Ah-Quee v Heytesbury Beef Pty Ltd

Case •

[2004] NTMC 95

•

23 December 2004

No judgment structure available for this case.
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CITATION: Ah-Quee v Heytesbury Beef Pty Ltd [2004] NTMC 095

PARTIES: AJAY AH-QUEE

v

HEYTESBURY BEEF PTY LTD

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Court

FILE NO(s): 20205914

DELIVERED ON: 23 December 2004

DELIVERED AT: DARWIN

HEARING DATE(s): 19 – 26 March 2004

JUDGMENT OF: Mr John Lowndes SM

CATCHWORDS:

WORK HEALTH -- COMPENSABILITY OF PSYCHIATRIC INJURY -- AGGRAVATION AND/OR EXACERBATION OF PUTATIVE PSYCHOSIS --PSYCHIATRIC REACTION TO PHYSICAL INJURY -- RESULTANT INCAPACITY – ASSESSMENT OF THE CREDIBILITY OF A WORKER SUFFERING FROM A PUTATUVE PSYCHIATRIC ILLNESS – CLAIM FOR DEPENDANT CHILDREN BY A WORKER WHO DENIES HAVING CHILDREN – WOKK HEALTH ACT ss 3 & 53

Whisprum v Dixon [2003] NCA 48;
State Authority (NSW) v Earthline Applied Constructions Pty Ltd [1999] HCA 3;73 ALTR 30.6 applied
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 applied
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 applied
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

REPRESENTATION:

Counsel:
Worker: Mr Barr QC
Employer: Mr Southwood QC

Solicitors:
Worker: Halfpennys
Employer: Morgan Buckley

Judgment category classification: B
Judgment ID number: [2004] NTMC 095
Number of paragraphs: 261


IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20205914

BETWEEN:

AJAY AH-QUEE
Worker

AND:

HEYTESBURY BEEF PTY LTD
Employer

REASONS FOR DECISION

(Delivered 23 December 2004)

Mr LOWNDES SM:
THE NATURE OF THE PROCEEDINGS
1. As disclosed by his amended Statement of Claim dated 16 February 2004, the worker is seeking weekly payments of compensation relating to an accident which occurred on 22 June 1997, arising out of or during the course of his employment. As a result of that accident the worker suffered an injury to his right knee. Further, the worker claims that he suffered a mental injury which was caused by the right knee injury. The worker claims that he is and has been totally incapacitated, or alternatively partially incapacitated, as a result of the injury to his knee and consequent mental injury.
The worker seeks the following relief:
1.1 A determination as to the amount of the worker’s ‘normal weekly earnings’ within the meaning of s49 of the Work Health Act.
1.2 Compensation for the past in respect of all periods of incapacity for which compensation has not been paid or fully paid.
1.3 Interest pursuant to s109 of the Work Health Act.
1.4 Costs.
2. The worker and employer have admitted the following facts for the purposes of these proceedings:
2.1 At all material times the worker was a worker within the meaning of the Work Health Act and was employed by the employer as a general station hand;
2.2 The worker commenced employment with the employer on 19 June 1997 and
2.3 On 22 June 1997 the worker suffered an injury to his right knee arising out of or during the course of his employment.
3. The parties acknowledged that the Work Health Court was bound by the decisions of the Supreme Court in Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2; NT Drilling vMcFarlan [2004] NTSC 23 which hold that superannuation is to be included in the calculation of normal weekly earnings. In light of the binding force of those decisions, and the pending appeal before the Court of Appeal in Hastings Deering (Australia) Ltd v Smith the parties reached the following agreement as to the calculation of normal weekly earnings:
3.1 If superannuation is included in the calculation of normal weekly earnings, the worker’s normal weekly earnings were $489.60; but
3.2 If superannuation is not included in the said calculation, then worker’s normal weekly earnings were $478.82.
The indexed value of the amount referred to in (1) above in 2004 is $653.61, while the indexed value of the amount referred to in (2) above in 2004 is $639.22.
4. As is apparent from its Defence dated 15 March 2004, the employer denies the worker’s allegation that he suffered a mental injury arising out of his employment. The employer pleads that at all material times (including times predating the injury) the worker has suffered from a paranoid psychosis being either a delusional disorder or paranoid schizophrenia, and that if the worker is incapacitated for work (which is denied) then the worker has been incapacitated for work as a result of his paranoid psychosis. The employer asserts that such a psychiatric condition is not compensable under the Work Health Act. Furthermore, the employer denies that the worker is and has been partially incapacitated as a result of his right knee injury and mental injury. Accordingly, the employer denies the relief claimed by the worker.
5. Pursuant to its Counterclaim, the employer pleads that since the worker returned to work on or about 13 October 1997 the worker has ceased to be incapacitated for work as a result of any injury arising out of or during the course of his employment with the employer. Further and in the alternative, the employer asserts that since 4 September 2003 the worker has ceased to be incapacitated for work as a result of any injury arising out of or during the course of his employment with the employer. Further and alternatively, the employer pleads that since the worker returned to work on or about 13 October 1997 the worker has been only partially incapacitated for work and has been capable of earning wages equal to or greater than his normal weekly earnings. Further and in the alternative, the employer claims that since 4 September 2003 the worker has been only partially incapacitated for work and has been capable of earning wages equal to or greater than his normal weekly earnings. Further and alternatively, the employer asserts that since the worker returned to work on or about 13 October 1997 the worker has been only partially incapacitated for work, and has been capable of earning wages in alternative employment including but not limited to a courier driver, a taxi driver, a console operator, a handyman and storeman. Further and in the alternative, the employer pleads that since 4 September 2003 the worker has been only partially incapacitated for work, and has been capable of earning wages in alternate employment including but not limited to a courier driver, a taxi driver, a console operator, a handyman and a storeman. Further and alternatively, if the worker has been incapacitated for work (which is denied) then such incapacity is as the result of the worker’s paranoid psychosis. Any such incapacity is non-compensable. Further and in the alternative, if the worker is incapacitated for work as a result of the condition of his right knee (which is denied), the worker is not entitled to payments of compensation for any such incapacity as any ongoing incapacity of the worker’s right knee has been caused by the worker’s mistreatment of his right knee including but not limited to his continual wearing of a brace on his right knee.
With respect to its Counterclaim, the employer sought a number of rulings:
5.1 That the worker ceased to be incapacitated for work on 13 October 1997, or alternatively, on 4 September 2003.
5.2 That the worker ceased to have a loss of earning capacity on 13 October 1997, or alternatively, on 4 September 2003.
5.3 In the alternative, that from 13 October 1997, or alternatively 4 September 2003, the worker has been only partially incapacitated for work and a ruling as to the extent, if any, of the worker’s loss of earning capacity (which is denied).
5.4 Alternatively, that the worker is incapacitated for work as a result of his paranoid psychosis which is non-compensable pursuant to the Work Health Act.
5.5 In the alternative, that the worker is not entitled to payments of compensation pursuant to the Work Health Act as his ongoing knee condition (which is denied) and any incapacity caused thereby (which is denied) is the result of the worker’s mistreatment of his right knee.
5.6 That the worker ceased to be entitled to payments of compensation pursuant to the Work Health Act on 13 October 1997.
5.7 Alternatively, that the worker ceased to be entitled to payments of compensation pursuant to the Work Health Act on 4 September 2003.
THE WORKER’S APPLICATION FOR LEAVE TO AMEND THE STATEMENT OF CLAIM
6. Mr Barr QC, who appeared for the worker, sought the Court’s leave to amend the relief sought in prayer 2 of the worker’s amended statement of claim as follows:
“ 2. Compensation for the past in respect of all periods of incapacity for which compensation has not been paid or fully paid by the employer, such compensation to be assessed and calculated having regard to the fact that the worker throughout has been the father of 2 children who are ‘prescribed children’ within the meaning of s65(13) Work Health Act, namely Stephany, born 5 June 1993 and Tiffany Kate born 26 March 1995.”
The basis for the application and the arguments in support of leave being granted are set out at pages 23 – 24 of Mr Barr’s written submissions dated 1 July 2004. The employer opposes the application for the reasons set out in the written submissions of Mr Southwood QC dated 16 August 2004.
The application is somewhat problematical, and cannot be properly considered and ultimately determined without undertaking a close and
careful examination of all the evidence adduced in these proceedings. I, therefore, propose to defer consideration of the application for leave to amend until I have dealt with the worker’s Statement of Claim (as presently pleaded) and the evidence relating thereto.
THE ISSUES
7. The following issues arise for consideration in these proceedings:
7.1 Whether as a result of his knee injury the worker was and remains incapacitated for work at all and, if so, what is the extent of any such incapacity for work;
7.2 Whether the worker has suffered and continues to suffer a loss of earning capacity as a consequence of his knee injury;
7.3 Whether the worker’s right knee injury and it consequences, including pain, physical incapacity and loss of employment etc caused a mental injury in the form of a psychiatric reaction (severe adjustment disorder with depression, anxiety and paranoid thinking) to the right knee injury; and if so, whether the worker was and is incapacitated for work as a result of such psychiatric reaction and the extent of any such incapacity for work;
7.4 Whether the worker has suffered and continues to suffer from a loss of earning capacity as a result of a psychiatric reaction to his knee injury;
7.5 Whether the worker’s right knee injury caused an aggravation and /or exacerbation of the worker’s putative paranoid psychosis (delusional disorder or paranoid schizophrenia) by reason of which the worker suffered and still suffers incapacitating delusions as to pathological processes relating to his right knee, that is to say, delusions as to missing muscles, crumbling bones and internal haemorrhaging; and, if so, whether the worker was and is still incapacitated for work by reason thereof, and the extent of any such incapacity.
7.6 Whether the worker has suffered and continues to suffer from a loss of earning capacity as a result of any aggravation and/or exacerbation of his putative psychiatric condition;
7.7 Whether the worker was and is still incapacitated for work as a result of the combination of his right knee injury of 22 June 1997 and consequential mental injury (either in terms of a psychiatric reaction to the knee injury or an aggravation and/or exacerbation of his psychiatric condition); and, if so, the extent of any such incapacity for work.
7.8 Whether the worker has suffered and continues to suffer from a loss of earning capacity as result of the combined physical and mental injury.
8. The multiple issues arising in this case relate to the nature of the injury suffered by the worker, any incapacity for work arising therefrom (total or

partial ), periods of incapacity and the amount of compensation that should be paid to the worker
9. Yet a further important issue in this case “is the extent of the worker’s pre-injury capacity for work and in particular whether the worker had a limited capacity for work prior to the work injury because of either his anti-social personality or his pre-existing psychiatric injury”.
THE EMPLOYER’S ARGUMENT
10. The employer argues that the worker is no longer incapacitated for work (other than work of the heaviest type undertaken by a station hand) as result of the significant injury to his right knee which occurred during the course of his employment on 22 June 1997. The employer argues that the worker’s symptoms and disabilities have substantially resolved. Although the worker experiences some residual symptoms as a result of the injury to his knee, those symptoms do not result in an incapacity for the type of work that Mr Ah Quee was capable of performing before the injury.
11. The employer further argues that the worker no longer suffers from a loss of earning capacity as a result of the injury to his knee. The employer says that Mr Ah Quee is able to earn in employment reasonably available to him equal to or more than his indexed normal weekly earnings.
12. There are three theoretical strands to the employer’s argument in relation to the worker’s psychiatric condition (that is, delusional disorder or paranoid schizophrenia): (1) the condition predates the worker’s knee injury; (2) the condition developed independently of the knee injury and (3) the condition did not result in any diminished capacity for work having regard to the worker’s pre-injury psychiatric condition. There is considerable overlap between the individual strands in the employer’s argument, each tending to support the other.
13. The employer argues that any adjustment disorder that the worker may have suffered as a result of the injury to his knee was minor and transient, and therefore has ceased.
14. Finally, the employer argues that the injury sustained to the worker’s knee in June 1997 did not cause an aggravation or exacerbation of his pre-existing psychiatric condition of delusional disorder or paranoid schizophrenia.
15. Accordingly, the employer asserts that the worker was not entitled to continuing payments of compensation from 27 December 1997 onwards, except for the brief period he was incapacitated as a consequence of undergoing surgery. The employer says that Mr Ah Quee has no ongoing entitlement to weekly payments of compensation.
16. Consonant with its argument, the employer primarily seeks the following orders:
16.1 A ruling that the worker ceased to be totally incapacitated for work on 13 October 1997.
16.2 A ruling that the worker ceased to have any loss of earning capacity as a result of his injury on 13 October 1997.
16.3 A ruling that the worker is not entitled to ongoing payments of compensation pursuant to the Work Health Act (NT) and that he ceased to be so entitled on 13 October 1997.
16.4 The worker’s application is dismissed.
16.5 The employer’s counterclaim is upheld.
THE EVIDENCE RELATING TO THE WORKER’S PHYSICAL INJURY ON 22 JUNE 1997 AND POST-INJURY CAPACITY FOR WORK
17. On Sunday 22 June 1997, while the worker was helping to muster cattle riding a motor bike, he was thrown from the bike and injured his right knee. Subsequently, Mr Ah Quee was hospitalised from 26 to 30 June 1997 at Alice Springs under the care of Mr Schmidt, orthopaedic specialist.
The right knee injury consisted of “acute chondral injury to the patella; attenuation of posterior cruciate ligament; damage to articular cartilage flap on the femoral condyle; avulsion facture lateral tibial spine”.
Mr Ah Quee underwent arthroscopy at the Alice Springs Hospital on 27 June 1997. That was followed by extensive physiotherapy in Bundaberg.
The employer’s insurer (TIO) asked CRS in the Northern Territory to co-ordinate a return to work. As part of his rehabilitation, Mr Ah Quee was given a hinged knee brace to provide general support and lateral knee stability.
Dr Donley (general practitioner) certified the worker fit to return to work. However, the return to work program proved unsuitable for the reasons that follow.
According to the Return to Work program prepared by CRS, Mr Ah Quee was to do “fencing work – driving property vehicle. Alighting from vehicle, using rammer to put fence pickets in ground, standing and walking demands. No squatting, no heavy lifting for full-time or as fencing duties are available”.
On 28 October 1997 the worker reported to Dr Baker that his right knee was sore, made worse by his having to put his right foot awkwardly when walking, causing sharp pains over the medial aspect of his knee.
Subsequently, on 24 November 1997, Mr Ah Quee was assessed by Erica Whitehead, a physiotherapist at Tennant Creek hospital. Ms Whitehead examined the worker’s right knee and found it “mildly oedematous (swollen), both intra and extra articular. Flexion 0 degrees to 100 degrees flexion with pain at end of range in the medial aspect of the knee. He complains a ‘clunck’ within his knee joint as he flexes at 30 degrees and again at 60 degrees. On palpation he was tender over the medial joint line. Gait was compromised at the assessment as he had accidentally kicked a tree stump earlier in the day”.
As part of her assessment, Ms Whitehead recorded that Mr Ah Quee “felt that he had deteriorated since his return to work with increased oedema, pain and limp of his right knee”. She also recorded that the worker expressed considerable concerns about possible “amputation” or further “total knee reconstruction if his knee did not improve”.
On 25 November 1997, Dr Baker reduced the worker’s hours of work. However, as pointed out by Mr Barr (at p 8 of his written submissions dated 1 July 2004), it appears that Anthony Lagoon Station closed down from on or about 1 December 1997, resulting in there being no appropriate or available work for Mr Ah Quee.
On 11 December 1997, Mr Ah Quee was reviewed by Mr Schmidt who reported in these terms:
“To physical examination he has a gross thigh wasting. He can contract his quadriceps but is just able to do a straight leg raise, indicating severe thigh weakness. His patella is irritable, his extension is limited by pain by 5 degrees and he can only flex to about 100 degrees before he is limited by anterior knee pain. He has mild medial and posterior instability.
Ajay has a knee which is strong enough to walk only with the aid of crutches. He is unfit for work until such time as he obtains a normal level of strength for the job he has to do.
I feel his return to work protocols unrealistic both with the knowledge of what is required on station work and expectations of what Ajay can do. His medical supervision has been by a visiting medical practitioner to the Barkley homestead which has been agreeing with the rehab protocols.”
18. On 16 January 1998, the worker travelled to Darwin where he was seen and examined by Dr Jackson, orthopaedic specialist. Dr Jackson expressed the view that Mr Ah Quee should be referred to an orthopaedic surgeon for further investigations and treatment. Dr Jackson was of the opinion that the worker had sustained a “moderately severe injury” to his right knee, combined with degenerative changes in the medial compartment of the right knee.
19. The worker underwent a second arthroscopy at Royal Darwin hospital on 2 March 1998, which was performed by Mr Baddeley, orthopaedic surgeon. The surgeon reported that Mr Ah Quee had “a complete tear of the posterior cruciate ligament with a tear of the anterior portion of the medial meniscus and some damage to the articular surface on the retropatellar surface”.
Evidence was presented to the Court concerning the residual incapacitating effects of the worker’s right knee injury, in particular quadriceps wasting and loss of movement.
Dr Jackson gave evidence as to observation and measurement of the worker’s right and left thigh muscles as at 21 October 1998:


“right thigh muscle circumference 47cm, left thigh muscle circumference 50 cm.”
This is to be compared with the observation and measurement undertaken by Dr Jackson on 12 June 2002:
“right thigh muscle circumference 45cm, left thigh muscle circumference 48cm.”
According to the report from Professor Ehrlich dated 13 October 2003 (Exhibit W8), “girth measurements reveal the right thigh to be 2-3cm thinner than the left”.
20. However, the evidence from Professor Marshall in is in stark contrast to the body of evidence from Dr Jackson and Professor Ehrlich in relation to muscle wasting. Professor Marshall made a statement to the effect that there was no muscle wasting as at 4 September 2003.
21. It is not easy to reconcile the conclusion reached by Professor Marshall with the findings made by Drs Jackson and Ehrlich; however, the evidence given by Professor Marshall under cross-examination may go some way towards explaining the marked divergence in opinion. Professor Marshall’s examination was conducted under less than ideal circumstances, that is, with a less than fully cooperative patient.
22. What is significant is that Professor Marshall conceded the possibility that a detectable difference – for example 2-3 cm of muscle wasting of the right thigh - might have been noted at a later time under better conditions of examination and with a more cooperative patient.
23. Professor Ehrlich made the following comments in relation to loss of movement to the worker’s right knee:
“The right knee has full extension but there is pain on attempting full flexion and this was not persevered with…”
The Professor went on to express the following opinion:
“There is loss of some knee movement, some quadriceps deficit and it appears that he has enough internal derangement of the knee joint to stop it from functioning satisfactorily. There may be some underlying progressive osteoarthritis as well, but up-to-date x-rays are required for establishing this aspect of the diagnosis.”
24. Following his review of the worker in March 2002, Dr Jackson reported:
“Mr Ah Quee does remain incapacitated for employment. Given the known pathology in his knee, he must have at least a partial incapacity for employment and, given the known pathology, he is almost certainly not fit to resume work as a station hand…”
Dr Jackson went on to say:
“…on physical grounds, he should be able to undertake some form of light sedentary work. He would require some restrictions which would include the fact that he should not be required to weight bear on his right leg for any length of time or undertake any running, kneeling, squatting or twisting around…”
Dr Jackson disagreed with the suggestion made during cross-examination that Professor Marshall had found no structural abnormality in the worker’s right knee. He said: “…to state that he had no structural abnormality is just not acceptable.” Dr Jackson was of the opinion that the knee was not normal and the cruciate rupture would not heal and would be permanent.
25. On the issue of capacity for work, Dr Jackson thought the worker could work as a parts dismantler/caretaker in a caryard. The doctor envisaged Mr Ah Quee living on site in a caravan, dismantling motor vehicles, for example removing mirrors and door handles.
26. Dr Jackson had some reservations about the worker gardening, as he would not be able to get down on his hands and knees due to the condition of his knee. Although Dr Jackson believed that the worker was capable of performing many aspects of gardening for example riding or sitting on a ride on mower to mow the lawn; but that there were some aspects that he would have difficulty performing.
27. Dr Jackson agreed that Mr Ah Quee would be able to cope with light courier work. He also expressed the view that the worker could do the work of a handyman at a childcare centre.
28. Dr Jackson considered that lifting weights in the range of 10-15 kilograms would be within the worker’s physical capabilities. The doctor suggested that Mr Ah Quee could lift 20 kilograms – an upper limit – on a one-off basis, but not repetitively. In his report dated 21 January 1998 (Exhibit W9) Doctor Jackson said that the worker could at least attempt bore maintenance work.
29. Professor Ehrlich was of the opinion that the worker should be able to do sedentary work and also work requiring him to be “up and about”, provided that he did not have to climb on difficult terrain, or up steep stairs or ladders. The Professor thought that Mr Ah Quee could do some gardening work which did not involve a lot of shovelling and pushing heavy wheelbarrows. Professor Ehrlich thought that the worker would be able to do light courier work as well as working in a junkyard, provided he did not have to lift heavy gear boxes or perform physically demanding tasks.
30. Professor Ehrlich made two positive findings, namely, pain on attempting full flexion of the right knee and quadriceps wasting.
31. Professor Marshall said that the only work restrictions he would impose were heavy lifting or heavy manual work because of the worker’s right knee weakness. He said that heavy lifting should be limited to 10 kilogram weights.
32. Professor Marshall agreed that the worker could do the work of a light courier driver and a car dismantler. The Professor stated that there were no signs of persisting work-related injury effects and that the worker was certainly not incapacitated on physical grounds for employment.
33. There was also evidence from the worker himself as to his physical capacities.
34. Mr Ah Quee told doctors in Cairns that he intended to travel and that he was spending time working on his Volkswagen Camper before embarking on an around Australia trip. Mr Ah Quee informed Dr Brown that he only takes Pandaol occasionally, that he goes fishing for barramundi or spray paints his car. The worker also told Dr Brown that he would probably go to Tasmania and fish for a while.
35. Mr Ah Quee told the Court that he had looked for gardening work at Banka Banka and that he had applied for 6 or 7 other jobs that included station help, station caretaker and driver. The worker also told the Court that he had purchased a boat to repair.
36. On 30 September 1997, Mr Ah Quee told Erica Whitehead at CRS that his pain levels had reduced and that he had recovered right knee function so as to be able to assume the squat position.
37. As pointed out by Mr Southwood, there is also a body of evidence which shows that since the accident the worker has performed a variety of work:
“(i) fencing work as part of the worker’s return to work program on Anthony Lagoon Station;
(ii) repaired old motors for people on Pamela Vawdrey’s property at Watsonville;
(iii) panel beating his car;
(iv) fixed his car wheels;
(v) building a new campervan;
(vi) redoing bearings, bushes and brakes;
(vii) washed the exterior of cars;
(viii) repaired cars including in and under cars in confined spaces;
(ix) used a power drill to fix a number plate to a vehicle;
(x) repaired a solar panel;
(xi) transported goods and bits and pieces;
(xii) spray painting a bull bar and a vehicle;
(xiii) repairing and fitting a bull bar to a motor vehicle;
(xiv) bought and traded motor vehicles;
(xv) welded a steel frame and carried the steel frame and sheets of metal from the top of his vehicle to his annex;
38. In addition, there was also the video surveillance evidence (Exhibit E19) which provided a source of objective evidence as to the level of the worker’s capacity - or incapacity - for work. Exhibit 19, inter alia, revealed the worker undertaking a number of the activities referred to above or activities of a similar nature.
39. Finally, Mr Bacon, the surveillance agent, gave oral evidence of his observation of the activities undertaken by the worker while under surveillance. His evidence in chief was as follows:
39.1 In 2002 Mr Bacon was asked to conduct surveillance inquiries of the worker.
39.2 At the time he was supplied with a photograph of Mr Ah Quee whom he identified in court during the course of the hearing.
39.3 At that time he conducted surveillance of the worker at the Nook Caravan Park in Darwin on two separate occasions. The first occasion was the period 16 to 21 August 2002. The second occasion was for the period 10 to October 2002. He made contemporaneous notes on both occasions.
39.4 In relation to the surveillance carried out on 17 August 2002 Mr Bacon used two cameras, one being a handheld camera and second being set up in a static position.
39.5 Mr Bacon first sighted the worker on 17 August 2002 at 11.21am. He saw Mr Ah Quee exit his caravan and walk to the toilet block. He saw him subsequently return to his caravan site and then return to the toilet block where the worker appeared to be doing his washing or laundry. Mr Bacon saw Mr Ah Quee hanging his clothing on the communal clothesline adjacent to the toilet block and laundry area. He observed Mr Ah Quee return to his caravan site just prior to 1.00pm where he began to water the grass and gardens about his caravan site. The worker was seen to both stand and on occasions sit down to water certain areas extensively, “tending to walk from position to position and sit down to water”. Mr Bacon made further observations of the worker at approximately 11.37am. At that time the worker was seen moving from his caravan site to a concrete car park where he proceeded to rub down a detached bullbar with what looked and sounded like sandpaper. Mr Bacon then saw the worker return to that location and use a spray can to spray paint the bullbar. The worker continued to spray paint the bullbar and then walked to his vehicle and reversed it a short distance. He subsequently returned to the bullbar and lifted a small ladder, placed it to one side and arranged several standard house bricks on a concrete platform. Mr Bacon then observed Mr Ah Quee push the bullbar under a jerry can and begin to rub the bullbar with a wire brush on its lower portion. The worker returned to spray painting the bullbar and he then raised another portion of the bulbar, and placed it on top of a car ramp so that it was raised above the concrete. Mr Ah Quee then continued to spray paint the bullbar. He used a wire brush to prepare the bullbar for spray painting. Mr Bacon said that he next observed the worker at 1.54pm when he put the bullbar upright on the bricks and the car ramp so that it was raised above the concrete. He again proceeded to again spray paint the bullbar. At that point Mr Bacon replaced the static camera tape and left the caravan park.
39.6 Mr Bacon said that he returned to the caravan park at 6.36pm on 17 August 2002. He said that at just before 7.00pm the worker and a companion approached a yellow Patrol. Mr Bacon said that he was unable to see exactly from his location what they were doing, but he could hear what sounded like a powered sander being operated. Mr Bacon could see Mr Ah Quee moving about the vehicle and talking to his companion, however it was dark at that stage and Mr Bacon did not have a clear view of what they were actually doing. Mr Bacon then departed .
39.7 Mr Bacon said that on 18 August 2002 he again conducted surveillance of the worker. Again he used a handheld camera and a static camera. Mr Bacon saw Mr Ah Quee exit his caravan and walk to the toilet block just after 8.00pm. The worker soon returned to his vehicle, entered it and drove off. The worker did not return to the caravan park until after 10.00am. He and another male inspected the bullbar. The worker then used what appeared to be sandpaper to rub the body of the vehicle near the front left wheel for about two minutes. He did that alone, without the assistance of the other male. Mr Bacon then saw the worker sit down on a stool and continue to rub the side of the vehicle with the sandpaper for the next nine minutes. Mr Ah Quee then walked to his caravan and returned with a can of spray paint with which he sprayed the side of the vehicle, which he had earlier prepared. That lasted about two minutes. Mr Bacon then observed the worker walk around the far side of the vehicle. Although Mr Bacon could not see what the worker was doing, he heard him spray painting the other side of the vehicle. Mr Bacon then saw Mr Ah Quee walk back to the left side of the vehicle and sit down on his stool, continuing to spray paint that side of the vehicle, which was visible to Mr Bacon. Mr Bacon then saw the worker walk around to the far side of the vehicle where he laid down. At just after 11.00am, he was seen underneath the vehicle, spray painting while laying on the ground or along the side of the vehicle. Mr Bacon next saw the worker stand up and move to the rear of the vehicle where he again laid down on the ground, apparently spray painting the underside of the vehicle. The worker stood up again and walked around to the rear of the vehicle where he again laid down. At that point Mr Bacon moved into position to observe the worker’s expected departure. The worker had moved around to the driver’s side of the vehicle, but at 11.16am Mr Bacon again observed Mr Ah Quee laying down at the left side of the vehicle. The worker then sat up again. At about 11.12am Mr Bacon had observed the worker standing up and clutching his left knee as if he was in pain. Mr Bacon said that it was at 11.23 am that he saw the worker standing at the back of the patrol. However, he could not see him on the right side of the vehicle when he walked around. Mr Bacon said that the rear doors of the patrol were open. The worker was standing at the rear of the vehicle; however Mr Bacon was not “100% sure what he was doing back there, he appeared to be engaged in some sort of activity”, but he did not know what that was. Mr Bacon’s next observation of the worker was that he returned to his van at about 11.40am and subsequently at 12.13pm he returned to the rear of his vehicle and examined the back of that vehicle. The worker then walked to the front of his van and returned, trailing an extension cord behind him. Mr Ah Quee was seen to walk around the vehicle again. The worker was observed holding a power drill which he used to affix a number plate above the rear of the vehicle, up near the roof. Mr Ah Quee spent about 13 minutes performing that activity. Mr Bacon stated that the worker then walked back to his van and about five minutes later returned to the vehicle where he continued affixing the number plate. Mr Bacon said that he did not leave the surveillance site until 8.45pm that day. Between 1.03pm and the time he left Mr Bacon did not make any further observations of the worker.
39.8 Mr Bacon again conducted surveillance duties on 19 August 2002, commencing at 5.30am. Once again a handheld camera and a static camera were used. Mr Bacon said that he did not see the worker directly that day. He said that on that day film was taken by static camera which he retrieved at the end of the day.
39.9 Mr Bacon said that he next conducted surveillance of the worker on 12 October 2002. Both a handheld camera and a static camera were used that day. On that day Mr Bacon first saw the worker at approximately 9.30am. He was observed at that time speaking to another resident of the caravan park. Mr Ah Quee was next observed walking around the rear of his vehicle, driving his vehicle and then reversing it up to the annex to his caravan. Although he could not see him directly, Mr Bacon said that Mr Ah Quee appeared to be pushing a sheet of steel onto the grass from the annex. The sheet of steel was taken from the roof of the worker’s vehicle. Mr Bacon said that he observed the worker and another resident of the park move the sheet of steel underneath the annexed area of his vehicle. The worker and the other person were seen carrying from the annexed area a large welded steel structure, like a set of shelving. They carried it towards the grassed area. The worker was later joined by a third male, an elderly resident of the caravan park. The three of them flipped the sheet of steel over and then carried it underneath the annexed area. The three of them were next seen carrying the metal frame back underneath the annexed area. Mr Bacon was not able to discern why the metal frame and the sheet of steel were carried to that location because “the claimant’s caravan area had a number of blue tarps set up, so I had restricted view of underneath there”. Next, Mr Ah Quee was observed removing the sheet of steel from the top of his vehicle and carrying it over his head back underneath the annex. As to any further observations made of the worker on 12 October 2002, Mr Bacon said: “The claimant spent some time watering the area whilst sitting down largely, then by 1 o’clock or 1.00pm he parked his vehicle parallel to the road in front of the annexed area and I saw the claimant removing a black case – a small black case of some kind from the back of his vehicle and taking it into the annexed area. Subsequently on 12 October 2002, Mr Bacon saw the worker going to and from the toilet/shower block area.
40. During cross-examination Mr Bacon gave the following evidence.
41. Mr Bacon acknowledged that on 18 August 2002 at 11.12am he noted as follows: “The claimant rolled onto his hands and feet, he then straightened his knees and pushed up with his hands. The claimant then held his knees briefly while leaning possibly because of pain before he walked with an obvious limp around the rear of the Patrol.” Mr Bacon agreed that Mr Ah Quee was holding both of his knees, and not just his left knee.
42. Mr Bacon agreed that the metal sheeting that was moved on 12 October 2002 could be described as “light metal sheeting”. He went on to say that it was a thin piece of steel sheeting.
43. The witness said that the long straight members forming part of the steel structure which was being carried by the worker with the assistance of another male would probably have been no larger than an inch or two. He went on to concede that they possibly could have been less than an inch by inch.
44. During re-examination, Mr Bacon said that on 16 August 2002 he saw the worker go to the toilet block and return. On 20 August he observed the worker spending some time late morning watering his yard around the block. In the late afternoon he saw Mr Ah Quee retrieving a shifter from his vehicle. He added that he saw the worker depart in his vehicle, walk within the caravan park presumably to some other site and return to his vehicle for several periods of time. Mr Bacon said that on 21 August 2002 he saw the worker in the morning sitting at the footstep of his caravan. He left the surveillance site at 12.30pm. On 11 October 2002 at about lunchtime, Mr Bacon said that he could hear “the sounds of sawing or a similar sound coming from within the annexed area”. He went on to say that he could hear what sounded like the sawing of wood. He went onto add: “ hand sawing and at about 1 o’ clock he exited his annexed area and washed his legs with a hose, and I saw him have a cigarette at that time and the claimant carried a stool and sat down just partially in my view so I was unable to determine exactly what he was doing at that time, he was just sitting down”. Finally, on 11 October 2002 Mr Bacon observed the worker at about 2.00pm carrying a bag of rubbish over towards the toilet block area. For the rest of the day he did not observe much activity on the part of the worker. Mr Bacon said that he did not see Mr Ah Quee on 13 October 2002, but heard sounds of cooking and possibly a radio or TV coming from inside his caravan. However, he did say that the worker drove from the caravan park at about 6.30pm and returned at about 7.30pm, carrying two white plastic shopping bags. As for 14 October 2002, Mr Bacon did not see Mr Ah Quee.
45. Finally during re-examination, Mr Bacon was asked whether he observed any other occasions (apart from 18 August 2002 at 11.18am) when the worker was holding his knees and apparently in pain. Mr Bacon replied that he did not see the worker on any occasion clutching his knees in that way; however, he said that the worker “almost always walked with a distinctive limp at times”.

THE EVIDENCE CONCERNING THE WORKER’S PRE-INJURY PERSONALITY, PSYCHIATRIC STATE AND CAPACITY FOR WORK
46. Before turning to an examination of the evidence relating to the worker’s mental injury – defined either in terms of a psychiatric reaction to the physical injury or a aggravation and/or exacerbation of a paranoid psychosis – it is useful to examine the evidence relating to the worker’s pre-injury personality and psychiatric state, so as to put the alleged mental injury in proper context and to enable a proper consideration of the employer’s argument in relation to the psychiatric aspects of the worker’s injury.
47. The evidence shows that in the several years prior to the accident at work on 22 June 1997, Mr Ah Quee’s mental state was not such as to incapacitate him for work. In particular he was able to obtain employment with the employer and was working in that employment at the time of the accident. However, Mr Ah Quee did present with a history of some symptoms and episodes of mental illness with one instance of mental illness (with physical symptoms) which required him to be admitted to hospital. The evidence also indicated that during his teens, Mr Ah Quee spent time in a mental hospital or institution as a result of having sniffed paint or inhaled some other deleterious substance, such as glue – although this was vehemently denied by the worker. The worker had a substance abuse problem, having either sniffed petrol or butane gas. Consequently he was placed in the WHOS institution for the period 27 December 1984 to 15 February 1985.
48. Exhibit 24 (p 8) revealed the following admission or presentation which provides some insight into the state of the worker’s mental health prior to the date of the accident :
“16.1.92 ‘Psych Assessment of worker at Maryborough Hospital, following history of severe pain from herpes zoster opthalmics, (exh W16) which had required hospital admission and treatment: - ‘Personality disorder with impulsivity, extreme defensiveness and (I believe) psychotic potential.”
The same exhibit (p 75) provided further insight into the worker’s pre-accident mental state:
“22.02.93 Transferred to Royal Brisbane after referral from Hervey Bay Hospital – gradual onset of right-sided weakness after appendicectomy (‘… no response to painful stimuli to R arm and leg’), with pattern of weakness and distribution of numbness not consistent with organic disease. Diagnosis of conversion disorder made by Dr Joan Lawrence, psychiatrist. The worker rapidly recovered.”
49. Exhibit 24 (p 411) provided yet further information in relation to the worker’s mental state:
“27.3.95 Worker (now employed as groundsman and handyman for ‘Able Little Learners’) recently denied access to daughter. Court order. Recent upset at work (GP Dr’s notes) ‘Teary++depressed ++’, ‘no formal thought disorder’. Major depression.”
50. There is a body of expert evidence which shows that prior to the work related injury the worker had an anti-social personality and had suffered from paranoid schizophrenia. The worker also suffered from a personality disorder, conversion disorder and major depression. Mr Ah Quee hated people and often had to escape, that is, get away by himself.
51. Following a psychological assessment conducted on 16 January 1992 the worker was found to have a personality disorder with impulsivity and extreme defensiveness. The worker was also found to have a potential for developing psychosis. According to Exhibit 24, Maryborough, p110), it was suggested that the worker leave home.
52. Following an appendectomy that was performed on 14 February 1993, Mr Ah Quee presented at Maryborough hospital with a strange paralysis of his right side. Exhibit 24 (p 27) reveals that the worker was hyperventilating and complaining that he appeared to have lost consciousness. The worker was transferred to Brisbane where he was initially kept under observation and eventually transferred to the hospital’s psychiatric ward. There, Dr Lawrence reached the following diagnosis: impairment disorder, gross unmet dependency needs, denial, secondary gain from avoiding conflict with wife, probable hostility towards mother and [questionably] gain from social security.
53. During the period 27 to 30 March 1995 Mr Ah Quee sought and received treatment from Dr Burrows, a general medical practitioner in Queensland. The doctor diagnosed the worker as suffering from major depression. Mr Ah Quee was either considering or wishing to harm his wife. Consequently, Dr Burrows had prescribed aropax and serapax.
54. Dr Kenny gave evidence as to the worker’s psychiatric profile prior to the accident. He was of the opinion that the worker’s medical history was not only consistent with a person who has had a long standing mental disturbance in terms of personality and behaviour but also consistent with a diagnosis of paranoid schizophrenia. At page 321 of the transcript Dr Kenny expressed the opinion that Mr Ah Quee may have been able to cope mentally prior to the accident, “but he was sort of on the fringe”.
55. The evidence shows that Mr Ah Quee was during his early years in the care of the Salvation Army and Catholic priests. Apparently, he had been found work by either the police or priests. Mr Ah Quee had attempted to get into and remain in the Army Reserve but had failed.
56. The Court was given a history of the worker’s relationship with other persons – both in a domestic and employment context – over the years prior to the work related injury.
57. During late 1991 and early 1992, when he was aged 23 years, the worker lived with his mother. On 22 December 1991 she tried to get her son psychiatric help. According to Exhibit E24 (p192) she had told Maryborough hospital that her son had been confabulating, was unable to keep his job and was acting strangely at home. Again according to Exhibit E24 (p110) the mother had reported that her son had manipulative control over her. Furthermore, the evidence is that on 12 February 1993 the worker was discharged from Hervey Bay hospital into the care of his mother.
58. Evidence was adduced as to the worker’s relationship with Pamela Vawdrey. Mr Ah Quee appears to have gone where she obtained work, for example Anthony Lagoon Station. Ms Vawdrey and the worker ended up living on her 75 acres near Watsonville, Qld while she worked as a cook in a local pub.
59. Then, there was the evidence relating to Mr Ah Quee’s relationship with two of his employers, Able Little Learners and Pitstop.
60. At page 76 of the transcript, the worker gave the following evidence:
“I was living with the Whiteheads and Ms Anderson at Hervey Bay and in their place at the Gold Coast.”
61. Karen Whitehead gave the following evidence concerning her relationship with the worker:
“…I told him to go back to Bundaberg because we were paying him, he was losing most of his wages that we paid him to child maintenance, and Paul and I were supporting him accommodation and a house that we had in Hervey Bay, we couldn’t do it long term.
…he lived with us there at 10 Ben Street and he also lived with us on the Gold Coast.”
At p 256 of the transcript she gave this additional evidence concerning the worker:
“He lost interest in himself for a period of time when we had him on the Gold Coast and after when he started to work for us, he took – we had his hair cut and he started to shower more regularly and he was very tidy and then he went – he just deteriorated.”
62. The worker gave this evidence as to his relationship with Pitstop:
“what I can remember of Pitstop was Mrs McDonald would deliver my pay packets once a week and I would work on a Tuesday and I actually lived with Mr McDonald’s brother out on the coastline there because I used to go fishing out there a lot and either – it was just more economical to live where his brother was.
…as far as I can remember I’d have a set amount of cars to do on Tuesday and if I took 30 hours to do that set amount of cars 12 or 5 hours, then I stayed until it got done and then I went fishing because I was on x amount of dollars per hour and if I worked a 30 hour day, well there is $300 just for that one day and if it went overnight and into the next day as long as I had not had my quota for that week done.”

THE EVIDENCE CONCERNING THE WORKER’S MENTAL INJURY
63. Before embarking upon an examination of the evidence referable to the “mental injury” aspect of the worker’s claim, it is useful to set out the state of the pleadings in relation the “mental injury” issue.
Amended Statement of Claim paragraphs 10 and 11
“The worker subsequently suffered a mental injury arising out of his employment with the employer.
Particulars of mental injury
Severe adjustment disorder with depression, anxiety and paranoid thinking, caused by the right knee injury, in that it was a psychiatric reaction to the right knee injury.
The worker is and has been totally, alternatively partially incapacitated as a result of his right knee injury and mental injury.”
Employer’s Answer to Amended Statement of Claim and Employer’s Counterclaim paragraph 10
“The employer denies the allegations pleaded in paragraph 10 of the Claim as if each were set out seriatim and specifically denied. Further, the employer pleads that at all material times (including times predating the injury) the worker has suffered from a paranoid psychosis being either a delusional disorder or paranoid schizophrenia and that if the worker is incapacitated for work (which is denied) then the worker has been incapacitated for work as a result of his paranoid psychosis. Such a psychiatric condition is not compensable under the Work Health Act or at all.”
Worker’s Reply to Employer’s Answer paragraph 2
“Further, as to paragraph 10 of the Answer, the worker says as follows:
2.1 The worker does not admit that at all material time (including predating the injury to his right knee) he has suffered from a paranoid psychosis as alleged, whether characterised as Delusional Disorder or Paranoid Schizophrenia.
2.2 If the worker suffered from a paranoid psychosis predating the injury to his right knee, same did not incapacitate him for work, and in particular for the work duties admitted in paragraph 3 of the Answer, namely mustering, stock handling in the yards and transporting cattle by truck, in the period 19 June to 22 June 1997.
2.3 If the worker suffered from a paranoid psychosis predating the injury to his right knee, whether characterised as Delusional Disorder or Paranoid Schizophrenia, then further or in the alternative to the mental injury pleaded in paragraph 10 of the Amended Statement of Claim, the right knee injury caused an aggravation and/or exacerbation of the worker’s paranoid psychosis whereby the worker commenced to suffer and still suffers new and incapacitating delusions as to pathological processes occurring within his right knee, namely, delusions as to missing muscles, crumbling bones and internal haemorrhaging.
Such aggravation and/or exacerbation of the worker’s paranoid psychosis is at law an injury to the worker arising out of his employment with the employer.”
Employer’s Counterclaim paragraph 20
“Further and alternatively, if the worker has been incapacitated for work (which is denied) then such incapacity is as the result of the worker’s paranoid psychosis. Any such incapacity is non-compensable.”
Worker’s Defence to Counterclaim paragraph 11
“The worker denies the allegations contained in paragraph 20 of the Counterclaim. The worker refers to the matters pleaded in paragraph 10 of the Amended Statement of Claim and paragraph 2.3 of the Reply above and says that his incapacity is as a result of :-
11.1 the physical injury to his right knee, psychologically accentuated by the worker’s severe adjustment disorder with depression, anxiety and paranoid thinking; further or alternatively
11.2 the worker’s paranoid psychosis as aggravated and/or exacerbated by the worker’s right knee injury and the consequences thereof.
The worker’s overall incapacity is compensable under the Work Health Act.”
64. I now proceed to set out in some detail the expert evidence relating to the worker’s alleged mental injuries
65. Dr Kenny (whom Professor Yellowlees acknowledged to be “a particularly experienced and competent psychiatrist”) examined the worker as a consultant engaged by the employer. The worker was seen by Dr Kenny on three separate occasions, being 7 December 1998, 25 February 2002 and 31 August 2003. Dr Kenny prepared five reports concerning Mr Ah Quee, all of which were tendered as Exhibit W7.
I propose to deal with the various observations and opinions which appear in those reports before proceeding to outline the oral testimony of Dr Kenny.
66. In his report dated 22 December 1998 (part of Exhibit W7), Dr Kenny said that he was fairly sure that Mr Ah Quee was suffering from a paranoid schizophrenic illness. He was inclined to the view that the knee itself was “sufficient to render him unfit for any of the sorts of employment of which he would be capable were it not for his injury”. Dr Kenny went on to say:
“ …I believe that this man has a significant physical problem and that it is sufficient to render him unemployable… he has a physical problem and that it is probably going to continue to bother him, to render him unfit for manual work, and therefore leave him unemployable”.
67. In the same report Dr Kenny stated:
“ …I believe it is most likely this man has a significant underlying psychiatric condition, that he is somewhat grandiose, paranoid and I believe that the litigation process provides a focus for him and inflames his paranoid thinking.
The litigation process is an extremely powerful agent in its own right in participating paranoid thinking and in this man, I believe that it has certainly contributed.”
68. In his report dated 25 February 2002 Dr Kenny said that he did not think the worker was deliberately fabricating and he stood by his assertion that the worker probably suffers from an underlying schizophrenic illness. However, the doctor entertained some reservations about the diagnosis because of his awareness of the ways in which the litigation process can complicate a person’s presentation.
69. In the same report Dr Kenny stated:
“Indeed whether or not he has this underlying schizophrenic illness that I believe him to have his litigation process has become the focus of his concern. In this way the whole litigation process is clearly inflaming the situation to a great extent.”
70. Dr Kenny went on to say that Mr Ah Quee had suffered a significant knee injury and it was easy to lose sight of that in view of his overall presentation. He added:
“I accept that he has continuing problems at least in his knees but I suspect that there is a major functional psychological accentuation of those difficulties.”
71. Later in the same report, Dr Kenny opined:
“I am also inclined to accept that the symptoms he has as a result of that in themselves are sufficient to restrict the forms of employment of which he would be capable but, of course, I refer to those more versed in physical medicine on that issue.
But, I do make the point that his psychiatric status would make it very difficult for him to find employment. Indeed, it may well be that his psychiatric problem shifts him from being fit only for light work to being unemployable.
Now, any accentuation of his psychiatric problem/state is a complication of the litigation process… in which he has become enmeshed since his injury.”
72. Finally Dr Kenny said:
“The injury itself has probably made a minimal – if – any contribution to the aggravation or development of his psychiatric status.
Any aggravation is due to his involvement in this legal process, his concerns about being unreasonably paid, unreasonably looked after etc…
… the incident caused him a physical injury which restricts his ability to do ordinary employment and his psychiatric status massively interferes with the process of his rehabilitation and the possibility of obtaining alternative employment.”
73. In his report dated 31 August 2003 Dr Kenny adhered to his diagnosis of underlying schizophrenic illness.
74. He said that had no idea of how much the history that was given to him by Mr Ah Quee was true. He said, however, that he was not suggesting that the worker was deliberately misrepresenting, but the worker had delusional beliefs, and it was difficult to separate the truth from the delusional material.
75. Dr Kenny was sure that any physical problems the worker had were “accentuated by his psychological reaction determined by the compensation process and the frustrations that so commonly arise therefrom…”
76. The doctor believed that although the worker was unfit for manual work he was from a purely physical point of view capable of doing a reasonable range of other work. However, given his attitude, his behaviour and underlying psychiatric problems, Dr Kenny considered the possibility of him obtaining other work was minimal.
77. In his report dated 5 September 2003, Dr Kenny again diagnosed the worker as suffering from an underlying schizophrenic illness.
78. The doctor went on to say:
“Well there is a physical problem outside my area of expertise. I think he has an underlying schizophrenic illness, but I suppose we would have to describe his psychiatric reaction as a severe adjustment disorder with depression, anxiety and paranoid thinking, complicating his overall presentation.”
79. Towards the end of his report, Dr Kenny said that, in light of the worker’s psychiatric condition, he was unable to make any recommendations as to suitable work that Mr Ah Quee might be able to undertake. As to any workplace duties that the worker could/could not perform given his current psychiatric condition, Dr Kenny responded thus: “ I say this man is completely unemployable in view of his psychiatric status at this stage.”
80. In his final report dated 24 September 2003, Dr Kenny expressed the view that the worker demonstrated “longstanding psychiatric problems with underlying personality disorder and most likely a paranoid schizophrenic illness – or at least delusional disorder”
81. In his oral evidence, Dr Kenny said that the term “adjustment disorder” simply refers to a person’s reaction to a given situation.
82. Dr Kenny was of the view that the worker had an underlying paranoid schizophrenic illness. He went on to say that Mr Ah Quee’s reaction to the overall situation was, in fairly arbitrary terms, due 50% to the physical injury and 50% to the compensation/litigation process.
83. When referred to various references in his reports to a suspicion that the worker had a pre-existing paranoid illness or delusional illness, Dr Kenny gave the following evidence:
“…it’s more than a suspicion. I think it almost goes as far as to say beyond reasonable doubt. The only reason I’ve expressed a qualification reservation about, is that I have not – I don’t have clear evidence for how he was functioning beforehand. Extrapolating back from the nature of his condition, I’d be astonished if he didn’t have severe and continuing and pre-existing psychiatric disturbance.”
84. Dr Brown’s view that the worker’s paranoid predisposition resulted in an exaggerated reaction on the part of the worker to his injury and subsequent events was put to the doctor. In relation to that Dr Kenny said:
“…I think it’s reasonable to consider that in the light of his paranoid – his schizophrenic illness, I think it’s probably reasonable to consider that his physical injuries may loom somewhat large and become the focus of his paranoid thinking. I think that’s the way I would like to formulate that. But you can formulate this in a whole lot of different ways. It’s one of the interesting, difficult issues here.”
85. In relation to his reference in one of his reports to “psychological accentuation of the physical injury” Dr Kenny said that “that’s another way of saying the same thing”.
86. Dr Kenny gave evidence to the effect that in the case of psychologically accentuated knee symptoms, they are real to the sufferer.


(d) Conclusions concerning the alleged injury
244. I make the following findings on the balance of probabilities:
244.1 The worker suffered a significant physical injury in the nature of a knee injury.
244.2 In addition, the worker suffered a severe adjustment disorder with anxiety, depression and paranoid thinking of lasting duration. That psychiatric state was caused by both the physical injury and the compensation process.
244.3 In addition to that mental injury the worker suffered an exacerbation and/or aggravation of his pre-existing paranoid pyschosis – defined either in terms of a delusional disorder or paranoid schizophrenia. The worker’s physical injury exacerbated and/or aggravated the worker’s predated psychotic illness by causing delusions that the knee injury was more severe than it was (including beliefs as to crumbling bones, missing muscles and haemorrhaging). Further, or in the alternative, the worker’s pre-existing psychotic illness was exacerbated and/or aggravated by the compensation/litigation process.
244.4 The two different mental injuries referred to in (1) and (2) above coincided and operated simultaneously.
244.5 As at the date of the hearing of these proceedings the physical injury (and its effects) as well as the two types of mental injury and their attendant effects subsisted.
244.6 That the operative injuries and their effects have resulted in or materially contributed to the worker’s incapacity.
Capacity for work and loss of earning capacity
245. I am reasonably satisfied on the balance of probabilities that as a result of the physical and mental injuries suffered by the worker as a consequence of his accident at work on 22 June 1997 the worker has been and remains totally incapacitated for work.
246. In my opinion, that finding is solidly supported by the psychiatric and physical medicine.
247. The physical medicine shows that as a result of the injury to his knee the worker was and remains partially incapacitated for work.
248. When one has regard to both the medical and psychiatric evidence, the inescapable conclusion is that the worker was and is totally incapacitated for work.
249. In order to be compensable the mental injury, whether described in terms of an adjustment disorder or an exacerbation and/or aggravation of a predated paranoid psychosis or a combination of the two – which is what the Court has found occurred in Mr Ah Quee’s case – must be productive of incapacity.
250. Dr Kenny expressed the opinion that the worker’s psychiatric condition would make it very difficult for the worker to find employment and indeed that condition may well render him unemployable. Dr Kenny went on to say that the worker’s psychiatric status “massively interferes with the process of his rehabilitation and the possibility of obtaining alternative employment”. He expressed the view that the possibility of the worker obtaining alternative employment was minimal. He subsequently shifted to the view that the worker was completely unemployable in light of his psychiatric condition.
251. When considering and evaluating Dr Kenny’s evidence, it is important to keep in mind the nature of the mental injuries suffered by the worker. Each of the mental injuries – and particularly in combination – rendered the worker more incapacitated than he would have been due to his pre-existing psychotic illness because their focus was on the physical injury and they accentuated the severity of that injury. Furthermore, those injuries, individually and in combination, clearly hindered his recovery from the physical injury and his rehabilitation. It is significant that while Dr Kenny believed that Mr Ah Quee was “on the fringe” prior to his accident he would have been able to cope mentally.
252. There is a death of evidence as to how well the worker was functioning prior to the accident, but as the evidence shows he was in fact suffering from a paranoid psychosis. In contrast, there is a wealth of information concerning his post – injury psychiatric state, replete with incapacitating delusions - particularly those relating to his knee injury.
253. The employer sought to show that the worker had a poor, intermittent work history prior to the accident, presumably due to his psychiatric condition, and therefore he already had a limited capacity to undertake paid employment, at least on a continuous basis. However, at the same time the employer alleged that the worker had a considerable capacity for work. The employer cannot “have it both ways”. The incontrovertible fact is that, regardless of the worker’s pre-accident capacity for work, he was periodically in gainful employment, whereas after the accident he was virtually unemployed and in my opinion unemployable.
254. Professor Yellowlees viewed the worker’s psychiatric condition as hindering his rehabilitation. The Professor was also of the view that the worker would be unfit for any form of paid employment as a result of his psychiatric condition, if left untreated. Those opinions assume special significance in light of the Court’s findings as to the incapacitating effect of the worker’s delusions concerning his knee injury together with the effects of the worker’s psychiatric reaction to that injury.
255. Even Dr Brown was of the view that the worker was not fit for any form of employment as “ a result of a combination of factors the main one being his paranoid psychosis”. Once it is established that the worker has suffered mental injuries (within the meaning of the Work Health Act) with clearly discernible incapacitating effects, the opinion of Dr Brown carries great probative force. It follows that the mental injuries suffered by the worker have resulted in or materially contributed to the worker’s incapacity for work, namely, a total incapacity for paid employment.
256. The surveillance evidence presented in this case showed the worker undertaking a range of physical activities. In my opinion, that evidence does not, in any meaningful way, demonstrate a capacity to undertake paid employment in the real industrial or commercial world. The environment in which the worker was observed to be performing those activities is so far removed from the environment and the demands of paid employment as to be of little probative value. What I observed on the video was a man, who had a clear physical incapacity, merely “pottering around” – as though he had “all the time in the world” - and displaying a very minimal level of
output. Most certainly, he did not present as an employable proposition.
257. My final conclusions in this case are as follows:
257.1 the worker was and remains totally incapacitated as a result of his physical injury together with his mental injuries – the adjustment disorder (being a psychiatric reaction to the physical injury and/or the compensation/litigation process) and the aggravation and/or exacerbation of the worker’s pre-existing paranoid psychosis ( with or without including the effects of the compensation/litigation process as part of that causative process) or alternatively
257.2 the worker was and remains totally incapacitated as a result of the physical injury together with his mental injury in terms of an aggravation and/or exacerbation of the worker’s pre-existing paranoid psychosis (with or without including the effects of the compensation/litigation process as part of that causative process).
258. In the event I have erred in my conclusion that the worker was and remains totally incapacitated as a result of his injuries, and that in fact he is only partially incapacitated for work, then, in my opinion the employer has failed to discharge the evidentiary burden that befalls it in accordance with the dictum of Martin CJ in Northern Cement Pty Ltd v Ioasa (SC (NT) 17 June 1994, unreported) as elaborated upon by the late Bailey J in Normandy Mining v Horner [2000] NTSC 79 para [29]:
“With respect, I agree with the approach adopted by Martin CJ. In order for an employer ‘to point to evidence… minimising his liability in monetary terms’, generally speaking, the evidence would be expected to be directed to at least three matters:
(a) the most profitable work which, after the accident, the worker would be capable of undertaking;
(b) whether such work is reasonably available; and
(c) the amount which the worker is reasonably capable of earning from such work.”
259. In my view the employer is unable to point to evidence in relation to the matters referred to in (a) and (b) above which go to the issue of work reasonably available to the worker. I agree with the submission made by Mr Barr:
“ The worker has not held a job of work for 7 years. The employer has deliberately not called evidence as to the worker’s mental capacity to apply for , hold down and carry out a job of work, in circumstances where the worker is clearly mentally incapacitated, totally incapacitated - for work. The employer failed to ask the critical question of any of its witnesses: ‘Would you employ the worker, someone with serious psychiatric as well as moderately serious knee problems?’ in order to establish that the jobs of work relied on by the employer were reasonably available to the worker.”
RESIDUAL ISSUES
260. Unfortunately, I have not had sufficient time to consider the remaining issues in this case, namely, the worker’s application to amend his claim to include a claim for “prescribed children” pursuant to s 65 of the Work Health Act and the worker’s submissions relating to the superannuation component of “normal weekly earnings”. I hope to adjudicate upon those issues shortly after I return from leave in mid January next year.
261. When I have decided those issues I will then call upon the parties to address me in relation to final orders and any consequential or ancillary orders.

Dated this 23rd day of December 2004.

_________________________
Mr John Lowndes
STIPENDIARY MAGISTRATE

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