Alahakoon v Blurlato Pty Ltd
[2017] VCC 1524
•27 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-00716
| HEMA ALAHAKOON | Plaintiff |
| v | |
| BLURLATO PTY LTD (t/a ISS FACILITIES SERVICES) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2017 | |
DATE OF JUDGMENT: | 27 October 2017 | |
CASE MAY BE CITED AS: | Alahakoon v Blurlato Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1524 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – injury to both shoulders and neck – major depressive disorder – acceptance of claims – whether severe mental or severe behavioural disturbance or disorder established so as to satisfy statutory test – attempts at suicide – whether plaintiff has any capacity for suitable employment – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr J Fitzpatrick | Menzies Arvia Lawyers |
| For the Defendant | Mr P Trigar | Thomson Geer |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering and loss of earning capacity. In so doing, she relies upon both paragraphs (a) and (c) of the definition of “serious injury” found in s134AB(37) of the Act. The injuries which she is alleged to have suffered are as follows:
(i)injury to the left shoulder;
(ii)injury to the right shoulder;
(iii)injury to both shoulders as a unit (aggregation of the shoulder injuries allegedly sustained due to the nature of the employment);
(iv)injury to the neck;
(v)major depressive disorder, being a severe mental or behavioural disturbance or disorder.
I would refer to Transcript (hereinafter referred to as “T”) 1 and following pages.
2 Whilst the plaintiff is relying upon the course of employment, in relation to the left shoulder there would appear to have also been a specific incident of injury on 31 July 2012 when the plaintiff was hanging shower curtains in the course of her employment as a Patient Service Assistant at the Royal Women’s Hospital in Parkville. It would appear that the defendant is an entity which employs people who perform the work of a Patient Service Assistant, which involves such things as keeping wards clean, delivery of food to the patients and the like. In relation to the plaintiff’s injuries, her claims for statutory benefits were accepted in respect of each of those listed above – see T7.
3 For reasons which shall become apparent, I shall deal firstly with that part of the plaintiff’s application in which reliance is placed upon paragraph (c) of the definition. In other words, I shall deal at the outset with the application insofar as it is based upon a permanent severe mental or permanent behavioural disturbance or disorder. Some of the discussion concerning that portion of the claim will necessarily involve referral to the physical injuries, but, of course, a mental or behavioural disturbance or disorder is in a different category and involves a different test (“severe” as opposed to “serious”).
4 Mr C Harrison QC with Mr J Fitzpatrick of counsel appeared on behalf of the plaintiff. Mr P Trigar of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
5 I shall commence by discussing background matters which are common to both the physical and mental aspects of the claim.
Factual background
(a)The plaintiff’s background, training and employment prior to the injuries
6 The plaintiff is a married woman aged 44 years, she having been born in 1973 in Sri Lanka. There, she remained at school until the age of 18 years, following which she intended to apply to train as a primary school teacher. However, as a result of an arranged marriage and her husband having gone to Australia, she immigrated to this country in 1998. Apart from teaching at Sunday school, she had not actually worked in Sri Lanka.
7 She has three children, ranging in age from 10 to 18 years. These children were born in Australia. In 2008, when the youngest child was approximately 18 months, the plaintiff undertook a course in relation to being a Patient Service Assistant. Having completed the course, she applied to various hospitals for work. Ultimately, in December 2008 she commenced work on a part-time basis with the defendant, working eight hour shifts, two to three days per week. Her duties involved the moving of trolleys with food upon them into wards, changing linen, changing shower curtains, cleaning toilets and the like. She is right-hand dominant.
(b)The plaintiff as a witness
8 I have no reason to doubt the credibility of the plaintiff, whilst acknowledging that she does have mental problems, as shall be discussed. She gave evidence with the assistance of an interpreter. Whilst her grasp of English seemed to me to be adequate for the purposes of answering some questions and whilst she had not used an interpreter a great deal or at all at some medical examinations, her use of one in the setting of a court room and cross-examination seemed to me to be a reasonable step to take. She was able to answer some questions without the assistance of the interpreter, although relying upon her to a considerable extent. I raise this because it was an issue that received attention during cross-examination. I would also point out that both of the plaintiff’s affidavits in support of her application were sworn with the assistance of an interpreter. In any event, I do not regard her use of an interpreter as a fact that acts to the detriment of the plaintiff or to her credit.
9 I note that Dr Michael Duke, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described her as cooperative, a term also used in relation to her by Mr Russell Miller, orthopaedic surgeon, who has both treated the plaintiff and apparently later reported to her solicitors on a medico-legal basis. Dr David Middleton, occupational health consultant, who saw the plaintiff at the request of her solicitors, described her as presenting with a rather flat and depressed demeanour, but also referred to the fact that she was cooperative. Dr Philip Mutton, consultant occupational physician, who examined the plaintiff at the request of the defendant, similarly described her as being pleasant and cooperative. Dr Matthew Tagkalidis, consultant psychiatrist, also examined the plaintiff at the request of the defendant. He described her as being cooperative, very pleasant and matter of fact in demeanour.
10 She did not strike me as a witness who was attempting to exaggerate or in any way mislead the Court. I accept her as a witness of truth.
11 I turn now to matters specifically related to the plaintiff’s mental health, her reaction to the physical injuries and to the issue of mental or behavioural disturbance or disorder.
(c)The state of the plaintiff’s mental health prior to the injury
12 It is apparent that the plaintiff had seen Dr Dhushan Illesinghe, consultant psychiatrist, on 10 June and 9 July 2004. She had been referred to that psychiatrist by a general practitioner, Dr Mahendra Menon. In a report of 22 June 2004 to Dr Menon, Dr Illesinghe stated that the plaintiff did not seem to be suffering from a formal psychiatric disorder, but would benefit from a supportive psychotherapeutic intervention in order to overcome her personal difficulties. He thought that both the plaintiff and her husband, with whom he also had a discussion, seemed to be lacking in understanding psychological concepts. He would attempt to address her lack of confidence and the like through behavioural interventions. It is apparent that Dr Illesinghe saw the plaintiff on one further occasion on 9 July 2004. Dr Illesinghe was of the opinion that the plaintiff had already made some inroads into her problems. He was hoping that there would be further progress over time.
13 There is no evidence that the plaintiff suffered any further psychological or psychiatric problems which required treatment between 9 July 2004 and commencing work with the defendant on approximately 15 December 2008. Indeed, she was not referred by her general practitioner, Dr Janaka Abeysirigunawardana, to Mr Michael Poynton, psychologist, before 11 September 2013 (the plaintiff actually saw Mr Poynton on 19 November 2013). By that time, the plaintiff had undergone a considerable amount of treatment in relation to both shoulders and, as shall be discussed, had made one attempt at suicide.
14 Dr Wendy Triggs, consultant psychiatrist, examining the plaintiff at the request of the defendant on 4 October 2013, took a history of the plaintiff possibly having some paranoia when a young adult. Whilst she diagnosed the plaintiff as suffering from major depression, she also referred to the background of a prodromal illness. Dr Triggs is the only medical examiner to make any reference of substance to this possible history of paranoia. It is not a factor to which I attribute any great significance. In any event, as shall be discussed, Dr Triggs also diagnosed the plaintiff as suffering from major depression.
(d)The injury, its treatment and diagnosis
15 Whilst, in discussing the above, attention will be focussed primarily upon the plaintiff’s mental health, this necessitates some discussion of her physical injuries and symptoms.
16 As mentioned earlier, the plaintiff commenced work with the defendant in December 2008. Her duties, which have been described, were quite physically demanding. While she had commenced work with the defendant on a part-time basis, as at 11 June 2009 she was given permanence and was performing her duties 37.5 hours or 38 hours per week (this is not entirely clear).
17 The plaintiff’s first symptoms seemed to emanate from her neck. In her affidavit of 12 October 2016, she has sworn to having an x‑ray of her cervical spine in November 2010 and attending the Lamia Medical Centre in Craigieburn in December of that year for neck pain, a referral then being made for physiotherapy. Apart from what is contained in that affidavit, no medical material in relation to this was placed before me.
18 The plaintiff has sworn that she again attended her general practitioner for neck symptoms in late 2011. Again, there is no medical material in evidence in relation to this.
19 In approximately June or July of 2012, the plaintiff commenced to suffer from pain in the left shoulder. She related this to the pushing of trolleys and the like. However, on 31 July 2012, there was a specific incident when she was changing some shower curtains. She attended Dr Janaka Abeysirigunawardana on the following day. The plaintiff has referred to this doctor as being simply “Dr Janaka” and henceforth I shall do the same. Without going into the details, Dr Janaka appears to have certified the plaintiff as only being fit for restricted duties. In the period immediately following, she seems to have missed a couple of weeks of work and otherwise been certified as fit only for restricted duties.
20 Dr Janaka referred the plaintiff to Mr Douglas Li, orthopaedic surgeon, who ordered an MRI of the plaintiff’s left shoulder, this being performed on 3 December 2012. This revealed extensive distal supraspinatus tendinosis, together with a largish insertional articular surface tear of the mid tendon and a tiny tear of the anterior tendon. There were also other findings, such as bursitis and arthropathy. In any event, the plaintiff came to left shoulder surgery performed by Mr Li on 21 March 2013. The surgery was in the nature of an arthroscopy, acromioplasty, subacromial bursa excision, excisional arthroplasty of the acromioclavicular joint and open rotator cuff repair.
21 The plaintiff continued on with alternate duties. She became depressed and a suicide attempt in the nature of an overdose of medication occurred near the end of 2012.
22 Mr Li had certified the plaintiff as being unfit for work for one month in early 2013. The plaintiff was given three months off work subsequent to the left shoulder surgery. She had physiotherapy during this time. In late June 2013, she attempted a return to work and was given duties such as cleaning walls and dusting. She did this for some 20 hours per week.
23 In August 2013, the plaintiff was expected to return to normal duties, but developed right shoulder pain shortly after cleaning toilets. On either 21 or 22 August 2013, an ultrasound was performed on her right shoulder, this being upon referral from Dr Janaka. It revealed a 5 millimetre partial thickness tear in the supraspinatus. On 29 August, the plaintiff was referred back to Mr Li by Dr Janaka in respect of her right shoulder condition.
24 On 11 September 2013, the plaintiff was referred to Mr Michael Poynton, psychologist, by Dr Janaka. Mr Poynton first saw the plaintiff on 19 November 2013 and has continued to see her on a regular basis thereafter. By December 2013, the plaintiff was being certified for modified duties only, four hours per day. On 3 February 2014, she underwent surgery performed by Mr Li to her right shoulder. There had been an MRI of that shoulder performed on 17 September 2013, this showing a small partial thickness intrasubstance insertional tear of the anterior aspect of the supraspinatus tendon associated with mild enthesopathy. There were also indications of mild subacromial bursitis and mild bicipital tenosynovitis. In any event, on 3 February 2014, Mr Li performed a right shoulder arthroscopy; right shoulder arthroscopic acromioplasty; and right shoulder subacromial bursa excision. Prior to this and from approximately October 2013, the plaintiff had also been suffering neck pain.
25 Following a period of recovery from the right shoulder surgery, the plaintiff resumed on what were intended to be light duties, but found these difficult. In June 2014, Mr Li suggested the plaintiff attempt office work three days per week, six hours per day. However, no such work was available. Accordingly, the plaintiff worked in the discharge team, but considered that the work she was doing went beyond her certified restrictions. The plaintiff has sworn that, during this period, both her shoulders were bad, as well as her neck. By late 2014 she was unable to cope. She became very stressed and attempted suicide again.
26 In early 2015, there was pressure on the plaintiff to return to normal work duties. She believes that the last time she performed any work for the defendant was on 26 March 2015. Subsequently, on 4 February 2016, she was advised that her employment would come to an end if she could not provide a full medical clearance. That effectively marked the termination of her employment with the defendant and she has done no work since.
27 On 11 March 2016, the plaintiff had an MRI of her cervical spine. This showed a central C5-6 disc protrusion, but no evidence of cord oedema or myelomalacia. There was no neural impingement. On 18 April 2016, the plaintiff was seen by Mr Nicholas Hall, neurosurgeon, upon referral from Dr Janaka. Mr Hall expressed the view that the most likely diagnosis for the somatic referred pain was possible facet arthropathy. He considered that surgical treatment was unlikely to offer any substantial benefit, suggesting that the plaintiff be referred to a pain specialist for consideration for medial branch blocks.
28 In August 2017, the plaintiff had further radiological investigations of the right shoulder and the cervical spine. The ultrasound of the right shoulder revealed tendinosis of the supraspinatus and a partial thickness tear of the subscapularis. There was moderate bursitis and the possibility of adhesive capsulitis. These findings were revealed by means of an ultrasound. On 2 August 2017, the plaintiff underwent another MRI of the cervical spine upon referral from Dr Janaka. This revealed a posterior disc protrusion at the C5-6 level, indenting, but not compressing, the spinal cord.
29 Dr Janaka also referred the plaintiff to Mr Bernard Lynch, orthopaedic surgeon, he seeing her on 29 August 2017. He expressed the view that the plaintiff’s symptoms did sound as if they represented referred pain from the cervical spine. He suggested physiotherapy and pain management. He considered that surgery on the right shoulder was not indicated, also referring to a lot of subjective signs of stiffness.
30 I have gone into some detail in relation to the treatment of the plaintiff’s physical injuries, as it is against this background that the plaintiff’s mental health problems have arisen. As stated, she commenced receiving psychological treatment from Mr Poynton in November 2013 and this has continued on a frequent and regular basis. In a detailed report of 4 May 2015, Mr Poynton stated that he had basically been seeing the plaintiff on a fortnightly basis from November 2013 until that date. His report contains observations that the plaintiff has not coped emotionally with the incapacitating neck and shoulder pain; that she felt useless and guilty; that she was suffering from pain and exhaustion; and that the discovery of her suicide attempts had caused distress and insecurity to her elder daughter. He described how the plaintiff’s mood is consistently hopeless, sad, stressed and intermittently angry. Amongst a list of symptoms, he has described how the plaintiff’s sleep is poor, that she is fatigued and that her sense of worth has collapsed. He reported that the plaintiff thinks of suicide most days. However, after a second attempt, she has promised her second daughter that she would not try again. Mr Poynton described the plaintiff’s symptoms of distress as being severe. Testing in relation to stress, anxiety and depression revealed that she was in the “Extremely Severe” range for each category.
31 The diagnosis of Mr Poynton as contained in his report of 4 May 2015 was that the plaintiff suffers from a major depressive episode and adjustment disorder with anxiety. He believes that her work injuries and experiences have caused or substantially contributed to her condition. He also stated that, on account of her severe depression, including cognitive slowing and confusion, she has no current capacity to retrain for work for which she might have a sustainable physical capacity.
32 Mr Poynton reported to Dr Janaka again on 2 August 2017. He stated that he was continuing to see the plaintiff fortnightly in order to assist her to deal with stress, anxiety and depression arising out of her injuries. She had been complaining of steadily worsening pain in her shoulders and neck; loss of identity and independence because of unremitting financial stress associated with incapacity for work; loss of access to the possibility for training and work in the field of administration and reception; the needs of her children and her dependence on her husband’s insecure and poorly paid work; and the removal of support by way of weekly payments of compensation and payment for her psychological treatment. To Dr Janaka, Mr Poynton described the plaintiff’s subjective distress as being high. Tests on 11 July 2017 had again revealed that her scores for stress, anxiety and depression were all in the “Extremely Severe” range. She was continuing to use cognitive behavioural approaches to pull back from anxiety “rising to panic and from self harm”. He referred to the fact that thoughts that death would be preferable were frequently present and that the plaintiff continued to contemplate self harm by taking an overdose of prescribed medication. Mr Poynton also completed a “Treating Psychologist’s Questionnaire”, to which reference shall be made subsequently, but this also indicated that the plaintiff had continuing suicidal thinking. He stated that ongoing, regular treatment is required.
33 I would also point out that, for example, in the letter of referral from Dr Janaka to Mr Lynch, this letter being dated 21 August 2017, there is reference to the plaintiff suffering from severe depression due to her incapacity for work, this in turn being related to her work injury and surgery. There is also a reference to the fact that she is seeing her psychologist regularly and that there have been previous suicidal thoughts.
34 The plaintiff has also been seen for medico-legal purposes. I shall deal only briefly with those examinations concerned with the organic injuries and focus more upon those concerning the mental disorder. Mr Russell Miller, orthopaedic surgeon, may have seen the plaintiff both as a treater and for medico-legal purposes. Certainly, he originally saw the plaintiff by way of referral, reporting back to the clinic of which Dr Janaka is a member on 10 January 2013. At that stage, Mr Miller diagnosed her as having an impingement syndrome and probably some symptomatic degenerative change in the acromioclavicular joint. He suggested an injection of local anaesthetic and corticosteroid and that she remain on restricted duties. He seems to have been seeing her in respect of her left shoulder. Mr Miller saw the plaintiff again on 14 August 2017, but this appears to have been more in the context of a medico-legal examination. In his report, he referred to her as having severe neck ache, discomfort and pain. He described each shoulder as representing a major problem for her. Mr Miller also referred to the plaintiff’s mental state, stating that she had problems of anxiety and depression, as well as the probable development of a chronic pain syndrome. She required assessment by a psychiatrist. Mr Miller also noted that the plaintiff had poor English reading and writing skills and no computer skills. He considered the plaintiff unable to return to her pre-injury duties on any significant full-time or part-time basis and, given her limited skills and work experience in this country, felt that a return to work would be difficult to achieve.
35 Dr David Middleton, occupational physician, has provided a lengthy report to the plaintiff’s solicitors, such report being dated 28 August 2017. Dr Middleton discussed the surgery that had been performed to each shoulder, also expressing the opinion that the plaintiff had suffered the aggravation of previously asymptomatic degenerative disease of the cervical spine. He implicated employment in relation to each of the physical injuries, also stating that each was likely to continue for the foreseeable future and that the prognosis therefore was poor. In discussing capacity for employment, Dr Middleton made it clear that he was excluding psychological or psychiatric consequences. He went on to say that the plaintiff does have some theoretical capacity to perform sedentary work. However, bearing in mind her limited English and her inability to be effective and reliable in relation to computer work, he was of the view that the plaintiff’s capacity to procure and maintain suitable employment was negligible. He stated that the prognosis was poor. A brief supplementary report effectively takes matters no further.
36 Turning to the plaintiff’s mental condition, the plaintiff’s solicitors organised for her to be seen by Professor Lorraine Dennerstein, specialist psychiatrist. Professor Dennerstein has a long list of qualifications. She saw the plaintiff on 19 July 2017. Professor Dennerstein took a detailed history of the occurrence of the plaintiff’s organic injuries and their consequences. She also took a history of the plaintiff’s mental response to such injuries. In relation to the plaintiff’s mental state, she noted that the plaintiff was anxious and had some psychic and somatic anxiety symptoms. She also noted that the plaintiff had poor concentration, low motivation and was continuing to have suicidal ideation. Professor Dennerstein recorded that the plaintiff’s current medication included Mirtazapine, which I understand to be an antidepressant used to treat major depressive disorders; Mobic, an anti-inflammatory drug; Palexia, an opioid analgesic used in relation to pain; and Panadol Osteo. In the history of events taken by Professor Dennerstein, the two previous suicide attempts are noted.
37 In the opinion of Professor Dennerstein, the plaintiff has developed a major depressive disorder in response to her physical injuries and related consequences. She considered the plaintiff’s major depressive disorder to be in partial remission with treatment. However, the plaintiff’s psychiatric condition is permanent. It creates restrictions in relation to her ability to undertake any form of suitable employment on the open labour market. Professor Dennerstein referred to the plaintiff’s irritability because of pain, to her being socially withdrawn and having poor concentration. She also referred to the plaintiff’s limitations with the English language, along with a lack of adequate office skills and an inability to perform any heavy work. Whilst Professor Dennerstein describes the plaintiff as being limited by both physical and psychological factors, her conclusion was that she has no work capacity for any suitable employment in the open labour market. Professor Dennerstein considered the plaintiff’s psychiatric condition to have stabilised and likely to continue for the foreseeable future, although with some risk of further deterioration if she is subjected to further stressors.
38 The defendant has also had the plaintiff examined for medico-legal purposes. I shall deal firstly with examinations by psychiatrists.
39 Dr Wendy Triggs, consultant psychiatrist, examined the plaintiff at the request of the defendant on 4 October 2013. She obtained a history of the plaintiff’s attempted suicide by means of an overdose of tablets in November 2012. Dr Triggs took a history which included the fact that, when the plaintiff was a young adult, she had some paranoia relating to a sensation of being followed. Dr Triggs diagnosed the plaintiff as suffering from major depression, possibly against the background of a prodromal illness. Dr Triggs thought that the plaintiff needed urgent referral to a consultant psychiatrist, but believed that the plaintiff’s work capacity was only limited by any physical restrictions. However, she said the following:
“Certainly her physical illnesses have precipitated the relapse of an underlying tendency to suicidal ideas and this needs to be treated urgently as above.”
40 Dr Matthew Tagkalidis, consultant psychiatrist, examined the plaintiff at the request of the defendant on 19 April 2015. He took a history of the suicide attempts. He noted that she was taking medication in the form of Mirtazapine. The plaintiff described to Dr Tagkalidis her experiencing of negative thoughts about being a burden on her husband and was tearful on a daily basis. She said that she was also intermittently anxious and had mild panic symptoms on a frequent basis. She described other symptoms such as disrupted sleep nightly, loss of appetite, loss of libido and the like. Dr Tagkalidis expressed the opinion that he was satisfied that the plaintiff did not display any psychotic features.
41 The conclusion reached by Dr Tagkalidis was that the plaintiff was suffering from a major depressive disorder relevant to the accepted injuries. It was not possible to definitely diagnose a chronic pain disorder. He did not believe the plaintiff’s current functioning and coping had been compromised by any personality based factors. He also expressed the opinion that, due to the nature of the psychiatric injury, the duration of the symptoms and the duration of treatment, the plaintiff’s psychiatric condition had substantially stabilised and was unlikely to remit with further treatment. Her condition was stable and permanent. Dr Tagkalidis was prepared to make an assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians. He was of the view that all of her impairment was secondary and consequential to the claim and accepted physical injury. He repeated that the plaintiff’s depressive syndrome was of such a severity as justifying a major depressive disorder diagnosis and that her psychiatric state had stabilised.
42 Dr Michael Duke, consultant psychiatrist, has reported to the defendant on three occasions. His earliest report followed an examination on 14 May 2014. The plaintiff told Dr Duke that her psychological mood had improved, as she was now more worried than depressed – “She said she worries even in her sleep.” The plaintiff described a sensation of being followed when she was in Sri Lanka in terms of having a strict father who did not want her to associate with the people from lower castes. Her father had even chosen her husband for her. However, since she has been in Australia, the feeling of being followed has faded. I say now that I do not regard it as being a factor of any great significance and it did not receive any consideration of moment during the running of the case. Dr Duke diagnosed a secondary depressive illness with a suicide attempt. Dr Duke recorded that the plaintiff had in fact gone to Sri Lanka for two months in December 2013 and there tried herbal remedies without benefit. This was in relation to her pain. Dr Duke stated that the “most parsimonious diagnosis” would be secondary adjustment disorder with mixed anxiety and depressed mood, which was improving, the plaintiff now having predominantly anxiety-related symptoms. He thought that the attendances with Mr Poynton, psychologist, should continue. Dr Duke considered that the plaintiff did have a current mental disorder which was predominantly secondary to her physical injuries. At the time, the plaintiff had returned to work with the defendant and Dr Duke expressed the view that “From a narrow psychiatric perspective alone”, there was no impediment in relation to hours worked.
43 Dr Duke saw the plaintiff again on 8 October 2014. I note that, on this occasion, he saw her for only 20 minutes. Dr Duke obtained a history of the second suicide attempt in July 2014. The plaintiff had resumed taking antidepressant medication and was continuing to see Mr Poynton. She described symptoms of anxiety, lowered mood and feelings of despair. She was working on a full-time basis at the time of this interview. Dr Duke stated that, from a psychiatric point of view, the plaintiff had developed a secondary depressive illness. He considered that she had a secondary adjustment disorder with mixed anxiety and depressed mood, which had become static. Dr Duke was of the view that the plaintiff required further treatment, with possibly a change of medication. He thought that she needed retraining in some other form of employment.
44 Dr Duke saw the plaintiff at the request of the defendant for a third time on 10 May 2017. He took a history that the plaintiff had left work with the defendant on 18 March 2015. She had been receiving Centrelink payments, and was applying for more than 20 jobs per week but had been unable to obtain an interview. Indeed, she gave evidence before me that she had been receiving a Newstart Allowance and was required to apply for 20 jobs per month.
45 In any event, the plaintiff made many of the same complaints concerning sleep disturbance, lack of sex drive, general unhappiness and the like. Dr Duke expressed the opinion that the plaintiff’s psychiatric disorder would probably be best described as major depressive disorder, moderate. It is secondary to her physical injuries and employment is still a cause. Because he had expressed the opinion before, Dr Duke believed that the plaintiff did have a partial work capacity. However, he thought that she required appropriate ergonomic assistance and probably further retraining. She had expressed preferences for positions such as a medical receptionist, ward clerk or medical records person. Whether these are realistic employment options is something which shall be discussed subsequently.
46 Incidentally, I note that Dr Duke has recorded that the plaintiff told him that she had finished seeing Mr Poynton, her treating psychologist. Whether she finished seeing him briefly, or whether there was some misunderstanding, it is quite clear from her affidavit of 31 August 2017 that she was continuing to see Mr Poynton on a fortnightly basis. In a document completed by him on 6 August 2017, he recorded that he was still seeing the plaintiff on a fortnightly basis. It is quite apparent that she, in fact, has not ceased such regular treatment.
47 The defendant has also had the plaintiff examined by specialists or experts other than psychiatrists. At least to some extent, a few of these reports have now been overtaken by events. For example, the report of Mr Michael Shannon, orthopaedic surgeon, of 23 January 2013 pre-dates the surgery to either shoulder, although surgery to the left shoulder had been foreshadowed. The report of Dr Philip Mutton, consultant occupational physician, of 6 July 2013 was comparatively shortly after the surgery to the left shoulder and the plaintiff had only returned to work less than a week before the interview. Of course, the surgery to the right shoulder had not taken place. Similarly, his report of 4 November 2013 was carried out after the right shoulder had become a problem and was under investigation, but prior to the surgery.
48 Mr Peter Battlay, surgeon, examined the plaintiff on 22 May 2015. His attention seems to have been considerably directed towards evaluation of any permanent impairment, although he was of the view that she had obtained a very good result from both operations.
49 Dr Grant Ramage, consultant occupational physician, assessed the plaintiff at the request of the defendant on 21 November 2016. His report contains a history of and comments upon both the physical and the mental disabilities. In relation to her mental problems, she was still on antidepressant medication. Dr Ramage stated that, given the plaintiff’s continuing psychiatric state, along with her chronic neck pain and shoulder problems, and together with her lack of ongoing treatment, she had no current employment capacity and the likely prognosis was that she would not improve. He expressed the opinion that she had chronic neck pain, “amplified by her well documented psychiatric diagnosis”, along with bilateral shoulder adhesive capsulitis. Dr Ramage also made the following observations:
“If there were no consideration of her psychiatric status and Ms Alahakoon underwent treatment for her adhesive capsulitis of the shoulders there is a possibility she could regain enough shoulder movement to return to the light work … Certainly her prognosis would be significantly improved if the psychiatric co morbidities were removed. Her neck pain should be manageable if her underlying psychiatric status was ignored.”
50 Dr Ramage stated that he could not see a suitable vocational option for her in the foreseeable future unless her current psychiatric status can be managed. He also made the following observation:
“I would comment from reading multiple psychiatric reports that her psychiatric status impacts severely on her motivation to rehabilitate and is probably amplifying her perception of chronic pain.”
51 Dr Peter Boys, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant on 12 May 2017. He expressed the opinion that the plaintiff would have a capacity for suitable employment, but, apart from noting that the plaintiff was receiving ongoing treatment for depression and being aware of her history of anxiety and depression, Dr Boys scarcely comments upon the plaintiff’s mental health.
52 This brings me to the diagnosis of the plaintiff’s mental condition. I accept that the plaintiff suffers from a major depressive disorder. This diagnosis has been reached by both Professor Dennerstein, examining on behalf of the plaintiff, and Dr Tagkalidis, examining on behalf of the defendant. It is also consistent with the diagnosis of the treating psychologist, Mr Poynton, who has seen her so many times. In his opinion, as stated in the Questionnaire of 6 August last, the plaintiff suffers from a major depressive disorder. Dr Triggs has diagnosed major depression. In his most recent report, Dr Duke has also referred to a major depressive disorder. In summary, it is the diagnosis which I accept.
53 In relation to that diagnosis, I am not of the view that the consequences from which the plaintiff suffers result from the aggravation of a pre-existing condition. Although there is for example, a reference in the report of Dr Triggs to pre-existing paranoia when the plaintiff was a young adult, this does not seem to me to be of great moment. Dr Triggs states that the plaintiff is currently suffering with major depression, possibly against a background of a prodromal illness. In any event, I am satisfied that the consequences from which the plaintiff suffers result directly from the work-related mental illness and did not exist prior to it.
54 I am also satisfied that such consequences are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Dr Tagkalidis observed that the plaintiff’s psychiatric condition had substantially stabilised and was unlikely to remit with further treatment. Professor Dennerstein has stated that the plaintiff’s psychiatric condition is stabilised and is likely to continue for the foreseeable future, although there could be further deterioration if she is subjected to further stressors. The treating psychologist, Mr Poynton, in his most recent report of 20 September 2017, expressed the opinion that the plaintiff’s major depressive disorder is permanent and likely to persist into the foreseeable future. Dr Middleton has stated that the plaintiff’s physical injuries are likely to continue for the foreseeable future and that the prognosis is poor. Dr Ramage, examining on behalf of the defendant, on 21 November 2016, stated that the plaintiff’s prospects of returning to work on either a full-time or part-time basis were minimal, without a significant improvement in her psychiatric symptoms. Insofar as her mental condition is related to her physical injuries, Mr Miller has stated that the plaintiff’s injuries have substantially stabilised and have been so since approximately February 2015. In summary, and bearing in mind the above opinions, it seems to me to be clearly established that the consequences of the plaintiff’s mental injury are permanent within the meaning of the Act in that they will persist for the foreseeable future.
Other developments since the injury
55 As stated, the plaintiff continued in her employment with the defendant, missing some time, until ultimately such employment was terminated on 4 February 2016. She has not worked since. She has been to Sri Lanka in an attempt to improve her symptoms by means of herbal remedies. She did attend a medical receptionist course at NMIT Preston for several months. This was a part-time course with which she struggled. She ultimately obtained a certificate. She has applied for a large number of jobs, apparently well in excess of what is required by Centrelink.
Ruling
(1) Mental or behavioural disturbance or disorder
(a) Pain and suffering
56 I appreciate that, in a situation where a plaintiff discharges the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to pain and suffering damages – see the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court. Therefore, to some extent it may be thought that I am dealing with the issues in the incorrect order. However, it seems to me that my finding in relation to pain and suffering, and particularly in relation to suicidal ideation, may have the potential to play a more significant role than usual in a discussion of earning capacity. Such findings assist in assessing the gravity of the plaintiff’s condition.
57 In relation to pain and suffering, I am satisfied that the plaintiff has discharged the burden of proof insofar as reliance upon paragraph (c) of the definition of “serious injury” is concerned. It is to be remembered that, for the purposes of paragraph (c), an important requirement is that the mental disturbance or disorder be “severe”, as opposed to “serious”. As was said by Brooking JA in Mobilio v Balliotis [1998] 3 VR 833:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
58 I have come to that conclusion for the following reasons.
(i)The mental or behavioural disturbance or disorder suffered by the plaintiff is of such magnitude that she has already attempted suicide on two occasions and still has suicidal thoughts. In his answers of 6 August 2017 as set out in the Treating Psychologist’s Questionnaire, Mr Poynton has referred to the plaintiff’s “continuing suicidal thinking”. He has also observed that the plaintiff has made no positive progress behaviourally, save that she has not acted on suicidal ideation. In his report on 20 September 2017, Mr Poynton has made the following observations:
“Her pervasive sadness, loss of pleasure and pleasurable anticipation, sense of worthlessness and profound fatigue all continue. Thoughts of suicide, as her only option, intrude most days. Volunteered mention of suicide occurs frequently.”
When reporting to the defendant on 19 May 2015, Dr Tagkalidis stated that the plaintiff experiences passive suicidal thinking daily and active suicidal impulses of overdosing and crashing her car most days, and had come close to harming herself several times in recent months. Reporting on 25 July 2017, Professor Dennerstein said that the plaintiff continued to have suicidal ideation.
It is to be remembered that the plaintiff has already made two attempts at suicide. It might be thought that this entire consequence relating to suicide, on its own, is sufficient to satisfy the requirement of severity.
(ii) Professor Dennerstein summarised the situation as follows:
“It can be seen from the report above that her psychiatric injury has had an impact on her social, domestic and recreational activities. She has become socially isolated and withdrawn and no longer goes out socially to meet up with friends and no longer entertains them. She is limited in what she can do around the house by both her lack of motivation and depression as well as her physical limitations. These factors also limit her in recreational activities (compare her previous social functioning and daily activities with her current social functioning and daily activities).”
Whilst Professor Dennerstein has also referred to some physical limitations, the first two sentences above seem to relate directly to the plaintiff’s psychological or psychiatric consequences.
(iii)In her affidavit of 12 October 2016, the plaintiff has sworn as to how she is depressed, flat and anxious most days. She is socially withdrawn and keeps very little contact with friends. Her days are monotonous and lonely. She has become withdrawn due to stress and depression. She has become angry and miserable in relation to her interaction with her children and her thinking is not clear.
(iv)In her affidavit of 31 August 2017, the plaintiff has sworn that, mentally, she struggles to do anything “work wise”, even at home. She finds it difficult to manage her own day-to-day life. She has referred to her mental state as being “dreadful” and also described how she gets angry very easily and is unable to cope with pressure. As indicated earlier, I regard her as a witness of truth and I accept her description of her symptoms.
(v)An affidavit has been sworn by a friend of hers, Ms Ramya Dewage. This witness was not cross-examined. In that affidavit, she has referred to the plaintiff as looking emotionally down, getting upset easily and tending to have a general dull and hopeless look compared to how she previously was.
(vi)Bearing the above in mind and paying particular attention to the plaintiff’s ongoing suicidal state of mind, and given that these problems will persist for the foreseeable future, I am satisfied that the plaintiff has satisfied the test of severity as set out in s134AB(38)(b) and s134AB(38)(d) in relation to her pain and suffering.
(b) Pecuniary loss damages
59 I am also satisfied that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages. I have come to that conclusion for the following reasons.
60 In his most recent report of 20 September 2017, Mr Poynton expressed the following opinion:
“I believe the aggregate of Mrs Alahakoon’s depressive mental slowing, loss of capacity to concentrate and to decide on and plan action, together with subjective misery, anger, irritation, humiliation, sense of inferiority and experience of profound fatigue and somnolence preclude her return to any employment … In my opinion she has no current or foreseeable capacity for employment.”
In an earlier report of 4 May 2015, Mr Poynton clearly implicated the plaintiff’s physical work-related injuries as being causative of her mental condition.
61 Professor Dennerstein, reporting on 25 July 2017, expressed the opinion that the plaintiff’s psychiatric condition impacts upon her ability to undertake pre-injury employment. It also “… creates restrictions for her to be able to undertake any other form of suitable employment on the open labour market for which she may be suited”. Professor Dennerstein commented upon the plaintiff’s irritability, poor concentration, limited English, and lack of adequate office skills. She also referred to the plaintiff’s inability to perform heavy work because of her physical injuries. Professor Dennerstein’s overall conclusion was that the plaintiff has no work capacity for any suitable employment on the open labour market. It might be said that this opinion as to capacity for employment also embraces the plaintiff’s physical problems. However, it seems to me that much of the emphasis of Professor Dennerstein in relation to the plaintiff’s work capacity is upon her mental health. This is reflected in her observation that the plaintiff’s psychiatric condition “creates restrictions for her to be able to undertake any other form of suitable employment on the open labour market”.
62 I appreciate that Dr Triggs stated that the plaintiff’s work capacity was limited only by her physical restrictions. However, this observation is contained in her report of 4 October 2013. Not only is it now somewhat dated and precedes, for example, the second suicide attempt, but it is a report that was given at a time when the plaintiff was still working on a part-time basis for the defendant. In any event, it is a view which I do not accept insofar as the plaintiff’s present situation is concerned and which does not sit comfortably with other medical reports. Dr Duke, also examining on behalf of the defendant, stated in his most recent report of 11 May 2017, that the plaintiff has a partial work capacity. He did not expand on this greatly in the sense of distinguishing between the impact upon her employability of her mental condition and her physical injuries. He did refer to her probably needing further retraining so that she can obtain an occupation which is “fit for her physical limitations”.
63 The remainder of the medical material essentially concentrates upon the plaintiff’s physical injuries and her employment capacity in that regard.
64 I note that in her affidavit of 31 August 2017, the plaintiff stated that her main barriers in relation to employment are her physical pain and her “dreadful mental state”. However, she adds that “Each of these … factors is ruling me out on its own.” This is consistent with at least one interpretation of what the plaintiff said in her oral evidence, namely that she could not work because of her pain and her stress.
65 The overall conclusion which I have reached is that I prefer the opinion of the treating psychologist, Mr Poynton. He sees the plaintiff very frequently and has so seen her for years. He has expressed an opinion which is clearly focussed on the plaintiff’s mental disturbance or disorder, something which cannot be said is clearly spelt out in some of the other reports. His conclusion is consistent with the impression which I formed of the plaintiff in the witness box.
66 I would make one further general observation, the fact that the plaintiff has applied for numerous jobs does not mean that she is capable of doing any of them. Firstly, she is required to make employment applications in order to receive her social security benefits. Secondly, plaintiffs in a situation such as this can be placed in a difficult position, a position that is often referred to as a “Catch 22”. It does not occur in every case, but it is something that I have certainly encountered from time to time. If a plaintiff does not make enquiries or applications in respect of possible employment, the line of cross-examination can be that such a plaintiff is not really “having a go”. If the plaintiff has not engaged in rehabilitation or retraining, there is the possibility of argument pursuant to s134AB(38)(g). If the same plaintiff has applied for various jobs, the suggestion is that such plaintiff must consider that he or she was capable of performing them. That is an even stronger suggestion if such plaintiff has attempted to participate in rehabilitation or retraining. The bottom line is that, because a particular plaintiff has applied for various employments, it does not necessarily mean that he or she is capable of undertaking them. In the present case, regardless of the large number of jobs for which the plaintiff has applied unsuccessfully, and whether those applications be by reason of Centrelink requirements or otherwise, I am quite satisfied that she has no capacity for suitable employment. I have already determined that the consequences of her injury are permanent within the meaning of the Act.
67 Further, I am not of the opinion that the operation of s134AB(38)(g) assists the defendant in this case. The plaintiff has attempted some retraining in relation to a medical receptionist’s position. The end result is that she remains with no capacity for suitable employment. I do not accept the argument that rehabilitation or retraining could alter that situation. Further, nothing has been put before me to suggest that the defendant has recommended or offered any particular retraining or rehabilitation. Any argument based upon s134AB(38)(g) seems to me to be without merit.
68 I shall refer briefly to s134AB(38)(d). I am satisfied that the plaintiff has also discharged the burden of proof in relation to this provision. She is aged 44 years. She had before her decades of potential employment. I am satisfied that her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe. A total loss of earning capacity for a 44-year-old person with family and other financial commitments seems to me to satisfy the requirements of s134AB(38)(d).
(2) The physical injuries
69 As I have found that the plaintiff’s mental or behavioural disturbance or disorder is both permanent and severe for the purposes of both pain and suffering and loss of earning capacity, there is no need for me to rule upon the consequences of her physical injuries and whether they satisfy the statutory test.
70 That is not to say that I do not regard the injury to the shoulder of the plaintiff’s right and dominant arm, the injury to her left shoulder, and with both injuries resulting in surgery, or the injury to the neck, as having the potential to satisfy the statutory test. That is so whether the arm injuries are assessed separately or aggregated. I am simply saying that, as I have found in favour of the plaintiff in respect of her mental or behavioural disturbance or disorder, there is no need for me to consider her physical injuries.
Conclusion
71 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to seek damages for both pain and suffering and loss of earning capacity.
72 I shall hear the parties as to any ancillary orders that are required.
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