Al Kadhimi v Henselite (Australia) Pty Ltd and VWA
[2014] VCC 712
•26 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04703
| SAMER AL KADHIMI | Plaintiff | |
| v | ||
| HENSELITE (AUSTRALIA) PTY LTD | First Defendant | |
| AND | ||
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant | |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April and 1, 2 and 5 May 2014 | |
DATE OF JUDGMENT: | 26 May 2014 | |
CASE MAY BE CITED AS: | Al Kadhimi v Henselite (Australia) Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 712 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: “Serious injury” application – paragraph (a) and (c) of definition in s134AB(37) Accident Compensation Act 1985
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006)
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr T Ryan | Thomsons Geer |
HER HONOUR:
1 The plaintiff, Mr Samer Al Kadhimi, applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings to recover damages in respect of the following injuries:
(i)injury to the right shoulder arising out of or in the course of or due to the nature of his employment with the first defendant between on or about 26 March 2003 and 20 July 2006;
(ii)injury to the left shoulder arising out of or in the course of or due to the nature of his employment with the first defendant from on or about 26 March 2003 to 20 July 2006;
(iii)mental or behavioural disturbance or disorder arising out, in the course of or due to the nature of his employment with the first defendant between 26 March 2003 and 20 July 2006.
2 Each of the shoulder injuries is alleged to have given rise to a permanent impairment which satisfies paragraph (a) of the definition of “serious injury” in s134AB(37). It is contended that the injury to each of the shoulders has given rise to an impairment with pain and suffering consequences which are serious, although it is not contended that either of the shoulder injuries satisfies the test for serious loss of earning capacity consequences.
3 The mental or behavioural disturbance or disorder is alleged to satisfy paragraph (c) of the said definition. It is contended that it has consequences which are serious, both in relation to pain and suffering and, also, in relation to loss of earning capacity.
Background
4 The plaintiff is presently aged 38 years, having been born on 7 January 1976 in Iraq. He apparently moved to Iran, where he attended school to Year 10 level and, thereafter, worked “in sales”.[1] He migrated to Australia in 2000 and obtained work as a machine operator with BMW before he commenced work with the first defendant in March 2003.
[1]Plaintiff’s affidavit sworn on 5 May 2010 (the plaintiff’s first affidavit),
paragraph 2, Plaintiff’s Court Book (“PCB”) 14
5 The first defendant manufactures lawn bowls. The plaintiff’s work involved repetitive duties picking up the bowls from an assembly line, polishing them and packing them into boxes. He estimates that, as a result of handling about 500 bowls per day, he began to develop pain in both shoulders. He attended a general practitioner, Dr Gorji, on 20 July 2006 complaining of recent onset, initially, of severe pain in the right shoulder and reduced movements, followed by similar symptoms on the left side. On examination, Dr Gorji found severe restriction of movement of the left shoulder and moderately severe restriction of movement of the right shoulder.[2] The plaintiff was put off work and, save for an unsuccessful three week return to work in June 2007, has not returned to work for the first defendant.
[2]Clinical notes of Dr Gorji, Defendant’s Court Book (“DCB”) 92
6 Dr Gorji arranged for the plaintiff to undergo a bilateral shoulder x-ray on 20 July 2006. This showed no relevant abnormality. On the same day, a bilateral shoulder ultrasound demonstrated bilateral subacromial bursitis with CA ligament impingement.[3] The plaintiff was treated with Panadeine Forte and Panadol Rapid, as well as Voltaren Rapid Tablets and Voltaren Emulgel. He subsequently underwent ultrasound-guided bilateral subdeltoid bursal injections with Marcaine and Celestone Chonodose on 26 July 2006. Later, he had steroid injections into the subacromial space on the right side on 21 August 2006, and on the left side on 28 August 2006, and, again, on the right side on 18 September 2006. These procedures were carried out by an orthopaedic surgeon, Dr Patel, to whom Dr Gorji had referred the plaintiff. Dr Patel diagnosed the plaintiff as suffering bilateral shoulder subacromial impingement and rotator cuff tendonitis. He prescribed Nurofen and strengthening exercises for the rotator cuff under the supervision of a physiotherapist.[4]
[3]PCB 146
[4]PCB 61-64
7 The plaintiff’s left shoulder responded well to the subacromial steroid injection, but, despite two steroid injections, the right shoulder continued to be painful. Accordingly, Dr Patel recommended surgery by way of right shoulder arthroscopy and subacromial depression. This was carried out on 13 October 2006. On operation, Dr Patel found rotator intervals synovitis and an A1 articular surface partial thickness tear in the insertion of the supraspinatus. There was also bursal inflammation and impingement and the rotator cuff was found to have a B1 bursal surface tear.[5]
[5]Dr Patel’s operation report, PCB 65
8 In June 2007 the plaintiff attempted to return to work, but found that his duties aggravated his shoulder conditions and he ceased after approximately three weeks.
9 On 21 June 2007, the plaintiff saw Dr Gorji, who noted the following:
“He did five days of making boxes starting last Wednesday. Last two days he has had to do repetitive action of lifting four x 1.5 kilogram bowls inside a box (7.0 kilograms in total) and making 22 boxes on Wednesday over 2.5 hours AND 33 boxes over 3.5 hours today. Complains of severe pain in both shoulders, especially left side, and inability to raise his shoulders.”[6]
[6]Dr Gorji’s clinical notes, DCB 96
10 Dr Gorji referred the plaintiff to another orthopaedic surgeon, Mr Richardson. He organised MRI scans of each shoulder, which were performed on 31 July 2007. The right shoulder was reported as showing some mild intracapsular biceps tendinosis and tenosynovitis of the bicep tendon. There were also mild degenerative AC joint changes noted.[7] The MRI of the left shoulder was reported as showing supraspinatus tendinosis and subacromial subdeltoid bursitis.[8]
[7]PCB 149-150
[8]PCB 148
11 Mr Richardson considered the MRI findings were consistent with subacromial impingement symptoms and recommended that the plaintiff undergo surgery on the left shoulder. This was performed by him on 13 November 2007 and took the form of a glenohumeral arthroscopy. The subacromial space was found to be very tight (less than three millimetres), with significant bursitis. A soft tissue bursectomy was performed. Post-operatively, the plaintiff was found to have ongoing inflammation and, on 8 January 2008, another injection of local anaesthetic and Depo-medrol, an anti-inflammatory agent, was given by Mr Richardson into the left subacromial space.
12 On 6 March 2008 Mr Richardson reviewed the plaintiff and reported back to Dr Gorji that his left shoulder was doing well, with a good range of movement and strength improving. However, his right shoulder was causing him discomfort and Mr Richardson administered another injection of local anaesthetic and Depo-medrol into the right shoulder.[9]
[9]PCB 73
13 The plaintiff continued to have problems with his shoulders, particularly using his arm above shoulder height. On 1 July 2008 Mr Richardson noted ongoing pain in the left shoulder and considered that the plaintiff still had some impingement symptoms. He reinjected that shoulder with local anaesthetic and Depo-medrol on that day. He also arranged for another MRI scan of the left shoulder to be carried out on 7 July 2008. This was reported as demonstrating increased signal intensity along the line of the infraspinatus muscle belly, likely to be post-surgical in origin but, possibly, representing a Grade 1 tear.[10]
[10]PCB 151
14 Mr Richardson reviewed him on 22 September 2009 and noted there were continued extra-articular bicipital symptoms, but the most recent MRI of the left shoulder had shown adequate subacromial decompression with no ongoing surgical issues. He reassured the plaintiff that no further surgery was required to the left shoulder and recommended ongoing physiotherapy to strengthen the shoulder.[11]
[11]PCB 76
15 Mr Richardson last reviewed the plaintiff on 22 April 2009. He noted that the plaintiff complained of burning symptoms in both shoulders and expressed concern that the plaintiff was developing a Chronic Regional Pain Syndrome. He referred the plaintiff to Dr De Graaff, pain management specialist at the Epworth Hospital.
16 Dr De Graaff saw the plaintiff on 16 June 2009. He took a history of pain at night and pain interfering with activity. It was described by the plaintiff as a burning pain in both shoulders. He noted that the plaintiff had tried multiple medications, including Panadeine Forte, Voltaren and Tramadol, and that these had led to issues with gastrointestinal problems, for which he had required anorectal surgery in order to relieve some of his symptoms, and that this had not been very successful. He noted that the plaintiff shoulders were limited in active range of motion to about horizontal level and that he had a persistent pain syndrome associated with bilateral subacromial bursitis.
17 In his report dated 16 June 2009, Dr De Graaff stated that, although there had been some improvement with surgery, the plaintiff continued to remain significantly debilitated and he considered that there was a neuropathic element to his pain now. Accordingly, he suggested a trial of the medication, Lyrica, starting at 75 milligrams at night and, if he responded to the medication, to be increased to around 300 milligrams at night.[12] Dr De Graaff did not see a role for multidisciplinary pain management, as the plaintiff had had appropriate physiotherapy in the past and his long-term options were limited.
[12]PCB 80-81
18 When Dr De Graaff last saw the plaintiff on 2 September 2009, he noted that Lyrica had assisted his pain control and that he was stabilised with a dosage of 300 milligrams at night. Although he still had pain during the day, his sleep had improved. However, he noted that the plaintiff was exhibiting evidence of depression and he prescribed the anti-depressant, Cymbalta, 30 milligrams at night, with Motilium, 10 milligrams six hourly as required, if he developed nausea. This information was contained in a report from Dr De Graaff back to Dr Gorji on 2 September 2009.[13] There are no subsequent reports from Dr De Graaff.
[13]PCB 82
19 From 2009 the plaintiff continued to see Dr Gorji, who continued the prescription of Lyrica, 300 milligrams at night, as recommended by Dr De Graaff. However, there are no specific references in Dr Gorji’s clinical notes to his shoulder injuries and, over the ensuing years, it seems that psychological issues have become increasingly predominant for the plaintiff.
20 Dr Gorji had been prescribing Tempazepam at night for the plaintiff since April 2007.[14] In a report to the workers compensation insurer dated 18 July 2008, Dr Gorji stated that the plaintiff:
“Has had worsening stress and depressive symptoms for two years. Today he complained of multiple psychological symptoms which I do believe he requires formal psychiatric assessment. He had a suicide attempt in November 2007. I’m looking forward to the approval for psychiatric care ASAP.”[15]
[14]Dr Gorji’s clinical notes, DCB 117
[15]PCB 29
21 As previously mentioned, Dr De Graaff prescribed the anti-depressant, Cymbalta, for the plaintiff in September 2009. Dr Gorji’s clinical notes reveal a number of different anti-depressants prescribed by him from November 2009 onwards, namely, Cymbalta, Zoloft and Lexapro.[16] It seems that on 20 July 2011, the plaintiff first consulted with a mental health nurse, Janet Akehurst, at Dr Gorji’s clinic. The clinical notes reveal that, on that day, a mental health assessment and plan were completed.[17] However, no such assessment or plan was tendered into evidence. From July 2011, the plaintiff appears to have consulted with the mental health nurse on approximately a weekly basis. Ultimately, Dr Gorji referred the plaintiff to Dr Holwill, psychiatrist, in February 2013.
[16]DCB 118-9
[17]DCB 108
22 The plaintiff, in his oral evidence, stated that Dr Holwill had essentially taken over his treatment for problems relating to his shoulder, both physical and psychological, in that Dr Holwill has continued to prescribe Lyrica for him, which, since January 2014, has been a dosage of 600 milligrams per day. Dr Holwill’s report dated 6 February 2013 states that the plaintiff had voluntarily ceased taking the anti-depressant, Lexapro, because it caused problems with ejaculation. Accordingly, Dr Holwill prescribed an alternative anti-depressant, Valdoxan, 25 milligrams at night.[18] Dr Holwill also referred the plaintiff to a psychologist, Mr Smee, who has seen the plaintiff on a number of occasions since July 2013. The plaintiff continues to see Dr Holwill and Mr Smee. In addition, Dr Holwill referred him to a Dr Rose for pain management. The plaintiff saw Dr Rose on 3 March 2014 but, apart from prescribing a device which may be a TENS machine, Dr Rose told the plaintiff that he needed to speak to Dr Holwill about the plaintiff’s medication and as he, Dr Rose, was going on holiday, he would see the plaintiff on his return in May 2014.[19]
[18]PCB 49
[19]T58-60
23 It seems that, in September 2012, the plaintiff commenced to see general practitioners at the Rex Clinic in Bundoora and has been seen there for a variety of conditions. However, the plaintiff stated in his oral evidence that each time he goes there, “There is a different type of doctor, sometimes Chinese, sometimes Pakistani…”.[20] Under cross-examination, he stated that he has not consulted any doctor at the Rex Clinic in relation to his shoulder problem because “they are all just new doctors”, and if he told them that he had an injury to his shoulder, they would just refer him “off for an x-ray or to a specialist” and he had “already been through all this stuff for six years”.[21] He also stated that he had not made any complaint to Dr Gorji about his shoulder pain between August 2010 and January 2013 because he was already on Lyrica and, for part of this period, he went to Iran for three months to see his family. He stated that, when he complained to Dr Gorji, it did not do any good because he simply said to take his tablets and “do your physiotherapy exercises” and, after he saw Dr De Graaff and was prescribed Lyrica, it was helping with the pain in his shoulder so he stopped complaining.[22] He said he had been very stressed and depressed because of the pain and he had asked Dr Gorji to send him to a psychologist, but was told that WorkCover would not pay for it.[23]
[20]T51
[21]T65
[22]T70
[23]T80
24 In the plaintiff’s first affidavit, he stated that he has constant aching in both shoulders, which becomes an acute burning pain with activity, and flares up when he has to lift heavy objects, perform overhead activities or push or pull with his arms. He stated that he is unable to drive his car for long periods without significant pain and discomfort. He had difficulty picking up and holding his children (who, at that stage, were one and five years old), had difficulty sleeping on his sides and often wakes at night due to pain, is unable to do household chores, and relies on others to assist him, particularly reaching above chest level. He cannot do physical work with his arms, such as gardening, and has difficulty lifting shopping. He can no longer play basketball, ping pong, volleyball and badminton, and has difficulty swimming and performing gym exercises, particularly lifting weights. He had to cease taking Panadeine Forte, Voltaren and Tramal, because of the side effects, including constipation and gastric problems. He referred to his increasing depression and anxiety because of his injury and stated that, in September 2008, he undertook a TAFE course because he could not return to the labouring type of work that he had done since arriving in Australia.
25 In a subsequent affidavit, sworn on 2 September 2013 (“the plaintiff’s second affidavit”), he confirmed that he still has significant pain and restriction in his shoulders and arms and tries to avoid activities involving too much reaching, pushing or pulling, as these increase the pain. He is able to drive a car, but rests his arms on his lap while holding the steering wheel. His sleep is still not good and, again, he referred to having become very depressed. However, he stated that, since swearing his previous affidavit, he had found employment in the security industry until early 2013, when, after a suicide attempt, he alleges that his employer told him to stay home and his employment was later terminated.
26 The plaintiff’s evidence is that, over the years since he suffered injury to his shoulders, he has tried to commit suicide or engaged in self-harm on a number of occasions.
· The first time was on 23 November 2007. On this occasion he presented at the Northern Hospital after having taken an overdose of drugs following an argument with his partner.[24]
[24]DCB 133
· The second time was on 17 June 2011. The Northern Hospital records reveal that he had been having relationship difficulties with his partner and, after a fight the previous day, he threatened suicide and took all of his regular medication and then went to bed, but then woke up vomiting and incontinent, and called the ambulance.[25]
[25]DCB 144
· The third time was on 6 October 2012. He again attempted suicide by slashing his wrists and presented to the Austin Hospital on 8 October 2012.[26]
[26]PCB 185
· The fourth time was on the evening before 15 January 2013 (on which day he presented to the Austin Hospital).[27]
· The fifth time was on 26 July 2013, when he slashed his left wrist and attended the Rex Clinic for surgery.[28]
[27]DCB 163
[28]DCB 171, Dr Holwill’s report dated 14 November 2013, PCB 91A, Dr Horsley’s report dated 30 July 2013 PCB 114
The plaintiff’s work history since his failed return to work with the first defendant in June 2007
27 After the plaintiff’s unsuccessful return to work with the first defendant in June 2007, his employment was terminated and he was not employed again for in excess of three years. During this time he underwent ongoing treatment for his shoulders, including surgery on the left shoulder on 13 November 2007. He also underwent colorectal treatment in relation to haemorrhoids and incontinence.
28 When the plaintiff first presented to Dr Gorji on 21 July 2006 in relation to his shoulder problems, he gave a history of, “three months of recurrent PR bleeding on defecation with features of haemorrhoidal bleeding”.[29] However, Dr Gorji noted that in August 2006 the plaintiff presented with symptoms which were probably subcutaneous perianal fistula problems which he considered had been related to long-term use of Panadeine Forte due to the constipation effect.[30] He was referred to the Colorectal Unit at the Austin Hospital for passive faecal incontinence and Dr Gorji expressed the view that his anal problems were caused by excessive use of medications given to him for his shoulder problems.[31] These problems necessitated a colonoscopy on 24 August 2007, examination at the colorectal clinic on 17 October 2007, examination under anaesthetic of anorectal area and also fistulotomy performed on 26 February 2008 and on 26 June 2009.
[29]DCB 92
[30]PCB 32
[31]PCB 33
29 In 2008, the plaintiff, at his own expense, undertook training as a security guard. In his oral evidence, he stated that he had applied for some 50 positions and was being assisted by the Commonwealth Rehabilitation Service, who advised him not to reveal details of any shoulder injuries because he would not be offered a job.[32]
[32]T115-118
30 The plaintiff ultimately secured employment as a security officer with Securecorp on 16 September 2010. Initially, he was placed at the MCG, just standing in front of a door but, then, he was transferred to Broadmeadows Health Service, working at the hospital. This involved handling heavy bundles of linen and pushing trolleys with the bundles on them, as well as emptying rubbish bins. Gradually, the pain returned to his shoulders and he became very stressed. At home, he was fighting with his partner. He said that it was in this context that he took an overdose of medication and attempted suicide on 17 June 2011.[33] He stated that he was worried about losing his job, so he absconded from the hospital and went to work, but, because there were so many drugs in his body he went to sleep and was then fired from that job.[34]
[33]T121-2
[34]T122-3
31 His employment at the Broadmeadows Hospital was terminated on 20 June 2011, but, after a person from Centrelink attended his workplace, he was told that, although he would not be given work at the Broadmeadows Hospital, he could still apply for work at other venues where Securecorp had contracts. He stated that he made himself available for such work but was only given one shift at the MCG on 1 October 2011. For this reason, he applied for other work.
32 In about mid 2011, he was employed as a security officer for a company called BazCorp, but he was only offered four or five shifts in total over the period June or July 2011.[35] The work at BazCorp involved being a security guard at a nightclub, where the plaintiff became concerned about his injured shoulders, because people would be drunk and fighting and it was dangerous. Accordingly, he ceased the job in or about July 2011.[36]
[35]T123-4
[36]T123-4
33 Save for the extra day that he obtained a shift with Securecorp at the MCG on 1 October 2011, the plaintiff remained out of work from July 2011 until 24 October 2011, when he obtained a job as a security officer with Wilson Security. This job apparently involved doing patrol work in Collingwood for the Department of Human Services. The plaintiff said it was a “bad” job because there were “junkies and too much fighting and bad language” and, at that stage, he was living in Heathcote and he had to drive to Collingwood and back in order to do nightshift.[37] Accordingly, he ceased that employment on 26 February 2012.
[37]T125
34 Through a friend, “Daragan” the plaintiff obtained employment with Diamond Protection, as a security officer at Latrobe University, commencing on 5 March 2012. He remained in this employment for 10 months until January 2013. His work involved patrolling around the university grounds and checking many doors in five storey buildings, and driving around in the patrol car.
35 The plaintiff, in his oral evidence, said that in January 2013 he was:
“Sick in the head. I was mentally depression, stressing over my shoulder, over all the things happen to me, all the job, over work, over have activities with my kids, pick up my kids, shoulder come to my brain, ding, ding, like a light. Pick up my daughter, ding, ding, my pain comes to my shoulder in my brain and then keep it there and make me upset, make me angry. I don’t want to talk about it. I just thinking about, okay, that’s it. I had enough, suicide finish my life.”[38]
[38]T243-4
36 He said that it was in this context that he took an overdose of medication to attempt suicide, which resulted in him presenting to the Emergency Department at the Austin Hospital. When it was put to him in cross-examination that the hospital record made no mention of his shoulder but, rather, bullying and harassment by co-workers, the plaintiff said that he “felt like people were harassing me” but this was not correct. He had trouble understanding what some people said to him over the radio at work and some people were not good with him because of his culture and poor English.[39] He stated,
“The point it was me. The point it was me because I have the issue in my shoulder. I had the pain and they didn’t know. They didn’t know I’m taking medication. They thinking I’m in uniform. This is healthy person, but they don’t know inside I breaking down completely.”[40]
[39]T245-6
[40]T246
37 He said that he had been carrying the situation since 2006, and at the hospital “I can’t tell them whole my history”. I just say, “Yeah, I have an argument. Harass me, but they don’t know. I went home, too much stuff in my brain that’s why I suicide.”[41]
[41]T246-7
38 It was repeatedly put to him in cross-examination that there was no reference to him having complained about chronic shoulder problems when he presented at the Austin Hospital after taking an overdose of some 40 Panadeine Forte tablets, and the plaintiff stated:
“What I don’t understand, why you keep asking why – why I have to go to hospital when I’m suicide – I said, ‘hey, guys I have a bad shoulder’. I was stressing about my job because I couldn’t handle it anymore. Driving with one hand, on a 12 hours nightshift when I’m working my hands far away from my body, I can’t handle it. That’s why I get stressed about my job and everything…”
39 The plaintiff said he did not tell the hospital about his shoulder, “because I scared I will lose my job”.[42]
[42]T253
40 The plaintiff, in his oral evidence stated that, following his suicide attempt and presentation to the Austin Hospital, in January 2013, he became upset in the Emergency Department and walked out and returned home to sleep. However, police came to his house and took him back to the Austin Hospital. He said he had missed his night shift and had told his friend, who worked for Diamond Protection at Latrobe University, that he had been depressed and had taken medication. This friend apparently told the boss, who sent the plaintiff a text message telling him not to come back to the office. He stated that he returned to work on 19 January 2013 to do his last shift and then his current partner, on his behalf, emailed a letter of resignation to Diamond Protection dated 29 January 2013.
41 The plaintiff stated that twice previously during the period of his employment with Diamond Protection, he was “full of depression and stress and sickness” and had attempted suicide and, after he returned to work, he was in trouble and told that they had been unable to contact him and not to do it again. In late 2012, he had slashed his left hand and they found out about it after his friend saw it and notified the manager. He had been called to head office and told “Sam, you need help. Look, if you have depression and stress, go see a psychologist”. After the third attempt at suicide during his employment with Diamond Protection (in January 2013), he returned to work and the boss called him in to the office. This was because people at work had reported him for taking medication in the control room at Latrobe University.[43]
[43] T227–232
42 The plaintiff has not worked since his resignation on 29 January 2013. He subsequently became eligible for a Disability Pension, which is apparently on the basis of his psychiatric status. He has been receiving this since 30 July 2013.[44]
The issue of whether the plaintiff’s right shoulder and left shoulder have impairment consequences which are serious
[44] Dr Horsley’s report, 30 July 2013, PCB 116
43 The defendant accepted liability for work caused injuries to each of the plaintiff’s shoulders and has paid for all treatment relating to them. However, on behalf of the defendant, Mr Ryan has pointed to the dearth of treatment since the plaintiff’s last operation was carried out in 2007, the fact that shoulder pain does not feature with any regularity in Dr Gorji’s notes whilst he was still seeing the plaintiff and that there is no mention at all of shoulder pain in the clinical records of the Rex Clinic at Bundoora, where the plaintiff has attended for other medical conditions since September 2012.
44 Mr Ryan points to the fact that the plaintiff’s counsel has acknowledged that it is not suggested that the plaintiff can demonstrate serious economic loss consequences flowing from any physical injury to his left or right shoulder. He submits the plaintiff has not disentangled what impairment relates to which shoulder. Nor has he disentangled physically caused symptoms from the plaintiff’s psychiatric condition, which appears to have become predominant. In any event, Mr Ryan submits that, whatever consequences may be found to flow from any impairment to the left shoulder or the right shoulder, they do not meet the high test of serious injury.
Analysis of the medical evidence relating to the plaintiff’s right shoulder injury and left shoulder injury
45 Following the plaintiff’s first complaints of shoulder pain to Dr Gorji in 2006, he underwent quite intensive treatment, as previously detailed in this judgment, up until he saw Dr De Graaff in late 2009. The treatment has consisted of multiple injections into each shoulder, arthroscopic surgery on each shoulder and a regime of analgesic and anti-inflammatory medication. The latter medication has been associated with constipation and haemorrhoids, although I note that Dr Gorji’s clinical record indicates that features of haemorrhoidal bleeding had been present for three months prior to the first consultation relating to the plaintiff’s shoulder in July 2007. In 2009, Dr De Graaff prescribed Lyrica for neuropathic pain. It is apparent that the plaintiff has not seen Dr De Graaff since September 2009[45] and that the prescription of this medication was continued by the plaintiff’s general practitioner, Dr Gorji, and, then, from January 2013 by Dr Holwill, his treating psychiatrist.
[45]T65–66
46 That there is an organic reason for the pain and restrictions which the plaintiff describes is demonstrated on the MRI scans of the left and right shoulder conducted on 31 July 2007 and of the left shoulder, again, on 7 July 2008. There is uniformity of medical opinion that the physical injury to his right shoulder and the physical injury to his left shoulder are such that he cannot perform duties which involve use of either arm above shoulder height, to lifting weights other than a few kilograms and perform any task which involves forceful or repetitive use of the arm away from the body.
47 There is no doubt that, in the years since 2009, the plaintiff has manifested increasing psychological symptoms. The defendants contest that the cause of such symptoms is related to his shoulder injuries. This will be discussed later in this judgment. However, it is tolerably clear that the physical restrictions that each doctor has put upon the plaintiff’s work capacity do not arise from any psychological condition, but are the consequence of organic injury to the right shoulder and to the left shoulder by way of subacromial bursitis/rotator cuff synovitis/impingement syndrome/rotator cuff lesion/bicipital tendonitis. That this is so is fortified by the opinion of the Medical Panel who provided an opinion on 19 November 2009.[46]
[46]PCB 144
48 Although the Medical Panel opinion is not binding upon me and was given in order to ascertain whether the plaintiff suffered a permanent impairment to either shoulder, it is instructive insofar as it is the opinion of a totally independent panel of specialists. In the reasons for opinion, the Medical Panel documented the range of motion of the right shoulder and of the left shoulder, after having made measurements with a goniometer. The limitation in range of motion for the right shoulder was almost identical to that of the left shoulder. The panel assigned a 13 per cent permanent impairment to the right shoulder and a 13 per cent permanent impairment to the left shoulder. The percentages are irrelevant for the purposes of determining whether the plaintiff has a serious injury, but, what is plain, is that:
“The panel concluded that the worker is suffering from persistent bilateral shoulder dysfunction following rotator cuff tendonitis treated surgically, relevant to the accepted left shoulder and right shoulder injuries.”[47]
[47]PCB 145C
49 I also note that:
“The panel also concluded that the worker is suffering from a minor degree of fecal incontinence-rectal dysfunction following a peri-anal fistula which developed secondary to analgesic use and has been treated surgically, relevant to the accepted gastric condition injury.”[48]
[48]Op cit
50 Nowhere in the panel’s reasons was it documented that the plaintiff was exaggerating his symptoms or exhibiting non-organic symptoms, even though it was noted that he was suffering a Chronic Adjustment Disorder with depressed and anxious mood secondary to the physical injury.
51 In the many medical reports tendered there is only one reference to the plaintiff having developed an abnormal pain response and this is from Mr Scott, who saw the plaintiff on behalf of the defendant and provided a report dated 10 May 2012. He stated:
“The diagnosis is one of incompletely resolved bilateral rotator cuff lesions, chronic pain syndrome and associated anxiety and depression and frustration, and the latter requires interpretation by a consultant psychiatrist and I believe that this is a major factor in his presentation with what appeared to have developed an abnormal pain response.”[49]
[49]DCB 32
52 Mr Scott considered that the loss of range of movements was mild, without any evidence of any classic impingement syndrome or classic rotator cuff lesion. Nevertheless, he stated that the plaintiff was fit for light work only and imposed the same restrictions on raising his arms above shoulder level or pushing or pulling movements or heavy lifting as other doctors whose opinions are before the Court.[50] I note that the measurements of the range of movement of each shoulder recorded by Mr Scott do not vary greatly from those of the Medical Panel.
[50]DCB 32
53 The plaintiff’s general practitioner, Dr Gorji, refers to chronic persistent neuropathic pain syndrome[51] and the plaintiff’s treating surgeon, Mr Richardson, expressed concern about the development of Chronic Regional Pain Syndrome due to burning symptoms in both shoulders.[52] This was why the plaintiff was referred to Dr De Graaff who expressed the view that the plaintiff continued to remain significantly debilitated by a neuropathic element to his pain and prescribed Lyrica medication.[53] There is no evidence before me as to why the plaintiff did not return to see Dr De Graaff after September 2009.
[51]PCB 34
[52]PCB 99
[53]PCB 80-81
54 Dr Horsley, occupational physician, assessed the plaintiff at the request of his solicitors. In a report dated 30 July 2013, she expressed the view that, following the diagnosed conditions of bilateral subacromial bursitis and rotator cuff synovitis, the plaintiff had ongoing residual disability which meant that he should avoid repetitive over reaching, pushing or pulling, above shoulder height activity, lifting items greater than 10 to 12 kilograms, except occasionally, and lifting items of up to 5 to 8 kilograms on a repetitive basis. She stated that his work had been a significant contributing factor in respect to his bilateral shoulders and, given the length of time since the injury and the ongoing nature of symptoms, she thought that the symptoms were likely to persist. She did go on to state that:
“His primary disability now is his significant depression secondary to psycho-social issues related to his injury and his family.”[54]
and referred to his recent suicide attempt. She stated that his prognosis is really the prognosis of his psychiatric status. However, nowhere did she state that the plaintiff’s psychological condition was causing him to magnify his symptoms or that the restrictions which she had imposed on activity were related to other than an organic basis.
[54]PCB 115
55 Mr King, orthopaedic surgeon, who twice examined the plaintiff at the request of his solicitors, in his most recent report dated 11 June 2013, said that his opinion from an earlier examination in August 2012 was essentially unchanged. That opinion was that clinically there was symmetrical painful limitation of all glenohumeral and combined movements in both shoulders. He set out the movements which he had recorded. Of greatest significance in relation to each shoulder was that combined flexion demonstrated a loss of 90 degrees and combined abduction demonstrated a loss of 90 degrees (that is, on the right side and on the left side combined flexion was 110 degrees, when the expected range was 180 degrees and combined abduction was 110 degrees when the expected range was 180 degrees.) Mr King stated that these clinical signs are consistent with the diagnosis of bilateral rotator cuff injuries of mild to moderate severity in both shoulders.
56 Mr King stated that the plaintiff had been left with significant residual pain, stiffness and weakness in both shoulders of a severe enough degree to have prevented him going back to any sort of manual work which involved constant repetitive lifting, bending and straining with both upper arms. He noted that, although depression and anxiety were obviously increasing problems, he could find no significant evidence of exaggeration.
57 In his most recent report Mr King noted that the psychiatric element was becoming increasing preponderant and was probably greater than the very definite but only moderately severe physical injuries with both shoulders. However, there was no suggestion that that psychiatric element was causing him to magnify his symptoms and, indeed, he stated that the range of movement of each shoulder was as previously noted.
58 I have not referred to a considerable number of other medical reports which have been tendered because they are now very out of date, as they relate to medico‑legal examinations in 2009 or 2010.
59 Mr Ryan, on behalf of the defendants, was critical that there was no up to date report from the plaintiff’s first treating surgeon, Mr Patel, his second treating surgeon, Mr Richardson, the pain management specialist, Dr De Graaff, and also no report from Dr Rose to whom the plaintiff had been referred by Dr Holwill.
60 It may have been of assistance to have the plaintiff re-examined by his surgeons, Dr Patel and Mr Richardson, however, given that he has not seen Dr Patel since 2006 and has not seen Mr Richardson since 2007 and that Mr Richardson in his most recent report stated that surgery was not an option, I do not consider that I should draw an adverse inference against the plaintiff in that regard. There was no exploration in cross-examination as to why the plaintiff had not re-attended Dr De Graaff since September 2009, but simply the fact that he had not re-attended.[55]
[55]T66
61 Dr De Graaff was the doctor who prescribed Lyrica for neuropathic pain and, in his most recent report dated 2 September 2009, he stated that he would like to see the plaintiff for review in two months. Thus, there does appear to a void relating to Dr De Graaff, particularly as he is the last treating specialist for the plaintiff’s physical conditions. I would have expected a competent solicitor to request an up-to-date report from Dr De Graaff but, given that there have been many deficiencies in the preparation of this case (not the least of which is the scant and inadequately drawn affidavit material on behalf of the plaintiff), I do not believe it is appropriate to draw an adverse inference against the plaintiff in circumstances where his evidence is that he has not been back to see Dr De Graaff since 2 September 2009.
62 As far as Dr Rose is concerned, the only evidence before me is that the plaintiff saw him once briefly this year and intends to see him upon Dr Rose’s return from holidays in May 2014. I note that Dr Holwill, in his report dated 18 July 2013, makes reference to the plaintiff failing to attend several appointments with Dr Rose.[56] This must have been in the first half of 2013 when the plaintiff appears to have been in a mentally unstable condition and made attempts at suicide/self-harm in both January and July. In these circumstances, I do not consider that I should draw any inference adverse to the plaintiff for failing to provide a report from Dr Rose.
Conclusions on the issue of whether the plaintiff has suffered pain and suffering consequences relating to his left shoulder and/or his right shoulder which are serious
[56]PCB 90
63 The first defendant accepted that the plaintiff had suffered a work caused injury to each of his shoulders. A payment for permanent impairment to each shoulder has been made.
64 Mr Carson, on behalf of the plaintiff, concedes that the reason for the plaintiff not being able to work at all at present (as distinct for being fit for light work) is not due to the physical condition of either shoulder, but, rather, because of his psychological or psychiatric state.
65 I am satisfied on all of the evidence that, by reason of each shoulder injury, the plaintiff is not able to perform tasks above shoulder height or to lift any particular weight or engage in any significant pushing or pulling with either upper limb. These restrictions on work capacity, upon which all doctors agree, also flow through to restrictions on the plaintiff’s daily activities. His complaints that he has difficulty picking up and holding his children, that sleeping on either his right or left side causes pain and sleep disturbance, that he is no longer able to do things that require the use of his arms overhead or to push or pull or carry things and needs assistance with household chores and carrying heavy shopping, that he is unable to play basketball, ping pong, volleyball or badminton, and has difficulty swimming,[57] are all consistent with the physical restrictions which are accepted by the doctors. Similarly, his difficulty in holding his arms outstretched on the steering wheel for any period of time, causing him to be restricted in the length of time that he can drive a car, is consistent with those restrictions. At times, when the pain is severe, he has difficulty putting clothes on and off.[58] These various restrictions have been the subject of histories given to doctors by the plaintiff over many years.[59]
[57]See the plaintiff’s first affidavit, paragraphs 18-23, PCB 16
[58]Dr Scott’s report, 10 May 2012, DCB 30
[59]See reasons for opinion of the Medical Panel, 19 November 2009, PCB 145B; Dr Bowles’ report, 19 May 2008, DCB 37-38; Mr Battlay’s report, dated 25 February 2010, DCB 59; Mr Anstee’s report, dated 22 May 2010, PCB 97
66 In cross-examination of the plaintiff and in submissions, Mr Ryan raised a number of credit issues relating to the plaintiff’s evidence. Some of these pertain particularly to his claim for psychiatric impairment, which I will address below.
67 Insofar as it was suggested that the plaintiff’s level of pain could not be serious because of the lack of treatment, I find that the plaintiff had been through a significant regime of treatment up to 2009 and there was an obvious level of frustration that multiple injections, surgery, physiotherapy and medication had not helped. No doctor suggests that further surgery, pain management or physical therapy would be of assistance to the plaintiff.
68 I accept the plaintiff’s evidence that he had effectively resigned himself to the fact that there was no further treatment that is likely to help his painful shoulders and, once he was prescribed the Lyrica, he just continued on that, even though it has unpleasant side effects of making him feel dizzy. He described that he got very dizzy during the day because the Lyrica is very heavy, and this causes him to be scared when he has access to his children (his relationship with their mother having broken up in or about 2009). Indeed, he said that when he worked for Securecorp he went to his office at lunchtime and slept. He did not answer his radio and the door had to be broken down and he was in trouble with the management.[60]
[60]T103
69 I note the complaints documented by Sarah Mifsud, acting facility manager at Broadmeadows Health Service, where the plaintiff was employed with Securecorp on 20 June 2011. These include the plaintiff complaining of fatigue, not answering his mobile phone, being unable to be located when required, wearing sunglasses inside and being very tardy in attending to codes.[61] I accept that these matters are related to the plaintiff’s ingestion of medication, particularly his attempted suicide on 17 June 2011 following which the plaintiff apparently refused advice given to him at the Emergency Department not to work that day.[62]
[61]Email sent 20 June 2011, DCB 243
[62]DCB 146
70 It was submitted on behalf of the defendants that the plaintiff could not be accepted as a witness of truth because, amongst other things, he had lied to potential employers. The plaintiff admitted under cross-examination that he did not reveal health problems, or ever having claimed workers compensation, or that he was taking any prescribed medication. He claimed that he had no pre-existing shoulder injury and no mental or psychological condition. This was specifically the case with an application made by the plaintiff to Diamond Protection on 23 February 2010.[63] I do not regard these matters as necessarily a reflection upon the plaintiff’s integrity in circumstances where he appeared to me to be highly motivated to get back into the workforce, but had had no success when he revealed injuries to prospective employers. Indeed, his evidence is that he had been specifically advised by Commonwealth Rehabilitation Service staff, who were assisting him to get back to work, not to reveal such injuries, as it would prejudice his chances of being employed.[64] Indeed, he had told Dr Holwill about such advice,[65] so it was not something that he was trying to hide.
[63]DCB 246
[64]T116-117
[65]PCB 87
71 There is nothing in the material which has been tendered, or in the plaintiff’s evidence, which causes me to doubt that the plaintiff does suffer the pain and restrictions which he describes in each of his shoulders. Mr Ryan submitted that affidavits from employees of the first defendant, Alan Costello and Paul Schofield,[66] should throw doubt upon the severity of the plaintiff’s symptoms, particularly as he did not complain prior to presenting to Dr Gorji with shoulder symptoms for the first time. Apart from the fact that these affidavits contain hearsay evidence, I regard them as being of little significance, given the overwhelming weight of medical opinion concerning the nature of the plaintiff’s shoulder conditions and their connection to his work and the fairly intensive treatment undergone by the plaintiff, including surgery, in the three years after leaving work.
[66]DCB 229-238
72 The plaintiff continues to take a very high dose of Lyrica (600 milligrams per day), which has been prescribed for neuropathic pain. It is now seven years since he first experienced shoulder symptoms and they have continued unabated. There is no suggestion by any of the medical witnesses that the anatomical reason for the pain and restriction of movement in each of the plaintiff’s shoulders is going to disappear or that his symptoms are likely to improve.
73 The plaintiff is only 38 years old. He is permanently restricted in that he is not able to effectively use each arm above shoulder level, or to be able to use it to engage in any significant reaching, pushing, pulling or lifting. I consider these to be a serious consequences because they impact upon every day activities which we take for granted as human beings. For the father of young children not to be able to physically engage in a robust way with his children is a serious erosion of his parenting ability and enjoyment, as is the inability of a man in his thirties to engage in sporting activities. Further, the plaintiff’s sleep is affected and he has become socially isolated.
74 I note that in cross-examination, it was never suggested to the plaintiff that he did not have the pain and restrictions that he claims. Surveillance had apparently been undertaken of the plaintiff by the second defendant. This was revealed in the index to the amended court book of the defendants, dated 19 February 2014. Subsequently, a new index omitting any reference to surveillance was served by the defendants.[67] No such surveillance was shown to the plaintiff in court. I conclude that such surveillance material would not have assisted the defendant’s case, and I am more comfortably able to accept the pain and restrictions of movement which the plaintiff has described.
[67]PCB 178
75 The pain and restriction of movement referable to each shoulder is virtually identical, and has been the subject of measurement by expert witnesses over a number of years. I am satisfied on the balance of probabilities that the plaintiff has sustained an injury to each of his shoulders arising out of, in the course of or due to the nature of his employment with the defendant and that this has given rise to an impairment of each shoulder which has pain and suffering consequences which are serious to him and serious when compared with other cases in the range of possible impairments. I am satisfied that the consequences are fairly described as being more than significant or marked and as being at least very considerable.
The plaintiff’s current psychiatric/psychological state
76 The plaintiff has been diagnosed by his treating psychiatrist, Dr Holwill, as suffering an adjustment disorder with depressed mood with symptoms of anxiety. He is currently prescribed Valdoxan (75 mg at night) and Mianserin (20mg at night and 5-10mg for panic episodes). Dr Holwill considers that his psychiatric injury is attributable to his employment with the first defendant and would prevent him from undertaking any form of employment for the foreseeable future.[68]
[68]PCB 91 and 91B
77 The plaintiff’s treating psychologist, Mr Smee, also considers the plaintiff suffers an adjustment disorder with mixed anxiety and depressed mood, which has occurred in the setting of chronic pain. He considers that he has no current work capacity and that is likely to remain the case unless there is improvement in his pain problem.[69]
[69]PCB 94-95
78 A medico-legal report from Dr Epstein, psychiatrist, dated 18 June 2013, states that the plaintiff has developed a major depressive disorder with suicidal ideation and actions as a consequence of ongoing pain, discomfort and disability. He considered, at that stage, that the plaintiff’s psychiatric state alone would prevent him from returning to work at present, but as he had only recently commenced psychiatric and psychological treatment, it was too early to state whether his psychological state would have a permanent restriction on his work capacity.[70] There is no subsequent report from Dr Epstein.
[70]PCB 138
79 Dr Kornan, psychiatrist, conducted a medico-legal examination on behalf of the defendant. He, too, considered that the plaintiff was suffering an adjustment disorder with mixed anxiety and depressed mood.[71] When he last saw the plaintiff on 3 July 2013, he expressed the view that, from a psychiatric viewpoint, he is totally unfit for employment and, if his current treatment was ceased, it is likely that he would have even more behavioural outbursts, which would require him to be admitted to a psychiatric hospital. He described the plaintiff’s behaviour as being so florid that he most likely would not be able to stay at a private psychiatric clinic, so, probably, he would require hospitalisation at a government psychiatric clinic. He considered that, although there were underlying personality characteristics, with a very low tolerance to frustration, he accepted that his employment is a significant contributing factor to his current psychiatric ill-health presentation.[72]
[71]DCB 67
[72]DCB …???
Issues relating to the plaintiff’s claim for his psychological/psychiatric condition
80 In this matter, the plaintiff lodged a claim for permanent psychiatric impairment which was accepted in August 2009. The second defendant has paid for anti-depressant medication, and the cost of treatment from Dr Holwill and Mr Smee. However, the defendants dispute that the plaintiff’s current psychological or psychiatric state is causally related to the condition of his shoulders and, hence, to his employment. It is contended that the material before the Court raises other causes for the plaintiff’s psychological or psychiatric condition, such as domestic disputes and harassment at his last workplace. Mr Ryan particularly relied upon hospital records, which the plaintiff claims relate to multiple suicide attempts or episodes of self-harm allegedly connected with his work-caused shoulder condition, and the absence of any history therein that his shoulder pain is a cause for his psychological distress. He also relied upon the fact that no specialist psychological treatment had been obtained by the plaintiff until early 2013, in excess of six years after he first experienced shoulder injuries.
81 In the event that the Court finds that there is a causal connection with his organic work-caused injury to his shoulder, Mr Ryan submitted that the plaintiff’s current psychiatric state cannot be said to meet the high test of a mental or behavioural disturbance or disorder that is severe.
Analysis of the evidence relating to the plaintiff’s psychological/psychiatric state
82 It is true, as Mr Ryan submits, that the hospital records do not state that the plaintiff attempted suicide or self-harm because of the pain in his shoulder or shoulders. It is also true that the plaintiff stated that, whilst working at Securecorp, he quite regularly worked 38 hours per week and, in subsequent employments, held himself out as being available to perform security duties with BazCorp and Wilson. He also worked regular shifts at Diamond Protection at Latrobe University for 10 months up until January 2013, which had the potential to earn him $60,000 per annum (in excess of what he could have earned with the first defendant) and he lost little or no time from work because of illness. However, in my view, careful analysis of the material before the Court does reveal that, from the date of the first symptoms in his shoulders, there is evidence that the plaintiff became progressively more psychologically unwell as a consequence of those symptoms. Indeed, my impression from him giving evidence before me was that he is totally overwhelmed by his situation and virtually unable to contain his anxiety, such that he gave very lengthy and rambling answers about what was going through his mind.
83 It is possible that the plaintiff had a psychological fragility relating to his background. His family moved from Iraq to Iran when he was at an early age and he then migrated to Australia. There is also some history of violent behaviour on behalf of his father.[73] In addition, there appears to have been significant relationship issues with the mother of his three children ― a son now aged 10 years, and two daughters, presently aged seven years and two and a half years respectively. Indeed, his partner gave a history that the plaintiff had been violent towards her when she spoke to a social worker at the Northern Hospital Emergency Department on 17 June 2011.[74]
[73]DCB 108
[74]DCB 153–161
84 In the plaintiff’s first affidavit, he stated:
“As a result of my injury I have also developed depression and anxiety. I now often feel edgy, grumpy, irritable and upset in circumstances that would not have bothered me before sustaining my injury. This has had a significant impact on my relationships. I have ceased seeing my friends due to my low mood and irritability. I have become incredibly lonely.”[75]
[75]Paragraph 27, PCB 17
85 He went on to state that his injury had significantly impacted upon his ability to gain employment and resulted in financial hardship. He stated, “I am very worried that I cannot provide for my family”.[76]
[76]Paragraph 30, PCB 17
86 In the plaintiff’s second affidavit, he stated that he continued to be very depressed and that this had become an overwhelming problem for him resulting in a number of attempts at suicide by overdosing or cutting his wrists. He also mentioned that he had split up with his wife and was now divorced. He stated that he had “become a different person as a result of his depression and anxiety”.[77]
[77]Paragraphs 7 and 8, PCB 18C
87 In his oral evidence, the plaintiff described how, following the pain in his shoulder, he initially took Panadeine Forte which caused him stomach trouble and made it very difficult for him to go to the toilet. He said:
“Slowly, slowly I get stressing and stressing, I couldn’t even tell my partner that’s my problem because it was embarrassing in front of my son and I’m keeping everything in myself, in my sight, (sic) and then shoulder and then slowly, slowly fight happen, and then slowly, slowly, and I’m not talking to anyone, just keep keep keep and mentally I was sick and I didn’t notice that. I thought I’m a normal person and I bring lots of issue for my partner.”
He went on to say that he became very stressed and was fighting with his partner and was frustrated that he could not have any activity with his children or play with his son after his operation.[78] He described that he wanted to pick up his son, but could not do it, and things got worse after his daughter was born. He stated:
“Then I get more sick because each time I hold my baby I get horrible pain. Inside the shopping centre, I fight with my partner. She said ‘Hold the baby’. I said ‘I have a shoulder pain’. She start holding shopping and I fight, fight, fight. And then we go home, pick up the baby and I pick up the baby like this, she’s two and a half years, she’s fat and she’s heavy and I get sore shoulder and it goes in here and get very upset and then I fight with her, I fight with her and I gone to see Dr Gorji. I said ‘Dr Gorji, I fight with my partner.’ I thought he understand this fighting is of my stress and my depression.”
He stated that Dr Gorji did not send him to a psychologist, even though he had asked him to, because he said that WorkCover would not pay for it.[79]
[78]T78
[79]T80
88 I must say that the scenario which the plaintiff described after ceasing his employment with the first defendant sounded a convincing one. It may well be that there were other issues of a domestic nature between he and the mother of his children, however, he came across as someone who was very anxious to try to get work in order to support his family, but was suffering a great deal of pain in his shoulders and the pain and financial insecurity took its toll on his mood, self-confidence and his relationship with his partner.
89 Under cross-examination, the plaintiff stated that he did not mention his mental state to any of his employers after ceasing work with the first defendant because he wanted the work and did not want to lose his job. He said he did not tell the doctors when he presented at Emergency that his suicide attempt or attempts at self-harm were to do with his shoulders. He stated:
“I say to them very basic stuff and this is what they write down. It doesn’t work like just sit with me 10 minutes and talk. I been seeing Dr Holwill for two years. Now he start helping me more. You can’t say, ‘Come to me. Speak to me 10 minutes’.”
He went on to say, “I can’t explain my situation for everyone”, and, “They can’t fix me in two minutes.” He described the doctors whom he had seen in the Emergency Department at hospitals as not being like Dr Holwill or Dr Smee, who were prepared to sit down and talk with him and find out what was going on in his brain and how he was feeling, so that they could help him.[80]
[80]T249
90 It seems to me that the plaintiff, following his shoulder injuries and separation from his wife, found himself in a desperate situation. He described his wretchedness on living in one bedroom, sharing a house with seven people and having to try to accommodate his children for access in circumstances where he was not able to properly play with his children, and how he felt useless and ashamed and was “breaking down because too much stuff in my mind”.[81]
[81]T260–261, 267–268 and 269–270
91 I consider that the following evidence supports the causal connection between the organic injury, which I have found to be a cause of the plaintiff’s pain and restriction of movement in each shoulder, and his psychological or psychiatric state:
(i)Dr Gorji considered that the plaintiff had worsening stress and depressive symptoms for two years leading up to 18 July 2008 when he wrote to the Workers Compensation insurer requesting approval for psychiatric care as soon as possible.[82] This relates back to 2006, when the plaintiff first presented to Dr Gorji with symptoms of shoulder pain.
[82]PCB 29
(ii)On 23 November 2007, the Northern Hospital record noted that the plaintiff “presents post poly-pharmacy overdose post argument with his girlfriend”. However, it also went on to note “operation to shoulder one week prior to admission date after a work accident in 2006”. (My emphasis) I here interpolate that it is common ground that the plaintiff had undergone his second surgical procedure, the operation to his left shoulder 10 days prior to this presentation, that is, on 13 November 2007.
The history went on to record:
“He states when he came home from the hospital she started to abuse him verbally and they argued. Sam reported significant post-operative pain from the operation, which added to his feelings of depression, worthlessness and hopelessness. (My emphasis) Suicidal ideation was still present upon NCATT review in the Emergency Department.”[83]
[83]DCB 129
The actual handwritten notes of the presenting problem state that the overdose of 14 Temazepam, 10 Panadeine Forte and 10 Endone “was precipitated by an argument with girlfriend and ongoing shoulder pain from an injury that occurred in 2006”. (My emphasis)[84]
[84]DCB 133
(iii)On 15 May 2008, Mr Scott examined the plaintiff on behalf of the Workers Compensation insurer. After taking a history of his shoulder pain and restrictions, he noted a history that:
“Mr Al Kadhimi said he had also been stressed and this has led to loss of concentration and forgetfulness. He said because of sleeping problems for two years he would wake up confused and distressed.
Mr Al Kadhimi said his social life had been reduced and he did not want to go out and play-wrestle with his friends and he had become more isolated.”[85]
[85]DCB 37
(iv)On 27 August 2008, the plaintiff was assessed by Dr Douglas, psychiatrist, on behalf of the Workers Compensation insurer. Dr Douglas took a history that the plaintiff ―
“…said that he had also experienced a lot of stress. He said that this was because his activities were restricted. He gets upset in his mind. He feels that his employer pushed him into his present difficulties.”
Dr Douglas went on to describe how the plaintiff had broken sleep, thinking about the factory where he had worked and also because of pain if he lay on his shoulder, but had not been referred for any psychological treatment. He recorded that the plaintiff said that “all the experiences of the previous two years have become too much”. Dr Douglas also noted that the plaintiff always had pain in his shoulders and could not lift his arms above shoulder height, and often felt tired, which he related to his medication, and that he was irritable. He also took a history that:
“He now lived with his girlfriend but they were not getting on well. This was because he was little help around the house, particularly with the children. He said that he also felt vulnerable and weak.”[86]
[86]DCB 81–82
Dr Douglas considered that in 2007, when the plaintiff took the overdose, it was probably reasonable to diagnose an adjustment disorder with depressed mood, but, at the time he saw him in 2008, he did not think the plaintiff had a psychiatric diagnosis, but, rather, symptoms of irritability and frustration which are the normal associations of persistent pain and disability. He did recommend that the plaintiff would benefit from a brief course of psychotherapy.[87]
[87]DCB 85–86
(v)In June 2009, the plaintiff had been referred by his orthopaedic surgeon, Mr Richardson, to Dr De Graaff, pain management specialist. In a letter back to Dr Gorji dated 2 September 2009, Dr De Graaff noted that he had prescribed Lyrica, which was improving the plaintiff’s sleep at night, but stated as follows:
“On further discussion with Mr Al Kadhimi, he really is exhibiting evidence of depression. His mood is lowered, his frustration tolerance is lowered and he is not interacting, tending to go into his shell. He is feeling sad most of the time.
He is expressing concerns about his depression and his wife confirms his comments. As such, I believe it is appropriate to consider the use of an anti-depressant to assist his mood and hopefully help his pain. I have prescribed Cymbalta capsules 30 milligrams one at night, with Motilium 10 milligrams six hourly PRN for cover if he develops nausea. Should he tolerate the Cymbalta, this should be increased to 60 milligrams at night in around two to three weeks’ time.”[88]
[88]PCB 82
(vi)The clinical notes of the plaintiff’s general practitioner, Dr Gorji, record that on 17 November 2009, the prescription of Cymbalta capsules was increased from 30 milligrams to 60 milligrams at night. Later, on 4 February 2010, Dr Gorji made a note about the impact of Cymbalta on the plaintiff’s capacity to enjoy successful sexual intercourse, which had worsened after increasing the dose to 60 milligrams, and commented:
“Cymbalta 30 milligrams is not as effective on his depression and anxiety symptoms.”
On that day there was a note that Dr Gorji phoned Dr De Graaff on that day.[89] Subsequently, on 21 May 2010, Dr Gorji noted that Cymbalta, 60 milligrams, was ceased, and Zoloft tablets, 50 milligrams, one tablet mane, were prescribed instead. Dr Gorji’s notes reveal that, at a later stage, on 14 September 2011, the anti-depressant was changed to Lexapro, 10 milligrams, one tablet mane.[90] It would appear that the plaintiff has had continuous anti-depressant medication since that time ― Lexapro, whilst he still consulted Dr Gorji on a regular basis, and then changed to Valdoxan, 75 milligrams nocte, after he started to consult Dr Holwill.
[89]DCB 105
[90]DCB 109
(vii)In the Medical Panel’s reasons for opinion dated 15 September 2009, it noted that:
“It is accepted that the worker suffered a left shoulder, right shoulder, gastric condition and psychiatric condition injury during the course of his employment with the designated injury date of 20 July 2006.”[91]
[91]PCB 145A
The Panel’s psychiatric history records noted mild to moderate mixed depressive and anxiety symptoms with, amongst other things, intermittent passive suicidal ideation. The plaintiff’s insight and judgment are noted to be somewhat limited and also characterised by lowered self-esteem and confidence.
The Panel concluded that he was suffering from a chronic adjustment disorder with depressed and anxious mood and that he had a psychiatric impairment of 15 per cent, the whole of which had arisen secondary to the physical injury.[92]
[92]PCB 145D and 145F
The assessment of the Medical Panel was for a purpose other than determining whether the plaintiff has a serious injury and is not binding upon me. However, as previously stated, being an assessment by an independent panel of experts, it is of some persuasive weight in terms of the causation issue.
(viii)On 27 February 2009 the plaintiff was assessed by Dr Paul Kornan, psychiatrist, at the request of the workers compensation insurer. This was for the purpose of conducting a psychiatric impairment assessment, which is a different task from determining whether the plaintiff has a serious injury. However, it is plain that Dr Kornan considered that the plaintiff had a psychiatric condition which was causally linked to his shoulder problem. He stated that the plaintiff had a psychiatric impairment (the percentage of which is irrelevant for the purpose of determining whether the plaintiff has a serious injury) which “has been caused by his pains, and discomforts. It has caused him to have sleeping problems, be anxious, and depressed, and to be worried about his future. It has caused him to be irritable and tense, and anxious”.[93]
[93]DCB 70
Dr Kornan had taken a history of the injury to the plaintiff’s shoulders and the consequences that he could not be physically active, had stopped seeing his friends and “was also short tempered, and inside he had a restless feeling as if he was boiling inside. He was very worried and fearful of his future”.[94] Dr Kornan noted that the plaintiff felt that he was isolating himself and that his self-esteem was affected. He considered that the plaintiff presented with an Adjustment Disorder with mixed anxiety and depressed mood and his psychiatric state, as at February 2009, was at the upper level of chronic mild severity.
[94]DCB 64
(ix)From early 2009 to 24 January 2013, when Dr Gorji referred the plaintiff for psychiatric treatment to Dr Holwill, Dr Gorji considered that the plaintiff “has presented with four years of symptoms of reactive depression secondary to work-related injuries and marital conflicts”.[95]
[95]PCB 39
(x)On 17 June 2011 the plaintiff presented to the Emergency Department of the Northern Hospital after having taken an overdose of medication the previous evening. The handwritten record of presenting problems is that the plaintiff “reports that his current major stressor is increasing conflict with his wife”.[96] However, under the heading of “Personal History” in the records it is noted:
[96]DCB 147
“Works as a security guard – casual
previous labourer however sustained shoulder injury – surgery.”[97] (My emphasis)
[97]DCB 149
On the same day, there is a lengthy note of a social worker who spoke to the plaintiff’s then partner, Kerry, who was three months pregnant with their youngest child, and also the mother of the plaintiff’s son, then aged seven, and daughter, aged three. It is noted that Kerry spoke to the social worker about family violence perpetrated by the plaintiff and mentioned that he has anxiety and depression, currently managed by his general practitioner, and has had two previous suicide attempts and was currently underemployed. It was noted that the plaintiff was working casually and wants full-time work but was having trouble securing this. It was also noted that Kerry felt guilty that the plaintiff has no family or money to support himself.[98]
[98]DCB 155-156
(xi)On 24 June 2011 the plaintiff saw Dr Gorji and discussed recent events, including his admission to the Northern Hospital Psychiatric Unit. Subsequently, a mental health assessment and plan were completed and, from 20 July 2011 through to August 2012, the plaintiff received psychological counselling from an experienced mental health nurse, Janet Akehurst, at Dr Gorji’s clinic.[99]
[99]DCB 108 and PCB 35
(xii)In oral evidence, the plaintiff stated that he, again, attempted suicide by slashing his wrists in October 2012. The Austin Hospital records of 8 October 2012 show that he presented with a cut right wrist claiming that it happened when he was cleaning a broken window. The plaintiff stated in oral evidence that he did not want people to know about him committing suicide. He was away from work for three days and Diamond Protection, his employer, was ringing him but could not get hold of him. He hid it from them but when he returned to work he was in trouble.[100] However, on 2 November 2012, Dr Gorji’s clinical notes documented that two days prior to presenting at the Austin Hospital he had overdosed on 52 tablets, vomited and then used a carpet knife to inflict lacerations to both wrists.[101] It was following this that there was a discussion regarding referral to a psychiatrist on 16 November 2012.[102]
[100]T228-229
[101]DCB 113
[102]DCB 113
(xiii)On 15 January 2013 the plaintiff presented at Austin Hospital Emergency Department. His presenting problem is documented as follows:
“37 year old male P/W Panadeine Forte overdose. State felt upset and stressed about his work, wanted a way out so he took 40 Panadeine Forte tablets over a span of 45 minutes at approximately 2230hr, also took 10 x 10 mg Temazepam. Immediately contacted his partner about this.”
It was noted that he left the Emergency Department and police then went and brought him back. It was further noted:
“Claimed he was bullied at work last 2/52, constantly made fun of for his religion, his accent and limited English. Felt pressured at work by his colleagues. Feels depressed with difficulty sleeping. State had an overdose two months ago but did not come into hospital.”
The impression was recorded as “likely Adjustment Disorder related to work stress”.[103]
(xiv)On 24 January 2013, Dr Gorji referred the plaintiff to Dr Holwill for management of depression secondary to work-related injuries and marital conflicts.[104]
(vi)On 26 July 2013 the plaintiff presented at the Rex Clinic at Bundoora. The clinical note is that he “alleged cut left wrist at 3am by a glass when evry (sic) angry”.[105]
(xiv)The second defendant has paid for the plaintiff’s anti-depressant medication, as well as his psychiatric treatment from Dr Holwill and his psychological counselling from Mr Smee. Whilst not conclusive evidence on the issue of causation, such payments represent an unexplained admission, which I regard as being a some significance.[106]
Conclusion on causation of the plaintiff’s psychological/psychiatric injury with his work caused shoulder conditions
[103]DCB 167
[104]PCB 39
[105]DCB 171
[106]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006)
92 It accords with common experience and common sense that, when a person like the plaintiff has been in pain and limited in his daily activities and unable to continue to earn a living by using his physical strength in the way that he had been used to, up until he experienced shoulder pain in 2006, then, there is likely to be consequences of frustration, financial distress and worry about how he is to support himself and his family, just as the plaintiff has described in his oral evidence and in a number of histories to doctors.
93 I have previously referred to the attacks upon the plaintiff’s credit in cross-examination relating to his failure to tell staff at the hospital that his suicide attempts or self-harm were related to his shoulder injuries, and the plaintiff’s evidence in response. I consider that, when someone has become so psychologically distressed that he takes an overdose or slashes his wrists and presents to a hospital, he would not necessarily be expected to relate that the listener must understand that, back in 2006 and 2007, he had injured his shoulders and had surgery upon them and multiple other treatments which did not work and, thus, he had become depressed. Yet, if one follows the chronology through, as I have done above, this would appear with some clarity to be the case. Moreover, I found the plaintiff when giving evidence to be inarticulate, to have imperfect English and to be so pressured in his flow of speech as to be almost incoherent at times. It is likely that his communication skills would be even less effective if he had taken drug overdoses or slashed his wrists.
94 It is understandable that, when a person has such disorder he is likely to be less well equipped to deal with the other stressors of life, such as any strains in his relationship with his partner, and that those strains become magnified. As I have said, there may have been some pre-existing difficulties in the relationship between the plaintiff and the mother of his children, but it is plain that in June 2011 she told the social worker at the Northern Hospital that there had been physical violence which had escalated in the last two and a half years, such that she had had the police attend on four or five occasions over that time.[107] This is mentioned in the same interview where she refers to the plaintiff’s anxiety and depression, prior suicide attempts, and him being under-employed and having trouble securing full-time work.[108] In this context I note that there is no evidence that, since arriving in Australia, the plaintiff had experienced any difficulty securing and maintaining full-time employment before he injured his shoulders.
[107]DCB 156
[108]DCB 155
95 It is also of significance that, notwithstanding that the plaintiff has separated from his former partner, and that family law proceedings have been finalised, and that he has a new relationship with a student whom he met when he was a security officer working at La Trobe University, still in 2012 and 2013 he had engaged in suicide attempts and acts of self-harm. The court was told that his partner is supportive and, indeed, she was present on each day of the hearing. However, the plaintiff described how his mental state was such that he was still horrible at home and had smashed his computer[109] and when he was cutting his hands he was actually enjoying it when he saw the blood coming.[110]
[109]T229
[110]T223
96 There is no evidence that the plaintiff suffered any psychological symptoms or conditions prior to injuring his shoulders. Given the continuous thread of psychological symptoms following the plaintiff’s shoulder injuries and restrictions from 2006 onwards, I consider that the plaintiff has demonstrated on the balance of probabilities that his psychological condition, by way of Adjustment Disorder with mixed anxiety and depressed mood, is causally related to the organic injury to each of his shoulders sustained whilst in the employ of the first defendant.
97 I should note that it was submitted by Mr Ryan that an adverse inference should be drawn against the plaintiff for having failed to file an affidavit from his current partner or his friend, “Daragan”, who was working for Securecorp and encouraged him to apply for that job.[111] There is no evidence that either of these people knew the plaintiff before his shoulder injuries and, hence, would not be in a position to give a before/after picture of the plaintiff. Nor is there any evidence that they have qualifications to assist the Court with an opinion on the issue of causation. Accordingly, in my view, it is not appropriate to draw such adverse inference.
[111]DCB 240
98 It was further suggested by Mr Ryan that an adverse inference should be drawn because the plaintiff had not produced a report from Rex Medical Clinic in Bundoora concerning his treatment there since September 2012. The plaintiff’s solicitors obtained a report from Dr Clement Lo at that clinic, dated 4 November 2013, which stated that the plaintiff had never mentioned any work injury to doctors at the clinic.[112] This was confirmed by the plaintiff in his oral evidence and I accept his reason, namely, that he saw no point in going through his whole history to a new general practitioner (a different one each time he attended the Rex Clinic), as he had undergone x-rays and scans and injections and referral to specialists in the past, which had not assisted him. In these circumstances, there would appear to be no point in the plaintiff obtaining any further report from the Rex Medical Centre and I do not consider it appropriate to draw any adverse inference as suggested by Mr Ryan.
The issue of whether the plaintiff’s psychological/psychiatric condition meets the test of serious injury
[112]PCB 60A
99 It is plain that Dr Gorji requested psychiatric treatment for the plaintiff in a letter to the workers compensation insurer, dated 18 July 2008.[113] The plaintiff stated that he was informed by Dr Gorji that WorkCover would not pay for psychological treatment and, hence, he had to make do with taking anti-depressants and seeing the mental health nurse at Dr Gorji’s practice. Ultimately, it seems that WorkCover did accept liability for psychiatric treatment but, for reasons which are not clear, he was not referred to a psychiatrist (Dr Holwill) until in January 2013, over six years since he developed the injuries in his shoulders and had first begun to show signs of depression.
[113]PCB 29
100 Since 2006, the plaintiff’s psychological condition has very substantially worsened and would now appear to be well-entrenched. This is most readily apparent from the reports of Dr Kornan obtained on behalf of the first defendant.
101 When Dr Kornan examined the plaintiff, on 27 February 2009, he considered that the plaintiff’s Adjustment Disorder with mixed anxiety and depressed mood did not limit his daily activities of living and, although his social functioning had been affected and he had some problems with concentration, his psychiatric state was a disability, but without an associated incapacity for work.[114] (The sentence which follows the portion of Dr Kornan’s report, which I have just quoted, namely, “His psychiatric state does in itself prevent him from working”, would appear to have omitted the word, “not”, after the word, “does”, as it is inconsistent with the immediately preceding sentence.)
[114]DCB 69
102 By the time Dr Kornan re-examined him, over four years later, on 1 July 2013, he found that the plaintiff spoke in an angry tone, with obvious anxiety and depressive features, and a voice noticeably varying in volume, obvious difficulties with memory and concentration and judgment influenced by his mood. Dr Kornan stated:
“There were indications of major psychiatric distress, and depression, and anhedonia, suicidal ideation, emotional lability and irritability. His behaviour showed him to be someone who was floridly upset and angry, at his current situation. There was ongoing major subjective distress, which persisted throughout the entire interview.”
103 Back in 2009, Dr Kornan had considered the appropriate treatment was with the plaintiff’s local doctor, who may prescribe psychotropic medication. By 2013 he was of the view that the plaintiff needed ongoing treatment by his current treating psychiatrist and the psychologist. He considered that from a psychiatric viewpoint he was totally unfit for employment and, if his current treatment was ceased, he would have even more behaviour outbursts and probably require admission to a government psychiatric treatment centre, as his behaviour was so florid that he could not see him being managed in a private psychiatric clinic.
104 Dr Holwill, in his most recent report, dated 14 November 2013, noted that as at October 2013 he was quite fearful at times, tended to isolate himself and was at times angry and agitated, and it was apparent that he was developing increasingly avoidant behaviour. He had to force himself to leave home which made him tense and sweaty and he considered that these symptoms constituted anxiety. The symptoms of anxiety had continued to exist and, although he had some days where he woke feeling relatively happy and energetic, this did not persist. On bad days, he was consumed by angry thoughts and had nightmares of ghosts. He was still easily stressed and became angered with minimal provocation, albeit that he was no longer suicidal and did not have self-destructive impulses. Dr Holwill considered that the plaintiff’s psychiatric injury would prevent him from undertaking any form of employment.[115]
[115]DCB 91B
105 Dr Holwill’s view was shared by the plaintiff’s treating psychologist, Mr Smee, who, in a report dated 22 July 2013, noted that the plaintiff was depressed, anxious, angry and frustrated regarding his disability. He considered that the plaintiff had no current work capacity and was unlikely to gain that capacity until his pain problem is improved. He considered that the plaintiff’s pain and underlying sense of helplessness served to exacerbate his symptoms of depression and anxiety.[116]
[116]PCB 95
106 Dr Epstein, psychiatrist, who conducted a medico-legal examination on behalf of the plaintiff’s solicitors, on 17 June 2013, considered that as a consequence of ongoing pain, discomfort and disability, the plaintiff had developed a Major Depressive Disorder with suicidal ideation and actions. He considered his psychiatric state, alone, at that stage, would prevent from returning to work but it was too early to state whether his psychological state would have any permanent restriction on his work capacity.
107 The reports of Dr Epstein and Mr Smee are towards the middle of June 2013. Despite the fact that the plaintiff has continued to attend Dr Holwill and Mr Smee with some regularity, by 14 November 2013 Dr Holwill still considered the plaintiff to be unfit for work.
108 In the plaintiff’s second affidavit he stated:
“I still feel that I am barely coping. I have very little contact with old friends. Some days I simply stay in bed as I feel that I can’t face dealing with anything. I have a sense of such utter despair that it is hard to explain it in words. I try to force myself to get out and do things as my psychologist has told me that I need some form of routine. However, I have great difficulty in following that advice.”[117]
[117]Paragraph 9, PCB 18C
109 I must say that my impression of the plaintiff’s manner of giving evidence is that he was, indeed, barely coping. He seemed consumed by his problems which he spoke about in a stream of utterances which were pressured and almost unstoppable. As long ago as 2009, the Medical Panel had commented in its reasons for opinion that the plaintiff’s insight and judgment was somewhat limited.[118] Dr Kornan, as recently as July 2013, considered that he had obvious difficulties with memory and concentration, was brooding and introspective, and he doubted that he had learned any self-management so far from his psychological treatment.[119] Dr Holwill also noted “His concentration and memory were quite impaired. Subjectively he was forgetful, and his girlfriend confirmed that.”[120] These observations are consistent with my impression of the plaintiff as he gave evidence in the witness box. To me, he presented as a man who is very mentally unwell.
[118]PCB 145D
[119]DCB 75 and 77
[120]PCB 88
110 The plaintiff stated that, notwithstanding that he was trying to get better by seeing Dr Holwill and had at least stopped being suicidal, “I still feeling bad, sometimes I’ll lock up myself inside the room for two or three days”.[121] On a number of occasions throughout his evidence the plaintiff described being scared, upset and nervous, as well as feeling dizzy, particularly from the medication that he is taking. He considered that his condition has worsened this year.[122]
[121]T54-55
[122]T107
111 I accept that the plaintiff tried very hard to find employment after he was unable to manage the work he was doing with the first defendant, but his declining mental condition made it very difficult for him to cope. He presented as a man who really wanted to work and was very worried about how to provide for his children, as evidenced by his extreme behaviour in having taken an overdose and presenting to the Emergency Department, but then, fleeing from the Emergency Department to take up his shift at work because he was desperate to keep his job with Securecorp.
112 It was plain from the plaintiff’s evidence that he valued the job at Latrobe University with Diamond Protection and he did not want to lose it. He was still experiencing pain in his shoulders, but it was ultimately his mental instability that caused him not to be able to manage. This was after a couple of suicide attempts whilst in that employment. He described having the pain in his shoulder, feeling worried about not being able to cope with his children, play with them, pick up his baby and change the nappy, and feeling stressed at work when he felt there were communication difficulties and people got upset. He stated, “Everything comes to my brain, Your Honour, harass, job, my shoulder and my kids. Then push me to do suicide”.[123] He stated that he still had to take sleeping tablets but, in order to do the shift work at Latrobe University, he did not take them and, then, when he was on duty he felt like he was half asleep, depressed and things got on top of him.[124] He stated that he did not want to lose that job with Diamond Security because he was living in one bedroom and sharing a house with seven people and he had to set up a life with his kids, but he did not last one year and finished in January 2013.[125]
[123]T246 and 260-261
[124]T263-264
[125]T269-270
113 The plaintiff’s evidence was that when he was sent by Dr Holwill to see Dr Rose, that he was “feeling bad” and that “I’m just having bad stuff in my brain, it’s very – something very bad”. When he was asked to described what this meant he stated:
“Well, because I was sitting at home and then in my brain I will get too much depressions and stress. I don’t want to go outside, I don’t want to talk to people. If I want to go shopping, I would like to go dark when it is very dark so no one sees me. And when my kids come in I will just – don’t have an activity with my kids, like, sitting in my room, scared, very paranoid about my kids. They go outside, inside, I have to rush behind them very – like, scary, like these people inside maybe they hurt my daughter or maybe they – there’s too much bad stuff comes to my brain.”[126]
[126]T272-273
Concurrent conditions
114 I have considered Mr Ryan’s argument concerning the impact of the plaintiff’s complaints to the Rex Clinic and the plaintiff’s own evidence concerning pains in his legs and having a “fatty liver” and problems with his kidney. The evidence concerning these conditions, apart from passing references of the plaintiff, himself, under cross-examination,[127] is very scant.
[127]T51-52, 64, 91, 101, 110-111 and 182
115 The clinical notes from the Rex Clinic in 2004 refer to a right leg or right foot swelling for more than one year, but, as recently as 8 April 2014, the records state, “Right foot swelling for a while, not systemically unwell, had ultrasound, no obvious abnormality in vein.”[128]
[128]DCB 180C
116 In 2012 and 2013, the clinical records note urinary symptoms such as dysuria, but, again, it is recorded that he is “not systemically unwell” and, at a later stage, there is a reference to “several episodes of UTI”.[129]
[129]DCB 173
117 As far as the “fatty liver” is concerned, there is an isolated reference to an ultrasound for it on 17 April 2014, without any result being recorded.[130]
[130]DCB 180B
118 On the basis of the evidence before me, I could not conclude that any of these conditions are of a magnitude to impact to a serious degree on either the plaintiff’s enjoyment of life or his work capacity.
Conclusion
119 For many years now the plaintiff has suffered increasing symptoms of depression and anxiety. His life has become an increasingly isolated and unhappy one. He is on a substantial regime of medication on a daily basis for his psychiatric symptoms consisting of Valdoxan (75 milligrams at night), Mianserin (20 milligrams at night) and Mianserin (5-10 milligrams as needed for panic episodes). His treating psychiatrist, Dr Holwill, has expressed the view that by reason of his psychiatric injury alone, he is totally incapacitated for any form of appropriate work and likely to remain so for the foreseeable future.[131] Dr Kornan has mentioned the florid nature of the plaintiff’s symptoms. The plaintiff’s presentation in the witness box convinces me that, because of his mental state, it would be very trying to be in his company. I could not imagine any employer who was to hear the anxious, pressured manner in which he expresses himself, having any confidence that he would focus upon instructions or whatever the task he was required to perform. In my view, the plaintiff would be an unsettling influence in any workplace.
[131]PCB 91
120 Despite quite intensive psychiatric and psychological treatment over the space of more than a year now, coming on top of several years of anti-depressant medication and sleeping medication, I conclude that the plaintiff is now suffering from a mental or behavioural disturbance or disorder which meets the definition of severe. I have arrived at this conclusion by comparing the plaintiff’s case with other cases in the range of possible mental or behavioural disturbances or disorders. I find that it is likely to continue into the foreseeable future and that the plaintiff, therefore, will most probably remain permanently unfit for any employment because of it. The consequences of this impairment are serious with respect to both pain and suffering and loss of earning capacity.
121 I have found that the plaintiff suffers an organic injury to each of his shoulders which has resulted in an impairment to each shoulder with pain and suffering consequences which are serious. I have found that, as a secondary consequence of such organic injuries, the plaintiff suffers a severe mental or behavioural disturbance or disorder, which has serious pain and suffering and loss of earning capacity consequences. Accordingly, leave is granted to the plaintiff to bring proceedings to recover damages for pain and suffering and loss of earning capacity relating the injuries to his shoulders and the severe mental or behavioural disturbance relating to such injuries arising out of or in the course of or due to the nature of his employment with the first defendant.
122 I add by way of a postscript that, in the course of the hearing, both parties added documents to their respective court books and I requested that an amended index be filed by each party. An amended index was forwarded by the plaintiff’s solicitors to my Associate on the day following the conclusion of the case. Subsequently, an email was received addressed “Your Honour and all concerned” from Mr Ryan, complaining, amongst other things, that additional material was never incorporated into the plaintiff’s court book and/or properly received into evidence.
123 The amended index which I received from the plaintiff’s solicitors accords with the handwritten amendments that I made to the existing index during the course of the trial as various documents were added.
124 Mr Ryan also complained in his email that some material was introduced after the plaintiff had closed his case and that the defendant was not afforded the opportunity of cross-examining in relation to much of the material that post-dated the contents of the court book at the commencement of the hearing. No objection was made by Mr Ryan to the addition of any of the material to the court book. If he felt that there was some unfairness that arose throughout the trial, he should have voiced that objection, but no such objection was made by him. Nor did he seek to have the matter mentioned after receiving the plaintiff’s amended index.
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