline Injury Lawyers |
| For the Defendants | Mr G Worth | Thompson Geer |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and loss of earning capacity. In so doing, he relies upon paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. That being so, it is the test of severity that applies. The injury relied upon is described as an adjustment disorder with depressed mood and a panic disorder with agoraphobia. Basically, it is alleged that the injury occurred throughout the course of the plaintiff’s employment with the first named defendant, essentially as a customer service officer. It is alleged that he was overworked, placed under an unacceptable level of pressure, discriminated against, belittled, bullied and the like throughout the course of his employment between 1 July 2007 and 11 August 2010.
2 It should be said at the outset that, whilst the application is brought against two defendants, their interests overlap entirely. Henceforth, I shall refer to the first named defendant as “ANL” and, should it be necessary to refer to the second named defendant, I shall refer to it as “the VWA”.
3 It should also be said at the outset that there is no argument but that the plaintiff’s employment with ANL has been a cause of whatever mental condition the plaintiff has. In other words, liability is not an issue. I would refer to what was said by Mr Worth on behalf of the defendants at Transcript (hereinafter referred to as “T”) 8. Mr Worth also stated that the issues argued by the defendants would be, in summary form, whether the respective tests for pain and suffering consequences and economic loss had been satisfied; the question of the plaintiff’s credit would receive attention; and it would be argued that, on balance, I should find that the consequences are not “severe” as required by the statutory test as discussed in Mobilio v Balliotis & Ors [1997] VSC 56.
4 Ms N Wolski of counsel appeared on behalf of the plaintiff. As stated, Mr G Worth of counsel appeared on behalf of the defendants. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. In addition, the plaintiff’s treating psychologist, Ms Monique Toohey, gave oral evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to commencing employment with ANL
5 The plaintiff is aged 43 years, he having been born on 5 February 1974 in Egypt. He is a married man with two young children. He is a practitioner of the Muslim religion. The relevance of this is that he believes that some of the treatment of which he complains at ANL was because of his race and religion.
6 The plaintiff is quite a well-educated man. In Egypt, he completed secondary education to Year 12 level. He then obtained a type of technical diploma in relation to electricity, although he worked in the hospitality industry, rather than performing work relating to electricity. Prior to emigrating to Australia in 2002, he appears to have completed some brief courses relating to the hospitality industry.
7 After arriving in Australia, the plaintiff undertook further courses. He obtained a certificate in relation to the responsible service of alcohol, as he wished to continue working in the hospitality industry. He undertook and completed a Master of Business Administration course at the University of Ballarat. This was a full-time course which took approximately 18 months. He also completed a Diploma of Accounting, which required a year of full-time study. He has obtained a Graduate Diploma in Maritime and Logistics Management, this being partly funded by ANL. Thus, the plaintiff has completed a number of courses.
8 His employment history in Australia is that he has worked in hospitality and in call centres before commencing employment with ANL as a Customer Service Officer.
(b) The plaintiff as a witness
9 The plaintiff presented as a somewhat unusual witness, who was at times particular and somewhat precise in the way in which he answered questions. However, overall, I am not of the view that his credit was damaged in cross-examination. He seemed to have some difficulties in concentrating and needed breaks. I note that Dr Albert Kaplan, consultant psychiatrist, who examined the plaintiff at the request of his solicitors, found him to be quietly spoken, polite and direct in manner. Associate Professor Saji Damodaran, consultant psychiatrist, who has treated the plaintiff, described him as cooperative, but quite anxious, in his affect. His treating psychologist, Ms Toohey, has referred to him as being always extremely polite and respectful. Dr Richard Prytula, consultant psychiatrist, who examined the plaintiff at the request of the defendants, noted that the plaintiff attended accurately to his comments and questions. Dr Dush Shan, consultant psychiatrist, who has also examined the plaintiff at the request of the defendants, in his most recent report described the plaintiff as being pleasant and cooperative throughout the examination.
10 These observations do not mean that the plaintiff is automatically a reliable witness, but they are consistent with the impression given by him in the witness box.
11 In short, I do not regard the plaintiff’s credit as having been damaged and I accept him as a witness of truth.
(c) The state of the plaintiff’s health prior to employment with ANL
12 It is not argued that the plaintiff had a prior history of mental health problems or that what has occurred is the aggravation of a pre-existing condition. There is no reference in the reports of the various examiners to any prior mental health problems of any significance, or at all.
(d) The injury, its treatment and diagnosis
13 As earlier stated, liability is not an issue in this case. The plaintiff commenced work with ANL on 1 July 2007, performing duties which essentially involved passing on information to clients about products. In July 2009, the plaintiff’s position was to be changed to Export Customer Service Coordinator, a position which the plaintiff viewed as being a better job. However, ultimately he was overlooked for this position and continued in his former occupation. Particularly thereafter, he was of the view he was being discriminated against, also complaining to those who have treated him of being belittled, victimised and the like. He began experiencing symptoms of anxiety, nervousness and irritability and first saw his general practitioner, Dr Mirranay, concerning this on 5 August 2010. He was referred to Mrs Shagufta Riaz, psychologist, by Dr Mirranay, attending his first session on 7 August 2010. She took a history of workplace bullying, discrimination, unfair treatment and the like. In her report of 14 September 2010, she described the plaintiff as being emotionally drained, mentally incapacitated and psychologically unable to concentrate on work. She stated that all his areas of functioning were severely affected. In fact, the plaintiff had ceased working for ANL on 11 August 2010. He has not worked since.
14 Dr Mirranay also referred the plaintiff to Associate Professor Damodaran, consultant psychiatrist, who reported back on 18 November 2010. Associate Professor Damodaran took an appropriate history. He diagnosed an adjustment disorder with anxious and depressed mood, mostly in the context of workplace stress and the plaintiff’s sense of constant harassment and victimisation. He commenced the plaintiff on medication and advised follow-up treatment from a psychologist. It would also seem that, comparatively early in his treatment but after first seeing Professor Damodaran, the plaintiff attended at the Casey Hospital Emergency Department, showing evidence of a panic disorder.
15 Associate Professor Damodaran saw the plaintiff again on 8 June 2012 and reported to Dr Mirranay that the plaintiff had paranoid and obsessive preoccupations, which were primarily a product of the distress he had been going through. Associate Professor Damodaran advised a change in medication. He also referred to the plaintiff as being preoccupied and consumed by the unfairness of the WorkCover process.
16 In January 2012, the plaintiff commenced treatment with Ms Toohey, senior consultant psychologist. Ms Toohey, who gave oral evidence, is a convert to Islam and it may have been thought that this would assist in the treatment of the plaintiff. In any event, Ms Toohey diagnosed symptoms consistent with a depressive disorder and post-traumatic stress. In a report of 4 May 2012, she stated that the plaintiff’s depressive and post-traumatic stress symptoms occurred as a direct result of the difficulties that he had faced in the workplace. At that time, the plaintiff was also experiencing some marital distress and pressure relating to a minor car accident. She considered him unfit for work as at that time.
17 Ms Toohey provided a lengthy report to the plaintiff’s then solicitors on 27 April 2015. One aspect of this report was the subject of considerable cross-examination, and I shall come to this shortly. In any event, it is a report that was adopted by Ms Toohey as being true and correct ─ see T81. In this report, Ms Toohey stated that the plaintiff initially fitted the criteria for the diagnosis of an adjustment disorder with mixed anxiety and depressed mood (chronic, severe). She went on to say that, currently, the plaintiff would fit the diagnosis of persistent depressive disorder. She stated that he would be in a better frame of mind after his case was finalised, but it was more difficult to predict the prognosis of his anxiety symptoms, which could be long lasting, depending upon other occurrences. In short, she considered his mental illness as being chronic and attributable to what had occurred at work. She considered that his current capacity for employment was nil. She considered that his depressive disorder made it very hard for him to be reliable and impaired his cognitive functioning. She would not expect this to change in the foreseeable future. At that time, she was of the view that his mental illness was not permanent, if considerable rehabilitation was provided and his economic situation improved.
18 Ms Toohey reported to the plaintiff’s then solicitors again on 28 October 2016. In this report, Ms Toohey stated that, whilst there had been some alleviation of the plaintiff’s anxiety symptoms, he had not made any significant progress in the treatment for depressive symptoms. She considered that his serious and long-term mental impairment was caused by what had happened at work. She also referred to the stress associated with the legal process. She considered that he did not have the mental or emotional capacity to return to work. She considered his prognosis to be poor.
19 Ms Toohey provided a supplementary report on 27 November 2016, the primary purpose of this being to provide an opinion in relation to proposed job options contained in what was a Labour Market Analysis provided by “healthe.work” on 9 November 2016. She expressed the view that such report did not take into account the plaintiff’s current diagnosis of a persistent depressive disorder, along with insomnia, low energy and fatigue, poor concentration, difficulty in making decisions and the like. In any event, Ms Toohey considered that the plaintiff would not be able to cope with the positions referred to in the report of “ipar” of 26 October 2015. In a supplementary, report she arrived at a similar conclusion in relation to employment options contained in a report of “healthe.work” of 9 November 2016.
20 Ms Toohey also gave oral evidence. She was cross-examined at some length concerning her report of 27 April 2015 (to be found in the Plaintiff’s Court Book and addressed to Taylor and Preston, the plaintiff’s previous lawyers) and a virtually identical, but undated, report similarly addressed, which had come to the attention of the defendants’ advisors and is to be found in the Defendants’ Court Book. I say “virtually identical”, because there is to be found in what could be described as the defendants’ version an additional sentence not found in the version in the Plaintiff’s Court Book. That sentence reads as follows and is after a sentence concerning advice given to him “Religiously” concerning patience:
“This is also consistent with the advice from legal professionals who have directed him not to work and to not look for work as it will look bad for his case”.
21 As far as I can see, the balance of these quite lengthy reports is identical, save for the fact that the one containing the sentence set out above is undated, whereas the report without it is dated. Both are signed.
22 Essentially, the explanation of Ms Toohey is that the report containing the sentence in question was obviously a draft and hence was undated. It must have been accidentally distributed. The version without the sentence is the correct and final report.
23 I am not particularly impressed with that explanation. She claimed that the draft version did not accurately describe her view and, as a result, the sentence was deleted – see T87. I would repeat that both versions have been signed and Ms Toohey does not dispute that. Whether it be because of some external pressure or because Ms Toohey thought better of it, it seems apparent that she decided to delete from the report a sentence which, be it correct or incorrect, could have been quite embarrassing for the plaintiff’s then lawyers. Ms Toohey stated in re-examination that she had not been asked by anyone to remove the offending sentence – see T106. When I put it to Ms Toohey that she had said words to the effect that one would have been a final copy because she had signed it and, in fact, both copies were signed, she stated that she had been talking about dated documents and “I don’t think I mentioned signed” – see T106 and 107. It is quite apparent that, at T89, Ms Toohey stated that “But the signed copy is the one that would have been sent off as – that would have been part of court proceedings, to my understanding”.
24 This issue of the missing sentence from one report does not assist the credibility of Ms Toohey. However, I am not of the view that it is so damaging as to render her opinions worthless or cause me to reject them.
25 Ms Toohey would not agree that the plaintiff had a capacity for either full-time or part-time work in any of the employment options that had been given to her for her consideration. She referred to his presentation over the last two years and the fact that there are times when he can barely get to her office and others when he cancels appointments because he cannot get out of bed – see T93 and 94. She expressed the view that there is now impairment of his cognitive skills. She also stated that nothing that she had heard had caused her to shift the opinion expressed in her report of 28 November 2016 in relation to the plaintiff’s current capacity to work. In re-examination, the plaintiff referred at some length to the plaintiff’s inability to make decisions – see T103. In relation to the plaintiff’s work capacity in the future, she believes the prognosis to be poor. She also stated that the plaintiff’s depression is so severe that the medication is not doing what it needs to do. Psychotherapy has been more along the lines of containment – that is, stopping him from getting worse. She also stated that her diagnosis would not change in the foreseeable future. He may get some level of relief when the court proceedings are over, but the depression will still be there. Ms Toohey also gave some evidence concerning the links between depression and sleep apnoea.
26 Returning to those who have treated the plaintiff, he has also been seen by Dr Michael Pallin, respiratory and sleep physician, this being at the referral of Dr Mirranay. As part of his assessment, Dr Pallin also performed a hospital anxiety and depression scale. He referred to the plaintiff’s scores as being “certainly elevated”.
27 The plaintiff has also been seen for medico-legal purposes. He was first seen by Dr Kaplan, consultant psychiatrist, to whom reference has been made, on 22 August 2013. He diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, associated with panic attacks. Dr Kaplan was of the view that, given the long duration of the plaintiff’s condition (as at August 2013), his symptoms were likely to persist for a prolonged period of time. He expressed the opinion that the plaintiff probably had no current work capacity. He suggested a rehabilitation program.
28 Dr Kaplan re-examined the plaintiff on 25 August 2016. In his report, Dr Kaplan described the interference with the plaintiff’s social life, his difficulty with memory and concentration, his loss of libido and the like. Dr Kaplan’s conclusion was that the plaintiff continued to suffer from symptoms of depression and anxiety. His condition had not improved since the last examination. He now diagnosed the condition as a major depressive disorder associated with anxiety. Given the long duration of the condition, Dr Kaplan thought that the prognosis was likely to be unfavourable. He expressed the view that the plaintiff has no current capacity for employment and that it is difficult to be optimistic that he will be capable of returning to work at some time in the future.
29 ANL has also had the plaintiff assessed for medico-legal purposes. Dr Richard Prytula, consultant psychiatrist, provided two reports. His original report is dated 13 October 2010. He considered the plaintiff to have an obsessional personality characteristic. He also referred to the plaintiff as suffering from an adjustment disorder with depressed mood. He provided a brief supplementary report in early 2011, but without any re-examination. He expressed the view that, at that time, the plaintiff had only a limited work capacity. That capacity would probably not have extended to his pre-injury position and Dr Prytula thought that, whilst it was possible that the plaintiff may have been able to carry out work in an alternate position, it is likely that his function would have been limited by his symptoms.
30 Dr Dush Shan, consultant psychiatrist, has seen the plaintiff on a number of occasions. Dr Shan first reported to the defendants on 25 September 2012. Dr Shan found evidence in the plaintiff’s presentation of clinical anxiety and depression. He considered that the prognosis, given the context of the dispute with the employer, was poor. He believed that the plaintiff would be capable of simple manual work, such as a process worker or cleaner.
31 Dr Shan reported on 17 September 2013, having again examined the plaintiff. Clearly he considered the ongoing dispute in relation to WorkCover to be relevant. He diagnosed a mild mood disorder and expected improvement if the litigation was resolved. He continued to be of the view that the plaintiff would be capable of manual work or administrative work that did not involve customer contact.
32 Dr Shan next examined the plaintiff on 27 August 2015. Dr Shan diagnosed a mood disorder. He again expected improvement once all litigation was finalised. He considered the treatment of psychology counselling sessions and a prescription of an anti-depression anxiolytic to be sufficient. He again considered the plaintiff to be capable of manual work or administrative work that did not involve customer contact and believed that there was no permanent incapacity for any particular type of work.
33 Finally, Dr Shan saw the plaintiff again on 24 October 2016. It is apparent that, inter alia, he had been supplied with an Employability Assessment Report, which must have been that of “ipar”. Dr Shan again diagnosed a mood disorder and again thought that the prognosis would be favourable after all litigation was finalised. Essentially, Dr Shan believed that vocational options, such as those of an administration clerk, hospitality worker or taxi driver, would represent suitable employment. On 5 December 2016, Dr Shan provided a further report without again seeing the plaintiff. Essentially he disagreed with what was contained in the reports of Ms Toohey, which reports had been forwarded to him. He particularly disagreed in relation to the plaintiff’s employability. He also considered that the prospective jobs identified by “healthe.work” were suitable.
34 The plaintiff was examined at the request of the defendants by Dr Matthew Tagkalidis, consultant psychiatrist, on 10 December 2013. The diagnosis of Dr Tagkalidis was that the plaintiff, as at the date of examination, was suffering from a moderately severe adjustment disorder with mixed anxiety and depressed mood relevant to the accepted injuries. He concluded that, for the purposes of an Independent Impairment Assessment, the plaintiff’s psychiatric condition was stable and permanent. He also observed that it was unlikely to remit with further treatment.
35 In relation to diagnosis, I accept that of the treating psychologist, Ms Toohey, that the plaintiff has a persistent depressive disorder. The diagnoses of the examining psychiatrists overlap to an extent. Dr Kaplan has described the plaintiff’s condition as being a major depressive disorder associated with anxiety, which appears to be not greatly different from the diagnosis of Dr Tagkalidis of a moderately severe adjustment disorder with mixed anxiety and depressed mood. The treating general practitioner, Dr Mirranay, has described the plaintiff as being severely depressed and suffering from ongoing severe anxiety. I prefer these diagnoses to that of Dr Shan of a non-specific mood disorder in which ongoing litigation plays a large role. I might add that the plaintiff’s original treating psychiatrist, Associate Professor Damodaran also diagnosed an adjustment disorder with anxious and depressed mood. The weight of medical opinions seem to me to favour a diagnosis of this kind and, in particular, the diagnosis of Ms Toohey of a persistent depressive disorder comes from a person who is treating the plaintiff and who sees him comparatively regularly. The same could be said of Dr Mirranay. Given that Dr Prytula, who examined on behalf of the defendants at an early stage, also diagnosed an adjustment disorder with depressed mood, the opinion of Dr Shan seems to be “one out”. In any event, I prefer the diagnoses to which I have referred
36 I am satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. As early as December 2013, Dr Tagkalidis, examining on behalf of the defendants, stated that the plaintiff’s psychiatric condition was stable, permanent and unlikely to remit with further treatment. Ms Toohey has described the plaintiff’s prognosis as poor. In her report of 28 October 2016, she stated that his disorder made it very hard for him to be reliable. It also referred to his impaired cognitive functioning and difficulty coping with deadlines. She expressed the view that such things were currently beyond his capacity and she would not expect this to change in the foreseeable future. She regarded the nature of his cognitive and psychological capacity to be permanent. In her oral evidence, she again said that the prognosis was poor and that the diagnosis would not change in the foreseeable future. She also stated that the plaintiff’s persistent depressive disorder would continue even when legal proceedings were over.
37 Dr Kaplan considered the plaintiff’s prognosis to be unfavourable, also stating that, given the duration of the plaintiff’s psychiatric conditions and their prognoses, it was difficult to be optimistic that he would be capable of returning to work at some time in the future. The treating general practitioner, Dr Mirranay, in a report of 31 January 2017, expressed the opinion that, due to the plaintiff’s severe depression and anxiety, he will not be able to obtain any gainful employment. Even if the plaintiff could obtain a job, he would not last long due to his panic attacks, depressed mood and ongoing anxiety. He also stated he could not see the plaintiff obtaining any gainful employment in the near future, but whether this was meant to modify his earlier statement, which I have set out above, is unclear. Dr Shan, with his emphasis upon improvement following the end of litigation, again seems to be “one out”. I prefer and accept the other views to which I have referred. They seem to me to be logical. It is also to be remembered that the plaintiff’s condition has already persisted for in excess of six and a half years.
38 It was not suggested that the plaintiff’s mental injury is in the nature of aggravation of a pre-existing condition. In any event, there is no evidence to support such a proposition.
39 Similarly, this is not a situation where the operation of s134AB(38)(i) has to be considered. It is not suggested that there are physical consequences of the plaintiff’s mental or behavioural disorder.
Other developments since the injury
40 The plaintiff ceased working for ANL on 11 August 2010 and has not worked since. He has had some marital problems, which appear, at least in part, to be related to his mental condition.
41 The plaintiff has complained of a number of activities in which he can no longer participate. He has had some domestic problems. He attends a mosque on a daily basis. He minimises social contact there. He spends some time on his computer and using the internet. His socialising has largely ceased. He and his wife have sold their house and brought a smaller property because of financial pressures. Dr Shan seemed to think that this was of some significance, possibly indicating a capacity for work. However, I accept the plaintiff’s evidence that the sale of his former house was done through an estate agent, and without much involvement on his part. He was not involved at all in the negotiations for buying the replacement house.
42 Essentially, I accept his evidence as to the pattern of his life since cessation of work.
Ruling
(a) Loss of earning capacity
43 It is to be remembered that, this being an application based upon permanent severe mental or permanent severe behavioural disturbance or disorder, the test contained in s134AB(38)(d) must be satisfied. In other words, after the relevant comparison has been made, the consequences to the plaintiff must be able to be fairly described as being more than serious to the extent of being severe. I would refer to the decision of the Court of Appeal in Mobilio v Balliotis & Ors [1998] 3 VR 833 and in particular to the Judgment of Brooking JA therein. The word “severe”, as used in the definition, is a stronger word than “serious”.
44 I have borne the above in mind. I am satisfied that the plaintiff has discharged the burden of proof in relation to his application for leave to bring proceedings for pecuniary loss damages. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i)The credit of a plaintiff in a case such as this is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439-448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance … .”
This observation has been referred to by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and, more recently, in Haidar v Transport Accident Commission [2016] VSCA 182.
The present case is one in which credit is important and I regard the plaintiff as being a truthful witness. I am not of the opinion that he has tried to mislead the Court or those medical practitioners who have treated or examined him. While the fact that this is a claim for a mental injury needs to be borne in mind, so that there could be some scope for consideration of the accuracy of the plaintiff’s perceptions, it is to be remembered that liability has been admitted. His account of what occurred to him has not been challenged.
Bearing in mind all the circumstances, I find him to be a reliable witness.
(ii)The plaintiff has sworn that he is not able to work – see, for example, T42 and the following pages. He has sworn that he is not coping, even without work. In his affidavit of 8 November 2016, he has sworn that he struggles to interact with others; has problems with concentration, fatigue and memory loss; and also suffers from migraines, anxiety and irritability. Clearly, he sees himself as totality incapacitated.
(iii)Ms Toohey, the plaintiff’s treating psychologist, who sees him regularly, expressed, in her report of 28 October 2016, the opinion that the plaintiff’s capacity for employment or retraining is nil. As discussed, she does not think that the situation will change in the foreseeable future.
(iv)Dr Albert Kaplan, in his report of 26 August 2016, stated that, given the duration of his psychiatric conditions, and their prognoses, it would be difficult to be optimistic that the plaintiff will be capable of returning to work at some time in the future. Currently, he regards the plaintiff as having no capacity to undertake any suitable employment. I have already discussed some aspects of this when dealing with permanence. Certainly, the overall thrust of Dr Kaplan’s reports is that the plaintiff currently has no work capacity and that this situation will persist.
(v)The plaintiff’s general treating practitioner, Dr Mirranay, stated in his report of 31 January 2017, that the plaintiff is still severely depressed, still suffers from ongoing severe anxiety and panic attacks, and is not capable of returning to either his previous employment or suitable employment.
(vi)I accept and prefer these opinions to that of Dr Shan. In particular, Ms Toohey and Dr Mirranay are treating the plaintiff and seem to me to be in a preferable position when it comes to assessing his work capacity. In addition, the views expressed by Dr Kaplan seem to me to be logical.
45 When all of the above is considered, it seems to me the proper conclusion is that the plaintiff’s injury has rendered him totally unfit for employment. I find his “after injury” earnings to be zero. The statutory test containing s134AB(38)(e) and (f) is satisfied and, to state the obvious, there has been a 100 per cent reduction in earning capacity. I am also satisfied that this loss of earning capacity represents a serious injury for the purpose of s134AB(38)(d). Total destruction of earning capacity for the foreseeable future in a man of this age is a consequence which, after the relevant comparison has been made, could be fairly described as being more than serious to the extent of being severe.
(b) Pain and suffering damages
46 The plaintiff having discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to the pain and suffering damages – see the decision for Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
47 I might add that, even if this were not so, the plaintiff would seem to me to have clearly established that his pain and suffering consequences could be fairly described as being more than serious to the extent of being severe. The impact upon his lifestyle, as set out in his affidavits and in the various medical reports (particularly those of Ms Toohey), seem to me to clearly set out consequences of injury that satisfy the statutory test. In short, the burden of proof has also been satisfied in this regard.
Conclusion
48 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in relation to both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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