Andrews v Natio Pty Ltd
[2023] VCC 1949
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04694
| WILLIAM DAVID ANDREWS | Plaintiff |
| v | |
| NATIO PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2023 | |
DATE OF JUDGMENT: | 3 November 2023 | |
CASE MAY BE CITED AS: | Andrews v Natio Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1949 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury – pain and suffering – credit
Legislation Cited: Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), s335
Cases Cited:Jones v Oaktech Pty Ltd [2020] VSCA 10; Stevens v DP World Melbourne Ltd [2022] VSCA 285; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260;
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering in respect to the psychiatric injury suffered in the course of his employment to 23 March 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Worth | Shine Lawyers |
| For the Defendant | Mr S Scully | TG Legal + Technology |
HIS HONOUR:
Introduction
1The plaintiff, Mr William Andrews, is, I accept, your archetypical “Aussie battler”. He is sixty-nine years old and was educated to Year 11 at Coburg Technical College. After leaving school in 1973, for the great majority of the next forty-six years, he worked as a storeman and forklift driver.
2On 23 March 2019, after returning home from his work with the defendant, Natio Pty Ltd (“Natio”), Mr Andrews burst into tears and suffered what Mr Worth described as, a psychological “breakdown”. Mr Andrews says this breakdown was due to events at work.
3Mr Andrews saw his general practitioner, Dr Jaydeep Rathore, that day. He was certified off work. Mr Andrews has not returned to work since.
4Natio accepts that Mr Andrews suffers a work-related diagnosable psychiatric or psychological injury in the form of an adjustment disorder (“the psychiatric injury”).[1] Natio also concede that Mr Andrews requires ongoing medical treatment.[2]
[1]Transcript (“T”) 48, Lines (“L”) 4-9
[2]T48, L10-11
5Mr Andrews says that the psychiatric injury affects him in many ways.
6Mr Andrews says that, for pain and suffering purposes, the psychiatric injury is a serious injury.
7Natio denies that Mr Andrews’ psychiatric injury is a serious injury.
What is the nature of Mr Andrews’ application?
8This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) (“the Act”). Mr Andrews relies solely on paragraph (c) of the definition in s325(1) of the Act, namely that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
9To be successful, Mr Andrews must establish that the consequences from the psychiatric injury, when judged by comparison with other cases in the range of possible impairments or losses, are fairly described as being “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s 325(2)(b) and s325(2)(d) of the Act.
What are the issues in the application?
10While Natio accepted that Mr Andrews suffers a psychiatric injury, they said:
(a) Mr Andrews’ credit and reliability were in issue;
(b) that the consequences that Mr Andrews suffers do not meet the threshold.
11That said, the real issues come down to:
(a) as to Mr Andrews’ credit and whether I can accept his evidence;
(b) which of the medical opinions should be accepted and what assistance that evidence provides;
(c) does Mr Andrews' psychiatric injury satisfy the serious injury test.
Do I accept Natio’s attack on Mr Andrews’ credit and reliability?
12As in a great number of cases of this kind, the credit and reliability of Mr Andrews’ evidence is critically important.[3]
[3]For example, see analysis of Court of Appeal in Jones v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
13I do not accept the criticism made by Natio of Mr Andrews. I do not accept that Mr Andrews’ credit was impugned.
14Natio’s attack on Mr Andrews’ credibility included assertions that:
(a) his oral evidence was generally unreliable;
(b) his first affidavit left out important matters and was misleading;
(c) his histories to medical practitioners were inconsistent and unreliable.
15At times, when giving his oral evidence, Mr Andrews struggled. He found the process difficult. At times he:
(a) broke down and cried;
(b) was hyperventilating;
(c) his eyes and side of mouth were twitching; and
(d) was generally distressed.
16I accept that Mr Andrews’ efforts in the witness box and his presentation to the Court was genuine. I also accept that, when giving his oral evidence, Mr Andrews was straightforward, earnest and did the best he could.
17It is incumbent upon me, when considering the reliability of Mr Andrews’ evidence, to analyse the effect of his psychiatric illness.[4]
[4]Stevens v DP World Melbourne Ltd [2022] VSCA 285
18In assessing Mr Andrews’ evidence, it is necessary to acknowledge that Mr Andrews is not a sophisticated man. This is not meant as a criticism. Mr Andrews, while in the witness box, had difficulties in articulating matters of history, his feelings, and the consequences which he suffers. This, in itself, ought not lead to an adverse finding on credit.[5] It simply represented the man, and importantly, the impact which his injury has had upon him.
[5]Ibid
19Referring now to his first affidavit.
20Mr Andrews did not make reference to his involvement in the coaching of his grandson, William’s, basketball team. While I agree that it is preferable that such materials be included, that information was well detailed in Mr Andrews’ second affidavit. Mr Andrews’ first affidavit was otherwise very detailed and there was no other substantive attack made. I do not give great weight to this criticism.
21Moving now to the histories provided to medical practitioners.
22Natio said that Mr Andrews’ histories to the medical practitioners were inconsistent.[6] They said this went to Mr Andrews’ credit and reliability and the use that could be made of the medical evidence. In particular, Natio also raised issues about a lack of history in the medical evidence of the panic attacks and suicidal ideation which Mr Andrews says he now suffers.
[6]T55, L25-26
23As I have already noted, Mr Andrews is not a sophisticated man. His capacity to articulate and best tell his story, I accept, is limited. I accept that Mr Andrews would have battled with the medico-legal process.
24I accept that there are aspects of some of the histories recorded by the doctors which are wrong. For example, Associate Professor Peter Doherty, psychiatrist, who assessed Mr Andrews on behalf of Natio, said Mr Andrews told him that he was helping to build a holiday house in Heathcote.[7] That was clearly wrong. Either:
(a) it was an incorrect history taken by Associate Professor Doherty;
(b) there was confusion or difficulties in the telling of his story by Mr Andrews;
(c) it was a combination of both.
[7]Report of Associate Professor Doherty, dated 16 January 2023, paragraph [47] at Defendant’s Court Book (“DBC “) 17
25As I have said, Mr Andrews struggled when giving his oral evidence. Given the level of distress which Mr Andrews exhibited in the witness box, it is not hard to see how he could struggle in the course of medico-legal assessments.
26Referring back to the lack of history in the medical evidence of the panic attacks and suicidal ideation, which Mr Andrews says he now suffers. In circumstances where injury is conceded, I do not accept that such gaps in the history are fatal to Mr Andrews’ application. Indeed, I accept that, at least in part, such gaps or inconsistencies are a consequence of the very psychiatric condition which brings Mr Andrews before the Court.
27I do not accept that Mr Andrews has deliberately sought to misrepresent or rewrite history. Having noted the difficulties which Mr Andrews had in explaining the nature and extent of his symptoms, the level of embarrassment which he has about his predicament, and his unsophisticated background, it would be unrealistic to expect there to be word perfect histories and perfect explanations provided.
28I do not accept that Mr Andrews has deliberately sought to mislead the Court, nor in some way exaggerate or embellish his symptoms.
Which of the medical opinions should be accepted and what assistance does that evidence provide?
29Dealing firstly with the evidence of Associate Professor Doherty. Associate Professor Doherty assessed Mr Andrews on behalf of Natio on 16 January 2023.
30As I have already said, Natio conceded:
(a) Mr Andrews suffers from a psychiatric work-related injury;[8]
(b) Mr Andrews continues to require medical treatment for that condition.[9]
[8]T48, L4-6
[9]T48, L10-11
31In making such concessions, Natio did not embrace the evidence of Associate Professor Doherty on either the question of causation, nor diagnosis.[10] Such concessions ran directly contrary to Associate Professor Doherty’s evidence.
[10]T55, L12
[10]Plaintiff’s Court Book (“PCB”) 66
32In these circumstances, where Natio distanced itself from important aspects of Associate Professor Doherty’s evidence, I will not dwell on his evidence. However, having reviewed his report, there are two assertions which cannot be left uncommented on. That is, Associate Professor Doherty’s evidence that Mr Andrews:
(a) has remitted to his baseline pre-work injury condition;
(b) suffers no significant reduction or interference in his activities of daily living.
33Such assertions by Associate Professor Doherty I accept to be contrary to:
(a) the weight of the medical evidence;
(b) my assessment of Mr Andrews;
(c) the true state of affairs.
34I give Associate Professor Doherty’s evidence no weight.
35Referring now to Mr Andrews’ treating general practitioner Dr Rathore.
36Dr Rathore said that, by reason of the events at his work, Mr Andrews became irritable, emotional, teary and easily upset. Dr Rathore said Mr Andrews ceased work on 23 March 2019. Dr Rathore made a diagnosis of anxiety and depression with adjustment mood disorder.[11]
37As to Mr Andrews’ current condition, Dr Rathore said:
(a) his treatment includes Escitalopram (an anti-anxiety/antidepressant) 20 milligrams;
(b) Cognitive Behaviour Therapy and mindfulness with a psychologist on a monthly basis;
(c) he was unlikely to return to any gainful employment;
(d) his anxiety condition was unlikely to improve;
(e) employment was the only significant factor in his condition;
(f) he needed ongoing treatment into the foreseeable future.
38Referring now to the psychological treatment and counselling which Mr Andrews has received since ceasing work.
39Mr Andrews has seen a number of different practitioners at the Nexus Primary Health clinic (“Nexus”)
40Mr Andrews’ original psychologist was Ms Victoria Grgic. Mr Andrews saw Ms Grgic between 25 May 2019 to 11 October 2021.
41In the course of the application, much was made by Natio of the final consultation notes of Ms Grgic dated 11 October 2021. On that day, Ms Grgic wrote that Mr Andrews was doing well and did not feel like he needed any further counselling.[12] Seemingly, Ms Grgic left the practice at, or a very short time after, this consultation.
[12]DCB 23
42Mr Andrews, in his oral evidence, said that he was not doing well at that time.[13] He did not accept what was recorded. Mr Andrews said he did not see Ms Grgic again because she had left the practice.
[13]T16, L9-10
43I do not attribute great weight to the 11 October 2021 note because:
(a) on a close analysis, it does not appear to be consistent with and, indeed, seemingly runs contrary to the balance of Ms Grgic’s notes;
(b) it is now some two years old. Even if I were to accept the note on face value, it does not represent the current state of affairs;
(c) it runs contrary to the evidence of Dr Rathore;
(d) it is contrary to the evidence of Mr Andrews, which I accept;
(e) the effluxion of time has proved the assertion recorded in it is incorrect.
44Moving now to Mr Peter Okalyi, general counsellor. Mr Andrews first consulted Mr Okalyi on 14 July 2022. He attended Mr Okalyi on six further occasions through to 9 February 2023. Mr Okalyi recommended, in February 2023, that Mr Andrews have ongoing treatment.[14] Mr Okalyi died some time shortly after February 2023.
[14]Letter from Mr Okalyi, dated 23 March 2023, PCB 77
45Mr Andrews said that he now attends a new psychologist named “Kathy”. He said he has seen Kathy four or five times since March 2023. This is consistent with Dr Rathore’s evidence.
46I do not have the benefit of a report or clinical notes from Kathy.
47However, I accept Mr Andrews’ evidence that these sessions are helpful in providing strategies for him to cope as best he can with his severe anxiety and panic attacks.
48Moving now to the balance of the medico-legal evidence.
49There is a report from Dr Richard Prytula, consultant psychiatrist, dated 11 December 2019.[15] Given it is now some four years old, it is only really of historical value. At that time, Dr Prytula made a diagnosis of adjustment disorder with anxious and depressed mood.[16] Dr Prytula said this condition was work related.
[15]PCB 49-57
[16]PCB 57
50I turn now to the evidence of Dr Brendan Hayman, consultant psychiatrist. Dr Hayman assessed Mr Andrews for his solicitors on 6 April 2023.[17]
[17]Report of Dr Hayman, dated 6 April 2023, PCB 68-79
51Dr Hayman said:
(a) Mr Andrews developed an adjustment disorder with depressed and anxious mood;
(b) this condition was caused by his employment with Natio;
(c) Mr Andrews had received appropriate treatment;
(d) Mr Andrews’ condition would continue into the foreseeable future;
(e) Mr Andrews required ongoing treatment into the foreseeable future.
52There was no real attack on Mr Hayman’s evidence.
What conclusions do I reach from the medical evidence?
53I was particularly assisted by Dr Rathore’s and Dr Hayman’s evidence.
54I accept:
(a) the diagnosis of an adjustment disorder with anxious and depressed mood;
(b) Mr Andrews has required and continues to require treatment;
(c) the treatment which Mr Andrews has received thus far has been appropriate;
(d) Mr Andrews’ condition will continue into the foreseeable future.
Does Mr Andrews suffer a serious injury?
55Given my findings in respect to credit and the medical evidence, this application becomes purely and simply a range case.
56As I have noted earlier, Mr Andrews must establish that his condition is “severe” within the meaning of the Act.
57Before I move to my analysis of the consequences which Mr Andrews suffers by reason of his work-related injury, it is useful to reflect upon the pre-injury man.
58I have the benefit of not only Mr Andrews’ evidence, and the medical evidence, but also I have evidence from:
(a) Ms Claire Andrews, Mr Andrews’ ex-wife and a person who has known him for almost forty years;
(b) Ms Rosina Edgar, Mr Andrews’ former sister-in-law and a person who likewise has known him since 1985.
59I accept the picture of Mr Andrews, pre-injury, as a man who:
(a) at his workplace, was very hardworking and diligent;
(b) had an impressive work history;
(c) outside of work, was never happier than when he was busy and useful;
(d) in his world, a person who set high standards;
(e) had a strong sense of values and was always conscientious of doing the right thing;
(f) was very social and outgoing, notwithstanding a tendency to be, in his own words “nervy”;
(g) had a range of mates who he enjoyed socialising with;
(h) was a loving and devoted grandfather;
(i) was a keen follower of the Carlton Football Club;
(j) not only enjoyed golf, but was clearly very capable, with a handicap of 7/8.
60I accept that Mr Andrews’ life has changed significantly by reason of his injury. The real issue is whether or not such change satisfies the requisite threshold.
61I will firstly analyse the psychological pain and distress suffered by Mr Andrews.
62Natio said that it was insightful that Mr Andrews had, on their case, received very little by way of treatment. Natio emphasised:
(a) he had not been hospitalised;
(b) he had not been referred to a psychiatrist;
(c) the only treatment that had been provided was by a general practitioner, a psychologist and a counsellor.
63Natio said this went to the severity of Mr Andrews’ condition and tended against a finding that the consequences of Mr Andrews’ injury were severe.[18]
[18]See in particular Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
64In the circumstances of this application, I do not agree.
65Mr Andrews:
(a) saw Dr Rathore on the date that his condition escalated and he had, what Mr Worth described as, a “breakdown”;
(b) has been under the care of Dr Rathore ever since;
(c) has been on antidepressant/anti-anxiety medication ever since;
(d) has consistently attended upon various psychologists and counsellors ever since. Even through the challenges of Covid 19;
(e) this treatment continues.
66As I have previously noted, Mr Andrews is not a sophisticated man. He is not a man with a high level of understanding of, or insight into, medical matters. His level of medical literacy is low. Mr Andrews is a man who will do what his trusted general practitioner tells him. No more, no less. This is what has occurred.
67It is Dr Rathore who has managed Mr Andrews’:
(a) medication;
(b) referrals for psychological counselling/general counselling;
68No criticism of Dr Rathore was made by Dr Hayman that his management of Mr Andrews was not appropriate or ought be different.
69I accept Mr Andrews:
(a) has required and received medical treatment for his work-related condition since 23 March 2019;
(b) currently still requires medical treatment by way of psychotropic medication and ongoing psychological support;
(c) will have to attend Dr Rathore, take medication, and receive ongoing psychological support into the foreseeable future.
70I accept, this, in itself, to be a very significant consequence.
71Moving now to the day-to-day consequences which Mr Andrews suffers. I accept these consequences to Mr Andrews include:
(a) Suffering from varying levels of anxiety each and every day. While the anxiety is variable in nature, and there are times when he may not feel anxious, it is, I accept, an ongoing feature of his condition which is very distressing to him.
(b) There are many days, (in the course of his oral evidence Mr Andrews suggested four out of five days), when his anxiety is such that he does not leave his home. There was no evidence adduced to suggest the contrary.
(c) He does not sleep well. This leaves him feeling tired and exhausted.
(d) He has a poor appetite.
(e) He suffers from, what he describes as, “panic attacks”.
(f) He is regularly teary and despondent.
(g) He suffers passive suicidal thoughts.
(h) That, since March 2019, he has been incapacitated for work. Given his work ethic and the value which he put on work for his sense of identity, this is a great loss in terms of enjoyment of life.[19]
(i) He is not able to play golf. Mr Andrews was a capable golfer and this was an important aspect of his life which has been lost to him.
(j) He no longer socialises with his mates as he had. For an outgoing and social man this is a significant loss.
(k) He is lacking motivation. Again, in a man who was previously highly motivated this has a significant impact on his self-image and enjoyment of life.
(l) He is generally restricted in what he can do with his much loved grandson. I appreciate that he endeavours to do as much as he can and that does include assisting in the coaching of William’s basketball team and some trips to the football. However, it is clearly apparent that Mr Andrews is not the grandfather he aspires to be, nor, indeed, was.
(m) Being uncomfortable in, and, indeed, being fearful of, crowds and having a tendency to avoid them. In particular, he avoids attending football matches or other events as he had. When he does venture out, he finds this extremely challenging.
(n) Having impaired memory and judgement.
(o) Becoming irritable, argumentative and angry. While the medication has mellowed some aspects of these consequences, there is still ongoing vulnerability.
(p) Having a general loss of self-worth and ongoing feelings of worthlessness and uselessness. There are also strong feelings of shame.
This list is not exhaustive.
[19]See the analysis in Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326.
72It is, of course, necessary for me to take heed of what Mr Andrews has retained.[20] For example:
(a) when he is well enough, Mr Andrews attends William’s basketball matches and acts as assistant coach;
(b) Mr Andrews has taken William to a limited number of Carlton Football Club matches;
(c) Mr Andrews is able to undertake domestic and gardening activities at home.
[20]See Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
73Natio said that Mr Andrews was in fact “going about life”.[21] They said he was likely to have been more active in recent years than he says he has been, especially in respect to golf.[22] I do not accept this to be so.
[21]T61, L15-16
[22]T62, L11-13
74I find Mr Andrews is a mere shadow of the man he was pre-injury.
75I accept that Mr Andrews is impacted by the consequences of his injury each and every day. I accept the impact on him has been profound.
76I accept the consequences to Mr Andrews are severe.
77Leave to commence proceedings for pain and suffering damages will be granted.
Orders
78I shall hear from the parties in respect to the appropriate orders to be made and in respect to costs.
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