Carr v Terick Pty Ltd
[2015] VCC 796
•18 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02263
| KENNETH DAVID CARR | Plaintiff |
| v | |
| TERICK PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 May 2015 | |
DATE OF JUDGMENT: | 18 June 2015 | |
CASE MAY BE CITED AS: | Carr v Terick Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 796 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – damages – psychiatric injury – unsafe work practices – bullying – harassment – pain and suffering and economic loss
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Alcoa of Australia Ltd v McKenna (2003) 8 VR 452; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment:Leave granted to the plaintiff to commence a proceeding for the pain and suffering and economic loss consequences of his work-related psychiatric illness the subject of this application.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan | Adviceline Injury Lawyers |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and economic loss consequences in respect of injury suffered in the course of his employment with the defendant.
2 Relevantly, the plaintiff alleges that he has suffered a severe mental or permanent severe behavioural disturbance or disorder by reason of the inappropriate behaviour of those charged by the defendant with supervising and directing him in his work.
3 In the proceeding, the plaintiff relies upon two affidavits filed by him as to the circumstances and consequences of the alleged injury. In addition, the plaintiff gave viva voce evidence and was the subject of an extensive cross-examination. Otherwise, the parties rely upon medical reports and other medical documents which they have tendered, together with a number of exhibits which have been marked separately, the details of which are known to the parties.
4 The content of the plaintiff’s two affidavits are a matter of record and no point is served in the course of these reasons in reciting verbatim the details set out in those affidavits other than where it is necessary to refer to the content of the affidavits in order to give context to my Reasons. A similar observation may be made with respect to the plaintiff’s viva voce evidence.
5 In summary, the plaintiff asserts that:
· Prior to commencing employment with the defendant, he had a regular work history and had suffered no prior emotional or psychiatric injury.
· During the period of his employment with the defendant commencing November 2007 and concluding 10 January 2008, he was exposed to unsafe work practices and bullying and harassment, by reason of which he has suffered psychiatric injury, the consequences of which are appropriately described as being “severe” within the meaning of that term as employed by the Accident Compensation Act 1985 (“the Act”), one of the consequences of the injury being the extraction of all of his teeth.
6 In this case, the defendant raises a number of issues for my determination which may be summarised as follows:
(i)The plaintiff presented with a history of having sustained a previous psychiatric injury which was not disclosed to the medical practitioners;
(ii)The defendant asserts that the plaintiff did not sustain a compensable injury and is not entitled to the relief sought in this proceeding on that basis;
(iii)The medical evidence relied upon by the plaintiff, particularly that of Dr Weissman, psychiatrist, is not persuasive, as the history provided by the plaintiff was not reliable;
(iv)The plaintiff does not present with a diagnosable psychiatric condition but rather presents merely with a condition of anger directed to his former employer;
(v)The plaintiff’s history given to his treating practitioner, Dr Bertuch, on 24 January 2008, mentions no aspect of being stressed by reason of bullying;
(vi)The plaintiff’s history of prior convictions for violence and having a fight with his father was not made known to medical practitioners, and the absence of this history affects the opinion they have expressed as to the cause and severity of the plaintiff’s psychiatric condition;
(vii)The plaintiff’s employment history was unstable during the four financial years prior to sustaining his injury, as demonstrated by the fact that he had various periods of unemployment. This reflects upon the plaintiff’s credit, it being asserted that he underplayed that position in the course of his evidence and in his presentation to doctors who have opined in the case as to the extent of his psychiatric illness;
(viii)The plaintiff’s conflict with Mr Bill Allgood supports the position of Dr Senadipathy that the plaintiff presents with anger management issues and not a psychiatric illness;
(ix)The plaintiff’s failure to make mention of his psychiatric illness at the time of his application for employment with Gasson Industries and his application to obtain a licence from Harness Racing Victoria demonstrates he presents either with no psychiatric injury or that he is inclined not to tell the truth;
(x)DVD surveillance evidence tendered on behalf of the defendant reveals the plaintiff as possessing an ability to interact, and speaks against the veracity of the statements to the contrary contained in the plaintiff’s affidavit material;
(xi)The evidence does not establish that the extraction of the plaintiff’s teeth was secondary to the plaintiff grinding his teeth by reason of the presence of his psychiatric injury;
(xii)The plaintiff retains a significant capacity for employment, as demonstrated by his ability to construct a training track for his trotting horses to train and race them.
Methodology employed as to the analysis of the application
7 Given the plethora of points raised by the defendant in this instance, I am satisfied that my path of reasoning for the determination which I have arrived at, namely that the plaintiff presents with a psychiatric illness the severity of which entitles him to the leave which he seeks in this instance, will be apparent by my dealing with those points insofar as they continue to have relevance given the findings which I set out in the course of that process.
Did the Plaintiff sustain a compensable injury?
8 In Alcoa of Australia Ltd v McKenna,[1] Chernov JA set out the process to be applied in circumstances in which, in a serious injury application, the respondent seeks to resist the application on the basis that the plaintiff’s employment was not a significant contributing factor to the injury relied upon by the plaintiff. At paragraph 19, his Honour made the following comment:
“Where a respondent to a subs (4)(b) application seeks to resist the application on the basis that the injury does not fall within s 135A(2), the evidentiary burden of making out that case falls on it. The real question is, however, to what standard must the respondent prove its case on that issue – is it sufficient if it establishes it on the balance of probabilities or must it go further and effectively satisfy the court, much like a defendant seeking summary judgment, that the applicant’s prospects of establishing that the injury falls within s 135A(2) is ‘absolutely hopeless’ or ‘bound to fail’. I consider that the better view is that the latter situation applies.”
[1](2003) 8 VR 452
9 In the context of this statement by the Court of Appeal, the defendant’s position with respect to causation; namely, that in this instance the plaintiff’s case is dependent upon my determination as to the conflict which arises between the plaintiff’s assertion that he was bullied and the defendant’s response that he was not, is clearly misconceived.
10 It could not be reasonably asserted that the plaintiff’s position in this case is bound to fail when account is taken of:
(i)The unequivocal evidence of the plaintiff in his first affidavit as to the conditions in which he was required to work and the circumstances which gave rise to his dismissal;
(ii)The plaintiff’s agitation of that position with WorkSafe within 24 hours of the plaintiff’s employment being dismissed;
(iii)The Ansett Australia Ltd v Taylor[2] admission which arises as conceded by the defendant.[3]
[2][2006] VSCA 171
[3]Transcript 148
11 For these reasons I am satisfied there is no basis for the defendant’s position that this application should fail on the ground that the plaintiff has not demonstrated a compensable injury.
12 Whilst the defendant asserts that the plaintiff’s presentation to Dr Bertuch on 24 January 2008 was inconsistent with the plaintiff having sustained a psychiatric injury as a result of an incident at work:
· It is clear that Dr Bertuch formed an opinion to the contrary.[4]
[4]See Dr Bertuch’s report dated 21 April 2009, Plaintiff’s Court Book (“PCB”) 20
· Further, when one considers the content of the plaintiff’s complaint to WorkSafe in which he described himself as being abused and the subject of “bully tactics”[5]
I am satisfied that the defendant’s position with respect to the absence of any such history has no merit.
[5]PCB 59
13 Further, I feel compelled to state that it is incumbent upon Counsel not to waste Court time and expose applicants in matters of this type to irrelevant cross-examination on points such as this which have absolutely no merit.
The Plaintiff’s reliability and credit
14 In the matter, the defendant attacks the plaintiff’s credit and reliability upon a number of bases, my findings in respect of which are as follows:
(i)Did the Plaintiff exaggerate the stability of his pre-accident work history?
15 In the course of his evidence, the plaintiff described his employment within the shearing industry for a number of years as involving work which was undertaken when it was available. He said that because of the seasonal nature of that work, his income was supplemented by unemployment benefits.
16 Specifically on this issue, the plaintiff volunteered in cross-examination before his work history was sought to be tested, that his work as a shearer initially involved a learning phase, and thereafter:
“I went from shed to shed. As a job finishes there might be 4,000 to shear so you go to the next shed and if there’s none to shear the next, that’s the way it is.
All money had to be disclosed to Centrelink because that was always the safety net to non-shearing, if you entered the shearing industry and you came into wet weather or where there was no sheep to shear or you had to go away somewhere.”
17 This evidence was given by the plaintiff before all the details relevant to his earnings as disclosed in his income taxation returns were put to him.
18 In the course of his evidence, the plaintiff expressed uncertainty as to whether all his earnings from the sheds where he had worked as a shearer had been passed on to the Taxation Department. Whilst the defendant asserts that any failing in this respect goes to the plaintiff’s credit, the fact that the plaintiff deliberately withheld information as to his earnings for the purpose of avoiding tax was never specifically put to him. The strong impression I formed as to the plaintiff’s evidence on this issue was that, if there was any such failure on his behalf, it arose due to his disorganisation rather than by reason of his wish to defraud the Taxation Department. I make this finding taking into account the plaintiff’s evidence, which I accept, that, whilst he was uncertain as to whether he filed taxation returns in given years, he had always been careful to disclose to the Social Security Department all of his earnings at the time he made application for unemployment benefits.
19 There is no issue that the plaintiff’s taxation returns reveal that:
· In the financial year ending 2005, approximately 10 per cent of the plaintiff’s income of $27,000 was made up of unemployment benefits.
· In the financial year ending 2006, 30 percent of the plaintiff’s income was made up of unemployment benefits.
· In the financial year ending June 2007, unemployment benefits comprised approximately 54 per cent of the plaintiff’s income.
20 It was put by the defendant that the plaintiff’s actual work history is inconsistent with:
· The plaintiff’s affidavit evidence to the effect that he had a steady work history
· His viva voce evidence to the above effect; and
· The history provided by the plaintiff to Dr Weissman.
It is put that that the presence of such inconsistency goes to the plaintiff’s credit and to the reliability of the opinion expressed by Dr Weissman.
21 In my opinion, the plaintiff’s work history as provided to Dr Weissman (namely, that between 2003 and 2008, he worked as a shearer), is in no way inconsistent with the plaintiff’s pattern of earning and receipt of unemployment benefits to which I have previously referred when the plaintiffs evidence as to:
· The time he took to learn his trade;
· His history of work-related injury and resulting absence from employment;
· The pattern of his work from shed to shed, which in turned depended upon the work available in a particular shed;
· His need to supplement his income with social security payments given the uncertainty and seasonality of his work
is taken into account.
22 Neither in my opinion is the plaintiff’s pattern of actual work history and earnings inconsistent with the plaintiff’s affidavit evidence.
23 It follows that I do not accept the defendant’s position that:
· The details in the plaintiff’s income taxation returns are inconsistent in any way with the evidence given by the plaintiff as to the reliability of his pre-accident employment.
· The plaintiff’s work history, which involved periods during which he received unemployment benefits, is suggestive of the fact that the plaintiff was an unreliable worker or had an unreliable work history.
· The casual pattern of work history is inconsistent with or undermines the reliability of the opinion expressed by Dr Weissman.
(ii)The relevance of the surveillance evidence
24 In his most recent affidavit, the plaintiff disclosed the fact that he owned and trained trotting horses. He described the interaction he had with people in the course of racing his horses as being a positive factor in his management of his illness. The plaintiff had disclosed this history both to Dr Weissman and to Dr Senadipathy.
25 In my opinion, there is nothing in the DVD surveillance evidence which is inconsistent with the description by the plaintiff of his activity as a trainer as set out in his affidavits or in the history as to this activity given by the plaintiff to various medical practitioners.
26 It is put on behalf of the defendant that the DVD surveillance evidence is inconsistent with the plaintiff’s affidavit evidence and that it reveals him as being capable of engaging in significant social interaction with other people.
27 I do not accept that the DVD surveillance evidence demonstrates that position at all.
28 The surveillance shows the plaintiff:
· Instructing his jockey:
· Having a short conversation with a person on one occasion, and on another occasion a longer conversation with what appeared to be an official of some type.
29 Much of the DVD surveillance footage, however, reveals the plaintiff standing by himself as he watches his horse race.
30 In my opinion, the surveillance evidence in no way demonstrates a capacity in the plaintiff to engage in significant social interaction with other people to the extent that that capacity is inconsistent with his presentation with a severe mental illness.
31 Significantly, the surveillance evidence was not shown to any doctor who has opined as to the plaintiff’s incapacity for employment by reason of the presence of his psychiatric illness.
32 Further, any probative value which might have been attached to the surveillance evidence is totally devalued by the admission by the defendant as to the substantial period of surveillance undertaken by the defendant about which no evidence was adduced.
33 Finally, whilst it is clear that the plaintiff retains a capacity to train one or two horses and to engage someone to construct a trotting track on his property; there is no evidence that the plaintiff’s capacity for such activity should in any way undermine the body of medical evidence, to which I will refer, which supports the position that:
· The plaintiff presents with a genuine psychiatric illness;
· The plaintiff’s psychiatric illness has a significant impact upon his ability to present as a regular and reliable employee or that he has true capacity to engage in structured employment.
(iii) The relevance of the Plaintiff’s history to Dr Plunkett in 1999
34 In a report dated 17 September 1999, Dr Michael Plunkett made the following comment:
“Ken has been attending my practice since 1996 … .
He suffers from lumbar sacral pain, in the past, as the result of football, but this has resolved with anti inflammatories and time. He was unfortunately assaulted in 1997 and suffered lacerations and bruising to his face. He occasionally becomes depressed. This has been discussed with him at length.”
35 In the course of cross-examination, this history was put to the plaintiff. It was not suggested however:
· That other than for the comments expressed by Dr Plunkett in this report, the plaintiff at any time, or on any other occasion, presented to a medical practitioner with symptoms of depression;
· That any diagnosis was ever made by any doctor (including Dr Plunkett), that the plaintiff suffered from depression or any other symptom consistent with the presence of a psychiatric illness before he commenced employment with the defendant.
36 Whilst it was asserted on behalf of the defendant that the plaintiff’s evidence that he had no pre-existing history of mental illness is inconsistent with this one presentation to Dr Plunkett in excess of fifteen years ago, I find that position to be completely without merit.
37 Given the statements made by Dr Pope that the plaintiff’s practice records at the Ararat Medical Centre contain no reference to particular psychological issues prior to the plaintiff’s presentation in January 2008, I do not find it surprising that the plaintiff may have forgotten having discussed with Dr Plunkett more than fifteen years ago the fact that he occasionally became depressed. It follows that I am satisfied that the position taken by the defendant that the plaintiff’s failure to declare that history, is completely without merit and in no way sounds against the plaintiff’s credit.
(iv) The Plaintiff’s past history of criminal convictions
38 Much was made in the course of the cross-examination of the fact that the plaintiff had a significant history of violence-related convictions, the most recent of which was October 2003.
39 I am not satisfied that such a history is in any way relevant to the issue before me as to whether the plaintiff presents with a work-related psychiatric illness.
40 Whilst it is put by the defendant that this history tends to support the position taken by Dr Senadipathy that the plaintiff presents with issues secondary to his underlying temperament, I do not find that position to be persuasive for the following reasons:
· I am not satisfied that it could be contended that the mere presence of this history per se, is inconsistent with the plaintiff presenting with a psychiatric illness secondary to his employment.
· Further, the defendant chose not to put its asserted position to any of the doctors who have opined as to the fact that the plaintiff presents with a diagnosable psychiatric illness secondary to his employment.
· Finally, and most significantly, this history was never put to Dr Senadipathy.
41 The identical reasoning applies to the position taken by the defendant as to the plaintiff’s dispute with both his father and Mr Allgood. I am satisfied that the behaviour by the plaintiff in each instance is consistent with the behaviour of a person presenting with a mental illness of the type described by Dr Weissman, which he describes as involving a presentation with agitation, irritability, volatility and a tendency towards feeling aggrieved.
42 For these reasons, I do not find the defendant’s position that:
· the plaintiff’s prior criminal history; or
· any tendency which the plaintiff might now have towards lack of patience or volatility
should lead me to alter the view which I have formed for the reasons I will set out in due course, that the opinion expressed by Dr Senadipathy is extreme.
(iv) The Plaintiff’s reliability as a witness generally
43 In my opinion, the plaintiff generally presented as a reliable witness notwithstanding that he was at times argumentative and non-responsive. The plaintiff was exposed to what could only be described as cross-examination in which every conceivable issue was tested. For the most part, I found the plaintiff’s evidence to be consistent with his affidavit evidence and his answers to the numerous challenges made to him in the course of cross-examination to be largely both appropriate and persuasive.
44 I did find some aspects of the plaintiff’s evidence to be questionable; namely his explanation as to the details as to his psychiatric health and history of workplace injury, which he disclosed:
· In his application for a trotting licence application; and
· In his employment application with Gasson
in that each document contained inaccurate statements as to the plaintiff’s psychiatric condition and his compensation history.
45 I am satisfied, for the reasons which I will set out below, that the plaintiff presents with a severe psychiatric illness which manifests itself with symptoms of the type described by Dr Weissman, which I have no doubt would have a tendency to diminish the capacity of the plaintiff to cope with the concerted cross-examination to which he was exposed.
46 In the context of this finding, I am not satisfied that the concerns which I have expressed as to the plaintiff’s evidence are such that they should cause me to discount in any significant way:
· The plaintiff’s evidence generally as to the effect of his illness upon him; or
· The overwhelming preponderance of the medical opinion in this instance which took no issue with the validity of the plaintiff’s presentation or the fact that he was presenting with a mental illness.
Does the Plaintiff present with a psychiatric injury as distinct from mere anger management issues?
47 In reports dated 13 February 2008 and 28 April 2015, Dr D Senadipathy, a psychiatrist retained on behalf of the defendant in this instance, expresses the opinion that the plaintiff presents with personality traits dominated by a self-righteous approach and interpersonal communication difficulties which predated his employment with the defendant and not from any form of mental illness.
48 In contrast to the position taken by Dr Senadipathy:
· The plaintiff’s treating general practitioner, Dr Graeme Bertuch, described the plaintiff as presenting with anxiety, depression and anger following the incident at work which led to his dismissal, and commented that the plaintiff continued to be managed on Effexor and Valium to help control his symptoms.[6]
[6]Report dated 21 April 2009, PCB 20
· Dr Michael Gathercole, psychologist, diagnosed the plaintiff as presenting with significant psychological issues consistent with a Post-Traumatic Stress Disorder (“PTSD”).[7]
[7]Report dated 11 July 2011, PCB 21
· Ms Gabrielle McColl, psychologist, opined that the plaintiff presented with levels of depression, anxiety and stress consistently within the severe-extremely severe range.[8]
[8]Report dated 11 July 2011, PCB 23
· Dr David Weissman, psychiatrist, in reports dated 7 June 2013 and 24 March 2015, diagnosed the plaintiff as presenting with a Chronic Adjustment Disorder with mixed disturbance of emotions and behaviour of moderately severe intensity or severity relevant to his employment.[9]
[9]Reports dated 27 June 2013 and 24 March 2015, PCB 49-72
· Dr Derek Pope, general practitioner, described the plaintiff as presenting with mixed anxiety/depression relating to the events that caused his dismissal in 2008.[10]
[10]Report dated 16 March 2015, PCB 73
· Dr Sandra Hacker, psychiatrist, described the plaintiff as presenting with a Major Depressive Disorder and Panic Disorder, in respect of which his employment was a significant contributing factor.[11]
[11]Report dated 20 April 2009, PCB 159
· Dr Stephen Stern, psychiatrist, described the plaintiff as presenting with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was related to an incident at work on 10 January 2008, and that his psychiatric state had stabilised.[12]
· A Medical Panel, comprising of three medical practitioners, including two psychiatrists; namely, Dr Mathew Tagkalidis and Dr Michael Epstein, opined that the plaintiff presented with a permanent psychiatric impairment, within the meaning of the Act, which resulted from “the accepted psychological condition injury”.[13]
[12]Report dated 10 October 2011, PCB 235
[13]Date of Certificate 24 February 2012, PCB 75
49 Given:
· The overwhelming body of evidence which supports the position that the plaintiff developed a permanent psychological condition in respect of which the conditions of the plaintiff’s employment were a significant contributing factor; and
· The stark difference between that body of evidence and the opinion expressed by Dr Senadipathy;
I find the position expressed by Dr Senadipathy to be extreme, poorly reasoned and unpersuasive, and I prefer the body of evidence which contradicts that opinion.
50 Finally, insofar as the plaintiff’s pre-injury personality has any relevance as to the plaintiff’s current presentation, I am satisfied that such relevance is appropriately identified by the statement made by the plaintiff’s treating general practitioner, Dr Pope, in the course of his report of 16 March 2015; namely:
“In summary, Mr Carr suffers from anxiety/depression and some symptoms of post-traumatic stress disorder related to the events in 2008. His reaction to the events are exacerbated by his underlying personality which also appears to affect his ability to secure and maintain further employment.”
The evidence as to the Plaintiff’s capacity for work
51 Dr Gathercole, in his report dated 22 December 2009, opined that the plaintiff was unlikely to be able to return to work until he had treatment for the PTSD-like features with which he presented, and commented that as Dr Gathercole was winding down his private practice, he was no longer in a position to provide the plaintiff with the treatment he required.
52 When Dr Sandra Hacker examined the plaintiff in April 2009, she opined that the plaintiff was suffering from a partially treated Major Depressive Disorder and Panic Disorder, in respect of which his employment was a significant contributing factor; that the plaintiff was not fit for return to his pre-injury employment, but that he had a capacity for return to employment were his depression sufficiently treated.
53 In her report dated July 2011, Ms McColl described the plaintiff’s long-term prognosis as being difficult to estimate, commenting:
“I would, therefore, concur with statements of other mental health professionals who have been involved with, or assessed Ken over the period of his injury, that a return to work would be unlikely in the longer term. … .”[14]
[14]PCB 28
54 In his report dated 24 March 2015, Dr David Weissman opined:
“Mr Carr is suffering from a moderately severe group of work-related psychiatric symptoms and features, including marked frustration, tension, irritability, agitation, grievance, depression and anger, a loss of self-esteem and confidence, cognitive dysfunction (entirely psychologically based in my view) and diminished interests, energy and motivation.
These symptoms and features, in particular in association with his marked volatility and unpredictability, would totally incapacitate him for all work- pre-injury duties, suitable duties or alternative duties - for the foreseeable future.”[15]
[15]PCB 70-71
55 Dr Derek Pope, in his report of 16 March 2015, described the plaintiff as suffering from anxiety/depression and some symptoms of PTSD related to the events in 2008, commenting:
“… His reaction to the events are exacerbated by his underlying personality which also appears to affect his ability to secure and maintain further employment. He remains overly focussed on his claim and I suspect that he will be unable to move on and settle in other employment until these issues are resolved, for better or worse, to his satisfaction.”[16]
[16]PCB 73-74 Whilst this statement may be interpreted as suggesting that the plaintiff’s condition is not stabilized, given the period during which it has persisted and the medical evidence in this instance, I am satisfied that the plaintiff’s condition is unlikely to alter for the better in the foreseeable future.
56 Whilst the reports of Dr Gathercole, Dr Hacker and Ms McColl not speak specifically as to the plaintiff’s current capacity for work, I am satisfied, given the consistency between:
· The opinions expressed by the above doctors as to the effect upon the plaintiff of his psychological illness: and
· The reports of Dr Weissman as to the same issue
that the evidence establishes that the plaintiff’s presentation at the current time is similar to that with which the plaintiff presented when examined by the above-mentioned experts and, accordingly, that their opinions support that of Dr Weissman as to the plaintiff’s current capacity for employment.
57 Further, given the period which has passed since the plaintiff developed his mental illness and the consistency in his presentation as evidenced by the similarity in the reports of Dr Weissman when compared with those of Dr Gathercole, Dr Hacker and Ms McColl, I am satisfied that the plaintiff’s condition is stabilised.
Finding
58 The evidence to which I have referred above satisfies me that the plaintiff presents with a genuine psychiatric illness, the effect of which, when imposed on the plaintiff’s pre-existing personality, has been such as to render the plaintiff unfit to engage in suitable employment for the foreseeable future.
59 Having made that finding, it is not necessary that I make a finding as to whether or not the plaintiff’s need to undergo the complete extraction of all his teeth is secondary to the presence of that psychiatric illness. I am satisfied however that the plaintiff genuinely holds the belief that this is the case.
60 Given the findings I have made, I am satisfied that he plaintiff presents with a condition which is appropriately defined as a permanent severe behavioural disturbance or disorder the consequences of which are such that the plaintiff is entitled to an order giving him leave to commence a proceeding for the pain and suffering and economic loss consequences of his work-related psychiatric illness the subject of this application.
61 I will allow the parties to, draft the requisite order and hear the parties upon the issue of costs.
- - -
0
2
0