Ash v Origin Energy Limited
[2013] VCC 524
•14 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04365
| MARK ANDREW ASH | Plaintiff |
| v | |
| ORIGIN ENERGY LIMITED | First Defendant |
| and | |
| CGU WORKERS’ COMPENSATION VIC LIMITED | Second Defendant |
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JUDGE: | HER HONOUR JUDGE JENKINS (Later, HIS HONOUR JUDGE PARRISH) | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 August 2012 | |
DATE OF JUDGMENT: | 14 May 2013 | |
CASE MAY BE CITED AS: | Ash v Origin Energy Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 524 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (c) of definition of “serious injury” – permanent severe mental or permanent severe behavioural disturbance or disorder – nature and extent of such condition – whether such condition is “permanent” – “without injury earnings” of the plaintiff – capacity of the plaintiff
Legislation Cited: Accident Compensation Act 1985; Justice Legislation Amendment (Miscellaneous) Act 2012; Transport Accident Act 1986
Cases Cited: Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
Judgment: Leave for the plaintiff to commence common law proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect to psychiatric injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr M J Stiffe | Ellis Palmos & Co |
| For the Defendants | Mr I McDonald | Minter Ellison |
HIS HONOUR:
Preliminary
1 Her Honour Judge Jenkins was the Presiding Judge during the hearing of this matter on 29 and 31 August 2012. On 31 August 2012, she directed that the parties make written submissions in relation to the proceeding. Judge Jenkins had available to her the various Court Books of the parties, and the evidence was recorded and transcribed pursuant to her order.
2 Unfortunately, due to her Honour being required to take extended leave for family reasons, it was decided, with the consent of the parties, that I would decide the matter on the basis of the transcript, the various tendered documents and the written submissions made by each party. It is to be stressed that I did not have the advantage of viewing the plaintiff (who is the only witness who gave evidence) give evidence in the proceeding.
Introduction
3 By way of Originating Motion issued on 12 September 2011, Mr Mark Andrew Ash (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for personal injury arising out of or in the course of his employment with Origin Energy Limited (“the first defendant”).
4 It is alleged by the plaintiff that, during the course of his employment with the first defendant, he developed a Chronic Major Depressive Disorder (which has been described also as an Adjustment Disorder with Anxiety and Depression). I will refer to such psychiatric injury as “the injury”.
5 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of the injury.
6 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
8 The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act.
That paragraph reads:
“ … serious injury means—
(a) …
(b) …
(c) permanent severe mental or permanent severe behavioural disturbance or disorder … .”
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[3]
(b)“the injury” and the resulting mental behavioural disturbance or disorder must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the consequences to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “pecuniary loss” must be “severe” – that is, when judged by comparison with other cases in the range of possible mental or behavioural disorders, as the case may be, be fairly described as being more than “serious” to the extent of being “severe”.[5]
The test for “severe” as set out in paragraphs (b) and (d) of s134AB(38) of the Act is sometimes referred to as “the narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]See Barwon Spinners Pty Ltd& Ors v Podolak (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (d) of the Act
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:
(a)that as at the date of hearing, a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7] and
(b)that after the date of hearing, the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[6]See s134AB(19)(b) and (38)(e) of the Act
[7]See s134AB(38)(e)(i) of the Act
[8]See s134AB(38)(e)(ii) of the Act
11 In determining the application, the Court:
(a)must make the assessment of serious injury at the time the application is heard;[9]
(b)notes that it has been observed that the question of whether any injury satisfied the definition of “serious injury” is largely a question of impression and value judgment;[10]
(c)must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]
(d)notes that s134AB(38)(b) provides that the consequence of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfied sub-paragraph (1) but not sub-paragraph (2) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[12]
[9]See s134AB(38)(j) of the Act
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[11]See s134AE of the Act; the Justice Legislation Amendment (Miscellaneous) Act 2012 (Act no 68 of 2012) repealed s134AE, with the repeal coming into operation on 1 January 2013;
[12]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
The Issues
12 Both parties gave written submissions. In essence, the first defendant submits:
(a) That the plaintiff does not now continue to suffer from a “psychiatric” injury;
(b) If the plaintiff does continue to suffer from any such injury, can the consequences of any such impairment be fairly described as a “permanent severe mental behavioural disturbance or disorder” within the meaning of s134AB(37) of the Act? In particular, can the consequences for the plaintiff – whether they be “pain and suffering consequences” or “loss of earning capacity consequences” – when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders be fairly described as being “more than serious to the extent of being severe”?[13]
[13]See s134AB(38)(d) of the Act
(c) In any event, the plaintiff has failed to discharge his onus in establishing that the injury is “permanent”, particularly in relation to “loss of earning capacity” consequences;
(d) Whether the plaintiff can satisfy the Court as to the requirement of at least a 40 per cent loss of earning capacity, assessed at the date of hearing, which is permanent pursuant to s134AB(e)-(g) of the Act. If not, are the pain and suffering consequences “more than serious to the extent of being severe”.
The Evidence of the Plaintiff
13 The plaintiff gave evidence that his affidavits sworn on 4 May 2011,[14] on 19 June 2012[15] and 28 August 2012[16] are “true and correct”.[17]
[14]See Exhibit B at page 6 PCB
[15]See Exhibit B at page 35 PCB
[16]See Exhibit B at page 39.1 PCB
[17]T14, L10-15
14 During his evidence-in-chief, the plaintiff gave evidence that he had been employed the Hertz Company since October 2011 performing car detailing work. In particular, he produced two recent payslip documents – the first for the period from 27 July to 5 August 2012, wherein it is recorded that he earned $1,436.85 gross, and a second certificate from 6 August 2012 to 19 August 2012, wherein it is recorded that he earned $1,365.00 gross.
15 Such employment was his first employment after the cessation of weekly payments of compensation in about March 2011. He gave evidence that his earnings at Hertz “vary a bit” because it is a little seasonal and it is probably a little bit on the high side at the moment.
16 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
· He is a fifty-one-year-old man separated from his wife. He has three children, aged nineteen years, eighteen years and fifteen years.
· He was educated to Year 10 at school and has no post secondary school qualifications.
· He was employed by the first defendant between 10 June 2008 and 8 September 2008 in the capacity of the National Claims Manager.
· Before commencing with the first defendant, he had wide-ranging experience within the WorkCover claims area, and in particular:
§ had worked for various large employers;
§ had performed consultancy work;
§ had great experience in Tasmania and Victoria and more limited experience in South Australia and New South Wales’ WorkCover systems;
§ he also had some knowledge and experience in ComCare.
· During the course of his employment as National Claims Manager with the first defendant, he suffered a Major Depressive Disorder.
· When he commenced employment with the first defendant, he was aware or was made aware that the first defendant operated in every State of Australia and thus the position would involve working with various WorkCover organisations in each State of Australia. Furthermore, in South Australia, the first defendant was a self-insurer under the South Australian WorkCover system and that system was about to undergo quite significant far-reaching legislative changes. He was also made aware that the first defendant was about to transfer its South Australian WorkCover office, files and personnel to Melbourne.
· He appreciated that his job as National Claims Manager would initially be doing a great deal if not all of the work of managing claims himself, particularly in South Australia, as two people were leaving the employment of the first defendant.
· He was assured that resources would be made available to him and that he would be able to engage suitable staff or have them engaged so he would have someone to manage.
· His contract of employment with the first defendant provided for a salary package of $130,000 per annum, which was to include his salary, superannuation and, if necessary, a provision of a car.
· After one day’s induction at the Melbourne office, he flew to Adelaide to commence the transition process and remained there during the week for several weeks, returning home on Friday nights.
· Within a week of his commencement of employment, the person who actually handled day-to-day WorkCover claims in the Adelaide office left the employment of the first defendant. In particular, the plaintiff states:
“Almost immediately after starting work at Origin, I learned of many system failings and irregularities affecting the functioning and administration of WorkCover claims at Origin and affecting them in all States. These problems and irregularities had serious consequences for me, but also serious consequences or potential consequences for Origin. The legal requirements and administrative and auditing requirements imposed upon Origin by each State WorkCover Authority are stringent and failure to comply can result in very substantial adverse financial consequences for Origin. The most stringent requirements were those of South Australia, largely because in that State Origin was a self-insurer, and like all WorkCover Authorities, the South Australian WorkCover Authority imposed very stringent conditions, requirements and systems of work upon all self-insurers.”[18]
[18]See Exhibit B at pages 8-9 PCB
· One of his responsibilities as National Claims Manager was to ensure that all of the requirements imposed by the various State WorkCover Authorities – requirements of notification, operating of various systems to enable and facilitate auditing, to provide rehabilitation and a host of other similar requirements – were met.
· Shortly after commencing employment, he alerted his superiors that he would require various resources and people to help him. No such resources were made available to him.
· He prepared a letter of resignation dated 10 July 2008, but due to other issues arising at that time, the letter was not handed to his superior. In such letter, he describes his situation as a “lambs to the slaughter” situation.
· On being told that there would be no allocation in the budget for further resources to assist him, he felt he was “being ignored and being left to suffer the consequences of having to work with Origin’s flawed and under resourced WorkCover area”.
· Because of working in such a “very stressful environment”, he suffered the injury, and on a date, he believed to be 8 September 2008, he went to Julie Russell (his superior) and told her that he could not continue such employment. He resigned and handed in the articles he had which belonged to Origin, although he did not resign in writing. He does not remember much of the last day; it was just a blur, as he was not functioning well from a psychiatric point of view. Some time soon afterwards he had a conversation with another superior and tried to withdraw his oral resignation but was informed that he had effectively abandoned his employment and his employment had ended.
· On 10 September 2008, he planned and attempted suicide when he drove into a secluded spot on the Murray River and attached a pipe to his exhaust pipe with a hose leading into the cabin with the engine going. He snapped out of this endeavour after receiving a text message from his daughter.[19]
[19]See Exhibit B at page 11 PCB
· Following his attempt at suicide, he consulted with his general practitioner at the Sunbury Medical Centre.
· He subsequently lodged a WorkCover claim in respect of an injury under the Act, and such claim was accepted. In the course of the investigations, he made two statements to the WorkCover investigators dated 8 October 2008. In those statements he sets out the various difficulties he had during the course of his employment with the first defendant. In particular, in the statement identified as Exhibit 2, he states, in part:
“At the moment, I have a lot of anxiety because of the work situation, I feel powerless and frustrated and don’t feel that I have control of my own life. The work situation has caused the other things in my life to unravel. I don’t feel that these things would have occurred if I hadn’t been suffering the depression.”[20]
[20]See Exhibit B at page 23 PCB
· Later, he lodged a claim for impairment benefit compensation pursuant to the Act, and that claim was also accepted.
· He has received treatment in respect of his psychiatric injury from the following people:
- General practitioners at the Sunbury Medical Centre, and he continues to see his general practitioner there once a month
- A psychologist, Ms Catherine Clarke, two or three times a month
- A psychiatrist, Dr Arunava Das, approximately once a month.
· At the time of such affidavit, he was taking 100 milligrams of Pristiq per day – such drug is an anti-depressant.
· At the time of swearing such affidavit, he believed he was still depressed and still contemplated suicide. Furthermore, his memory and concentration are poor and everyday thoughts come to his mind about the stresses at the work he performed with the first defendant. He feels angry and depressed and worries about his future and employability and contrasts his present situation with what would have been if he had not suffered the psychiatric injury.[21]
[21]See Exhibit B at pg 12 PCB
· He has bad days when he is very low in mood and from time to time he cries, he has lost a lot of confidence and feels helpless, as though he has lost control of his life.
· Three or four times a week he wakes up from sleep and when awake he feels hot, sweaty and anxious.
· His marriage broke up soon after he suffered the injury and at present he lives alone and anticipates that his marriage will end in divorce.
· He has now met another woman named Debbie and he is in a relationship with her. She works as a full-time carer and also operates a market stall each Sunday which he helps her with on occasions, though not for payment. At the stall, she sells a mixed variety of items such as children’s games, giftware and ornaments. He helps her to set up the stall at the start of trading and helps pack up the store at the end of trading. He also assists with sales. He has been providing this assistance to Debbie since around November 2010, mostly every second Sunday.
· Since ceasing work he has not worked for reward and received weekly payments of compensation until their cessation on 5 March 2011.
· He has had assistance from Ayres Consulting which were engaged by the WorkCover insurer to try and assist him back into the workforce. He believes their funding expired at the end of February 2011.
· He has applied for many jobs without any success, sometimes resulting in interviews, but no offers for employment. He was advised that due to the lack of availability of part-time roles, that he should apply for full-time roles with a view to “getting a foot in the door” and attempt to utilise the WISE Program in making himself attractive to prospective employers. He believes that when he discloses his WorkCover status to prospective employers, it is virtually impossible for him to gain suitable employment, even in his field of expertise.[22]
[22]See Exhibit B at page 14 PCB
· His present WorkCover Capacity Certificates indicate that he can only work 15 hours per week and it has been recommended by his treating psychiatrist, Dr Das, that in order to prevent further injury, he should recommence on a part-time basis so as to ease back into the workforce.
· Ayres Management Services Pty Ltd prepared a Vocational Assessment Report dated 27 August 2010 wherein it is recommended that suitable employment options for him would include working as an insurance clerk, general clerk, customer service clerk, policy and planning manager, account manager and contact centre manager.
· He believes that at present he is capable of doing some type of clerical work for 15 hours a week initially, with perhaps potential in the future to increase his work hours to 37 or 38 hours a week. Furthermore, he believes that because of his injury, he can never return to a responsible stressful job like that he was performing with the first defendant or a similar large employer.
· Be believes that because of his educational level and because of his psychiatric injury, he has no reasonable prospects of being able to obtain a university degree or equivalent.
· Prior to commencing with the first defendant, he had worked on a short-term contract with Coles Supermarkets which ended in 2008, and prior to that he had worked for two years as consultant to Melbourne Water.
17 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
· He continues to be under the care of his treating psychiatrist, Dr Arunava Das, who he sees every month and who also continues to prescribe him 100 milligrams of Pristiq per day. He also continues to see his general practitioner, Dr Mark Michail, every month, and also continues to see his psychologist, Ms Catherine Clarke, on a regular basis.
· He has taken antidepressant medication daily since late September 2008. Initially he was prescribed Cipramil medication by Dr C Keaney of the Sunbury Medical Centre, and later this was changed to Pristiq when he first consulted Dr Das on 24 April 2009. Dr Das has increased the dosage of Pristiq to the present does of 100 milligrams per day commencing from May 2009. He has been advised that he will need to take Pristiq for the foreseeable future.
· He believes he is still depressed although no longer suicidal. He also continues to suffer from very poor sleep “to the point where I am lucky to manage even only two or three nights of uninterrupted sleep per week”.[23]
[23]See Exhibit B page 37 PCB
· He continues to be in a relationship with Debbie, and they recently went on a short holiday to Thailand which was the first holiday since the cessation of his employment with the first defendant in September 2008.
· Since ceasing employment with the first defendant, he has been unsuccessful in obtaining employment in senior management/ administrative positions such as those that he had prior to his injury with the first defendant.
· He commenced employment with Hertz Australia Pty Ltd as a casual vehicle service attendant on 2 November 2011. He describes such work as very basic and menial but physically demanding. Such work involves him ensuring the supply of clean and fully-fuelled Hertz rental vehicles at Tullamarine airport. He is required to detail all return vehicles by way of vacuum, hard surface restoration, windscreen and window clean at the rate of eight to ten vehicles per hour in a two-man cleaning team”. He has to pick up and drive return vehicles following client use and transfer them back to a holding yard.[24]
[24]See Exhibit B page 37-38 PCB
· His then gross base rate of pay is $15.96 per hour plus a casual loading, depending on the shift/day of work. Although the hours vary, he generally works between 50 to 65 hours per fortnight.
· He believes he is now limited to unskilled work, such as the work he is now performing at Hertz, and incapable of performing any of the type of work he was performing prior to his injury.
18 By way of his third affidavit, the plaintiff gave the following pertinent evidence:
· In answer to assertions made in the report of a psychologist, Dr Simon Kennedy, dated 20 August 2012, he notes that when discussing his work prospects with Dr Kennedy he did use the expression “technical” or “technical role” but was not referring to the position of technical manager. He meant to convey he would be able to return at some time to working at a base level in the insurance industry, such as a claims officer.
· He does not believe that he could work as a technical officer.
· He suffers from depression and still cries “from time to time”. He often feels irritable and short-tempered and cannot stop thinking about what happened at work to lead to his depression.
· He cannot handle stressful situations and does not believe he would be able to manage other people. Furthermore, he does not believe he could work in an environment where there is a significant workload or a lot of deadlines to meet.
· His understanding of the role of technical officer is that the manager would manage several people, up to as many as fifteen people, and that there would be face-to-face dealings with the claims officers where he may have to be critical of their performance, all of which is stressful. Furthermore, he would have to be responsible to claims officers meeting deadlines and following guidelines, which again would be stressful.
· His concentration and ability to process information would not be up to handling files or taking the information in those files quickly.
19 The plaintiff relies upon an affidavit sworn by his brother, Robert John Ash, sworn on 8 August 2012.[25] In such affidavit, he describes himself as being fifty-four-years-of-age and is a head teacher at Yanco Agricultural High School, New South Wales. He refers to the plaintiff as the youngest of four brothers, with he being the second eldest. They have always maintained a good relationship.
[25]See Exhibit B at pages 40-44
20 Prior to his employment with the first defendant, he knew his brother to be hardworking, happy, funny, confident, popular and very likeable. Furthermore, he observed him to be dedicated to his work and not afraid to work exceptionally long hours when needed in order to complete a task.
21 During the months that he worked with the first defendant, he observed his brother’s tone and demeanour to progressively change and he seemed “flat and stressed”.
22 When he actually saw his brother on 17 November 2009 when travelling to Melbourne, he was “shocked”. He observed that his brother was no longer the happy, vibrant person he once was and appeared slower, visibly distraught and emotional and totally lacking any self-confidence.[26] He remained with his brother until 24 December 2009 and essentially became his “confidant”. He describes how his brother often cried to him over the phone for an hour at a time and also noting that he received a suicide note from his brother.
[26]See Exhibit B page 42 PCB
The cross-examination of the Plaintiff
23 Under cross-examination, the plaintiff gave the following salient evidence:
· He is currently a casual employee at Hertz and has been working 28 to 30 hours a week since commencing at Hertz in October 2011.
· The work he performs at Hertz is predominantly physical work and he does not have any trouble performing such work.
· He has no trouble turning up to work on a regular basis and deals with supervisory staff but not the public “much”.
· Besides performing physical cleaning of cars, he ferries various vehicles back and forward from airports, or other places where cars are driven to.
· “Within reason” he would perform more work at Hertz if such was available but he has not made any such enquiries.
· He does have a specific knowledge of what is required to have leave to bring a common law claim for pecuniary loss and he was aware of what was required when he swore his affidavits. He accepted that he had knowledge that if it was found that he was capable of earning 60 per cent or more of his pre-injury earnings, there was the potential to lose the right to claim for pecuniary loss damages.
· He left school in Year 10 but has developed good English and communication skills, together with good computing skills and basic skills in Word and Excel.
· He gave evidence of the following employment history:
- He worked for the Department of Agriculture as a blood sampler for about two years.
- He commenced working in the insurance industry when he was about nineteen, initially with Fire and General, which were later known as New Zealand Insurance or South British United, where he performed underwriting work at first and later moved to the workers’ compensation area. Since then he has essentially remained in the workers’ compensation area.
- For some time he was the National Manager for home warranty claims with Royal and the Sun Alliance Insurance Company.
- He worked for CE Heath for about eight to nine years as a claims officer and then he was involved after the introduction of the Accident Compensation Act.
- He was working as a manager on site at the Ford Motor Company for CE Heath managing claims made by injured workers at Ford. When performing that work he had up to ten people working under him. He worked two stints at Ford for a total of about six years.
- He became a branch manager at Ballarat for IMC, which then became Royal and Sun Alliance, and again was there for two stints of time totalling about two years. At that point he was the area supervisor of that general area and had about eight people working under him.
- He was then sent to Tasmania to run the Launceston office, where he handled all the national accounts for CE Heath and had five staff under him. Later he shifted to the Hobart office and had approximately forty staff under him. He was in charge of “claims” and answered to a state manager.
- He returned to Melbourne and obtained a position with QBE as a claims manager involved with setting up and conducting a long-term claims section.
- In approximately January 2005, he commenced work with Linfox as a claims consultant, specifically to help out with the project of moving from State legislation to the Commonwealth scheme. He remained in that employment under a contract to May 2006.
- In June 2006, he commenced employment with Melbourne Water as a claims co-ordinator for the WorkCover liability and property portfolio, during which time he conducted a major claims review in conjunction with the annual Victorian WorkCover audit.
- He then obtained employment with Coles, managing long-term claims. Such “employment” was as a consultant working through an agency. He was in such position from March 2008 to May 2008.
· In relation to his experience, the following evidence was given:
Q:“Before we go to that, is it fair to say there’s been very few periods in your life prior to anything occurring at Origin where you haven’t been able to get work in the insurance worker’s comp type of arena?
A:Yes, that wouldn’t be the case now I assure you.
Q:But prior to 2008?
A:I believe I had a good reputation yes.”[27]
[27]T23, L2-6
· He accepted that when he commenced employment with the first defendant there was a significant jump in his base salary but considered that given the nature of the role, it is probably about standard for such a job. He was asked:
Q:“Was this the first role that you had obtained that involved that degree of responsibility and work?---
A:No, I don’t believe so, the roles I have had in the past, be they on site at the Ford Motor Company or state claims manager in Tasmania, were certainly as responsible. In fact in Tasmania I had more staff, I had 40-odd staff to care for there so I don’t think it was anything out of the ordinary except for the condition I was in.”[28]
[28]T27, L22-29
· He began to experience problems in his new role with the first defendant soon after commencing. His letter of resignation dated 10 July 2008 was about one month after he commenced work.
· He gave the following evidence in relation to his marital breakup:
Q:“And at the same time [as his letter of resignation] you were going through major marital issues, weren’t you?---
A:Not at that point in time, no.
Q:They had started back in 2001, hadn’t they?---
A:There was no marital problems going on at that particular time, no.
Q:Are you sure? I might come back to that. I thought the situation was that your wife left you or left the marital home two weeks after you left Origin?---
A:No, that was the announcement, the split was announced, we didn’t part ways for some time after that until the house was sold.
Q:So that split was announced two weeks after you left Origin?---
A:Yes.
Q:And you had been married to your wife for many, many years?----
A:24.
Q:And you had three children all of whom were living at home?---
A:Yes.
Q:These things don’t build up overnight, do they, they build up over years, I suggest?---
A:I think this was probably the major – the lack of finance or the prospects of not having a major wage coming in was a huge factor to my ex-wife.”[29]
[29]T30, L7-27
· There was some conflict when he was working with QBE and his wife had concerns as to where income was going to come from after he left QBE. He did not accept that there was a degree of difficulty in his marriage when he commenced employment with the first defendant.
· His attempted suicide was two or three days after leaving the first defendant and which was before the announcement of his separation from his wife.
· He saw his psychologist, Ms Catherine Clarke, initially every fortnight and at the time of hearing, approximately monthly. Her treatment consists mainly of counselling.
· In February 2009, Dr Michail took over his care from Dr C Kearney at the Sunbury Medical Centre. Dr Michail supplies him with certificates and is “very supportive”.
· His treating psychiatrist, Dr Das, provides medication.
· He believes that Dr Michail commenced giving him certificates to return to part-time work from October 2009 and that he presently receives certificates to work for thirty hours a week at Hertz. Sometimes he might work an extra couple of hours’ work.
· He commenced seeing Dr Das in April 2009 and was initially treated with Cipramil, and later with Pristiq. In the past he had also been prescribed Diazepam for anxiety and agitation. He goes for regular walks around his area and also plays competition tennis once a week and sometimes plays social tennis on the weekend.
· He was diagnosed post his employment with Origin with sleep apnoea, for which he has been treated, and the quality of his sleep has improved, although not the length of his sleep.
· At about the time he was cleared to return to part-time duties, he became involved with various rehabilitation providers and also in about June 2010, he contacted the “Self Insurers Association of Victoria” (on which he used to be a committee member) requesting that the President canvass various members to see if they had a role he could undertake. When queried as to what sort of role he would hope to obtain, the plaintiff stated:
“Well, I was hoping to obtain at least something that was within my limitations and within the hours that I was certified for. So something obviously with less responsibility, I certainly couldn’t have taken on a managerial role but obviously something that might be helpful to the Self Insurer themselves from the point of view of the claims management, sort of like a silent partner if you like, or a consultancy type scenario where I perhaps was removed from the coal face to some degree but could still be of some benefit that way, that was the line of hope I had.”[30]
[30]T43, L4-14
· He had no positive response from that association. He confirmed that when advising people in the industry, he sought only part-time work and noted that he had suffered from a psychiatric condition.
· In mid-2010, he found his new partner – “Debbie” – and that relationship continues with them now living together. Recently they travelled overseas to Thailand for a holiday for fifteen or sixteen nights.
· He plays a support role with one of his son’s football teams, which may involve being a goal umpire or whatever and sometimes he would help with the statistics. The football club is also a hub of some social activity and from time to time he would attend social activities at the club. He would also help one of his sons during the cricket season.
· He assists Debbie at a stall she operates every Sunday at a market. The stall is set up from about 7.00am on a Sunday morning and continues to about 3.30 in the afternoon. In particular, the following evidence was given:
Q:“Do you spend your time at the market helping her?---
A:Yes, I’m no there all the time but when I can I do because at one point in time I had my son on alternate weekends and so forth, if there was footy involved I would go to the football; if I can help out I do.
Q:How long has that situation been in existence?---
A:Pretty much since I moved in with Deb, the last 16 months.
Q:And you carry out your support role, I suppose we would call it, in addition to the work that you do for Hertz?---
A:Yes, and if I’m rostered on at Hertz well, I don’t go to the market obviously.
Q:You still drive a car, I take it?---
A:Yes.
Q:You do your own shopping?---
A:I share in that now, yes.
Q:Prior to moving in with Debbie you were living in a three bedroom unit on your own?---
A:Yes.
Q:During that time you would have been doing your own cooking, cleaning and shopping?---
A:Yes.”[31]
[31]T48, L10-26
· He finds the work at Hertz sometimes monotonous and when queried whether he would prefer a job that was more challenging intellectually, he stated:
“I would like to get myself as high in the process as I can. But I’m limited in what I can do, I have to realise that and it’s pretty hard to accept.”[32]
[32]T53, L5-7
· He believes he could not go back to the type of job he had at the first defendant, or indeed any job of a “high stress nature”.
· He was queried about his attempts to work and in particular the following evidence was given:
Q:“Since you have been working at Hertz, have you made any further applications for jobs in the insurance industry?---
A:No.
Q:And is that because you’re content with what you’re doing at the moment or you don’t think you can get a job or what’s that situation?---
A:Well, I think I have a pretty good history of trying before that and all I’m trying is living day by day and doing what I can do and at least I’m doing something meaningful so I am glad to have that but hopefully one day I can move on, whether that opportunity comes or not is another question.
Q:But you’re not ruling it out?---
A:No.
Q:When you saw Ayres Management Services at the request of CGU in late 2010 do you remember undergoing that 130 week vocational assessment?---
A:Yes.
Q:And you were aware that they have identified a number of jobs that they thought you might be able to do, are you aware of that?---
A:Yes.
Q:Did you tell them that you would be interested in returning to the following fields being worker’s compensation roles, insurance role and sports administration, this is page 182, Your Honour?---
A:Yes, that could be some possible options.
Q:Is it the situation that you’re not going to try too hard to get back into the insurance arena, your area of expertise whilst this case is going on?---
A:I totally repudiate that, if you could see it from my side and how often and how many people I have spoken to and tried to generate something, I haven’t sat on my hands and just gone for the ride, I totally repudiate that.”[33]
[33]T55, L3 – T56, L1
24 After the completion of cross-examination and re-examination, the Court posed the following question, and evidence was given:
Q:“Then Origin Energy had all kinds of other problems, so what is it about the prior roles now you say you couldn’t do now?----
A:It’s along similar lines as to why – with the technical manager’s role that was thrown up, you have a number of reports, you have deadline after deadline, there’s a lot of technical requirements and I just don’t feel I’m in a position to go back to those levels of stress without my problem recurring and me going back to where I have been and I think it just has to be a stage process to get back there and whether I get back there is probably a whole other question. But I have to have something to shoot at so I do what I do to get by now and – but as time goes by my stock in trade is disappearing and it’s very hard to get someone that will take you back on with restrictions or just as importantly, the possibilities that these things could reconsider. Maybe I’m pushing myself too hard but I have to have something to aim at, I have never been a bludger.”[34]
[34]T60, L14 – T61, L1
25 Also, when queried by the Court, the plaintiff indicated that a clerical role in the insurance industry and customer enquiry services may well be within his capacity. Furthermore, he maintained that jobs involving policy and planning manager, or account manager and call centre manager would be too stressful and beyond him. In particular, the following evidence was given:
Q:“What is it you’re really not able to cope with, the volume of work or having to deal with people?---
A:It’s volume, the people management, it’s the push back, you know, the result, the absolute requirement to get results and certain levels of result and so on and so forth. That puts lots of pressure on and when you’re in a team situation your team are relying on you to be the lynchpin if you like, and depending on what it is that can be a lot of pressure and you’re expected to have the answers and experience to go with that. And that sort of rapid fire timeframe scenario is – your life’s just full of deadlines day in day out and it does, it gets the better of you over time.”[35]
[35]T63, L18-30
26 Also, the Court queried the plaintiff in relation to his present activities. In particular, the following evidence was given:
Q:“Is there anything that you’re not doing in your life at the moment otherwise, putting work aside, that you can’t do because of what’s happened at Origin?---
A:Look, most things that come along my way, like from a family situation, I find it much harder for example, my son just got redundant in that LTC mess out at Tullamarine and I have been helping him through that and try and get his resume up and running and start going forward again. But I find a lot of that stuff very draining and it’s for the kids that you push on, you try and get through it so energy wise I’m a lot worse off than perhaps I was, you accept that and you just try and do what you can and just try and progress.”[36]
[36]T65, L30 – T66, L11
The evidence of those treating the Plaintiff
(a) Dr Mark Michail
27 The plaintiff relies on medical reports dated 6 February 2011[37] and 22 May 2012[38] from his current treating general practitioner, Dr Mark Michail.
[37]See Exhibit B at pages 57-59 PCB
[38]See Exhibit B at pages 60-62 PCB
28 Dr Michail reports that the plaintiff originally presented to a colleague, Dr Catherine Keaney, at the Sunbury Medical Clinic on 13 September 2008. When Dr Keaney left the clinic, Dr Michail became the general practitioner of the plaintiff in February 2009. Dr Michail notes that the plaintiff originally gave a history of being under great stress in his employment with the first defendant and initially presented with symptoms which included poor sleep, poor concentration, crying, anhedonia, nightmares, anxiety and suicidal ideation.
29 Dr Michail notes that the plaintiff denied any depressive symptoms prior to September 2008 and such assertion is borne out by the medical records. Dr Michail notes that treatment has consisted of a combination of drug therapy and counselling/cognitive behavioural therapy. The plaintiff was commenced on Cipramil but was later changed to Pristiq, of which he is currently prescribed 100 milligrams daily. The clinic also referred the plaintiff to the psychiatrist, Dr Das.
30 The plaintiff was diagnosed to be suffering a Major Depressive Disorder and as at February 2011, Dr Michail considered the plaintiff to be suffering with “mild-moderate depression”. He notes that the plaintiff was preoccupied with his past experiences at Origin Energy, loss of career, financial stressors, family matters and future employment. Furthermore, he noted that his mood had improved and he is no longer contemplating suicide.
31 In particular, Dr Michail considered the plaintiff to have a work capacity consisting of part-time work of up to 15 hours per week (although he should not return to work with his previous employer).
32 Dr Michail was of the opinion, as at February 2011, that the “suitable employment” identified by the rehabilitation company, consisting of insurance clerk, general clerk, customer service clerk, policy and planning manager, account manager and contact centre manager were reasonable. Dr Michail did stress that at that stage “suitable” still implies work of a part-time nature (15 hours per week), re-training if required and a supportive work environment.
33 In his later report dated 22 May 2012, Dr Michail records that it is his opinion that the plaintiff continues to suffer from a Major Depressive Disorder with symptoms of lowered mood, poor sleep, poor concentration and occasional tearfulness.
34 He notes that the plaintiff has applied for multiple job positions, including those in his field, but has been unsuccessful, and that he was currently employed as an attendant by Hertz Car Rentals.
35 He considers that the overall condition of the plaintiff has improved and that he is no longer suicidal. Such improvement is attributable to a combination of cognitive behavioural therapy and anti-depressant medication. The plaintiff was still being prescribed 100 milligrams daily of Pristiq by Dr Das.
36 Dr Michail also produced a medical practitioner questionnaire completed by Dr Keaney on 3 October 2008 wherein she notes that the initial consultation with the plaintiff was on 13 September 2008 wherein she records the episodes of stress experienced by the plaintiff during the course of his employment with the first defendant. Dr Keaney also notes that his psychiatric condition has put a strain on his marriage which appears to have “failed”. She also notes that she referred the plaintiff to a psychologist, Ms Catherine Clarke.
(b) Ms Catherine Clarke
37 The plaintiff also relies on a questionnaire dated 17 November 2008[39] and reports dated 19 May 2009,[40] 26 November 2009,[41] 13 April 2010,[42] 1 February 2011[43] and 28 May 2012,[44] all prepared by the treating psychologist, Ms Catherine Clarke.
[39]See Exhibit B at pages 63-65 PCB
[40]See Exhibit B at pages 66-68 PCB
[41]See Exhibit B at pages 69-71 PCB
[42]See Exhibit B at pages 72-73 PCB
[43]See Exhibit B at pages 74-75 PCB
[44]See Exhibit B at page 77 PCB
38 Ms Clarke commenced to treat the plaintiff on 19 September 2008, at which time the plaintiff presented with symptoms of Depression, Anxiety, and sleep problems. At that time, she noted that no prior history had been reported of any similar problems.
39 Ms Clarke formed the opinion that the plaintiff was suffering from a moderate, non-psychotic major depressive episode which appears to be “fully related to work-related issues”. Such condition she notes, has led to marital issues and a recent marriage breakup.
40 In her report dated 1 February 2011, Ms Clarke notes that the plaintiff is incapacitated for his pre-injury employment and that he suffers from a “long term psychological injury due to the impacts of his previous employment and, in my opinion, is unable to perform any duties in a similar environment for a significant period of time (if at all)”.[45]
[45]See Exhibit B at page 75 PCB
41 When queried as to his capacity to perform work as an insurance clerk., general clerk, customer service clerk, policy and planning manager, account manager and contact centre manager, she notes that the nature of his previous employments would have provided him with the skills to perform such work. However, she notes:
“Due to his psychiatric injury, and the length of period of time he has not been able to work, Mr. Ash will not initially be able to work at his previous capacity. His ability to undertake any of the duties outlined will very much be dependent on the type of environment he works in. He will need to ease his way back into any form of employment. A job with too much stress or pressure, until he recovers from his psychological injury, would be unsuitable. A job would need to involve part time hours. It is critical that the role undertaken by Mr. Ash is applicable to a part time role and does not pressure him to work extended hours. … .”[46]
[46]See Exhibit B at page 76 PCB
42 When reporting in May 2012, Ms Clarke noted that the plaintiff required continued individual therapy and that although his depressive symptoms had reduced from severe to moderate, his depression needs to be further explored and treated.[47]
[47]See Exhibit B at page 77 PCB
(c) Dr Arunava Das
43 The plaintiff also relies on the reports dated 4 February 2011,[48] 6 April 2012[49] and 28 August 2012[50] from the treating psychiatrist, Dr Arunava Das.
[48]See Exhibit B at pages 45-51 PCB
[49]See Exhibit B at pages 52-53 PCB
[50]See Exhibit B at pages 53.1 – 53.2
44 Dr Das initially saw the plaintiff on 24 April 2009, at which time the plaintiff gave a history of his presenting symptoms and work experiences. Dr Das diagnosed Major Depressive Disorder of a chronic nature and also stated in his first report:
“… This 48 year old man without any past/family history of psychiatric disorders, without any history of drug/alcohol abuse, pre-morbidly being well adjusted developed pervasive sadness, dysphoria, restlessness, insomnia, loss of appetite, loss of weight, poor concentration, poor memory, indecisiveness, lack of pleasure leading to moderately severe subjective distress, moderately severe social and occupational impairment, marital disharmony leading to divorce, in the context of work-related stress at Origin Energy.”[51]
[51]See Exhibit B at page 50 PCB
45 Furthermore, in the same report, Dr Das expressed the opinion that the plaintiff was currently incapacitated for his pre-injury duties and that such incapacity was likely to extend into the foreseeable future. When queried about his capacity to perform work as an insurance clerk, general clerk, customer service clerk, policy and planning manager, account manager or contact centre manager, Dr Das stated:
“I have gone through the job descriptions for the above roles. However, my role as Mr. Mark Ash’s treating psychiatrist would be to highlight the principles to be adhered to while selecting a position for him rather than commenting on the technicalities of the position per se. The principles in finding a position for Mr. Mark Ash would be, in my opinion, as follows:
i. the position should be commensurate with his qualifications and experience, with Mr. Ash initially being provided support over and above what is provided to a new recruit to orient himself with the position.
ii. his salary should have parity with what he was earning prior to his work-related injury.
iii. any role that Mr. Mark Ash goes back to, should initially be part-time, the number of hours being agreed upon by the concerned parties in discussion with Mr. Mark Ash’s General Practitioner and myself, with gradual increase in his hours, based on his ability to cope with the demands of the job and his overall functioning.”[52]
[52]See Exhibit B at page 51 PCB
46 Dr Das notes that the plaintiff has been on Pristiq, 100 milligrams per day, since May 2009.
47 In his report dated 6 April 2012, Dr Das notes that the plaintiff continues to experience dysphoria, poor self esteem, tension, apprehension, fluctuating levels of energy, fluctuating levels of motivation and remained pre-occupied about his future. Such symptoms were of a moderate severity and on that basis, he considered the plaintiff continues to suffer from Chronic Major Depressive Disorder. Furthermore, he was of the opinion that because of the chronicity of such symptoms, he expected that the plaintiff would continue to need Pristiq, 100 milligrams per day, for the foreseeable future.
48 Later in his report dated 28 August 2012, Dr Das records that the plaintiff continues to suffer from Chronic Moderately Severe Major Depressive Disorder and that he will require to need Pristiq, 100 milligrams daily, for the foreseeable future.
49 In particular, when commenting on his present and future capacity for employment, Dr Das states:
“… Any future role that Mr. Mark Ash goes back to should initially be part-time, the number of hours being agreed upon by his G.P. and myself with a plan for gradual increase in the number of hours based on his ability to cope with the demands of the job and his overall functioning. However, based on my knowledge of Mr. Mark Ash’s mental state since April 2009, his Chronic Moderately Severe Symptoms of Major Depression (precipitated by work-related stress), I do not expect Mr. Mark Ash to go back into a senior-role, in a high-pressure situation now or in the foreseeable future.”[53]
(My emphasis).
[53]See Exhibit B at pages 53.1 – 53.2 PCB
50 Dr Das also notes that the plaintiff, “in all likelihood”, will need ongoing psychiatric treatment (medication; monthly review sessions for monitoring of mental state, medication-review, utilisation of principles of supportive physiotherapy and cognitive behavioural therapy) into the foreseeable future.[54]
[54]See Exhibit B at page 53.2 PCB
Medico-Legal reports relied on by the Plaintiff
51 The plaintiff relies on the following medico-legal examinations:
(a) Examinations by the psychiatrist, Dr Chris Grant, on behalf of the agent of the first defendant, on 16 October 2008,[55] 25 February 2009[56] and on 15 June 2009;[57]
(b) From the psychiatrist, Dr Paul Kornan, who examined the plaintiff on behalf of the agent of the first defendant on 4 May 2010.[58]
[55]See report dated 16 October 2008, Exhibit B at pages 78-81 PCB
[56]See report dated 25 February 2009, Exhibit B at pages 80-84 PCB
[57]See report dated 15 June 2009, Exhibit B at pages 85-87 PCB
[58]See report dated 5 May 2010, Exhibit B at pages 88-95 PCB
52 After his first examination, in which he obtained a detailed history and made a mental state examination, Dr Grant was of the opinion that the plaintiff had suffered a Major Depressive episode, moderate to severe and of a non-psychotic type. He notes that this appears “to be related solely to his employment and to have been aggravated by marital tensions that have surfaced in the setting of his deteriorating health”. At that point, he considered the plaintiff had no current work capacity.
53 When re-examined on 25 February 2009, Dr Grant was of the opinion that the plaintiff was still continuing to experience significant symptoms of a Major Depressive Episode despite treatment. Again, at that stage, he did not think the plaintiff capable of any type of work.
54 When last seen on 15 June 2009, Dr Grant was of the opinion that the plaintiff continued to have residual symptoms of a Major Depressive episode which had been brought about by the change of treatment to Pristiq some eight weeks prior to the consultation. Dr Grant considered that the condition of the plaintiff was in “partial remission” and further improvement could be expected. In particular, Dr Grant was of the opinion the plaintiff was now fit to pursue job-seeking assistance or other occupational rehabilitation with a view to returning to part-time employment in or about July/August 2009 with the potential to increase work capacity.
55 Dr Kornan, after taking a detailed history and making a mental state examination, was of the opinion that the plaintiff was suffering from Major Depression and an Adjustment Disorder with Anxiety. He considers that employment with the first defendant “has been a significant contributing factor in him not being able to work”.
Medico-Legal reports relied on by the Defendants
56 It is convenient to also refer to the medico-legal reports relied on by the defendants:
(a) Reports from the psychologist, Dr Simon Kennedy, who examined the plaintiff on 13 August 2012,[59] 8 December 2009[60] and on 7 September 2010.[61] Dr Kennedy also suppled a supplementary report dated 5 November 2010;[62]
(b) Reports of Dr Das dated 15 May 2009, 12 January 2011 and 23 June 2011.[63]
[59]See report dated 20 August 2012, Exhibit 2 at pages 9-17 DCB
[60]See report dated 9 December 2009, Exhibit 2 at pages 18-27 DCB
[61]See report dated 22 September 2010, Exhibit 2 at pages 28-35 DCB
[62]See Exhibit 2 at pages 36-40 DCB
[63]See Exhibit 2 at pages 43-48 DCB
57 The defendants also rely on reports from Dr Neil Smith, dated 21 June 2010 and 20 July 2010.[64] Dr Smith is a consultant physician who has treated the plaintiff in relation to obstructive sleep apnoea. He initially consulted with the plaintiff on 18 August 2009 on referral from Dr Michail. At that time, the plaintiff gave a “long history” of not sleeping well.
[64]See Exhibit 2 at pages 49-51 DCB
58 Dr Smith diagnosed the plaintiff to be suffering significant obstructive sleep apnoea and such condition was adding to his symptoms profile. However, Dr Smith considered that the obstructive sleep apnoea developed because he was an overweight male and that it was not a secondary consequence of his depression or stress. He did consider that obstructive sleep apnoea can exacerbate stress and depression but is not caused by stress and depression.
59 After his first consultation with the plaintiff, Dr Kenned was of the opinion that he suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was “triggered by the stress in the workplace”. He noted there was no pre-existing psychological disorder and at the time of his examination the disorder had not resolved. At the time of that first consultation, he considered the plaintiff had a capacity for some part-time work with the potential to get back to full-time work over time.
60 When later seen on 7 September 2010, Dr Kennedy comments that the plaintiff presented in a similar way although was functioning better than before.
61 At that consultation, Dr Kennedy noted that the plaintiff spoke of his frustration associated with seeking employment and that he put out about thirty applications seeking jobs.
62 After that examination, Dr Kennedy diagnosed the plaintiff to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood (mild symptomology) and such condition was at least “partially related to his previous employment and the events that occurred there”. He also considered that the personality style of the plaintiff and the lack of employment itself contributes to such condition.
63 Dr Kennedy was of the view after that examination, that the plaintiff could not return to his previous employment but would probably be able to undertake a role similar to his previous employment.
64 In a supplementary report, Dr Kennedy was queried as to whether or not the plaintiff could undertake work as an insurance clerk, general clerk, customer service clerk, policy and planning manager, account manager and/or contact centre manager. In response, he stated:
“It would appear that there are no physical difficulties. In my opinion, the worker could undertake employment for more than 15 hours per week. In my opinion it is appropriate in return to work for individuals who have a history such as Mr Ash that there would be a gradual increase in return to work over several months with an increase in the number of hours across each week occurring over that several month period. The speed of the increase to full time hours depends on the individual’s response to the return to work. In some individuals they are to return to work over a period of two months for example. In others this may take to six to eight months before they are able to tolerate the full time work.
… .”[65]
[65]See Exhibit 2, at page 39 DCB
65 The plaintiff was last seen by Dr Kennedy on 13 August 2012. After taking a further history and making a mental state examination, Dr Kennedy diagnosed the plaintiff to be suffering no psychological disorder but with a past Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood which had resolved. In particular, Dr Kennedy states:
“Since 2008 Mr Ash has experienced a combination of anxiety and depressive symptoms. He continues to suffer from some anxiety and depressive symptoms at a non-clinically significant level. Treatment has been psychological therapy and anti-depressant medication. Treatment and the effects of work have reduced his symptoms and there is now no psychological disorder.
…
Mr Ash has likely incapacity for highly stressful or highly responsible positions currently. Incapacity may improve over time. He is effectively rehabilitating himself and is back to work on a part time basis in a non-professional role.”[66]
[66]See Exhibit 2, at page 15, DCB
Vocational Reports
66 The defendants rely on a “130-week Vocational Assessment Report” dated 27 August 2010 in relation to an assessment undertaken on 12 August 2010.[67] In that report, there is identification of what is said to be suitable employment options for the plaintiff. They include work as a general clerk, enquiry/customer service clerk, insurance clerk, planning and policy manager, account and call and contact centre manager. Each nominated job has a general description of the duties and the average weekly gross wage. Seemingly, the nomination of such jobs was based on what was said to be:
“Mr Ash has excellent communication, literacy, numeracy and computer skills including a working knowledge of the internet, email, word processing and spreadsheet packages. He has worked in roles such as claims manager, state claims manager within the workers’ compensation and public liability industries, which have provided Mr Ash with skills such as policy development and implementation, advanced analytical and interpersonal skills, the ability to manage small and large teams and deal with difficult situations and customers. … .”[68]
[67]See Exhibit 2, at pages 123-127 DCB
[68]See Exhibit 2, at page 109 DCB
Analysis of the Evidence
67 Those acting for the plaintiff submit that there has been no attack on the credit of the plaintiff. Indeed, a reading of the affidavits of the plaintiff and the transcript of his cross-examination, would suggest that the plaintiff was frank about his new relationship (and him attending and assisting her at the Sunday markets), his capacity to continue to play competitive tennis and his involvement in one of his son’s sporting pursuits.
68 A reading of the transcript would suggest no prevarication on the part of the plaintiff.
69 There was some attack on the plaintiff, in the sense that it was suggested that with his knowledge of workers’ compensation law, he appreciated that it was in his interest to have earnings less than 60 per cent of his “without injury earnings” in order to be successful in a serious injury application. Allied to this, was the suggestion put to the plaintiff that he was not seeking to increase his work hours at Hertz because of this concern. For reasons which I will advance later, I reject such a suggestion.
70 The evidence is overwhelming that the plaintiff suffered a psychiatric injury arising out of or in the course of his employment with the first defendant. Such injury has been characterised as a Chronic Major Depressive Disorder and also described as an Adjustment Disorder with Anxiety and Depression.
71 Although it is perhaps curious that the plaintiff, prior to his employment with the first defendant, had had vast experience in the workers’ compensation area, had seemingly no pre-existing psychiatric problems, and was only employed by the first defendant for a relatively short time, there is none the less a very strong correlation between the employment activities undertaken by the plaintiff with the first defendant and the commencement of his psychiatric symptomology.
72 Indeed, as I understand the position of the defendants, there is no issue that such a compensable injury occurred. I also note that the initial WorkCover claim lodged by the plaintiff and the later claim for impairment benefits were accepted by the defendants.[69]
[69]See Ansett Australia Ltd v Taylor [2006] VSCA 171, per Ashley JA, at paragraph [3]
73 Consistent with such attitude, the psychologist, Dr Kennedy, initially accepted that the plaintiff had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood arising out of or in the course of his employment with the first defendant. He was of the opinion, by his last examination on 13 August 2012, that he suffered no ongoing psychological disorder, although there was some anxiety and depressive symptoms at a non-clinically significant level.
74 I reject the opinion of Dr Kennedy, and consider that the plaintiff continues to suffer a chronic, moderately severe Major Depressive Disorder. Although he has improved since ceasing work with the first defendant, I find that such condition is likely to continue into the foreseeable future. In this respect, I accept the opinions of the treating psychologist, and in particular, the treating psychiatrist, who has seen him over the years since him ceasing work with the first defendant. It is to be stressed that Dr Kennedy is “alone” in expressing his opinion in relation to the current status of the plaintiff. In particular, I note that Dr Das continues to observe the plaintiff to be continuing to experience dysphoria, poor self-esteem, tension, apprehension, fluctuating levels of energy, fluctuating levels of motivation and is pre-occupied about his future.
75 Accordingly, I am satisfied that the plaintiff has a mental or behavioural disturbance or disorder.
76
It is submitted on behalf of the defendants that if the plaintiff does have such a disturbance or disorder, whether such can be seen as “permanent” and/or
“severe”.
77 Again, I accept the opinion of the treating psychiatrist, Dr Das, that the plaintiff has had chronic ongoing symptoms to date and that he will require Pristiq (100 milligrams daily) for the foreseeable future.
78 Given the chronicity of symptoms to date and the prognosis of Dr Das, I consider that such behavioural disturbance or disorder is “permanent” within the meaning of the Act – that is to say, “likely to last for the foreseeable future”.
79 I also note that the treating psychiatrist, although accepting that the plaintiff has a capacity for work (as clearly demonstrated by his employment with Hertz), is of the opinion that the plaintiff would not get back to a senior role or a high-pressure situation now or in the foreseeable future. Such a view also seems consistent with the limitations perceived by the plaintiff. In this respect, I gained the impression that although the Plaintiff considers he can perform more work than that what he is performing at Hertz, he is incapable of returning to high management positions in the insurance industry which involve substantial amounts of stress.
80 I consider it appropriate to initially decide whether the plaintiff satisfies the requirements to obtain leave to claim “pecuniary loss damages”.
81 In relation to the issue of pecuniary loss, s134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as described by paragraph (f), necessitates a comparison of two matters:
(a) what the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b) the income that the plaintiff was earning or is capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
82 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
83 Section 134AB(38)(e)(ii) requires the plaintiff to establish that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
84 Section 5(1) defines “suitable employment” to mean:
“In relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s pre-injury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational or rehabilitation services that are being, or have been, provided to or for the worker; and
(b)regardless of whether –
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.”
85 Counsel for the defendants[70] submits that the appropriate “without injury earnings” of the plaintiff amount to $83,466.00, whereas it is submitted on behalf of the plaintiff that the appropriate “without injury earnings” are in a range between $119,266.00 to $151,766.00.
[70]See page 114 PCB
86 In particular, counsel for the defendants highlights that the gross annual income of the plaintiff for the financial year ending 30 June 2005 was $57,244.00; for the financial year ending 30 June 2006, $56,923.00; for the financial year ending 30 June 2007, $61,891.00; for the financial year ending 30 June 2008, $83,466.00; for the financial year ending 30 June 2009, $75,547.00, and for the financial year ending 30 June 2010, $71,722.00.
87 I refer to the offer of employment made by the first defendant dated 30 May 2008. In that offer of employment, the remuneration to be paid to the plaintiff was $130,000 per annum made up of a notional base salary of $119,266.00 with base superannuation of $10,734.00, although the superannuation component could be increased subject to the first defendant’s policies. Furthermore, the plaintiff was subject to a short-term incentive plan to a maximum of 25 per cent of $130,000. Accordingly, his total annual reward potentially amounted to $162,500. The next review of his salary would be on 1 September 2009.
88 Employer superannuation contributions are specifically precluded from the definition of “income from personal exertion” whilst bonuses are specifically included in such definition.[71]
[71]See s134AB(38)(a) of the Act and s6(2) of the Transport Accident Act 1986
89 Accordingly, on the submission of the plaintiff, the “without injury earnings” of the plaintiff is at least $119,266.00, being his base salary with the first defendant, and up to $151,766.00 after allowance for a bonus.
90 In particular, the plaintiff refers to the decision of Forrest J in Acir v Frosster Pty Ltd,[72] wherein he stated:[73]
“… It follows, I think, in the context of s 134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. … .”
[72][2009] VSC 454
[73]at paragraph [175]
91 Counsel for the plaintiff submitted that the plaintiff was a highly experienced operator in the workers’ compensation area prior to his commencement with Origin and had demonstrated such high level of performance by his work at Ford and in Tasmania, where he had managed a large number of staff.
92 Counsel for the defendants submits that the plaintiff’s earnings over the financial years from 2005 to 2007 are relatively modest. He notes there was a significant increase in the financial year ended 30 June 2008, during which time the plaintiff had mainly worked for Melbourne Water and Coles and had just commenced employment with the first defendant. The defendants submit that given the very short period of employment with the first defendant, his earnings with the first defendant do not “fairly reflect, the plaintiff’s without earning capacity”.
93 After a consideration of the competing submissions, I consider that the “without injury earnings” should be fixed at $119,266.00, being the notional base salary when employed by the first defendant, with no allowance for any bonuses which would be speculative on the state of the evidence.
94 Contrary to the submission of counsel for the defendants, I consider that given the experience of the plaintiff prior to his appointment with the first defendant, and taking account of his senior management roles in various insurance companies in the past, it is appropriate to accept as his “without injury earnings”, his actual rate of pay when employed by the first defendant.
95 Sixty per cent of $119,266.00 is $71,559.60.
96 Clearly, the plaintiff has demonstrated that he is capable of performing alternative suitable employment. The issue is as to the nature of any suitable employment and what that employment would generate by way of income. In this respect, the defendants, relying on the vocational assessment undertaken on 27 August 2010,[74] submit that the plaintiff is capable of performing work in the following occupations:
[74]See pages 99-109 DCB
· General clerk, earning $45,240.00 gross per year;
· Enquiry clerk, earning $43,874.00 gross per year;
· Insurance clerk, earning $44,512.00 gross per year;
· Policy manager, earning $88,504.00 gross per year;
· Account manager, earning $58,916.00 gross per year;
· Call or contact centre manager, earning $70,407.00 per year;
· Technical manager, earning $72,800.00 minimum gross per year.
97 Consistent with the evidence of Dr Das, I consider that the plaintiff is probably capable of working full time in a position in the insurance industry where he is not exposed to undue stress, deadlines or the need to constantly deal with people in a highly charged situation. Again, on the basis of the report from the treating psychiatrist, I consider that situation will continue permanently.
98 Accordingly, I do accept that the plaintiff could work full time as a general clerk, enquiry/desk clerk, and insurance clerk. Indeed, the plaintiff essentially accepted such a situation.
99 However, I do not find that the plaintiff is capable of performing work as a policy and planning manager, an account manager or a call or contact centre manager. Each of these roles is of a senior management role and would involve, in my view, exposing the plaintiff to levels of stress which would be inappropriate. I have come to such view after perusing the various duties outlined in the vocational report.
100 Accordingly, each of the employments which I consider suitable, give rise to after injury earnings less than 60 per cent of the “without injury earnings”. Accordingly, applying the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[75] and Acir v Frosster Pty Ltd,[76] I determine that the plaintiff has satisfied the requirements of the Act in establishing leave being granted to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of the psychiatric injury that he suffered during the course of his employment with the first defendant.
[75][2009] VSCA 170, at paragraphs [60]-[64]
[76]Supra
101 I also note that if the “without injury earnings” figure submitted by the defendants ($83,466 x 60% = $50,079) had been utilised the result would have been the same.
102 I consider that in all the circumstances the Plaintiff has satisfied the requirements of s 134AB(38)(g) in that he has over the years made reasonable attempts to exercise any residual capacity for employment. Before his present employment he applied for many jobs and in particular, attempted to obtain employment in the insurance industry through the self-insurers association.
Conclusion
103 Accordingly, pursuant to s134AB(16) of the Act I grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect to a psychiatric injury arising out of or in the course of his employment with the first defendant.
104 I will hear the parties on the question of costs.
ANNEXURE A
(1)The plaintiff tendered following material:
Exhibit A
·Payslips of the Plaintiff dated 27 July 2012 to 5 August 2012 and 6 August 2012 to 19 August 2012;
Exhibit B
·Affidavit of the Plaintiff sworn 4 May 2011 at pages 6-16 PCB;
·Exhibit “MAA-1”, letter dated 10 July 2008 addressed to Julie Russell at pages 17-19 PCB;
·Exhibit “MAA-2”, first copy statement dated 8 October 2008 at pages 20-24 PCB;
·Exhibit “MAA-3”, second copy statement dated 8 October 2008 at pages 25-34 PCB;
·Plaintiff’s supplementary affidavit sworn 19 June 2012 at pages 35-39 PCB;
·Third affidavit of the plaintiff sworn 28 August 2012 at pages 39.1-39.2 PCB;
·Affidavit in support of Robert John Ash sworn 8 August 2012 at pages 40-44 PCB;
·Suicide note of the plaintiff to the plaintiff’s brother dated 12 January 2010 at pages 44.1-44.2;
·Medical reports of Dr Arunava Das, consultant psychiatrist, dated 4 February 2011, 6 April 2012, 28 August 2012 at pages 45-53.2 PCB;
·Medical report of Dr Catherine Keaney, general practitioner, dated 3 October 2008 (Questionnaire) at pages 54-56 PCB;
·Reports of Dr Mark Michail, general practitioner, dated 6 February 2011, 22 May 2012 at pages 57- 62 PCB;
·Reports of Ms Catherine Clarke, clinical psychologist, dated 17 November 2008 (Questionnaire), 19 May 2009, 26 November 2009, 13 April 2010, 1 February 2011, 28 May 2012 at pages 63- 77 PCB;
·Medical reports of Dr Chris Grant, consultant psychiatrist, dated 16 October 2008, 25 February 2009, 15 June 2009 and 5 May 2010 at pages 78-95 PCB;
·Report of Dr Paul Kornan, forensic psychiatrist, dated 5 May 2010 at pages 88-95 PCB;
·Worker’s Claim Form dated 13 September 2008 at pages 96-97 PCB;
·CGU Acceptance Letter dated 22 October 2008 at pages 98-101 PCB;
·Worker Questionnaire completed by plaintiff 4 January 2012 at page 102 PCB;
·CGU Letter to the plaintiff dated 30 March 2012 at page 103 PCB;
·Statement of Issues;
·Statement of Calculation of Loss of Earning Capacity.
(2)The first defendant tendered the following material:
Exhibit 1
·Plaintiff’s Draft Statement of Claim (undated 3 pages) at pages 111-113 PCB;
Exhibit 2
·Plaintiff’s Taxation Returns for years ending 2005 – 2011;
·Medical Reports of Dr Simon Kennedy, Psychologist dated 20 August 2012, 9 December 2009, 22 September 2010 at pages 9-35 DCB;
·Supplementary Report of Dr Simon Kennedy dated 5 November 2010 at pages 36-40 DCB;
·Reports of Dr Paul Kornan, Forensic Psychiatrist dated 1 October 2010 at pages 41-42 DCB;
·Reports of Dr Arunava Das, Consultant Psychiatrist dated 15 May 2009, 12 January 2011, 23 June 2011 at pages 43 – 48 DCB;
·Reports of Dr Neil Smith, Consultant Physician, dated 21 June 2010, 20 July 2010 at pages 49-51 DCB;
·CGU 130 Week Vocation Assessment Report dated 27 August 2010 at pages 99 – 109 DCB;
·Position Description – Manager Workers Compensation dated March 2008 at pages 123-127 DCB;
·Online Employment Application of Plaintiff – enclosing Resume of Plaintiff, undated at pages 144-150 DCB.
Exhibit 3
·A bundle of documents from the Northern Hospital in relation to various investigations undertaken by the plaintiff.
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