Brown v Victorian WorkCover Authority
[2019] VCC 1093
•23 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05731
| ALAN CHARLES BROWN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2019 | |
DATE OF JUDGMENT: | 23 July 2019 | |
CASE MAY BE CITED AS: | Brown v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1093 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychological injury alleged as a result of defendant failing to appropriately deal with complaints by students at university at which the plaintiff lectured – Adjustment Disorder; alternatively, Depressive Disorder – pain and suffering and economic loss – whether consequences “severe” – whether 40 per cent loss of earning capacity – other contributing factors to loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr N Horner | Slater & Gordon |
| For the Defendant | Ms F C Spencer | Minter Ellison |
HIS HONOUR:
Preliminary
1 Over the years from about 2004 until 2012, Mr Brown was a lecturer at Victoria University. In 2012, he was the subject of three complaints by students of the university concerning inappropriate sexual conduct. In addition, he was the subject of a complaint of inappropriate behaviour by another teacher at the university. He alleges management of the university was in breach of its duty of care towards him as an employee in a number of ways, including:
· Failing to take appropriate steps to protect him against aggressive conduct by the father of one of the complaining students.
· Failing to provide appropriate details of the allegations.
· Failing to properly manage the investigation process.
· Failing to properly listen to his explanation as to what had occurred.
· Failing to provide him with appropriate support.
· Making him redundant in December 2012.
2 As a result of this treatment at the hands of the university, he claims to have suffered an Adjustment Disorder with Anxiety and Depression; alternatively, a Depressive Disorder.
3 After leaving the university, Mr Brown did not obtain any other employment until April 2018, when he commenced work for Company Medical Services, which involved obtaining and testing urine samples for drugs and alcohol. He continued in this work, three or so hours per day, several days a week, until May 2019. He claims he has a significantly reduced capacity for suitable employment. He claims to have suffered a number of consequences as a result of the psychological disorder, in particular suffering stress and anxiety, flashbacks and nightmares, being sensitive to even minor events, reduced motivation, affected sleep and an erosion of his self-esteem and confidence.
4 Mr Brown was treated by a psychologist for a period. He has not seen a psychiatrist and no longer consults his general practitioner. He believes he is in the best position to treat his condition. He does not take any medication, save for cannabis oil.
5 In 2016, Mr Brown was diagnosed as suffering prostate cancer, which has now metastasised. He has determined not to undertake conventional treatment, including surgery, but again treats himself using cannabis oil.
6 This is a serious injury application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.
7 Ms Spencer, for the defendant, identified the issues in the application as:
· There were significant credit issues (“credit”).
· When regard was had to other cases in the range of possible mental disorders, the consequences to the plaintiff did not meet the “severe” test (“severity”).
· In relation to loss of earning capacity, the plaintiff had not suffered a loss of 40 per cent or more in accordance with the statutory formula. Further, there were other factors, including interests and lifestyle issues which prevented the plaintiff from undertaking his pre-injury hours of employment (“loss of earnings”).
Credit
8 The principal credit issue is as follows:
9 According to the plaintiff’s first affidavit, sworn 21 August 2018, he deposed that between December 2012 and the start of 2018, he did not do any work. At the start of 2018, he said he obtained work with Company Medical Services, about ten hours per week. He said the job lasted about six weeks, and he was not able to cope. In his second affidavit, sworn 25 June 2019, in relation to his work and work capacity, he said that he had suffered a loss of earning capacity, which was a major consequence for him. He said he had made application for a range of jobs, but had not been able to obtain any. He said he had worked for Company Medical Services on a part-time basis for two or three months in 2018. He said someone made a relatively minor criticism of him as a result of which he could not cope, and left the job.
10 For the purpose of this proceeding, Mr Brown was examined by Dr Michael Epstein, psychiatrist, in August 2018. He gave a history to that doctor:
“In early/mid May 2018 he became employed doing pathology collections for six to twelve hours per week over three days per week and ceased in early July 2018 and has not worked since then. He was receiving a Disability Support Pension and now receives an Age Pension.”[1]
[1]Plaintiff’s Court Book (“PCB”) 67
11 Dr Epstein reported further:
“He said that he does not believe he will be able to return to work. He has ongoing physical discomfort. … .”[2]
[2]PCB 73
12 Mr Brown was examined by Dr Nathan Serry, consultant psychiatrist, in June of this year. That practitioner obtained a history:
“… He had not worked thereafter [since leaving Victoria University in December 2012] apart from some casual work as a drug tester until about a month ago.”[3]
[3]PCB 82
13 Dr Serry said further:
“Having ceased work at the university in December 2012, your client did not undertake any work until relatively recently when he did a couple of months of drug testing for a corporation, working three to six hours per week.”[4]
[4]PCB 83-4
14 On behalf of the defendant, Mr Brown was examined by Dr Natalie Krapivensky, consultant psychiatrist, in May 2019.[5]
[5]Defendant’s Court Book (“DCB”) 58
15 As part of the history, Dr Krapivensky noted that Mr Brown told her that he had applied for several positions, but had failed to obtain employment. There is no reference to that practitioner being told of his work with Company Medical Services.
16 Mr Brown’s wage records for his employment with Company Medical Services were subpoenaed to Court. They reveal he commenced work for that organisation on 14 April 2018 and continued until 24 May 2019. On 16 May 2019, Mr Brown was the subject of a complaint by a female from whom he was taking a urine sample, who alleged that small talk involved sexualising comments about women. In re-examination, he explained that he made a brief comment concerning young women drivers. As a result of this complaint, he said he “withdrew his employment services”.
17 According to those wage records, the number of hours he worked each week varied. The most hours worked in a fortnight was thirty-six; the least, nine. The average was approximately sixteen hours per fortnight, or eight hours per week. The gross income earned over this period was $11,351.50, or $196.00 per week on average.
18 When these matters were put to Mr Brown in cross-examination, his explanation was completely unsatisfactory.[6] At one point, he said the work was demeaning. At another point, he appeared to blame his solicitors, in that he said he had not drawn the affidavit. At another point, he appeared to suggest the doctors had not obtained an appropriate history.
[6]Transcript (“T”) 23-26
19 From this evidence, I conclude Mr Brown was intentionally seeking to mislead both the medical practitioners and the Court. There is no acceptable explanation for his failure to detail this work in his affidavits and in the histories to the doctors. He has attempted to hide this drug testing work to benefit his case. In my view, his credibility is significantly affected as a result of this issue.
20 Ms Spencer was also critical of the plaintiff’s failure to detail the effect the development of prostate cancer had on him, and of an assault he was involved in after he had ceased work. Those issues received scant mention in Mr Brown’s first affidavit.[7] In his second affidavit, he said that he remained worried about his prostate cancer, but was not experiencing any significant symptoms. Yet, in the history to Dr Epstein, according to his report of August 2018, Mr Brown said that he was “constantly thinking about his prostate cancer”.[8] He did research on the internet. He complained of continuing abdominal pain with urinary frequency, which was also painful. When it was put to Mr Brown in cross-examination that he was very worried about his cancer, in accordance with the history provided to Dr Epstein, he said he was “sufficiently concerned”.[9]
[7]PCB 12
[8]PCB 72
[9]T52
21 Although not a particularly significant credit issue, I nonetheless accept the effect of Mr Brown’s prostate cancer is far more significant than his affidavits disclose.
22 In cross-examination, Mr Brown accepted that he had applied for a number of jobs. One was at the Penington Institute as a lecturer in a corporate format. The work was part time, although he was uncertain of the hours; however, he found that the views of that Institute on drug and alcohol abuse were “out of the Dark Ages”[10] and different from his. The position was not a good fit for him. Further, the work involved some travel, which would interfere with his ability to care for his young son, Slade, whose custody he shared with his former partner. He looked after his son on alternative weekends and half school holidays.
[10]T37
23 Further, he applied for a job as a youth counsellor, relating to substance abuse. He was not offered that part-time job as the employer did not see him as fitting in. He also thought his age was a factor.
24 In relation to the work with the Penington Institute, and as a youth counsellor, he considered that he would have taken that work and ceased work for Company Medical Services. He wanted less work, but at a higher pay rate. He said he would be happy with working ten hours a week, at a higher pay rate. He thought he possibly might be able to undertake twenty hours’ work per week.[11] His work at the university had involved thirty to thirty-five hours per week on lower pay, but he worked more hours.
[11]T40
25 He also applied for work with Moreland Drug and Alcohol Service. He had worked for that institution in the 1980s. The work was part time and at a much better salary than was paid by Company Medical Services. The rate was $30 per hour. He was well qualified for the job. He did not take the job because, again, he thought the philosophy of that institution was “stuck in ‘80s”.[12] The work involved assessing a person with drug and alcohol problems. He said the work would have been intellectually interesting. He may have been able to manage twenty hours per week, although he would have to “suck it and see”.[13]
[12]T91
[13]T37
26 There is no reference in his first affidavit to any of these job applications, although it is possible he applied for these jobs after he swore the affidavit in August 2018. According to his second affidavit, and despite the evidence to which I have referred, Mr Brown said he could not cope with a return to employment given the severity of his psychological symptoms. He referred to his application for employment and said “I have walked away from the interviews feeling that I simply could not cope with the rigours of the work being proposed”.[14]
[14]PCB 35
27 This statement is in contrast to his evidence, where he did not suggest he could not cope with the work but, rather, his philosophy on drug and alcohol counselling was different to that of the various institutions, and it would interfere with his care of his son.
28 Again, I find the inconsistency in this evidence as affecting Mr Brown’s credit.
Severity
29 The authorities are clear that the word “severe” is a stronger word in terms of significance or gravity than “serious”.[15]
[15]Mobilio v Balliotis [1998] 3 VR 833 at 854
30 According to his affidavits, Mr Brown sought treatment from his general practitioner, Dr Lumbes, in March 2012. He was suffering acute anxiety. He was referred to a psychologist, Dr Malini Singh, in early 2013. He continued under the care of those practitioners during 2013. He described that, at the time, he was feeling extremely fearful, paranoid, scared, depressed and suffering from panic attacks. He suffered heart palpitations. He says he suffers ongoing ruminations and flashbacks to the events of 2012. He said he found it difficult to watch the news and has abused alcohol, although at the present time, that has ceased.
31 He is currently not receiving any treatment and has not seen his general practitioner, nor psychologist, for a number of years. He has never taken prescription antidepressant medication. He uses cannabis and cannabis oil, especially to assist with sleep. He says his mood is variable, and at times he has had suicidal ideation, although has never attempted suicide. He has a strong relationship with his young son, whom he cares for on a regular basis. He has an extensive garden, including fruit trees and vegetables, and spends time there, which gives him solace.
32 Prior to 2012, he said he was very active, kept fit and enjoyed photography. The loss of his job has had serious financial consequences for him. He described his life, after 2012, as “destroyed”.
33 In his more recent affidavit, he said he now simply cannot cope with even minor stressors at work. He says his son does not know about his psychiatric condition. He says he suffers severe anxiety in social situations and has ongoing heart palpitations. He experiences anxiety daily and feels “worthless, helpless and hopeless if I give myself time to stop and think”.[16] He ruminates about the events of 2012, which leads to sleep difficulties. His diet is affected, although his concentration and memory, he says, are unaffected. He says he has not sought psychiatric treatment for these problems as he is reluctant to take antidepressant medication. He meditates, uses cannabis oil, and now has a better diet. His drive, energy and motivation are “gone”.
[16]PCB 36
34 According to a medical report associated with Mr Brown’s application for a disability insurance claim, his general practitioner, Dr Lumbes, noted that he had treated Mr Brown on a range of occasions in 2012 and 2013. The report noted treatment through a psychologist, with the possibility of further management by a psychiatrist if the condition did not improve. The prognosis was noted to be good if the work issues could be resolved. The report noted that Dr Lumbes expected Mr Brown would be able to return to employment for which he was suited as a lecturer at another university, providing his mental state had improved.
35 In a report of November 2014, Dr Lumbes diagnosed a reactive depression with anxiety. Mr Brown’s mental state was described as brittle and he could not cope with a pressured environment or workplace.
36 In a report of November 2014, Dr Singh, psychologist, noted Mr Brown as moderately depressed and anxious. She said he was struggling with the activities of daily living, although lived independently. She said he had responded to supportive psychotherapy, although was ambivalent about its efficacy. She described him as having suffered significant emotional trauma as a result of his redundancy from Victoria University, and the events in 2012 had exacerbated his anxiety, caused depressed mood and lack of motivation. She said there was some improvement in these areas with treatment, and considered the possibility of an alternative career. She diagnosed an Adjustment Disorder with ongoing Major Depression, although with some optimism for improvement following resolution of the legal issues.
37 All of these matters stand in contrast to the range of activities and interests Mr Brown accepted that he was involved in. He has applied for the jobs to which I have referred. For a period of more than a year he worked on a part-time basis for Company Medical Services performing urine-screening tests. There was no evidence he was unable to undertake any of those duties because of his psychological symptoms.
38 While working for Company Medical Services he undertook some work for a company, NuGroup, which subsequently went into liquidation. He was involved in setting up a training program over 2018 and 2019.[17] He said he had been working on drug and alcohol-related matters “for years”.[18] He would work every day in front of his computer for a couple of hours. He said he was always undertaking reading and research in that area. The position with NuGroup did not come to fruition and he was not paid for his services. The work on the NuGroup program included establishing protocols and considering legislation. He created approximately ten modules of about four pages each.[19]
[17]T28
[18]T28
[19]T29
39 He has maintained an interest over many years in the study of drug and alcohol abuse. He is currently writing a paper on methamphetamine and cannabis use in Australia. He is looking at research into the area and particularly the testing of waste water. This requires significant online research. According to Mr Brown, he has an extensive network of people in organisations in the drug and alcohol research area, from which he gathers material.[20] He has informal contact with academics in the area. He also has an interest in drug and alcohol use in sports.
[20]T31
40 Over the years, he has taken in a number of lodgers at another property he owns, who have fallen upon hard times and who he assists in building up their skills and identity. This occurred over the years up until 2018. He assists them over a period of three or four months to help get them back up on their feet. He assisted one of the lodgers for six months.
41 In 2016, he considered working for an insurance company online, but that position did not proceed.
42 In 2015, he confronted a person who was stealing items from his house. He lost his temper and “belted” the intruder badly. In another incident in 2015, he confronted a number of persons who were stealing birds’ eggs. There was another physical altercation. One of the persons kicked him. He denied these incidents caused distress. He initially said that in the second incident, he suffered some bruising; however, in accordance with a history provided to a Medical Panel in 2016, he suffered an injury to his spine which affected his gait. As a result, he has difficulty standing for long periods, and climbing ladders and stairs causes problems.
43 Mr Brown admitted that he was relatively cognitively sharp.[21] When he applied for a disability insurance benefit, in 2016, he accepted that his inability to work was related to a number of issues, including osteoarthritis in his spine and hip, the effect of his prostate cancer, as well as the Depressive Disorder.
[21]T56
44 He has a strong relationship with his young son. He picks him up after school. He would not be interested in employment which interferes with his ability to care for Slade.
45 He is somewhat of a handyman, and recently built a pergola and a boat. He exercises at home and performs meditation. He has an interest in wood carving. He is able to do all his own housework, shopping and cleaning. He goes to see his parents in Warrnambool occasionally. He has a good relationship with his former partner and speaks to her regularly. It was put to Mr Brown, with all these activities, that he had a busy lifestyle. He said it was spread out over time and there were gaps.
46 Mr Brown was asked the following question:
Q:“She said that you told her that you believed you had a capacity for employment from a psychiatric perspective?---
A:I believe I’ve still got capacity to be employed. My brain still functions.”[22]
[22]T64, L25-28
47 Mr Brown was examined by Dr Michael Epstein in 2014 and 2018. In 2014, Dr Epstein diagnosed Mr Brown as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and intermittent panic attacks, with some mild agoraphobia. In his second report of August 2018, Dr Epstein noted Mr Brown had ceased drinking alcohol in June 2018, although was constantly thinking about his prostate cancer. He noted Mr Brown’s sleep was disturbed, by reason of abdominal discomfort. He continued to have nightmares. He was able to do all his own housework, including mopping, sweeping, vacuuming, food preparation and cooking. Dr Epstein noted Mr Brown had repainted his house and that he was very occupied with his son’s activities.
48 Mr Brown complained of intrusive thoughts. His mood was flat, he was irritable, exhausted, agitated and unmotivated. Dr Epstein considered that Mr Brown’s mental-health issues indicated he had difficulty with motivation, isolation, uneasiness away from home, and concern about being subjected to further allegations. Dr Epstein said, taking into account his age, psychological injury, education, skills, work experience and place of residence, he was not capable of undertaking any suitable employment. He diagnosed a persistent Depressive Disorder with a poor prognosis.
49 It is to be noted Dr Epstein did not receive a full history of Mr Brown’s work for Company Medical Services, nor his various other research and online interests.
50 Dr Nathan Serry, consultant psychiatrist, provided a report of June 2019. He had available various reports, including from the general practitioner, Dr Epstein, Dr Krapivensky and various clinical records.
51 To Dr Serry, Mr Brown complained of feeling stressed, anxious and worn down. He said he suffered violent dreams and flashbacks, and had become very sensitive to media accounts of allegations of misconduct. He felt overwhelmed with reduced motivation and libido. Dr Serry noted concentration and memory were basically well maintained. Mr Brown complained his self-confidence and esteem had been eroded and he had fleeting suicidal thoughts.
52 Dr Serry described Mr Brown as a sixty-six-year-old male who had unsubstantiated allegations made against him. He thought that Mr Brown’s difficulties had been compounded by the metastatic prostate cancer. He said Mr Brown suffered high levels of anxiety and not insignificant levels of depression. He diagnosed a Severe Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation. He thought the prognosis was guarded and, on balance, considered Mr Brown did not have the present capacity to undertake any suitable employment. He did not think there would be a material change in the future.
53 It is again to be observed that Dr Serry did not have a history of Mr Brown’s work, research or interests.
54 Mr Brown was examined by Dr Natalie Krapivensky, consultant psychiatrist, on behalf of the defendant in May 2019. She received a history that Mr Brown had “multiple altercations for eight years”[23] with neighbours, including bricks thrown through windows and having fires started by neighbours. Mr Brown told Dr Krapivensky of his job applications at Moreland Hall, Penington Institute and as a youth counsellor, although did not mention his work for Company Medical Services. This was significant, given that at the time of the consultation, he was either still working for that company or had just ceased.
[23]DCB 60
55 Dr Krapivensky said Mr Brown suffered few, if any, current psychiatric symptoms. He occasionally felt anxious, with some panic attacks, anxiety and palpitations. He described no significant depressive symptoms. She noted he was engaged in activities which were meaningful to him, including mentoring people, and continuing to fight his own battles. She said there were no expressed feelings of hopelessness or worthlessness. Mr Brown made a number of allegations against the university, including that his research work has been plagiarised and his name had been removed from publications.
56 To Dr Krapivensky, Mr Brown denied suicidal ideation, intent or plan. He described violent dreams. His weight and appetite were stable and he undertook a regular fitness routine. She could detect no cognitive deficits, nor psychotic symptoms. His mental-state examination was relatively normal. She reviewed a number of other medical reports and concluded that Mr Brown was an independently-minded person who had pursued different career and personal paths throughout his life. She noted difficulties with family members, unsuccessful recent job applications, conflicts with partners, and an unwillingness or inability to engage with and receive advice from doctors. She thought he had a reasonably good mental state and said that any obstacle to employment was by reason of his personality rather than any diagnosable psychiatric condition. Her opinion was that he did not suffer any psychiatric condition and that his mental state was stable. She said there was no impediment to work from a psychiatric perspective.
57 In final addresses, Mr Harrison was critical of the report of Dr Krapivensky. He said her conclusion that Mr Brown had recovered from any psychiatric symptoms was not properly reasoned. He said it was inappropriate to refer to Mr Brown as having “few if any” psychiatric symptoms. He said there was no careful analysis of those symptoms and no thorough reasoning for her concluded opinion that Mr Brown fought his own battles and that his personality, rather than psychiatric symptoms, were the reason for his work-related problems.
58 I have reached a number of conclusions, considering all of the evidence. Were I to accept the complaints in Mr Brown’s affidavits, and in the history to the various practitioners of psychiatric symptoms, in particular, panic attacks, sleeplessness, palpitations, feelings of worthlessness and hopelessness, and general anxiety and depression, which had now been maintained for seven years, I accept that that would result in a diagnosis, as Dr Epstein and Dr Serry opined, of a significant Adjustment Disorder, the consequences of which could be said to be “severe”.
59 However, I am of the view that Mr Brown’s psychiatric symptoms and the consequences which flow, are not as serious as he would have it. He presented in the witness box, in particular, in cross-examination, in a calm and thoughtful manner. He admitted that he had a capacity for employment, something in the order of ten to twenty hours per week in a range of areas, providing it did not interfere with his capacity to look after his son. He said he considered his mental ability as being relatively sharp. Of most significance, in my view, is the fact that he has maintained part-time employment for over twelve months up until May of this year, and is involved in a range of intellectual-type pursuits, writing and research across a number of areas relating to drug and alcohol issues, which is an area of special interest to him. There was no real detail of this employment or those interests provided to Dr Serry or Dr Epstein. I have concluded that, particularly in relation to his employment with Company Medical Services, he intentionally withheld those details from the doctors and the Court. This significantly impacts upon his credibility.
60 It is difficult to understand how someone complaining of “severe” symptoms of a psychiatric illness can spend hours a day researching relatively complicated material on the internet and communicate with professionals in the field. Further, on the evidence, there is no impediment to him being able to undertake his usual activities of daily living, and care for his young son. He is able to maintain a large garden, and is active outdoors.
61 Further, he undertakes no real treatment in respect of his claimed psychological symptoms. His explanation is that he does not want to take prescription antidepressant medication and is in a better position himself to treat his problems including with the use of cannabis and cannabis oil. I note he has not seen his general practitioner for a number of years in relation to his psychological symptoms, ceased treatment with a psychologist in 2013 and has never been treated by a psychiatrist. His explanation that he does not want to take antidepressant medication may be understandable. Many persons with psychological issues prefer not to take such medication because of the side-effects; however, his assessment that he is better able to treat himself than professionals in the field is at least naïve. There are many areas of treatment which may be provided by psychologists and psychiatrists which do not involve prescription medication. I am of the view that the reason he does not seek professional help is because his symptoms are not as severe as he would have it.
62 Were his psychiatric symptoms as severe as he says in his affidavits and in the histories to the various doctors, he would not be able to undertake the range of interests and activities in which he is involved. He has applied for a number of jobs, and I am of the view that the main reason he was unsuccessful was that either the job was not offered or he was not fitted to it. It was not because of any psychiatric symptoms that prevented him from doing the work.
63 I accept that he, in all likelihood, still suffers some psychological symptoms relating to his treatment at the hands of the university in 2012, including some depression and anxiety, and possibly some effect upon his sleep, but I am not satisfied that the range of symptoms are as extensive or severe as he would have it.
64 I find I am not able to rely upon the opinions or conclusions of Dr Serry and Dr Epstein about Mr Brown’s psychiatric state, and capacity for employment, given the flawed history of his work activities those practitioners received. Notwithstanding the criticisms by Mr Harrison, Dr Krapivensky’s opinion as to Mr Brown’s psychiatric state is far more in keeping with my assessment of that state. I prefer her opinion that Mr Brown has few psychiatric symptoms, and any underlying psychiatric condition is quite modest.
65 In the circumstances, the consequences to him of the alleged psychiatric injury do not meet the “severe” test.
Loss of earnings
66 For the purpose of the statutory formula, I accept Mr Brown’s pre-injury gross earnings, as best reflecting his employment capacity, as $56,049 per annum, which is taken from the 2012 taxation year. Sixty per cent of that figure is $33,629, or $647 per week.
67 As stated, I am satisfied Mr Brown has a work capacity, and that work capacity is significant. In the course of evidence, he accepted he had the capacity for approximately ten to twenty hours a week.
68 Given his work for Company Medical Services, combined with the time he spends each day researching and communicating in areas of interest relating to drug and alcohol abuse, I am of the view Mr Brown has a capacity for work significantly beyond the twenty or so hours per week he claims.
69 At Victoria University, he was working thirty to thirty-five hours per week. While I accept that may be some relatively modest reduction in that capacity, I am of the view his real capacity is something around thirty hours or more per week.
70 The legislation requires a comparison of pre-injury earning capacity, with post-injury earning capacity measured on an annual dollar basis.
71 While there was no comprehensive arithmetical analysis put on behalf of the defendant, I accept Ms Spencer’s submission that, the onus being upon the plaintiff, I should not be satisfied that Mr Brown has suffered a loss of earning capacity of 40 per cent or more. I accept that there are other issues which affect his earning capacity, including his desire to spend time with his son and some concerns about his metastatic prostate cancer. His back problems also play a role, although not a major role. I am of the view he has a stubborn desire to find work that is within his claimed intellectual parameters and which pays a better salary, and that this affects his motivation to obtain work.
72 The real issue, in my view, is whether Mr Brown has the lack of work capacity he claims. I am of the view that it is not significantly different now to that when he was working for Victoria University.
73 I am not satisfied, the onus being upon the plaintiff, that his psychological injury has caused a loss of work capacity of 40 per cent or more.
Conclusion
74 For the reasons given, Mr Brown’s application, both in respect of pain and suffering and loss of earnings, is not made out. The application should be dismissed.
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