Asgedom v ACN 005 062 880 Pty Ltd (Victorian Hide &; Skin Producers Pty Ltd) and Anor
[2011] VCC 1181
•11 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03489
| TESFU GEBREMARIAM ASGEDOM | Plaintiff |
| v | |
| ACN 005 602 880 PTY LTD | First Defendant |
| (formerly known as VICTORIAN HIDE & SKIN PRODUCERS PTY LTD) | |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 June 2011 |
| DATE OF JUDGMENT: | 11 August 2011 |
| CASE MAY BE CITED AS: | Asgedom v ACN 005 062 880 Pty Ltd (Victorian Hide & Skin Producers Pty Ltd) & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1181 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Moulds with | Nowicki Carbone |
| Mr D Churilov | ||
| For the Defendants | Mr D McWilliams | Wisewoulds |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 24 October 2002 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff initially brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act in relation to the left upper limb but withdrew that application in closing submissions.
4 The plaintiff now claims only a severe permanent behavioural or mental disorder pursuant to subsection (c).
5 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
6 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).
7 Counsel for the plaintiff submitted that the plaintiff’s psychiatric impairment could be described as Post-Traumatic Stress Disorder (“PTSD”), paranoid delusions, Major Depressive Disorder and Chronic Pain Syndrome.
8 A Chronic Pain Syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under section (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd (2005) VSCA 227.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being “at least very considerable” and more than “significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.
9 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied upon affidavits from a number of lay witnesses including Dr Mphande, the plaintiff’s supervisor at Victoria University, and the plaintiff’s friends Mr Ale and Mr Redda. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
10 The plaintiff is aged nearly forty two, having been born on 12 August 1969 in Ethiopia.
11 The plaintiff’s childhood was traumatic. His mother died when he was a baby. In 1988, when the plaintiff was aged eighteen, his father was killed in the civil war, as were his two half brothers.
12 The plaintiff then fled Ethiopia. He lived in Eritrea for about two years and was in a refugee camp in the Sudan at Kasala where he worked on a nearby farm.
13 In 1989, the plaintiff met Medhin, who later became his wife. They had two children. They separated in 1995 because the plaintiff had to flee Kasala. Medhin returned to Eritrea, taking the two children with her, and the plaintiff moved to Khartoum, where he lived for four years and worked as a restaurant manager.
14 During that time, the plaintiff lost contact with Medhin and their children and he did not know whether they were dead or alive.
15 Whilst living in Khartoum, the plaintiff met another woman and married her. In September 1998, the plaintiff and his new wife migrated to Australia. Later that year, the plaintiff’s wife left him and he tried to find Medhin and their children. He eventually found his children, who came to Australia in February 2002. The plaintiff later located Medhin and she came out to Australia in June 2005.
16 The plaintiff and Medhin continued in a relationship for another three years, during which time they had two more children. Their relationship ended in 2009, largely due to the plaintiff’s psychological injuries and mood swings. Their four children now live with Medhin.
17 The plaintiff obtained employment with the first defendant on a casual basis in June 1999 and was made a permanent employee a year later. He was employed mainly working on the splitting machine (“the machine”).
18 The plaintiff had a number of minor hand injuries before the said date.
The Incident and Subsequent Medical Treatment
19 On the said date, the plaintiff had finished cleaning the machine and had turned it off. He was supporting himself on the conveyor belt with his left hand and suddenly, without warning, the belt started and dragged his left hand into the machine, trapping it between the conveyor and the roller (“the incident”).
20 Following the incident, the plaintiff was in immediate pain. Much of what then happened was a blur. After a time, the machine was stopped and it then took thirty or forty minutes for the plaintiff’s arm to be freed.
21 The plaintiff was taken by ambulance to the Western General Hospital, where his arm was placed in a plaster of Paris splint.
22 In the next day or so, the plaintiff attended the first defendant’s doctor who arranged physiotherapy treatment, which the plaintiff continued for three or four years.
23 On 6 November 2002, the plaintiff saw Dr Hagos, his general practitioner. At that time the plaintiff was very upset and in pain.
24 The first defendant’s insurer referred the plaintiff to Mr O’Neill for psychological counseling. The plaintiff saw him a couple of times at the end of 2002 but the plaintiff did not feel the treatment was helping him.
25 In November 2002, the plaintiff was referred to hand surgeon, Mr Tham, who advised him to continue with physiotherapy. The plaintiff last saw Mr Tham on 20 August 2003, at which time the plaintiff’s left arm pain persisted.
26 Dr Hagos referred the plaintiff to Dr Thomas, pain specialist, whom he saw once, but he did not feel he could do anything for the plaintiff.
27 Dr Hagos also referred the plaintiff to Dr Polonowita, a psychiatrist, whom he first saw on 17 February 2003 and whom he continued to see, initially weekly and later less frequently, until Dr Polonowita retired in February 2008.
28 The plaintiff then came under the care of Dr Ibrahim, whom he first saw in August 2009. The plaintiff found the transition from Dr Polonowita difficult as he felt he had to reawaken the whole incident as he had to retell it to Dr Ibrahim.
Work since the Incident
29 The plaintiff attempted a return to work undertaking duties with his right arm. However, he had difficulties in this regard and experienced severe anxiety at the prospect of operating the machine again and working near it, being required by the first defendant to do so.
30 In cross-examination, the plaintiff explained he had to try to go back to work as “you don’t run away from lions because you can’t escape from lions, but if you fight back then there is a possibility of survival”.
31 The plaintiff was sure the first defendant did not really support his return to work. The first defendant wanted the plaintiff to give up and say he had rejected suitable duties but he refused. However, in the end the plaintiff was sacked because the first defendant advised it did not have any suitable duties for him and he was made redundant and given a payout.
32 Since leaving the first defendant’s employ, the plaintiff has made a couple of attempts to retrain and gain alternative employment.
33 In 2005, he worked as a paid volunteer with the New Hope Foundation and also at the Immigration Department as a sort of interpreter for new arrivals from Ethiopia on four or five occasions.
34 In 2005, the plaintiff obtained his taxi driving licence and started driving the following year and drove on and off until 2009. During a shift he had to take frequent breaks, not only because of pain but he found it stressful, as he became easily frustrated with passengers. He also had difficulty lifting bags.
35 The plaintiff stopped driving taxis in April 2009 because he could not cope with the stress and frustration. Even when he was driving he was not earning much because he could only work a little bit at a time because he could not handle the stress. He had difficulty concentrating, and if he had a panic attack, it took him a long time to settle. When driving a taxi the plaintiff spent too much time looking in the rear vision mirror because he thought people were following him, so driving was dangerous.
36 In 2007 and 2008, the plaintiff did a TAFE course at Victoria University in Community Development and Legal Services to help him with his community work. This was not a course designed to help him find paid work.
37 The plaintiff also obtained certification as a driving instructor. He taught African people how to drive but did not earn much and he was not a very good teacher because he was impatient.
38 In 2009, the plaintiff commenced Bachelors degree in International Community Development. He has found his studies difficult because of his problems with concentration.
39 The plaintiff was supposed to finish his degree in 2011 but he has failed several papers and cannot do the requisite placements. He has short term memory problems because of his psychological injury. He does not like to let others know how he suffers so he has not told his professor the reason he has requested extensions. The plaintiff has lost his pre-accident confidence, but he is determined to finish his degree no matter how long it takes.
Current Complaints
40 The plaintiff becomes depressed and anxious and has frequent headaches. He has difficulty concentrating and cannot think straight. His memory has been affected, and he is afraid of machines. These feelings have made him very uncomfortable and his social life has been affected, as has his relationship with his children.
41 The plaintiff used to be a very strong, hardworking man but he now feels weak, insignificant and disabled.
42 The plaintiff has panic attacks. He can go outside, but when he does, he is very easily distressed. For example, if he hears a sudden loud noise he becomes very unsettled and panics and it takes him a long time to recover.
43 The plaintiff has trouble sleeping at night and often has nightmares about the machine and the incident. It is also painful to sleep on his left side.
44 The plaintiff played volleyball and basketball before the incident but it is now too difficult for him to do so due to his arm pain and because he has become socially isolated. He can drive but sometimes he has to stop because he is unable to concentrate.
45 The plaintiff has mood swings and is often impatient a lot and finds himself becoming sad for little or no apparent reason. He cries a lot, particularly when he thinks about what has happened to him and about his previous life. Sometimes he feels like his life is over and he has lost hope.
46 The plaintiff deposed that worst of all, his family life has been affected. Although he and Medhin still get on well and see each other regularly, the plaintiff has mood swings and it is impossible for them to live together as a family.
47 The plaintiff has totally lost patience with his two small sons whom he loves dearly, whereas he could cope with looking after his small daughters before the incident.
48 The plaintiff is also upset he cannot support his older daughters as they grow into young women. That makes him feel less of a person as he should be able to advise them on life and normal family matters but it is not possible because of his psychological injury.
49 Since the incident, the plaintiff has become highly suspicious of others and his social life has been significantly affected. He rarely goes out, whereas before the incident he was very active. He no longer liaises on behalf of his community with Government bodies and city councils because he does not now have the confidence to do. He does attend his usual church because he is worried about what people will say about him. He has become very isolated because of his psychological problems.
50 The plaintiff feels as if he has “sunk”. The psychological struggle is like a pool that he cannot swim out of and he feels stuck and there is little prospect of help coming to him.
Lay Evidence
51 Charles Harley Mphande swore an affidavit on 3 June 2011. He is the coordinator of the Bachelor of Arts International Community & Development at Victoria University (“the course”).
52 The plaintiff enrolled in the course in 2009 and struggled with the course work, failing two papers in the first year and five papers in the second. The plaintiff failed because he did not complete the course work for assessment and he had not been able to meet deadlines.
53 The plaintiff did not do the requisite three placements of 100 hours and two placements of 200 hours in 2009 and 2010.
54 The plaintiff has had problems with his studies and asked for extensions to complete assignments based on personal problems, although Dr Mphande was not permitted to ask the nature of such extensions for reasons of privacy. He deposed the plaintiff was one of the lowest performing students in the course.
55 Mr Berhe Hargoss Ale swore an affidavit on 3 June 2011. Mr Ale met the plaintiff in 1992 in The Sudan where the plaintiff was working in a restaurant.
56 Mr Ale deposed the plaintiff was very sociable in the Sudan. He was active in the Ethiopian community and used to coordinate events. Mr Ale migrated to Australia in 1997 and the plaintiff came the following year.
57 Mr Ale deposed the plaintiff first worked at Yellow Pages and then did fruit picking at Shepparton until he obtained the job with the first defendant.
58 The plaintiff was very active in the community in Melbourne and very well known.
59 Within a year of his arrival in Australia, the plaintiff was secretary of the Tigray community, organising community events and recruiting new members. He was the most active member of the group.
60 The plaintiff brought two of his children over from The Sudan in 2002. They moved in with him and had a normal and active life.
61 The plaintiff’s behaviour changed since the incident. He hardly goes out at all and has withdrawn from being active in the community. He used to attend the community church every Sunday, which was a social occasion everyone looked forward to. The plaintiff no longer goes to the church, nor does he play sports, having previously been active in soccer and basketball. It is rare for the plaintiff to communicate with other people and even rarer for him to ring Mr Ale even though they have been close friends for about twenty years.
62 The plaintiff is a changed man emotionally and has become very aggressive and angry and avoids seeing people because of his mood. The plaintiff has problems with memory and concentration and he is no longer happy and fun to be with.
63 The plaintiff is now often suspicious of people, whereas previously he was trusting, outgoing, confident, resilient and determined. Now he is lacking in confidence.
64 The plaintiff was unsuccessful in his attempts to return to work with the first defendant and also in his attempts to work as a taxi driver and a driving instructor after the incident because of his condition post incident.
65 Mr Ale has been encouraging the plaintiff to stay at university. The plaintiff told him that it was hard for him to concentrate on studies and projects.
66 The plaintiff lives by himself in Footscray and his family live in Williamstown. The plaintiff sees them often. Whilst he goes to see the two younger children he does not stay long. He just likes to be by himself.
67 The plaintiff’s friend, Mr Hargoss Redda, swore an affidavit on 5 June 2011. He also met the plaintiff working at the restaurant in Khartoum and in the same Tigray province. Mr Redda moved to Melbourne in October 2006 where he again met with the plaintiff.
68 The plaintiff, both in Khartoum and in Melbourne, was very active in the community, being the secretary of the Tigray association. That role also involved assisting new arrivals from overseas to integrate and the plaintiff worked hard to put them in touch with support services. The plaintiff also helped with the Immigration Department and other Government departments and established good links to the community with Government organisations such as the Maribyrnong City Council.
69 The plaintiff was an important moral supporter of Tigray people and he invited top officials to come to traditional ceremonies and festivals which was important in the ethnic group gaining recognition.
70 The community had no office before the plaintiff set one up and became secretary. The plaintiff was also active in setting up youth organisations and had a great role in organising the community at large.
71 Mr Redda also worked for the first defendant but in a different section to the plaintiff.
72 Since the incident, the plaintiff’s life has changed. He is no longer as active in the community and has withdrawn and lost all contact with it. Some people have even asked if the plaintiff has left Melbourne or if he is still alive.
73 As a community leader himself, Mr Redda has asked the plaintiff to become active again but he does not feel able to. Morally the plaintiff is not as strong as he used to be and he has alienated himself from the community because of the incident and he has become frustrated and angry.
74 Mr Redda described the plaintiff’s family situation and the fact the plaintiff no longer lives with them and that the plaintiff thought he had not always treated them well because of his anger and frustration.
75 Before the incident, the plaintiff was very responsible. He took on extra jobs like fruit picking and encouraged others in the community to do so. Since the incident, he has not been able to support his family financially or morally. The plaintiff shows anger and frustration to everybody, including his family, and his behaviour has alienated him from the community.
The Plaintiff’s Medical Evidence
76 Dr Hagos first saw the plaintiff on 6 December 2002.
77 The plaintiff told him he felt as though he was dying in the incident. He thought his heart was stopping. It was about eight minutes after the incident that he was released from the machine and taken by ambulance to hospital.
78 On 6 November 2002, the plaintiff presented as depressed, sad and mentally affected and always remembering the incident.
79 Dr Hagos sent the plaintiff for an MRI scan of his left upper limb where the findings were of soft tissue injury.
80 Thereafter, the plaintiff was referred to a plastic surgeon and for physiotherapy treatment. He was also referred to a psychiatrist, Dr Ibrahim, who prescribed antidepressants which the plaintiff was still taking as at March 2011 when Dr Hagos last reported.
81 Dr Hagos noted it was already more than nine years since the incident. Based on this, the plaintiff’s situation had become more chronic and the likelihood of recovery from his injury and post traumatic stress disorder (“PTSD”) was not good.
82 Dr Hagos thought the plaintiff was still suffering from pain, weakness and an inability to do the things he used to do which included his work. The plaintiff also had continuous insomnia, requiring sleeping tablets and analgesia.
83 Based on the plaintiff’s assessment and gathering of information regarding his condition, Dr Hagos thought his ability to work on a full or part time basis was limited. Dr Hagos considered the plaintiff’s quality of life was very affected due to his illness and that would continue for a period of time in the future.
84 Even though the plaintiff was suffering from pain and the useless feeling in his left arm, Dr Hagos thought he would need to do some type of study or retraining as he would not be able to do his pre-injury type of work in the future.
85 Dr Polonowita, psychiatrist, reported on 15 May 2003, noting that the plaintiff had been referred to him by Dr Hagos in early 2003.
86 From 17 February 2003, Dr Polonowita saw the plaintiff once a week for counseling. The plaintiff told Dr Polonowita of the incident and his subsequent treatment.
87 Dr Polonowita thought the plaintiff’s injury would have been a severe psychological trauma.
88 He noted the plaintiff was highly motivated to return to normality and be in the workforce again, but he had lost trust in those who were attempting to help him.
89 Dr Polonowita noted the plaintiff’s medical history was unremarkable and that he had not suffered from any previous psychiatric illness.
90 On mental state examination, the plaintiff’s speech did not reflect thought disorder, hallucinations or delusions and he impressed as an honest historian. The plaintiff had a sense of humor and had the capacity not to focus on his disabilities. He was highly motivated to get back to his normal life but he was extremely frightened about whether his disability would be permanent.
91 Dr Polonowita noted that following the incident, the plaintiff had been anxious and depressed, but he was no longer depressed. However, the anxiety remained, which became aggravated from time to time when the plaintiff attempted to do any work.
92 Dr Polonowita diagnosed an Anxiety Disorder under the DSM IV.
93 Dr Polonowita further reported on 17 July 2003. In that report, he advised the plaintiff suffered PTSD. He thought the plaintiff had improved considerably although he had a phobia for machines.
94 Dr Polonowita advised, considering the traumatic circumstances, the plaintiff had improved considerably and all he had to do was avoid the machine. He thought the plaintiff was then not fit for any work. However, that did not preclude the plaintiff from being engaged in a rehabilitation program, paying due regard to his physical injury.
95 Dr Ibrahim, consultant psychiatrist, initially saw the plaintiff on referral from Dr Hagos on 3 August 2009.
96 The plaintiff told him of his family background in Ethiopia and his arrival in Australia in 1998. He also told him that his life had changed since the incident.
97 The plaintiff told Dr Ibrahim he had lost confidence and self esteem, fuelled by his understanding that the first defendant did not want to accept liability. The plaintiff was offended not to be believed.
98 Dr Ibrahim’s second report of 22 May 2011 mirrors his first.
99 In terms of psychiatric presentation, Dr Ibrahim described how the plaintiff had lowered mood with irritability, despair and a sense of hopelessness and helplessness. The plaintiff reported to have a sense of worthlessness and uselessness. He was ashamed to have become a stay home father and felt embarrassed and wanted to work but could not because of physical and psychological problems.
100 The plaintiff also reported having been followed by cars tooting at him constantly and calling his name in the street. The plaintiff became suspicious of everybody. He was mourning for his loss and suffering grief for his wife and children. He had become too scared to socialise, felt too upset and cried frequently. He described a lack of interest and loss of motivation and had a negative attitude towards the future, whereas in the past, he had had many positive dreams about his future in a safe and wealthy country, all of which had been destroyed by the injury and its consequences.
101 On mental state examination, the plaintiff described paranoid delusions and possible auditory hallucinations. He had good memory of his life events and his work-related injury. He was oriented for time, place and person. He had had partial insight and was accepting treatment.
102 Dr Ibrahim prescribed a selective serotonin reuptake inhibitor antidepressant and Aripiprazole (an atypical antipsychotic). He advised the dosages would be tailored according to the plaintiff’s clinical needs and tolerability. He noted no significant improvement had been reported and up until his last visit, the plaintiff was concerned about his paranoid misinterpretation and the resultant moods.
103 In the absence of proper collateral history, Dr Ibrahim believed the plaintiff suffered a depressive illness, paranoid delusions, which indicated severity, and considered the differential diagnoses had to be explored with more collateral knowledge.
104 Dr Ibrahim noted in both reports that since the plaintiff had attended the rooms on his own, his reports were based on information provided by the plaintiff with no access to any independent collateral history.
105 Dr Ibrahim provided a letter to Victoria University dated 23 August 2010 advising of the plaintiff’s problem with study and his advice to the plaintiff to keep active and if possible to seek some assistance in consideration from the university instead of withdrawing from his course.
106 On 27 July 2009, the Medical Panel determined that the plaintiff had a three per cent whole person impairment resulting from his left arm injury and also a fifteen per cent psychiatric impairment resulting from the accepted psychiatric condition.
107 For the purposes of Sections 134AB(3) and (15) of the Act, the Panel found there was a combined whole person impairment of eighteen percent resulting from the accepted physical and psychiatric injuries.
108 The plaintiff was examined for medico-legal purposes by Associate Professor Paoletti, psychiatrist, on 16 March 2011. Professor Paoletti had available to him the plaintiff’s affidavit and excerpts from the clinical files of Dr Polonowita and Western Health.
109 The plaintiff told Professor Paoletti of his difficult childhood in Ethiopia and his subsequent movements until he came to Australia in 1998.
110 The plaintiff told Professor Paoletti that he separated from his wife because his attitude changed after his incident injury.
111 The plaintiff told Professor Paoletti that in 2005 he obtained a taxi driving licence but was not comfortable in that job and he did it sporadically until 2009. He then obtained a licence as a driving instructor, doing a few hours work, and at the same time he was trying to go to university but he kept failing.
112 When Professor Paoletti discussed the events in Ethiopia and the fact the plaintiff’s father was killed along with many other people, the plaintiff said he remembered being unhappy for a few years. Some of his friends were in the same situation and he did not see it as the end of the world. He has never had any flashbacks of these events.
113 The plaintiff described the incident and how his upper limb was dragged into the machine which other workers did not know how to stop. The machine had to be broken with a forklift and it took about forty minutes to free his arm.
114 The plaintiff returned to that job because in his community it is said, “Don’t run away from lions because you can’t escape from lions, but if you fight back then there is a possibility of survival”.
115 On his return to work, the plaintiff’s supervisor and fellow workers were not supportive of him. The plaintiff was doing modified duties but at times he worked near the machine where he was injured and he vomited. The plaintiff was also upset by the way he was treated by the rehabilitation provider.
116 The plaintiff told Professor Paoletti in the end he was fired because the first defendant asked him to clean the toilets and mop and he could not manage it because of his arm. The plaintiff was then told there was no reason to keep him at work.
117 The plaintiff described to Professor Paoletti being very scared near machines and having a nightmare of his arm being dragged into a machine and experiencing flashbacks of the incident.
118 The plaintiff stopped driving taxis in 2009 because people were not happy with his behaviour and the other thing was that a lot of people were chasing him and he did not know why. He was always discouraged and he felt depressed. He sometimes felt his life was not worth living. The plaintiff told him that he does not socialise now, not even at the community church, “because they think he is crazy.”
119 The plaintiff told Professor Paoletti that before the incident he was very strong and was called a “man” in his community. He was the community secretary and voluntarily helped people who came from overseas and he was involved in organising festivals and events. Now he avoids these activities and goes to “a church where white people go.”
120 The plaintiff’s current medication is Abilify, an anti-psychotic, 20 milligrams at night; another anti-psychotic, Risperidone, 2 milligrams, one at night; and anti- depressant, Lovan, and Panadeine Forte, two at night.
121 Professor Paoletti noted the plaintiff presented as pleasant and cooperative on examination and somewhat restless, but did not show any signs of distrust or suspicion.
122 On examination, the plaintiff’s affect was anxious and depressed with limited reactivity and mild lability consistent with the reported pervasive mood state.
123 Thinking stream was normal to fast and form was coherent. The plaintiff reported almost daily nightmares and delusions of being followed by a multitude of people in multiple settings. There was no evidence of hallucinations and Professor Paoletti could not be sure the plaintiff had no delusions.
124 Concentration was reduced and described as poor when driving taxis as the plaintiff was attending to his beliefs of being followed. There were no inherent deficits of memory or apparent deficits of orientation. Professor Paoletti thought the plaintiff had a poor insight into his illness.
125 Professor Paoletti commented that the notes provided by Dr Polonowita although provided by Dr Atula Polonowita, actually were written by her father, who retired. Professor Paoletti could not find any diagnosis or description of medication other than Zoloft on an information sheet from the plaintiff’s general practitioner.
126 Professor Paoletti thought the plaintiff suffered from:
(i)
PTSD with traumatic ruminations, dreams and flashbacks and with associated anxiety and fear of machinery;
(ii)
Major Depressive Disorder, single episode chronic-severe without psychotic features – noting although depressive symptoms were present in PTSD, the plaintiff had symptoms of depression, including suicidal ideation, albeit controlled at a level that warranted a separate diagnosis;
(iii)
Delusional Disorder with associated anxiety when the plaintiff believed he was being followed and may even come to harm. Professor Paoletti thought it was the pervasiveness of that experience in multiple settings, such as in classes and in the library, that made the plaintiff’s experience likely to be delusional rather than overvalued ideas.
127 Professor Paoletti considered that the initial diagnosis would be that those delusions were not mood congruent as they usually were in Caucasian type populations, but it was possible, as a culturally determined variant, that they were still part of the depressive illness, which would make the third diagnosis redundant, although Professor Paoletti did not think that would seem likely at that stage.
128 In terms of the aetiology, given the time relationship and the content of mental processes, Dr Paoletti thought the PTSD would be causally related in its precipitation and maintenance to the incident and was aggravated in the alleged ineptitude of the first defendant’s staff in stopping the machine with the plaintiff thinking he might die when he was trapped there. It would also have been aggravated by the alleged malicious behaviour of some staff when the plaintiff returned to work.
129 Professor Paoletti thought the depression would have some basis in the PTSD of itself, but also in the physical injury and loss of working capacity on several fronts, psychiatric and physical, as well as the end of the plaintiff’s marriage due to his altered behaviour.
130 Professor Paoletti thought the delusional disorder would probably have had some basis in the way the plaintiff was treated upon his return to work.
131 Professor Paoletti noted that there may be events in the plaintiff’s past that predisposed him to PTSD but the plaintiff did not suffer from that before the incident. Also the focus of the PTSD was very specific to the incident and whilst the earlier incidents in the plaintiff’s life may have posed a vulnerability, the incident was the key factor.
132 Professor Paoletti noted that the plaintiff had suffered a substantial number of losses, which would again predispose him to depression. However, the incident was a very negative turning point in his life and would be a significant contributing factor.
133 In relation to the delusions, Professor Paoletti though the plaintiff’s past may have set a path for such a way of thinking, but the plaintiff was not paranoid before the incident and the events that followed, which therefore would remain of major significance and without which the plaintiff may never have developed such a way of thinking.
134 Professor Paoletti concluded the incident had a profound affect on all aspects of the plaintiff’s life, from occupational to social, to interpersonal, to recreational, and his qualify of life was likely to remain poor in the foreseeable future. In his clinical opinion, the plaintiff met the criteria for permanent severe mental or permanent severe behavioural disturbance or disorder due to his persistent pervasive and very considerable symptoms of PTSD, anxiety, depression and delusional disorder.
135 Whilst deferring to Dr Ibrahim’s treatment regime, Dr Paoletti thought the plaintiff may require a higher dose of antidepressant or rationalising antipsychotic medication to a higher dosage, or even a different medication. In general terms, he thought the plaintiff needed support and both antidepressant and antipsychotic medication.
136 Professor Paoletti considered the plaintiff would have no capacity for pre- injury duties or any duties working near machinery. He thought the plaintiff would certainly have no capacity or suitability to work as a taxi driver or as a driving teacher with his mental state and the potential for disastrous outcomes. With the plaintiff’s current level of symptomatology, Dr Paoletti thought the plaintiff would have no sustainable work capacity in the open job market and it looked likely to be the situation for the foreseeable future.
137 Professor Paoletti commented on the plaintiff’s continuing attempts to study and his problems with concentration. He noted capacity to study did not necessarily equate to capacity to work. He thought a degree may provide a distant hope of re-entry into the workforce and it might provide a basis for some voluntary work, which was a more likely scenario, and then provide some basis for reintegration into the community church.
138 Mr Tham, hand surgeon, examined the plaintiff on 28 November 2002 on referral from Dr Hagos. Mr Hooper, orthopaedic surgeon, examined the plaintiff on 31 May 2011. Both examinations relate to the injury to the plaintiff’s arm which I accept was injured in the incident. However, these opinions are not relevant to the present application relating to psychiatric impairment.
The Defendants’ Medical Evidence
139 Dr Chris Baker, occupational physician, examined the plaintiff on 11 December 2002 and 27 February 2004. He carried out a work site assessment on 20 December 2002 and later commented on a return to work plan.
140 Dr James Rowe, specialist occupational physician, saw the plaintiff in December 2007, at which time he thought it was difficult to make a diagnosis but he considered it was possible the plaintiff had suffered a crush injury to his arm and a traction injury to the neck and left shoulder, but he thought the plaintiff now seemed to be suffering with a Chronic Pain Syndrome. He noted there were no non work-related factors, but there may be a strong psychological overlay to the plaintiff’s presentation.
141 Dr Stephen Stern, psychiatrist, examined the plaintiff on 6 May 2009. The plaintiff told him of the incident and his subsequent treatment.
142 On examination, the plaintiff said he was very depressed by his physical restrictions. He used to be a very strong man and he felt disabled, suspicious at times and vulnerable when driving taxis. He was easily startled.
143 The plaintiff complained of constant pain in the left arm up to the elbow, numbness in the left hand, depression and anxiety, disturbed sleep with nightmares, flashbacks of the incident, avoidance and reduced memory and concentration.
144 On mental state examination, the plaintiff’s behaviour fluctuated, smiling at times, but close to tears at other times. His speech had normal volume, form and flow and the content was worried and his affect was depressed.
145 When Dr Stern asked the plaintiff about work, the plaintiff told him that he would like to complete his course and work in the community. However, he was not hopeful of the future and his confidence was low.
146 Dr Stern found no evidence of thought disorder, delusions or hallucinations. There was no obsessive compulsive disorder. The plaintiff’s memory and concentration were reduced but his orientation was intact. His intelligence was normal and he had good insight into his situation.
147 Dr Stern thought the plaintiff was suffering from a PTSD related to the incident. In Dr Stern’s view, there was no pre-existing or unrelated psychiatric disorder. He noted the plaintiff had stopped psychiatric treatment (last seeing Dr Polonowita six months earlier) and was taking no antidepressants. He thought the plaintiff was psychiatrically incapacitated for his work or any work involving machinery but considered that he was fit for alternative suitable light duties.
148 Dr Stern noted that the plaintiff’s social and leisure activities had been reduced, but his activities of daily living were not limited by psychiatric factors. He thought the plaintiff’s condition had stabilised.
149 Dr Jager, psychiatrist, first examined the plaintiff on 24 May 2010.
150 The plaintiff then told him that he felt very depressed and very angry and had no enjoyment in life. When he drove taxis, he had people following him. He felt very tired.
151 Dr Jager had available the plaintiff’s first affidavit, medical reports of Dr Hagos, Dr Polonowita, Mr Hart, Mr Tham and Dr Ibrahim.
152 In terms of past psychiatric history, Dr Jager noted that the plaintiff experienced frightening nightmares sometimes when driving a taxi. He said he was traumatised and anxious when in Ethiopia and the Sudan but he coped.
153 On mental state examination, the plaintiff’s thought stream was fluent and coherent with the content negative. He also described fixed false persecutory beliefs about people following him. He described abnormal sensory perceptions in the form of hearing people calling his name.
154 Dr Jager diagnosed chronic PTSD, Major Depressive Disorder, Chronic Pain Disorder associated with psychological factors and chronic paranoid schizophrenia.
155 Dr Jager noted the plaintiff’s diagnosis was very complicated, as Dr Ibrahim stated. On the basis the plaintiff’s pain had spread from his left upper limb, despite that injury now being fully recovered, he thought the plaintiff had a Chronic Pain Disorder associated with psychological factors.
156 Dr Jager considered the plaintiff’s extensive depressive symptoms and presentation constituted a Major Depressive Disorder. The exposure to severe trauma in Ethiopia and the frightening crush injury and subsequent nightmares and anxiety constituted PTSD.
157 Dr Jager thought the development in 2009 of fixed false persecutory beliefs and abnormal auditory perceptions constituted a psychotic illness, possibly chronic paranoid schizophrenia.
158 In Dr Jager’s view, the sum of the psychiatric problems theoretically rendered the plaintiff unfit for all work, noting however the plaintiff worked as a driving instructor for up to six hours a week and was also a full time tertiary student. Dr Jager thought the disjunction between the reported symptoms and the plaintiff’s function suggested either that he was incredibly resilient, which may be the case, or that his symptoms were in part or in whole exaggerated or feigned.
159 Based solely on the psychiatric symptoms, Dr Jager considered the plaintiff unfit for all work.
160 Dr Jager thought that the injury to the left arm was related to the PTSD to which it partially contributed. It also partially contributed to the Major Depressive Disorder. It did not contribute to the psychotic illness, possibly paranoid schizophrenia, and if the physical condition had resolved, it did not contribute to the Chronic Pain Disorder.
161 Dr Jager thought the Chronic Pain Disorder associated with psychological factors was a somatic representation of internal distress, which had its origin in past trauma, current psychiatric illness and alleged bad treatment by co- workers.
162 Dr Jager considered the plaintiff’s treatment was appropriate. He was being prescribed antidepressant medication in low dosage for the Major Depressive Disorder and PTSD and Dr Jager recommended the dose be substantially increased and that the plaintiff may require up to 180 milligrams of Fluoxetine daily, with him only taking 10 milligrams at the present time. Dr Jager noted the Aripiprazole is an atypical antipsychotic which is appropriate for non work- related psychotic illness, possibly paranoid schizophrenia.
163 From a psychiatric perspective, given the plaintiff’s current level of function, Dr Jager thought he was able to undertake the duties involved in the jobs of cleaner, room attendant and retail cashier, attaching copies of those job descriptions to his report.
164 Dr Jager re-examined the plaintiff on 31 May 2011.
165 The plaintiff told Dr Jager that since previously seen he had continued study but was having problems passing his course due to memory and poor concentration. The plaintiff still believed he was constantly under scrutiny and that he was being recorded by laptops and being followed by large men. He hated himself and felt depressed and anxious most of the time, thinking about the incident daily.
166 On mental state examination, the plaintiff’s thought stream was fluent and coherent and had negative and pessimistic content. He described fixed false persecutory beliefs and also hearing voices from outside his head.
167 Dr Jager substantially agreed with the diagnosis made by Professor Paoletti, but having obtained a clear history of abnormal auditory perception, Dr Jager considered the diagnosis of chronic paranoid schizophrenia to be more appropriate than a diagnosis of delusional disorder. Dr Jager also identified a history of chronic pain in the absence of an adequate organic explanation for that pain and so made an additional diagnosis of Chronic Pain Disorder associated with psychological factors. Based on the plaintiff’s reported symptoms, Dr Jager considered the plaintiff was unfit for all employment.
168 Dr Jager noted the description of various jobs in the ANZ SCO database. He confirmed the plaintiff was currently unfit for all regular employment, largely due to his chronic paranoid schizophrenia, but also due to reduced concentration which was partly a function of the schizophrenia but also a function of the Major Depressive Disorder.
169 Mr John Anstee, plastic and reconstructive surgeon, examined the plaintiff on 28 May 2010. His evidence is not relevant for the purposes of the present application.
Overview
170 I accept that the plaintiff suffered a compensable injury in a frightening incident on the said date when his left arm became caught in a machine at work.
171 Whilst the plaintiff suffered soft tissue injuries in that incident, those injuries subsequently resolved and he has not been left with any long term impairment. Thus, his application for physical impairment in this regard was ultimately not pursued and his application was brought solely under subsection (c).
172 I accept that as a result of the incident, the plaintiff has developed a psychiatric condition which has been diagnosed as PTSD, major depression, Chronic Pain Syndrome and in more recent times also paranoid delusions/schizophrenia.
173 Dr Jager, who examined the plaintiff in 2010 and earlier this year, whilst accepting the plaintiff suffered from these conditions, did not think his delusional state was related to the incident; however, he did not provide any alternative explanation for the onset of this condition.
174 In the absence of any mental problems prior to the incident and their onset after a particularly frightening event, I accept that these conditions are all incident related, taking into account the views of the plaintiff’s treating doctors and also medico-legal examiner, Dr Paoletti.
175 I found the plaintiff to be a genuine witness who gave his evidence in a truthful, balanced manner and there was no real attack on his credit.
176 I am satisfied that despite a very sad and difficult life prior to coming to Australia in 1998, the plaintiff had not had any psychiatric problems prior to the incident. Medico-legal examiners who have taken detailed histories agree this is the case.
177 Upon his arrival in the Australia, the plaintiff obtained full time work and took over the responsibility of his older children until his wife Medhin arrived in Australia in February 2002.
178 In Australia prior to the said date, the plaintiff’s psychiatric health was good. He was an extremely active member of his community, establishing an office for it and liaising with various Government organisations on its behalf and also arranging youth activities. He also helped with translating and integrating members of his ethnic group into the Melbourne community.
179 I accept that since the incident, the plaintiff’s life has changed dramatically.
180 As a result of the frightening incident, the plaintiff developed PTSD. In later years when his physical condition resolved to some extent, elements of Chronic Pain Syndrome entered his presentation. The plaintiff also suffers major depressive symptoms and in more recent times, delusional behaviour/schizophrenia.
181 Only a matter of months after the incident, the plaintiff was referred for psychiatric treatment by Dr Hagos to Dr Polonowita who treated the plaintiff until he retired. The plaintiff’s care was subsequently taken over by Dr Ibrahim, who continues to treat him.
182 Antidepressant medication was noted on WorkCover certificates provided by Dr Hagos from December 2002 to December 2004.
183 I do not accept that the plaintiff recovered from any psychiatric reaction as of Dr Polonowita’s last report in 2003. This report predated the plaintiff’s attempt to return to work and the difficulties experienced by him at that time and his subsequent redundancy.
184 The plaintiff’s psychiatric symptoms continue to interfere to a great extent with his daily activities.
185 The plaintiff’s extensive community involvement (supported by lay witnesses whose evidence was not challenged) has ceased, with him increasingly becoming somewhat of a recluse. Relationships with family members have also been significantly compromised.
186 I accept the plaintiff is not capable of any work at the present time and that this situation is likely to continue for the foreseeable future.
187 The plaintiff was able to return to work about eighteen months after the incident only on light duties, where he continued in difficult circumstances, often having to work next to the offending machine, until he was made redundant in late 2004/early 2005.
188 Since then, the plaintiff has not been capable of any full time work or any employment of a substantial nature.
189 Any return to work after the redundancy was minimal. Whilst the defendants counsel made much of taxi driving and the plaintiff’s efforts in starting his own driving school, it was apparent from his taxation returns that the plaintiff earned no more than $2,500 in each financial year engaged in this work until 2009, when he could no longer continue working because of his psychiatric condition.
190 I accept the views of Dr Jager, Dr Hagos, Dr Ibrahim and Dr Paoletti that the plaintiff has no capacity for any work at present due to his psychiatric condition. It is not suggested by any of these medical practitioners that this situation is likely to change in the foreseeable future.
191 Whilst Dr Jager thought the plaintiff was currently unfit for all regular employments largely due to his chronic paranoid schizophrenia, he considered this incapacity was also partly a function of the Major Depressive Disorder which he considered was incident related.
192 Further, whilst the plaintiff returned to study and was successful academically in the earlier years of his course, this was in an area where he had some familiarity, having worked extensively in the Ethiopian community before the incident.
193 The plaintiff had increasing difficulties with the Bachelor of Arts subjects subsequent thereto with which he was not familiar and he has been unable to complete the requisite community placements to complete the degree. Therefore, he will not be able obtain that qualification.
194 In these circumstances, I do not accept Dr Jager’s comment that there is a disjunction between the plaintiff’s reported symptoms and his ongoing activities as a student and part time taxi driver and driving instructor.
195 I am satisfied that the interference with the plaintiff’s work is a consequence which, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
196 In addition to the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a)
at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
197 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 198 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
199 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
200 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
201 At the time of this hearing, the plaintiff’s gross earnings from personal exertion are nil.
202 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
203 I am therefore required to determine a “without injury” earnings figure.
204 Counsel for the plaintiff submitted an appropriate “without injury” earnings figure was $47,500, being based on the plaintiff’s earnings of $43,000 for the year preceding the cessation of employment, together a three per cent increase fro the following three years.
205 Counsel for the defendants simply averaged the wage figures for the preceding three years, arriving at a figure of $33,000, upon which he allowed a yearly three per cent increase, resulting in a final figure of $36,954.
206 Counsel for the plaintiff submitted that it was unfair to take an average over that period because there were some years that were incomplete and others that included weekly payments.
207 I accept this submission and agree that the sum of $47,500 most fairly represents the level of the plaintiff’s earnings had the injury not occurred.
208 The jobs suggested by counsel for the defendants from the bar table as suitable for the plaintiff did not have Dr Jager’s support, nor the support of any other medical practitioner who has opined in this case.
209 I accept that the plaintiff has no capacity to work with or near machinery, nor does he have any capacity to work as a taxi driver or a driving instructor.
210 Taking into account the factors set out in s.5 of the Act, I am satisfied that as a result of his psychiatric condition, the plaintiff has no capacity for suitable employment.
211 Accordingly, I accept that the plaintiff has a loss of earning capacity of forty per cent and that such loss is permanent in the terms of the Act.
212 I am also required to consider issues of rehabilitation and retraining pursuant to sub section (g).
213 In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that the plaintiff has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
214 Having satisfied the test laid down by the Act in relation to loss of earning capacity, the plaintiff is at large to make a claim for damages; i.e. for both pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster (2009) VSC 454 and Advanced Wire & Cable & VWA v Abdulle [2009] VSCA 170.
215 I am satisfied the plaintiff has a severe psychiatric impairment. As there has been no improvement in his condition, and given the consensus of medical opinion that his prognosis is poor, I am satisfied that the plaintiff’s psychiatric impairment is permanent.
216 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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