Capkat v Oguz Pty Ltd (ACN 109 866 882)
[2016] VCC 1002
•18 July 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST Case No. CI-15-04081
SERIF CAPKAT Plaintiff v OGUZ PTY LTD
(ACN 109 866 882)Defendant ---
JUDGE:
HIS HONOUR JUDGE JORDAN
WHERE HELD:
Melbourne
DATE OF HEARING:
8, 11, 12, 13 and 14 July 2016
DATE OF JUDGMENT:
18 July 2016
CASE MAY BE CITED AS:
Capkat v Oguz Pty Ltd (ACN 109 866 882)
MEDIUM NEUTRAL CITATION:
[2016] VCC 1002
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – mental or behavioural disturbance or disorder – Chronic Pain Syndrome – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c); Evidence Act 2008, s140(1) and s140(2)
Cases Cited:Briginshaw v Briginshaw [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Application dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J R Moore QC with
Mr P G HamiltonZaparas Lawyers For the Defendant Ms M Hartley WC with
Ms S De GuioIDP Lawyers HIS HONOUR:
1 This application for leave to bring proceedings relies on a paragraph (c) mental or behavioural disorder said to arise out of an incident at a Caltex Service Station on 10 September 2008. Leave is only sought for pain and suffering damages.
2 On that day the plaintiff alleges he was working at a food business within the service station complex when a customer became involved in a scuffle with Mr Oguz Usak. The plaintiff became involved and was stabbed in the left forearm. He fell and injured his neck and left shoulder. An ambulance attended and he was taken to the Western Hospital. He provided a signed statement about the circumstances to police three days later on 13 September 2008.[1] Almost three years later, on 26 July 2011, he lodged a WorkCover Claim Form in relation to the incident. He claimed for an injury to the left arm and neck, as well as nervous anxiety and depression.[2]
[1]Defendant’s Court Book (“DCB”) 134-136
[2]DCB 1-2
3 The application for leave pursuant to paragraph (a) with respect to the physical neck, left shoulder and left arm injuries was abandoned on the first day of this hearing. Only the paragraph (c) claim proceeded. Particulars of Injury were amended to delete “Injury to the back” and add “Chronic Pain Syndrome”.
4 The plaintiff is aged forty-one years. He was divorced from his wife in 2013 and they have four children. They are presently aged fourteen, thirteen, ten and six. After Family Court proceedings they live with him following the marriage breakdown. After coming to Australia from Turkey in 1997 he worked in a number of unskilled jobs for several years. He suffered a back injury on 13 October 2000 and went off work. He claimed WorkCover in a signed Claim Form dated 22 February 2001. He had solicitors Grando & Breheny acting. Finalisation occurred in about 2004 with about $5,000 being received.[3] He was granted a disability pension in 2002 or 2003. There seemed to be some confusion about this but it would seem on the evidence he has been on that ever since, supplemented by benefits now as a supporting parent. The pension seems to have probably originated in 2002 or 2003 and been ongoing since with respect to the physical injury to his back as well as a psychiatric condition or conditions.
[3]Plaintiff’s Court Book (“PCB”) 10
5 The first issue requiring determination was whether the stabbing and injuries arose out of or in the course of employment.[4] The defendant concedes he worked 9 hours per week at the Caltex service station but that he was not working when the incident took place. Secondly, if yes to the first issue, it was said the Court needed to decide was there any psychiatric consequence at all suffered from the stabbing incident. Thirdly, if yes to that question, was it “severe” as defined in the Act. A number of matters were said to bear on this third question, namely pre-existing psychiatric conditions, psychiatric issues suffered since the incident but not related to it and a failure to sufficiently disentangle psychiatric and physical injuries and consequences. Credit was in issue.[5]
[4]Section 134AB(2) Accident Compensation Act 1985 (“the Act”)
[5]Transcript (“T”) 29-30
6 It almost goes without saying that in paragraph (c) applications such as this the Court must be presented with reliable and adequate material in order to gauge the consequences. This comment applies to paragraph (a) physical injuries also but they are often accompanied by clear pathology, radiological investigations and clinical signs that can add objective weight to complaints. Assessing mental or behavioural conditions can raise even greater need for heavier reliance on accuracy and adequacy. It is also fundamental that for a doctor to give an opinion, the court can rely on that the doctor is given full and adequate information including histories of past problems.
7 I had the advantage of both hearing and seeing the plaintiff give evidence over two days. His command of English is quite reasonable. He had the advantage of an interpreter but only had to resort sparingly to the interpreter. For a number of reasons I found him to be an unsatisfactory and unreliable witness. I also found him to be a selective witness in the sense of describing a version of events or complaints appropriate at a particular time to advance his immediate objective at that time.
8 One of the reasons for my assessment of the plaintiff was that on any reading of the three affidavits of the plaintiff there is nothing like an accurate picture painted of the nature and extent of his psychiatric illness prior to the stabbing incident. Those affidavits were sworn with the assistance of an interpreter.[6] Unless there is clear evidence accepted of a recovery from previous similar conditions, the Court needs sufficient evidence of any relevant pre-existing injury or conditions in order to judge the impact if any of a later event. This is so when a longstanding specialist, Dr John Cooper, has treated that condition for years and no material is placed before the Court from that specialist post the subject incident. Such is the case here. In fact the only material from that treating specialist has been tendered by the defendant.
[6]PCB 17, 21 and 39
9 In the plaintiff’s first affidavit in 2015 he described his 2000 work injury causing him to start, in 2002, a course of specialist treatment from the psychiatrist, Dr Cooper. It involved consultations every one to two months. Anxiety is really all that is mentioned in this main affidavit about any psychiatric conditions suffered prior to 10 September 2008. The referral to Dr Cooper in 2002 is recorded and treatment over three years but little else.[7] A visit to Turkey occurred in late 2005 and it was said to have led to the plaintiff feeling very much better, more relaxed and only occasionally seeing a general practitioner on his return to Australia for back pain, anxiety and general health. That general practitioner was Dr Erciyas in Dallas. After the visit to Turkey, Dr Cooper was not seen again. Three months in Turkey has been presented as leading to virtually a full recovery for a man who in fact left with suicidal, homicidal and other serious mental health issues.
[7]PCB 10
10 In the second affidavit sworn only two weeks ago, there was nothing added by way of describing any pre-existing psychiatric problems from the plaintiff’s past. Then in the third and final affidavit, sworn on the first day of this hearing when it was clear the decision to abandon the paragraph (a) injury and proceed with (c) alone had been made, there was little further information added about any previous psychiatric problems. It did say he started to see Dr Cooper on 31 July 2002 for specialist treatment:
“… for my state of mind. I cannot remember the name of the medications which are provided with.
.As time progressed, the back pain, the soreness, restriction and limitation of movement was affecting both my mood and capacity to manage things. I became frustrated and not being able to work. … .”[8]
[8]PCB 37
11 The plaintiff mentioned stress and ability to manage things were slowly getting worse, with family tensions and arguments developing to the point of not coping at all well. After the trip to Turkey in 2005 his mental state improved a lot and he said he started to feel more like the way he used to. After returning to Australia he did not see Dr Cooper again and did not see the general practitioner, Dr Baglar, for his back or for any mental state.[9]
[9]PCB 37-38
12 It is worth noting that what happened to the previously mentioned general practitioner, Dr Erciyas, is not really clear from the affidavits but the plaintiff had said previously he saw both Dr Erciyas and Dr Baglar.[10] The topic was visited in re-examination where he said Dr Erciyas told him in 2008 he did not do WorkCover. Dr Erciyas sent him to Dr Baglar for WorkCover.[11] The evidence is he next “reappeared” at Dr Baglar’s on 28 April 2010.[12] This re-examination evidence was curious as the plaintiff swore that Dr Erciyas referred him for ultrasound of the left shoulder in November 2008 and MRI scan on the neck on 5 December 2008. The clear inference is that the shoulder and neck that he swore he injured at Caltex on the day when he fell were not WorkCover injuries in his mind nor in Dr Erciyas’ mind at that late stage in 2008. Even more curious is the referral in 2009 by Dr Erciyas to a psychiatrist, Dr Chau, for Post-Traumatic Stress Disorder treatment arising from the stabbing.[13] Again, if re-examination was correct, it seems neither patient nor doctor considered the stabbing a WorkCover matter. This is relevant to the first line of defence in this application.
[10]PCB 11
[11]T141
[12]PCB 47
[13]PCB 59
13 The third affidavit takes matters a little further but still falls short of completing anything like a full account of past psychiatric health issues. What is clear across the three affidavits is nothing like a full and accurate picture of the significance of the psychiatric conditions in this man’s past life was presented. Considerably more relevant information only emerged from evidence tendered by the defendant. This included the treating general practitioner and specialist psychiatrist both speaking in quite alarming terms about their patient when only aged in his late 20s.[14]
[14]DCB 57-63, 64-65
14 This material the defendant tendered starkly contrasts with the affidavits. In Dr Cooper’s, treating psychiatrist’s report to Centrelink in 2004, an extremely serious psychiatric condition was described. Dr Cooper had then been treating the man for almost two years. He described a Major Depressive Disorder:
“Following work injury where his back was hurt developed chronic pain and the depression with lowered mood, insomnia, and energy, negative & suicidal thoughts. Symptoms have persisted since.
Low mood, insomnia, agitation, excessive worry, suicidal thoughts, chronic pain.”[15]
[15]DCB 58
15 He went on to say that with respect to his patient’s ability to function, he was:
“… socially withdrawn, highly dependent on [his] wife, unable to work, at home unable to attend to personal ....(illegible). Needs to be driven & taken to appointments. Requires a high level of care & is mentally disabled.”[16]
[16]DCB 59
16 He added complaints of:
“… anxiety, agitation, repeating words & sentences, checking locks & switches, excessive concern with safety.
Feels people are watching him and his increasingly suspicious.
Is possibly displaying early signs of persecutory delusions.”[17]
[17]DCB 60
17 A report from Dr Baglar at about the same time also expressed the psychiatric problems in very dramatic terms. It stated that the plaintiff suffered Major Depression and with not only suicidal ideation but homicidal ideation. Dr Baglar said, in a letter in a letter to Centrelink:
“If Mr Capkat stays in Australia, I fear he may kill himself and also some innocent people around him.”
18 Dr Baglar described the patient as “severely disabled”.[18] This treater was so concerned he made a remarkable statement to Centrelink that could only be described as a plea for action of the highest urgency:
“If we can’t handle this case appropriately as responsible professionals there is a risk that we have to carry the burden of his possible wrongdoings in our consciences. I assure you as a professional who has enough experience in Psychiatry and also as a person very familiar with this client’s culture that the threat is very real.”[19]
[18]DCB 64
[19]DCB 65
19 This medical material presented a man not only extremely unwell mentally but a real danger to himself and to others. A further report from Dr Cooper about a year later in May 2005 speaks about the patient being increasingly socially isolated.[20]
[20]DCB 71
20 Even more relevant than what doctors said about his past problems is what the plaintiff himself said in 2005. He wrote to Centrelink in June 2005 urging them to pay his disability pension while he was overseas. He described “… having been on the verge of suicide”.[21] In the context of depression and enclosure of medical reports about mental health attached to this letter, he described himself in these terms:
“Since I am permanently and completely disabled there is no chance that I can return to the workforce. … .”[22]
[21]DCB 168
[22]DCB 169
21 He could hardly have described a more dire permanent position for a man who had only reached thirty years of age a few months earlier. The stark contrast between that description and his affidavit evidence needs no further comment.
22 I find the plaintiff’s affidavits sworn with the assistance of an interpreter to be very unsatisfactory and indeed unreliable on this important topic. It is not a question of any requirement for professional knowledge or complex understanding to be able to at least describe his pre-existing psychiatric illness in generally accurate lay terms. A man who is not only suicidal but indeed so severely mentally unwell as to be homicidal and with a litany of symptoms described by his doctors, could in my opinion describe these pre-existing mental health issues with at least reasonable accuracy. It has not been done in this case.
23 I also find the plaintiff’s evidence in his affidavits with respect to an almost complete recovery after three months in Turkey as unsatisfactory and inaccurate. While the affidavits describe it in those terms, in fact clinical notes from his two general practitioners are rather inconsistent. Reading handwritten clinical notes is not an exact science and care has to be exercised in giving them too much weight. In this case, several notes can be read quite clearly.
24 Dr Baglar, on 27 August 2006, has recorded the plaintiff “Not coping with life in general”.[23] A few months before the stabbing in September 2008, the other general practitioner mentioned in the course of these proceedings, Dr Erciyas, noted, on 3 April 2008, the patient suffering “general anxiety state” and prescribed Ducene.[24] Ducene is for anxiety. Whatever the full extent of the problems at each stage, they had driven him to a doctor. On this topic he swore in oral evidence that he not taken tablets for his mental state after returning to Australia and prior to the stabbing.[25] The prescription on 3 April 2008 contradicts this. Suffice to say I am not satisfied that the picture presented by the plaintiff in his affidavits and to doctors that following the trip to Turkey there were virtually no ongoing mental health issues is reliable.[26]
[23]DCB 179
[24]DCB 175
[25]T127
[26]T37
25 Similarly his evidence that he did not see Dr Baglar or any other doctor for back problems after returning from Turkey is simply not correct. The clinical notes clearly indicate a number of such attendances for low back pain sufficient to have narcotic prescriptions for OxyContin and Panadeine Forte on more than one occasion.[27]
[27]DCB 177-9
26 There were a number of aspects of the plaintiff’s oral evidence that added to my finding that he was an unreliable and unsatisfactory witness. The cross-examination concerning the delay between the stabbing incident and the lodging of a WorkCover claim form nearly three years later produced explanations that were not convincing.[28] He was familiar with the WorkCover system and had solicitors acting in the 2000 claim right up to final determination in 2004. He expressed some dissatisfaction with inactivity by some other firm of solicitors when asked about the delay in lodging the claim for the stabbing, such firm remaining anonymous, but this suggestion was just left up in the air and largely unexplored in evidence.[29] It was unconvincing.
[28]T63-4
[29]T144-5
27 Mr Capkat was a plaintiff experienced in WorkCover on the day of the stabbing. There was no corroborative material with respect to the reason for the long delay from any other source. He had received WorkCover payments in the past, had medical and like expenses paid by the system in the past and received a lump sum. Why he would just in effect “sit on his hands” before lodging a claim form with respect to a traumatic incident involving stabbing if it occurred in the course of employment remained an unexplained issue that damaged his credit.
28 There was inconsistency between different versions given by him to authorities and indeed by doctors reporting on his behalf. In May 2004, a Disablement Claim was lodged with AMP Life Ltd.[30] This form was filled out by Dr Baglar and I infer was clearly on the basis of information that was given to him by the patient as well as his own clinical conclusions.
[30]DCB 51-6
29 It is a very seriously ill claimant being described to the insurance company. It claimed to AMP in effect a total and permanent disability because of low back pain and very serious psychiatric problems. The doctor included:
“… Delusion that he has been set up. He is paranoid that every body [is] against him. He is potentially homicidal and suicidal.”[31]
[31]DCB 52
30 There was a diagnosis given of “psychosis”. Dr Baglar further stated that:
“Currently he is psychotic, delusional, paranoid, homicidal, suicidal.”[32]
[32]DCB 55
31 In the doctor’s opinion when asked whether or not the claimant would “EVER” return to either his normal or other work he was reasonably fit for, the doctor said “No”.[33] These were opinions about a man very seriously mentally unwell and indeed dangerous to himself and others.
[33]DCB 56
32 On another occasion the plaintiff swore an affidavit in another court and for a very different purpose. This was when he was required to present his case for custody to the Federal Circuit Court or Family Court.[34] This was in September 2014, so less than two years ago and more than three years after he had lodged his subject WorkCover claim. The affidavit went into considerable detail about dates and events critical of his wife. In some ways that attention to detail could be said to be inconsistent with a man suffering the serious psychiatric consequences and incapacities that are part of the complaints before me. Whether that is true or not, what is more to the point is what he swore to regarding his capacity to perform the multitude of tasks required of a parent. In that regard he told the Federal Court of a domestic capacity to look after all the children’s needs and requirements, attending to their education, family, religious, cultural, social and other activities that can only be described as a description of a person with a very full capacity to perform as a sole parent responsible for four school-age children.[35] He also swore to completing a parenting as well as Men’s Behavioural Change programs.[36]
[34]DCB 72-81
[35]DCB 79-81
[36]DCB 78-9
33 On the material presented to me the Federal Court was given a picture of a parent with really no incapacities. Nothing of the history of a man who had been described by treating doctors as having suicidal, homicidal tendencies and as being diagnosed psychotic was provided. Nor was the Federal Court told the same person had in the past described himself to Centrelink as “… permanently and completely disabled ...” for any work.[37] In my view a very different and inconsistent picture of his capacities and health was presented to that Court than to me when it was in the plaintiff’s interests to see whether or not he was awarded custody of his children. It pointed more to a selective witness than a reliable one.
[37]DCB 169
34 I will say a little more later about the DVD and the two YouTube films taken in 2014, 2015 and 2016. In my view they depict a man performing inconsistently with the wide ranging psychiatric symptoms, disability and incapacities that the plaintiff relies on as complaints in this application. Those three exhibits show a range of neck movements and general mobility quite inconsistent with his affidavits.
35 On the first and principal issue in this application as to whether or not he was injured in compensable circumstances pursuant to s134AB(2) of the Act, his credit was more directly impugned. There were a number of very early opportunities in which it would be expected a history of being injured in the course of employment would have been recorded. None eventuated. These were, in chronological order, the ambulance officers, Western Hospital, police and the doctor he first saw after the stabbing, Dr Erciyas.
36 The explanations he gave in cross-examination as to why no such record appears of his being injured while working were selective, inconsistent and unsatisfactory. In effect they ranged from the police getting it wrong[38] to him panicking or the ambulance officers not “getting” his explanation.[39] Then the Western Hospital notes recording him as a Medicare patient when their paperwork invited a WorkCover or TAC entry at triage, he said resulted from him not understanding or not remembering at the Emergency Department.[40] When pressed further his explanation was that he did not tell hospital staff because “…maybe I’m thinking from that time my boss tell them ... .”[41] In addition, the fact that his boss was also his friend was put up as a possible explanation for the absence of any record about him working when stabbed. The plaintiff was taken to the absence in Dr Erciyas’ clinical notes on 15 September 2008, 17 September and on into late 2008 and 2009 of any mention about a work injury. His explanations moved from “I don’t remember” to “I tell him”.[42] In my view the witness was being very selective, evasive and in the end unreliable when confronted with these matters going to the heart of the principal issue. Some further comments are warranted on this part of the evidence.
[38]T66-8
[39]T68-70
[40]T70-2
[41]T73
[42]T74-6
37 The police interviewed him three days after the stabbing incident. He signed a police statement that is not expressed in any difficult or complex language. There is not a word in that statement about him working on the day of the stabbing as opposed to him attending to visit a friend. In fact he said in very simple language “I went to the Caltex Service Station,… to visit my friend Oguz Usac”.[43] Again, in cross-examination, the plaintiff sought to explain this on the basis that somehow the police did not understand what he was saying. On a topic as straightforward as whether he was on the job or not at the time, I do not accept there were language difficulties. I reject the plaintiff’s evidence that the police got it wrong on something as basic as this.
[43]DCB 134
38 What he said to the ambulance officers adds to a body of evidence that he was there in a social capacity rather than being at work on that day himself. The ambulance records were:
“ACCORDING TO PT WHILE HE WAS TRYING TO ASSIST FRIEND (WHO WAS WORKING AT SERVICE STATION) INVOLVED IN DISPUTE WITH ANGRY CUSTOMER THE CUSTOMER STABBED HIM …”.[44]
[44]DCB 171
39 When presented with this piece of information, again, the plaintiff did not answer it satisfactorily and was unconvincing in court
40 The absence of any reference to a workplace incident in the Western Hospital Emergency records is also informative. There is a clear part of the pro forma document where a WorkCover accident or a TAC accident would be entered. Instead of anything being said about WorkCover or work, the plaintiff is described as a “Medicare Patient”.[45] Judicial notice can be taken when one sits in this jurisdiction daily, of the fact that doctors and public hospitals seek to be paid for their services from statutory authorities, whether they be WorkCover, TAC, Medicare or private health cover insurers. I infer from this document that the patient was asked and said nothing about this being a work injury after being taken by ambulance to the Emergency Department.
[45]DCB 172
41 Indeed further in the hospital file some handwritten notes record:
“AS PER – PT – HELPING FRIEND AT PETROL STATION – ARGUMENT BROKE OUT. FRIEND GOT PUNCHED. PT. TRYI TO HELP FRIEND … .”[46]
[46]DCB 173
42 Further into the Western Hospital notes in a record by hospital staff of the location where the ambulance had brought the plaintiff in from is a note “Friends place”.[47] On none of these topics was the plaintiff in my view a reliable witness when they were put to him.
[47]DCB 174
43 The absence in his own doctor’s clinical notes of any contemporaneous reference to a workplace injury is also informative. Dr Erciyas’ notes record attendances on 15 September 2008, 17 October and 25 November 2008. They speak about tension headaches on the first and second visits without any mention of the stabbing incident. On 25 November 2008, when left shoulder and left-sided neck pain were mentioned by the patient, there is nothing recorded about this occurring at work.[48] Again, the plaintiff maintained, in my view unpersuasively, that he had told the doctor about the accident at work. I do not accept the plaintiff’s evidence in this regard. No report or material from Dr Erciyas was tendered by the plaintiff in this application. All that was put before the Court were his clinical notes tendered by the defendant.
[48]DCB 176
44 A payslip from the employer was tendered for the period ending 12 September 2008. It shows a 9-hour week having been worked by the plaintiff but that is not in issue. The payslip does nothing to add to the evidentiary material regarding whether or not the plaintiff worked on 10 September 2008. It is just silent as to what days the 9 hours were worked over in that week.
45 There is no affidavit evidence from a person working at the premises at the time of the stabbing, Mr Adnan Syed. His police statement was tendered by the plaintiff. Mr Syed stated : “Another man I work with Shareef, came over to help and he was stabbed … .”[49] I have not heard from this witness and must make what I can of his statement. What he said is equivocal at best. It is conceded the plaintiff did work there at times but his brief words are a long way short of saying Shareef was on duty at the time. Indeed in this case, there is no corroborative affidavit material from anyone on this issue nor indeed on the question of the seriousness of any injuries said to be suffered.
[49]DCB 142
46 Some further comments need to be made about the films. They impacted adversely on the plaintiff’s credit. There is a surveillance DVD and there are two YouTube uploads that the plaintiff took of himself singing.[50] The DVD shows the plaintiff laughing, talking, walking normally and freely moving his head and neck. While the film was not of great duration, it was inconsistent, in my opinion, with respect to the serious neck pain and lack of mobility he has deposed to in his affidavits.
[50]Exhibits 1, 2 and 3
47 The uploads taken by the plaintiff show him singing in October 2014 and in October 2015. In the first film he is singing while he drives his own car. He is apparently singing a prayerful song that is sung at the mosque. Again, he is moving his head very freely at times from side to side and at times quite quickly and there is an inconsistency between that and a restricted movement with pain that he has described to the Court in affidavit and oral evidence. He said he filmed this for family and friends.
48 In the second upload he is singing a non-religious song at a friend’s place. He has a microphone and is standing and moving in the way a performer would sing with his friend seated at a keyboard playing a musical accompaniment to the song. Again, this was uploaded by the plaintiff apparently to send to people. He said he finds it therapeutic apparently to sing. That may be so but importantly the two uploads also add to a picture of inconsistency in terms of a man who has described the disabling pain and loss of mobility in his neck as a result of the stabbing incident. When the setup at his friend’s place is observed with the equipment and the nature of the YouTube video examined, in my opinion, it also points to an inconsistency between a man who has deposed to being as severely unwell psychiatrically as this man has.
49 In the end the claim he was injured while in the course of employment rests on what I made of the plaintiff’s evidence. I did not accept him as a reliable or accurate witness. I am not satisfied on the balance of probabilities that the plaintiff has discharged the onus on him of proving the stabbing occurred in the course of his employment. In other words, I am not satisfied it is a compensable injury.
50 Lest there be any doubt about the matter, it remains to be said that in reaching the conclusion I have, I am mindful of the provisions of s140(1) and s140(2) of the Evidence Act 2008. I have reached my conclusion mindful of the principles to be applied in a civil claim as referred to in authorities such as Briginshaw v Briginshaw[51] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[52]
[51][1938] HCA 34
[52](1992) 110 ALR 449
51 On the first morning I raised with counsel whether the principles in Ansett Australia Ltd v Taylor[53] were relevant.[54] No evidence was placed before me and neither counsel referred to the matter in submissions that went for nearly a day-and-a-half so it requires no further mention.
[53][2006] VSCA 171
[54]T13
52 In view of the comments I have already made it is not necessary to deal at any length with the question of what if any injuries were suffered of a psychiatric nature as a result of the stabbing. Only some brief remarks need to be made.
53 I am not satisfied that the plaintiff suffered any permanent severe mental or behavioural disturbance or disorder. The material that has been presented by the plaintiff on the question of injuries is, in my opinion, seriously deficient.
54 It comprises reports from Dr Baglar; a treating psychiatrist, Dr Roger Chau; a treating psychologist, Ms Sirma Aldogan and a medico-legal psychiatrist, Dr Nathan Serry. In addition, reports from Professor Owen White, neurologist, were tendered in order to illustrate the ongoing pain was more psychological than physical.[55] His opinion on that topic is expressed in language that pointed more to possibility than probability and in any event, he defers to the field of psychiatry.[56]
[55]PCB 83-8
[56]PCB 88
55 Without hearing from Dr Baglar, I do not give great weight to the opinions he has expressed. They are not comprehensive, adequate nor easily understood and come in a context of a different focus about his patient’s condition depending on the addressee of his report. I have already alluded to a number of these reports in earlier comments but his letter to Centrelink in June 2004 speaks of the very serious pre-existing psychiatric condition.[57] Then, in June 2013, in a report to different solicitors, Melbourne Lawyers and Mediators, acting for the plaintiff when Family Court matters were on the table again, he provided a report that puts all of his patient’s psychiatric problems fairly and squarely on matrimonial difficulties:
“… there is no psychiatric condition Mr and Mrs Capkat suffer from, except Mr Capkat’s current reactive depression and adjustment disorder because of his wife’s desertion of family home and taking their children with him.”[58]
[57]DCB 64-5
[58]PCB 42
56 Dr Baglar then wrote a report to Grando & Breheny, solicitors acting for the plaintiff in this claim. Apart from mentioning that there had been a very bitter marital dispute, that report reads as though all the psychiatric problems were entirely related to the stabbing incident. The final set of reports to the plaintiff’s current solicitors, Zaparas Lawyers, do not, in my opinion, properly address all of the history prior to their acting in this matter.
57 The treating psychiatrist, Dr Chau, across all of his four letters and one report, has had such an inadequate history given to him of the plaintiff’s prior history that I cannot place any weight on the opinion he gives as to the current psychiatric situation.[59] Similarly the medico-legal report of Dr Serry suffers from the same defect in terms of lacking a full history and proper detail.[60] In addition, he recorded a number of documents sent to him.[61] These are not properly identified as to what they are and just to take one example I have no idea what the report is of a document he received from Dr Cooper. There have been a number of possible documents authored by Dr Cooper and tendered but which one, if indeed it is any of these Dr Serry had, is not clear. Other documents are mentioned by him that are not in the material before the Court so I have no idea what they contained or how they affected his opinion.
[59]PCB 59-69
[60]PCB 73-82
[61]PCB 73
58 The psychologist, Ms Aldogan, provided a report that encompasses only two-and-a-half pages and is so seriously deficient in terms of her patient’s prior history that I cannot give it any significant weight.[62]
[62]PCB 70-72
59 As I have already indicated there has been no material tendered by the plaintiff with respect to Dr Cooper’s three years of psychiatric treatment in the past. It is not necessary to make any further comments on medical reports including those tendered by the defendant. It just remains to say that leaving aside the question of employment, the plaintiff has failed to discharge the onus of proving “serious injury” under paragraph (c) as a result of the stabbing.
60 For the reasons mentioned the application must be dismissed.
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