Braam v BBC Hardware Ltd and Victorian WorkCover Authority
[2013] VCC 515
•27 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-10-04919
| MALCOLM BRAAM | Plaintiff |
| v | |
| BBC HARDWARE LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 September and 19, 20, 21, 22 November 2012 | |
DATE OF JUDGMENT: | 27 May 2013 | |
CASE MAY BE CITED AS: | Braam v BBC Hardware Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 515 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – permanent severe mental and/ or permanent severe
behavioural disturbance or disorder – pre-existing psychological condition – Autism Spectrum Disorder
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Mobilio v Balliotis & Ors [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Ansett Australia Ltd v Taylor [2006] VSCA 171.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the First and Second Defendants | Ms A Magee | Minter Ellison |
HIS HONOUR:
Introduction
1 In this application of Braam v BBC Hardware Ltd & Victorian WorkCover Authority (“VWA”), Mr Braam, the plaintiff, represented himself, and Ms Magee of Counsel appeared for the defendants.
2 The plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to issue common law proceedings for the recovery of damages against the defendants.
3 The plaintiff’s former solicitors, Arnold Thomas & Becker, received a letter dated 26 October 2010 indicating a negative determination by the Authority of the plaintiff's application for a serious injury certificate.[1] On that date, an Originating Motion was issued seeking leave to issue proceedings.
[1]Exhibit A
4 This application was listed for hearing on 17 September 2012. The plaintiff appeared on that day and advised the Court that he was self represented, as his former solicitors, Arnold Thomas & Becker, and then Nowicki Carbone, had ceased to act.
5 At the commencement of the hearing, the Court indicated to the plaintiff that he should be legally represented. However, the plaintiff determined that he wanted to proceed with the application, albeit unrepresented.
6 Ms Magee then addressed the Court as to the defendants’ concerns about the plaintiff’s ability to represent himself. In particular, counsel referred to the report of Dr Eisenmajer, clinical psychologist,[2] in which he stated that the plaintiff has a number of behavioural difficulties stemming from his Asperger’s Syndrome.
[2]Exhibit J
7 Ms Magee stressed that she was not questioning the plaintiff’s intelligence, but whether his medical difficulties would impact on his ability to properly represent himself, given the complexity of the factual and legal issues. Counsel also indicated concern that the stressors of this trial may potentially worsen the plaintiff’s psychiatric condition.
8 Based on this information, the Court formed the view that the plaintiff should be legally represented. First, the Court requested that my associate contact the Victorian Bar Pro Bono Scheme on the plaintiff’s behalf. Unfortunately, the scheme does not extend to this type of proceeding.
9 Second, the Court determined that an application for the appointment of a litigation guardian, pursuant to ss19 and 43 of the Guardianship and Administration Act 1986 (Vic), should be lodged with the Victorian Civil and Administrative Tribunal (VCAT). The application, prepared by the Registrar of the County Court, was lodged with the view that the Public Advocate’s Office be appointed as the plaintiff’s litigation guardian.
10 On 13 November 2012, the application for a guardianship and administration order was dismissed by Deputy President Coghlan.
11 On 19 November 2012, having exhausted the options available to have the plaintiff afforded legal representation, the proceeding commenced, the plaintiff maintaining his desire to appear unrepresented.
Statutory Framework
12 In order to succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury suffered by him is a “serious injury”, pursuant to the terms of s134AB(19) of the Act.
13 The plaintiff advised the Court that his alleged serious injury fell within the definition contained in s134AB(37)(c) of the Act, being a permanent severe mental and/or permanent severe behavioural disturbance or disorder.
14 Ms Magee, on behalf of the defendants, stated that liability was denied. Counsel indicated that not only would the plaintiff fail to satisfy the narrative test, but he would not be able to identify any severe long-term mental or behavioural disturbance or disorder under ss(c) of the Act.
15 The term “severe” is determined by reference to the consequences to the plaintiff of any impairment or loss of a body function or mental or behavioural disturbance or disorder, as the case may be, with respect to loss of earning capacity and pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function, or mental or behavioural disturbances or disorders, respectively.[3]
[3]s134AB(38)(b) of the Act
16 A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorder, fairly described as being more than serious to the extent of being severe.[4]
[4]s134AB(38)(c) of the Act
17 Prior to s134AD(38)(d) being enacted, the word “severe” in such context was considered by the Court of Appeal in Mobilio v Balliotis & Ors,[5] in the judgment of Brooking JA, without suggesting the use of any particular adjective to mark the distinction, His Honour said:
“I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
[5][1998] 3 VR 833, 836 but in particular at 846
18 The term “permanent” has been interpreted by the Court of Appeal as meaning “likely to persist into the foreseeable future”.[6]
[6]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
19 Also relevant of course to a part (c) application, albeit the majority were incorrect insofar as the appropriate test in Turner v Love & Transport Accident Commission,[7]are the principles set out therein as to assessing such injuries, in particular as to the issue of consequences and the need for a Court to look at the consequences of a psychiatric or mental illness or disability insofar as they include the need for treatment, its type, its frequency, any past and future potential side effects and principal long-term consequences, those matters being referred to at page 77224.
[7](1995) 21 MVR 314
20 With respect to pecuniary loss damages, there are two further hurdles established by the Parliament for the plaintiff to jump:
(a) Leave is not to be granted by the Court on the basis that the plaintiff has suffered the loss of earning capacity required by s134AB(38)(b) unless he establishes (in addition to the requirements of s134AB(38)(c)) that, at the date of hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more. Such loss of earning capacity is to be measured by comparing his gross income from personal exertion:
(i) which he is capable of earning in suitable employment as at the date of the hearing; and
(ii) which he was earning or was capable of earning or would have earned, or would have been capable of earning during that part of the period within three years before or after the injury as most fairly reflects his earning capacity had the injury not occurred;[8]
(b) The plaintiff will not establish the loss of earning capacity required by s134AB(38)(b) where he has, or would have, after rehabilitation or training, and taking into account his capacity for suitable employment and the reasonableness of his attempts to participate in rehabilitation or retraining, a capacity for employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with s134AB(38)(f) of the Act, had the injury not occurred.[9]
[8]s134AB(38)(e)(f)
[9]s134AB(38)(g)
21 The plaintiff submits that the pain and suffering and pecuniary loss consequences of his injuries individually, or in combination, amount to a “serious injury”, which the defendants deny.
History of the Plaintiff
22 The following brief history of the plaintiff is required in order to fully understand the issues in this application.
23 The plaintiff, now on a Disability Support Pension, was born in 1973 and is now aged forty. He completed Year 12 at Mentone Grammar School, and obtained a Bachelor of Commerce at the University of Melbourne.
24 From March 2003 to August 2005, the plaintiff was a rifleman in the Army Reserves.[10] In 2008, he re-applied to return to that position; however, the success of his application was contingent on him showing that he could work or study full time for six months, which he was unable to do.[11]
[10]Exhibit O, Plaintiff’s Court Book (“PCB”) 260
[11]Exhibit S3, PCB 24
25 From June 1993 to June 1999, the plaintiff worked as a customer service officer for Myer. He then worked as a self-employed futures trader and in the Scooter Clothing warehouse.
Employment with Freedom Furniture
26 In December 2000, the plaintiff commenced working as a customer service officer with Freedom Furniture.
27 The plaintiff states that he was bullied at that workplace. His co-workers allegedly started putting extraneous material in his pigeonhole, such as dirt, rubbish and dead insects, as well as writing obscene language inside.[12] The plaintiff complained to management, but the bullying continued. He then dismantled all the pigeonholes and, as a result, on 13 February 2002, the plaintiff’s employment was terminated.[13]
[12]Exhibit S1, PCB 15
[13]Exhibit S1, PCB 15
28 On the three and six-month anniversaries of such termination, the plaintiff returned to the Freedom Furniture store. During his first visit, one of the plaintiff’s co-workers commented that they, “thought [he’d] come back with a gun and shoot everyone”. The plaintiff continues to return to the store on the day that he was dismissed each year.[14] The plaintiff said he did not submit a WorkCover claim against Freedom Furniture.[15]
[14]Exhibit S2, PCB15-16, T126
[15]Exhibit S1, PCB6
Employment with the First Defendant
29 On 11 October 2002, the plaintiff commenced working at Bunnings Warehouse Mentone (the first defendant).
30 The alleged injury, the subject of this application, is said to have occurred during the period of October 2002 to March 2006. The plaintiff was aged twenty-nine to thirty-three at the time.
31 Whilst at Bunnings Warehouse, the plaintiff was working as a register operator and in the customer service section. He states that he “received multiple customer service awards” and “took a lot of pride in [his] level of service”.[16]
[16]Exhibit S2, PCB 16
32 Some time in 2003, the plaintiff alleges that a co-worker, Sharyn Bregazzi, started to bully him. The bullying was manifested in the following ways:
§ ignoring, ridiculing and belittling the plaintiff;
§ refusing to provide assistance;
§ addressing the plaintiff in an aggressive and hostile manner; and
§ telling the plaintiff how he should complete his work tasks.
33 The plaintiff informed his manager at Bunnings Warehouse Mentone but the plaintiff said, “no satisfactory remedial action was taken”.[17]
[17]Exhibit S1, PCB 6
34 In March 2005, the plaintiff took two weeks’ sick leave and then lodged a WorkCover claim against the first defendant, which he states was rejected on the basis of “lack of evidence”.[18]
[18]Exhibit S2, PCB 16
35 The plaintiff returned to work at Bunnings Warehouse Mentone, but reduced his time to 20 hours per week and deliberately worked shifts when Ms Bregazzi was not rostered. If that was not possible, he worked in a separate area in the store.[19]
[19]Exhibit S1, PCB 7 & Exhibit S2, PCB 16
36 In mid-2005, Sharyn Bregazzi went on maternity leave and her scheduled return date was in early 2006. When Ms Bregazzi commenced her leave, the plaintiff “returned to mostly near full-time hours”.[20]
[20]Exhibit S2, PCB 16
37 In December 2005, the plaintiff detailed his concerns about Sharyn Bregazzi to the Operations Manager, Fiu Tetere, whilst his superior, David Harris, was present, and felt he received an unsatisfactory response.[21]
[21]Exhibit S1, T7-8
38 In March 2006, the plaintiff was having further difficulties with his boss, Mr Ian Turner, concerning the above issues.
39 On 23 March 2006, a meeting was held to discuss the plaintiff’s performance, and he was issued with two warnings about his workplace behaviour regarding poor customer service.[22] The plaintiff said he, “became distressed and anxious and experienced panic attacks … [and] became depressed”. He took further leave from work.[23]
[22]Exhibit S2, PCB 16
[23]Exhibit S1, PCB 8
40 Thereafter, he resigned from Bunnings Warehouse Mentone, and has not worked since the 23 March 2006. However, every year, on 23 March, the plaintiff returns to Bunnings Warehouse.[24]
[24]Exhibit S3, PCB 30
41 On 25 March 2006, the plaintiff phoned the Operations Manager and informed him that he “felt stressed by the incident on 23 March”.[25]
[25]Exhibit S2, PCB 16
42 On 27 March 2006, the plaintiff visited his general practitioner, Dr Gary Eldridge, in order to obtain a WorkCover Certificate of Incapacity for one week. The next day he lodged a WorkCover claim.
43 Throughout April 2006, the plaintiff sent numerous letters to the first defendant in an attempt to address perceived inaccuracies in his employee file, which he had been given access to some time at the end of March 2006.[26]
[26]Exhibit S2, PCB 17
44 On 27 June 2006, a conciliation meeting was held between the plaintiff and the first defendant.[27] On 3 December 2009, consent orders were filed with the County Court of Victoria. The orders stated that the first defendant would “pay to the plaintiff weekly payments as for no current work capacity from 28 June 2006 to 28 September 2007” as well as his medical expenses and costs, and the defendants admitted liability for impairment benefits for psychological injury.[28] Given my finding as to the injury and its cause (see paragraphs 77 and 78 hereof), I would reject Ms Magee’s submission that the above admission did not have significance, as referred to by Ashley JA in Ansett Australia Ltd v Taylor.[29]
[27]Exhibit S2, PCB 17
[28]Exhibit P, PCB 118
[29][2006] VSCA 171
45 In approximately July 2006, the plaintiff “began to again have a lot of violent dreams and fantasies”, similar to what he experienced after he was terminated from Freedom Furniture in 2002. The plaintiff isolated himself and was experienced difficulty sleeping.[30]
[30]Exhibit S2, PCB 18
46 During this time, the plaintiff was informed by an ex co-worker that one of the Bunnings Warehouse employees thought the plaintiff would come back to the store with a gun and shoot everyone. These were similar to the comments made by employees of Freedom Furniture after the plaintiff was dismissed from that workplace.[31]
[31]Exhibit S2, PCB 19
47 Some time in September 2006, the plaintiff applied to Centrelink for the Newstart Allowance, which was granted. The plaintiff then applied several times, without success, to Centrelink for the Disability Support Pension. On 26 June 2008, Centrelink found that the plaintiff met the criteria for the Disability Support Pension, which he currently still receives.[32]
[32]Exhibit S2, PCB 19 & 21
48 In September 2006, the plaintiff’s general practitioner, Dr Gary Eldridge, recommended that he see Dr McArdle, a psychiatrist. The plaintiff was prescribed Luvox, which he took only once due to the side effects. He was then given Lexapro, which was eventually altered to Seroquel, 200 milligrams. In April 2007, the dosage for Seroquel was increased to 300 milligrams and he was prescribed Quetiapine. In or around April 2008, the plaintiff elected to stop taking his medication and ceased attending sessions with Dr McArdle.[33]
[33]Exhibit S2, PCB 19
49 On 14 November 2006 and 20 November 2008, the plaintiff sought assistance from a sleep specialist, Dr Xun Li, in order to try and normalise his sleeping patterns.[34]
[34]Exhibits G1 and G2
50 On 12 December 2006, the plaintiff declared himself bankrupt.[35]
[35]Exhibit S2, PCB 19
51 On 18 March 2007, the plaintiff was admitted to the Monash Mental Health Service.[36] He was by then unable to afford private treatment. He was commenced on a cognitive behavioural treatment program in July 2007.[37]
[36]Exhibit H1
[37]Exhibit F, report of Dr Lisa Hardman, clinical psychologist, dated 26 July 2007
Diagnosis of Asperger’s Syndrome
52 On 12 September 2008, the plaintiff was diagnosed by Dr Richard Eisenmajer, clinical psychologist, as suffering an Autism Spectrum Disorder, namely Asperger’s Syndrome.[38] This diagnosis was later confirmed by other medical professionals, including Dr David Weissman, consultant psychiatrist; Dr Nathan Serry, consultant psychiatrist; Dr Bridget Carty, Psychiatry Registrar; Dr Steven Adlard, consultant psychiatrist, and Dr Timothy Entwisle, consultant psychiatrist.
[38]Exhibit J
53 The plaintiff considered this diagnosis to be “a life-defining event” and that it provided an explanation as to his “sleep problems, and lack of social and emotional comprehension”.[39]
[39]Exhibit S2, PCB 21
54 In June 2009, the plaintiff enrolled in a Graduate Diploma of Banking and Finance at Monash University, Caulfield campus. The course commenced on 20 July 2009 but the plaintiff only attended one class.[40]
[40]Exhibit S3, PCB 25
55 On 9 March 2010, WorkCover referred the plaintiff’s claim to the Medical Panel for a certificate of opinion, and on 12 April 2010, the Panel assessed the plaintiff as having a 20 per cent permanent psychiatric impairment resulting from the accepted psychiatric condition injury for the purpose of s98C and s134AB(3) and (15) of the Act.[41]
[41]Exhibit Q
56 In 2010, the plaintiff enrolled himself in a Bachelor of Teaching at Curtain University through the Open Universities Program but after approximately eight weeks, in May 2010, he discontinued the course, the reasons being that:
(i) The plaintiff was “not enjoying” the coursework which focused on bullying in the classroom, as well as bullying by peers; and
(ii) He “was also becoming nervous about the prospect of having to arrange [his] own work placements”.[42]
[42]Exhibit S3, PCB 27
57 On 26 April 2010, the plaintiff attended his first training session with the State Emergency Service (SES) in a volunteer capacity. In mid-June 2010, he stopped volunteering due to the nature of the work he was allocated, being media and promotional events.[43]
[43]Exhibit S3, PCB 27
58 In June 2010, the plaintiff enrolled in a Post-Graduate Diploma of Mathematics, an online course run through the University of Southern Queensland, but was unable to complete such due to the stressors in his life in October 2010.
The Relationship with Mr Borowski
59 In April 2012, the plaintiff experienced an additional life stressor arising out of the cessation of the personal friendship with Mr Borowski.
60 The plaintiff met Mr Borowski on the internet, and then offline, in approximately September 2009.[44] Their friendship developed, and in October 2010, Mr Borowski and his then partner invited the plaintiff to move into a house they were going to rent.[45] The proposed share house did not eventuate, one of the main reasons being that the plaintiff was uncomfortable with such a move. As a result, he produced to Mr Borowski an extensive list of pros and cons.[46]
[44]T35
[45]T37
[46]T38
61 In April 2011, the relationship with Mr Borowski’s and his then partner ended, and the friendship between the plaintiff and Mr Borowski developed.[47] The plaintiff asked Mr Borowski if he wanted to start a relationship with him but that did not transpire. In December 2011, Mr Borowski ended the friendship between himself and the plaintiff,[48] and their last meeting occurred on 14 April 2012.[49]
[47]T40-1
[48]T43
[49]Exhibit 1, PCB 454
62 On 17 April 2012, the plaintiff was admitted for emotional distress to the Monash Medical Centre Emergency Department.[50] The plaintiff attributes this admission to the dissolution of his friendship with Mr Borowski.[51]
[50]Exhibit H2
[51]Exhibit S3, PCB 31
63 On 16 May 2012, the plaintiff commenced proceedings in the Magistrates’ Court against Mr Borowski.[52] In his Statement of Claim, the plaintiff sought damages and reimbursement of medical expenses, “on the grounds that the defendants’ negligence has caused injury, namely “consequential mental harm” to [him], a person of “less than normal fortitude”, specifically the exacerbation and recurrence of a pre-existing severe mental illness”.[53]
[52]Exhibit 1
[53]Exhibit 1, PCB 453
64 On 14 August 2012, there was a pre-hearing conference, and thereafter, the plaintiff discontinued proceedings against Mr Borowski.[54]
[54]T44
65 The plaintiff thereafter developed another friendship, with David Pickersgill. Mr Pickersgill met the plaintiff in 2007 but initiated contact again in February 2011. The plaintiff has visited Mr Pickersgill’s farm near Warrigal three times, in February, May and July 2011. They also communicate via email.[55] From the plaintiff’s affidavit material,[56] this friendship apparently is still continuing.
[55]Exhibit S3, 30-31
[56]See in particular Exhibit S3
66 The plaintiff currently restricts his outings to visiting the supermarket, occasionally his parent’s house and Mr Pickersgill’s farm.[57]
[57]Exhibit S3, PCB 30
The Plaintiff’s Current Medical State
67 As I said to Ms Magee, having analysed the medical reports in this application, the plaintiff presents, as described by Dr Weissman,[58] as a very complex and difficult case.
[58]Exhibit K226
68 Upon the medical material tendered, and taking into account the submissions of the plaintiff and Ms Magee and the affidavits of the plaintiff, I find:
(i) The plaintiff has always had difficulty relating to people. He made few friends at school, was at times bullied and had restricted interests. He was a loner at school and socially.
(ii) Such impaired social interaction, communication and restrictive interests were diagnosed as a pervasive development disorder, typical of Asperger’s Syndrome.[59]
[59]Dr Eisenmajer, Exhibit J, PCB 204; Dr Brigit Carty, Exhibit M, PCB 237; Dr Adlard, Exhibit O, PCB 263
(iii) Being a developmental condition, such is lifelong and predated the plaintiff’s experiences at both Freedom Furniture and Bunnings.
(iv) This syndrome has an admixture with the plaintiff’s rigid and abnormal personality, the plaintiff would have and developed problems in any workplace in regard to interpersonal relations.
(v) That the plaintiff is particularly sensitive to cues from others and lacks the interpersonal skills to handle relationships, be they personal or in a work environment.[60]
[60]Dr Serry, Exhibit L, PCB 234; Dr Weissman, Exhibit K, PCB 227; Dr Eisenmajer, Exhibit J, PCB 206
(vi) That the plaintiff had been bullied at school, allegedly bullied while working at Freedom Furniture, and was therefore sensitised insofar as developing difficulties with workmates in the work environment of the first defendant.
(vii) That in 2003, the plaintiff developed/experienced specific difficulties with his work colleagues at Bunnings, specifically Sharyn Bregazzi, which the plaintiff characterised as harassment, bullying, victimisation, abuse, hostility, criticism and humiliation.
(viii) That such feelings were intensified over the period 2003 to 2005 to a degree that he formally detailed his concerns to management in December 2005 and then in March 2006, had further concerns with his direct boss, Ian Turner.
(ix) That after a meeting on 23 March 2006, to discuss his performance rating, he became distressed, anxious, suffered panic attacks and took leave from work.[61]
[61]Exhibit S1, PCB 8
(x) Soon thereafter, the plaintiff consulted with Dr Gary Eldridge. The plaintiff reported being stressed from work issues, was given a WorkCover Certificate and referred to Alicja Wierzbowski, psychologist, for counselling. He was subsequently referred to a psychiatrist, Dr McArdle.
(xi) Dr McArdle, who treated the plaintiff over two years, diagnosed that the plaintiff was suffering from a Major Depressive and Anxiety Disorder (not otherwise specified under the DSM), which led to significant impairment in function.[62] It is noteworthy[63] that while not making a diagnosis of an Autistic Spectrum Disorder, Mr McArdle did not rule such out.
[62]Exhibit E5, PCB 119, in a report of September 2007
[63]at page 199
(xii) A similar diagnosis was made concerning the plaintiff by the consultant psychiatrist, Mr Weissman, in a medico-legal report to the plaintiff’s then solicitors of December 2008.[64] It is noted by this stage that the diagnosis of Asperger’s Syndrome had been made by Dr Richard Eisenmajer. While referring to such disorder in the terms of an “eggshell skull hypothesis”, Mr Weissman concluded, by way of diagnosis, that the plaintiff was suffering from a “Chronic Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation, severe in severity”.
(xiii) The diagnosis of Mr Weissman and Mr McArdle was confirmed by the consulting physician, Dr Serry, who saw the plaintiff in April 2009,[65] and further, the consultant psychiatrist, Dr Eisenmajer, who saw the plaintiff by way of medico-legal opinion for the defendants. In his report, Dr Eisenmajer diagnosed Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation,[66] with pre-existing Asperger’s Syndrome.
[64]Exhibit K, PCB 228
[65]Exhibit L, PCB 236
[66]Exhibit O, PCB 264
69 I find that the above diagnosis made by Mr Weissman, supported as referred to above, is the mental condition and or disorder which the plaintiff developed subsequent to leaving Bunnings.
70 I find such injury meets the requirement as detailed by Ms Magee in her reference to Grech v Orica Australia Pty Ltd & Anor[67] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[68]
[67](2006) 14 VR 602 at paragraphs [51] to [54]
[68][2012] VSCA 60 at paragraphs [31]-[35]
What relationship did the injury have to the Plaintiff’s employment at Bunnings?
71 The plaintiff’s work history, albeit his pervasive developmental disorder, was excellent prior to him encountering work issues at Bunnings. The plaintiff had begun working at Myers, in particular in the technical goods and electronic advice area, while at university, and worked with Myer from 1993 through to 1999. After two short stints at other jobs, he then worked with the Freedom organisation from December 2000 to 13 February 2002, where he encountered bullying; however, despite same, maintained his employment until he was dismissed in February 2002.
72 Thereafter, the plaintiff was voluntarily out of employment for a short period until he started with the first defendant, Bunnings, in October 2002. It is important to make the point that to that date he had received no psychiatric or psychological treatment, nor other treatment for any stress issues from any health practitioner, despite the circumstances which led to his dismissal at Freedom Furniture. As I pointed out earlier, the plaintiff, at Bunnings, took pride in his work and was awarded multiple service awards.[69]
[69]Exhibit U
73 Prior to the work difficulties experienced at Bunnings, the plaintiff has been engaged in full employment (but for the short period of voluntary unemployment in 2002) and has not required medical or psychiatric treatment for any medical condition. Subsequent to the issues which arose with staff at Bunnings in the period 2005-2006, he has suffered the injury, as I have found above, and eventually was classified as warranting a Disability Support Pension, which he still receives to date.
74 Looking at the medical reports tendered in this case, I find overwhelming evidence to support the conclusion that the mental reaction to his difficulties in his employment at the first defendant’s premises was the factor which caused such injury:
(a) Mr Fail, in a medico-legal report to the insurer,[70] in 2005 had considered the first circumstances which arose at Bunnings concerning the employee, Sharyn Bregezzi, and determined such was a significant contributing factor.
[70]Exhibit B1, PCB 123
(b) While on sick leave in May 2006, the psychologist, Alicja Wierzbowski, who was treating the plaintiff on reference from Dr Eldridge, reported to the defendants[71] that the plaintiff’s stress condition was significantly related to his employment.
[71]Exhibit B2, PCB 126
(c) The treating psychiatrist, Mr McArdle, in 2007, considered that “there is no doubt, in the context of his rigid personality style, that his work experiences have caused him to decompensate with both depression and anxiety”.[72]
[72]Exhibit E5, report of September 2007, PCB 200
(d) Dr Weissman, in a medico-legal report of December 2008 to the plaintiff’s then solicitors, Arnold Thomas & Becker,[73] reported that he considered the plaintiff’s employment with Bunnings was “… a significant contributing factor to the psychiatric condition/mental injury”.
[73]Exhibit K, PCB 228
(e) Dr Murray, a treating clinical psychologist, reported in 2010[74] that she considered the “significant workplace bullying in 2002 and 2006 at different employers” as being the cause of the plaintiff’s condition.
(f) Finally, Dr Adlard, consultant psychiatrist, in February 2010, in a report to the insurer,[75] considered: “The bulk of his current trauma-related impairment is due to workplace issues at Bunnings”.
[74]Exhibit N, PCB 241
[75]Exhibit O, PCB 266
75 The test, as detailed in Zlateska v Consolidated Cleaning Services Pty Ltd,[76] is one of commonsense when determining the question as to whether a particular injury was caused by an act or omission of the employer.
[76][2006] VSCA 141 at paragraphs [80] to [82]
76 In this regard, as to Ms Magee’s question as to aggravation, I find that such is not relevant. Clearly, the plaintiff suffered from bullying at Freedom Furniture; however, he did not decompensate to the degree he did post 2006. Indeed on the evidence, whatever reaction he had to the alleged bullying at Freedom Furniture, he continued at work there until he was sacked, and subsequently, was able to obtain employment at Bunnings. Albeit the evidence of the plaintiff as to his reaction to such circumstances at Freedom, I am unable to determine upon the evidence whether there was a separate mental injury caused at that time, or if there was, of what it comprised.
77 I am satisfied that the plaintiff did suffer a mental and behavioural disturbance or disorder while employed at the first defendant’s premises in the period 2003 to 2006.
78 I am so satisfied upon the evidence of the plaintiff and the medical practitioners I have referred to above. Necessarily, I reject the opinion relied upon by Ms Magee in her final submission, being that of the consultant psychiatrist, Dr Cohen, in June 2006,[77] and Dr Shan, in October 2008,[78] that the plaintiff was not suffering from a work-related condition.
[77]Exhibit 6B, PCB 148
[78]Exhibit 7, PCB 211
Serious Injury determination
79 The next question for consideration, given the definition of “serious injury”, is the issue of permanence and severity.
80 Again, such is determined by an analysis of all of the evidence. From my own observation, the plaintiff is intelligent. In submission Ms Magee remarked what a good job he did in appearing for himself and putting forward arguments to support this application.
81 I found the evidence of Mr Borowski of assistance. Mr Borowski classified the plaintiff as insecure, subject to erratic behaviour and suffering a lack of confidence, who treats himself by removal from society and living a restricted lifestyle and being socially dysfunctional. While, of course, these are lay observations of Mr Borowski, they confirm totally the evidence given by the plaintiff in his various affidavits. They are also quite consistent with the histories provided throughout by the plaintiff to the medical practitioners.
82 I found it significant, despite plans made by the plaintiff to share premises with Mr Borowski, that he ultimately could not make the move, and again, despite plans made with Mr Borowski to secure employment in Morwell, the plaintiff cancelled such project for fear of underperforming.
83 It is also notable that since the plaintiff has left Bunnings, he has been unable to re-establish himself in any employment or to complete a number of educational pursuits, albeit that he has the intellectual capacity to do so.
84 Hence, as detailed in cross-examination by Ms Magee, he did not attain his Level 4 in fitness training, which could have led to a job in that field, owing to the stress as to economic factors in his life. Again, in cross-examination, the plaintiff recounted how in mid-2009, he was accepted into the Diploma of Business and Finance course, such endeavour seems to have lasted only one month, as he apparently suffered flashbacks as to his final day at Bunnings and as a result, or lacked concentration and felt incapable of continuing the course. Further, in cross-examination, he remarked how, in 2010, he began an online Bachelor of Teaching (primary course) but gave up after eight weeks, as he had discerned that there were major issues insofar as bullying both within the profession and at schools. Further, in cross-examination, he remarked that in April 2010, he expressed interest in participating as an SES volunteer but that had stopped in late June due to his medical condition. And further, in June 2010, he began an online mathematics diploma course, with the ultimate aim of being re-accepted back into the Army Reserve. While he passed three subjects, he had given up further study in approximately October of that year. About that time he was considering moving addresses to live with Mr Borowski and was suffering stress therefrom, as well as undergoing autism therapy at the Austin Hospital.
85 Ms Magee also challenged the plaintiff in cross-examination as to his medical attendances. He agreed that he had maintained, in the period 2007 to 2010, that he should be diagnosed as suffering from Post-Traumatic Stress Disorder and was agitated about this and the failure of the medical practitioners to so do in such period. Indeed this led to him ceasing therapy ultimately with the psychologist, Dr Murray.[79] Thereafter, he appears to have been treated essentially by Dr Eldridge. He was taken by Ms Magee to the clinical notes of Dr Eldridge’s practice[80] where there seemed to be many consultations as to his general care plan, referrals to various psychologists and the prescribing of Modavigil for the period 29 June 2009 to 29 July 2010. It seems he has continued to take such drug since that time, albeit on the clinical records there appears to be a gap in attendances from July 2010 through to June 2011. The plaintiff said in evidence that by November 2011 he did not need a lot of Modavigil, mainly because it was very expensive, but also his self isolation meant he did not have a lot of social contact and did not need the drug. Further, he said that as he was so isolated, he was simply able to sleep whenever needed and did not need such drug for sleep therapy.
[79]Exhibit 4, Defendants’ Court Book (“DCB”) 16
[80]Exhibit C5
86 In considering the plaintiff’s medical treatment since leaving Bunnings, he has essentially been under the care of his general practitioner, Dr Eldridge. Dr Eldridge confirms the diagnosis, that I have earlier referred to, and in his latest report in February 2010, which was a report to Centrelink,[81] confirmed both the ongoing Asperger’s Syndrome and the Adjustment Disorder with Anxious and Depressed Mood.
[81]Exhibit C4, PCB 248
87 The only ongoing medication, as I have said, prescribed by the general practitioner is Modavigil which is for treatment of insomnia, depressed mood and anxiety. Mr McArdle remains the plaintiff’s private psychiatrist; however, any treatment seems to be undertaken at the public mental facility at Southern Health to which he was referred by Dr Eldridge, because of the financial cost of going to a private psychiatrist.
88 In early 2010, he was referred to Dr Grey, psychologist; however, despite counselling sessions which ceased in June 2012, it would appear such has not been of any assistance. The referral to Dr Grey occurred at a time of exacerbation of stress caused by the plaintiff’s break-up with Daniel Borowski in February 2012 and his alleged bullying from his solicitors. The plaintiff said in his most recent affidavit that this had led to him taking more Modavigil than he would normally and seeking treatment from Dr Grey.
89 In re-examination, the plaintiff said that he had lost confidence in his doctors and motivation to attend them, apart from the financial impediment he encountered as to private consultations.
90 I find that since leaving Bunnings, the plaintiff has been preoccupied with coping with his mental condition. Such condition renders it impossible for him to perform the normal tasks of life: he is unable to relate socially, attain education or like pursuits, or undertake employment.
91 Initially following the 2005 circumstance at Bunnings, the psychologist, Ms Wierzbowski,[82] opined that the stress condition had “destroyed his confidence, self-esteem and left him vulnerable and uncertain about his future prospects, … such that it would be difficult to be fully engaged in his employment”.
[82]Exhibit D, PCB 46
92 By December 2008, the consultant psychiatrist, Mr Weissman said:[83]
[83]Exhibit K, PCB 228
“Work Capacity:
Due to the current (severe) nature, severity and extent of the worker’s psychiatric, psychological, emotional and behavioural symptoms, signs and features (of his chronic Adjustment Disorder with features of traumatisation) the worker is currently totally incapacitated for all work, and this is likely to continue indefinitely (for the foreseeable future). He is very numb, flat and feels empty. He has significant sleep disturbance. His interests, energy and motivation are diminished. His self-esteem and confidence are significantly lowered. He has prominent and significant flashbacks and nightmares. He is preoccupied and consumed by his experiences at Bunnings. He feels very frightened, and he is very vulnerable, that he will re-experience bullying, harassment and victimisation again in a workplace. … .
…
However, the worker is totally incapacitated for all potential suitable employment for the foreseeable future. He is not able to participate in vocational/occupational rehabilitation or job-seeking assistance for the foreseeable future, but this may be an option at some stage in the long-term future.
…
Prognosis:
His psychiatric prognosis in terms of a significant and/or rapid improvement in his work-related psychiatric symptoms or return to the workplace, is unfavourable. He had and has pre-existing vulnerabilities as outlined in the body of this report and he was a victim of bullying and harassment for the second time.
With longer term psychiatric/psychological treatment and intervention, with the passage of time, and because of the worker’s constitutional personality and ego strengths (hardworking, stoical, independent, determined, loyal, honest, genuine, intelligent) he may be able to return to some form of work, as mentioned, in the distance future. However, because of the severity and extent of his current symptoms, his ongoing anxieties, concerns and worries, this is not likely to occur in the foreseeable future.
… .”
93 The above opinions were confirmed in April 2009 to the defendants’ insurers by Dr Serry, consultant psychiatrist,[84] who opined that the plaintiff would not be considered to have any current work capacity.
[84]Exhibit L, PCB 236
94 In February 2010, Dr Adlard, consultant psychiatrist, in a medical report to the insurer, opined:[85]
[85]Exhibit O
“…
(viii)Does the mental disorder/illness result in any limitation of the worker’s daily activities of living, social functioning, concentration or occupation?
The Adjustment Disorder with anxious mood has resulted in some impairment in Mr Braam’s day-to-day life and social functioning, and in his ability to work. I don’t think he has any current work capacity. It should be noted that some of this impairment in work capacity is due to Asperger’s Syndrome as well.
(ix)What treatment has been applied to date and what further treatment (if any) is required?
Mr Braam is having psychological treatment for his combination of Asperger’s Syndrome and bullying, but this only started recently. He is not taking any antidepressants or antianxiety medication. I don’t think he needs these. He is likely to require treatment for his Adjustment Disorder for at least another year before review. Social skills training regarding his Asperger’s Syndrome would also be beneficial.
…
…I consider that some of his impairment in judgment and behaviour is due to his Asperger’s Syndrome and therefore pre-existing and not related to the workplace issues. I also consider that some of his impairment currently is due to workplace trauma at Freedom, though I considered the bulk of his current trauma related impairment to be due to workplace issues at Bunnings.
… .”
95 In June 2012, it is noted, on presentation to the treating psychiatrist, Dr Grey, that the plaintiff reported feeling depressed and upset, that he had not made any progress over the last few years since leaving work, that life did not seem to have a purpose except to pursue his legal case, and monthly psychiatric treatment continued as at that time.
96 Finally, in July 2012, in a medico-legal report to the defendants’ solicitors, Mr Entwisle, consultant psychiatrist,[86] said:
[86]Exhibit 8, PCB 282-289, at 288
“…
(b)Mr Braam’s various workplace issues at Freedom Furniture and Bunning’s are underpinned by his pre-existing and previously unknown Asperger’s syndrome. He has not been diagnosed with Bipolar Disorder and he does not suffer from that condition in my view. Mr Braam is a person particularly sensitive to people’s demeanour around him. As is typical with Asperger’s syndrome, a certain level of miscuing does occur because of the condition and a particular focus is involved in the treatment of such individuals in order to normalise their experiences of others. Mr Braam’s more recent difficulties with his friend, Daniel who is currently engaged in litigation with, has precipitated yet a further crisis in his life. To further complicate matters, he refuses to comply with his Lawyer’s instructions in regard to this matter which adds to his level of distress. Mr Braam suffers from Asperger’s syndrome, and from time to time, as he has done in the past, will undergo periods of adjustment and symptoms of anxious mood.
…
(e)I have obtained a history of Mr Braam prior to his beginning with BBC Hardware and subsequent to his employment with the company. Mr Braam currently has psychiatric treatment once a month with Dr Grey. Again it was his account that until March 2012, that treatment had settled his emotional state to the point where he at least had a routine and had established himself safely managing in his own home. Nonetheless, I understand that he has taken up refuge in his own home since his employment experience at Bunning’s.
(f)Mr Braam has Asperger’s syndrome. His emotional condition continues to ebb and flow in line with that diagnosis.
(g)Mr Braam will need ongoing support and treatment as required. Such treatment can be provided by a Psychologist who specialises in adult Asperger’s syndrome. To the extent that medication assists him, then his attendance on Dr Grey may also be of benefit.
(h)With support, I believe Mr Braam may have the ability to work in various specified areas. Given the admixture between his Autistic Spectrum Disorder condition and his particular sensitivity to cues from others, his workplace options are likely to be limited and would need to be strongly supported from the outset with whichever company or work or environment he chooses.
(i)It is difficult to postulate the relevant contributions of Mr Braam’s Asperger’s syndrome and the work related matters involved. Unfortunately he is likely to be someone who may well attract attention due to his idiosyncratic and unusual presentation.
(j)As a result of his previously undiagnosed Asperger’s condition, in my opinion, Mr Braam would eventually have run into the difficulties he has experienced currently and he has continued to do so in non-work related environments such as the three courses that he has attempted, and his further attempts to find work with the Army Reserve and the SES.
… .”
97 A difficulty in this case is that I am required to determine the plaintiff’s application as of today’s date. After the opinion of Mr Adlard, psychiatrist, in February 2010, there are only two other medical opinions, being the report of the treater, Dr Grey,[87] tendered by the plaintiff of June 2012 and the medico-legal report of Mr Entwisle[88] of 10 July 2012 (to which I have already referred). Dr Grey’s report does not really ascribe a condition but concentrates on history and treatment. Mr Entwisle, from whose report I have extensively quoted, was strongly relied upon by Ms Magee in her final submissions, and while recognising past periods of Adjustment and symptoms of Anxious Mood, Mr Entwisle primarily ascribes Asperger’s Syndrome as the basis and reason for the plaintiff’s current medical condition, and further suggested that the plaintiff’s emotional condition would ebb and flow with that condition, and as in the past, the plaintiff would develop periods of Adjustment and Anxious Mood.
[87]Exhibit R
[88]Exhibit 8
98 Having considered all of the medical material, I find that Mr Entwisle’s dismissal of any non-related Asperger’s mental condition, in the sense that he opined that the plaintiff’s current condition is the result of his Asperger’s Syndrome, fails to appropriately take into account the full history of the plaintiff, his prior good work history, the lack of medical psychiatric treatment undertaken prior to his employment with Bunnings, and his lifestyle since leaving Bunnings.
99 Analysing all of the above medical material as I have detailed, I reject Mr Entwisle’s opinion. I have found that that the mental disturbance or disorder of Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation as diagnosed by Dr Weissman, and confirmed by the other practitioners identified, was an injury suffered by the plaintiff as a result of his employment with Bunnings. I find that he still suffers from such mental disturbance or disorder today and that such current mental condition results from his employment at Bunnings and is likely to persist into the foreseeable future.
100 One matter raised by Ms Magee in cross-examination and in final submission, and self-evident from the evidence tendered, is the relationship of the plaintiff with Mr Borowski. This issue arose in April 2012 when such relationship broke down.
101 As a result of the termination of such relationship, the plaintiff was admitted to Monash Medical Centre[89] with an emotional disorder. Subsequently, the plaintiff sued Mr Borowski in the Magistrates’ Court[90] on 16 May 2012 for damages for having exacerbated the injury which I have found occurred to him while at Bunnings. The details of such claim are set out in the Statement of Claim[91] and the affidavit in support of same.[92]
[89]Exhibit H2
[90]Exhibit 1
[91]Exhibit 1, PCB 152-159
[92]Exhibit 2, PCB 460-465
102 When cross-examined, the plaintiff agreed, that as he perceived it his “normal life”, damaged as it was post Bunnings, had been exacerbated by his experiences with Mr Borowski and his difficulties with his lawyers (see as reported to Mr Entwisle, particularly paragraphs (b) and (e) of his report which I have referred to in paragraph 96 hereof).[93]
[93]PCB 284
103 Albeit that the plaintiff agreed that his life was in crisis as a result of these factors, he said in cross-examination that such had emanated from the Bunnings conflict, which as a result had reduced his capacity to cope with crises such as that with Mr Borowski and with his then lawyers, Nowicki Carbone & Co.
104 Despite the allegations detailed in Exhibit 1, what is obvious, from the affidavit of the plaintiff,[94] as exemplified in particular in paragraphs 55 and 59,[95] is that those life incidents had brought back into sharp focus the crisis in his life caused by Bunnings.
[94]Exhibit 2
[95]PCB 465
105 I find that the plaintiff had made little progress in overcoming the consequences of his injury since leaving Bunnings employment, but that he had coped with same by way of isolation and removing himself from day-to-day contact with others. I find that these subsequent life incidents and the stress they caused, do not in any way reduce the impact that the Bunnings experiences had upon him, or the effect of the injury occasioned by that employment, albeit that they may have exacerbated same in the short term.
106 The subsequent circumstances, be it the problem with Mr Borowski or the issues of alleged bullying with his solicitors, do not mean that the claim against the defendants of the plaintiff is too complicated to succeed. As was pointed out in Grech v Orica Australia Pty Ltd & Anor,[96] it may be that the injury at Bunnings is not the sole cause of his current condition. However, I am satisfied, on the balance of probabilities, that the plaintiff’s current condition results from the injury received at Bunnings, albeit that there may be subsequent exacerbating factors.
[96](Supra) at paragraph [70]
Finding
107 I am satisfied on the balance of probabilities that the injury suffered at Bunnings has been proven to be severe in the sense required by s138AB(38)(d) of the Act, both by way of its impact upon the plaintiff’s way of life and his capacity to carry out his normal social, domestic and employment activities.
108 I find that the totality of such consequences, when assessed objectively, by way of pain and suffering and loss of earning capacity to the plaintiff, satisfies such requirement.
109 I specifically find that the plaintiff has a total loss of working capacity owing to the injury received at Bunnings.
110 I therefore grant leave to Mr Braam to issue proceedings for damages for the part (c) injury sustained at his place of employment at Bunnings.
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