Carroll v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-20-05631

DAVID ANTON CARROLL	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2021
DATE OF JUDGMENT:	2 June 2022
CASE MAY BE CITED AS:	Carroll v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 764

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – pecuniary loss – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Accident Compensation Act 1986 (Vic), s134AB(16), (19), (37), (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Petkovski v Galletti [1994] 1 VR 436; Rowe v Transport Accident Commission [2017] VSCA 377; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Humphries & Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Demmler v Transport Accident Commission [2018] VSCA 284; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Dordev v Cowan & Ors [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Transport Accident Commission v Katanas [2017] HCA 32; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Katanas v Transport Accident Commission [2016] VSCA 140; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Noonan v State of Victoria [2013] VSCA 289; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Richter v Driscoll & Ors (2016) 51 VR 95; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511

Judgment:Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Ms K Gladman	Arnold Thomas & Becker
For the Defendant	Mr G K Coldwell	MinterEllison

Table of Contents

Introduction

Evidence

Background and Mr Carroll’s evidence

Prior psychiatric injury – Police force 1990s

Employment with G4S

Incident at Manus Island

Subsequent events

Injury to Mr Carroll’s right shoulder

Medical evidence – treating doctors

Independent medico-legal reports

Dr David Weissman – consultant psychiatrist
Associate Professor Saji Damodaran – consultant psychiatrist
Mr Stephen Stern – consultant psychiatrist

Submissions

Legal principles

How does Section 134AB(38) operate?
In what order should loss of earning capacity consequences and pain and suffering consequences be considered?
In what order are the tests in s134AB(38) of the Act for determining loss of earning capacity to be applied?
Operation of Section 134AB(38)(e) and (f) of the Act – 40 per cent loss of earning capacity test
Is proof of a loss of earning capacity of at least 40 per cent in accordance with s134AB(38)(e)(i) of the Act a sufficient loss of earning consequence of itself, to establish that a mental or behavioural disturbance or disorder is “severe” and consequently to demonstrate the “seriousness” of injury for the purposes of the narrative test?
Narrative test – consequences with respect to loss of earning capacity and pain and suffering

Analysis

Compensable injury

Mental disorder injury sustained by Mr Carroll on 17 February 2014
Right shoulder injury sustained on 16 November 2016

Is Mr Carroll’s injury permanent?

Credit and reliability

Impairment consequences

Loss of earning capacity consequences

Forty per cent loss of earning capacity test – pursuant to s134AB(38)(e)(i) of the Act, does Mr Carroll have a loss of earning capacity of 40 per cent or more measured as set out in s134(38)(f)?
Pursuant to s134AB(38)(e)(ii) of the Act, will Mr Carroll continue permanently to have such a loss of earning capacity?

Narrative test with respect to loss of earning capacity consequences
Claimed loss of earning capacity consequences
Are the loss of earning capacity consequences subjectively “severe” for Mr Carroll and is the mental disorder “severe” when judged objectively by comparison with other cases in the range of comparable cases?

Loss of earning capacity consequences of the mental disorder in the police force in the 1990s
Loss of earning capacity consequences of the right biceps’ injury
Loss of earning capacity consequences of the mental disorder sustained following the Manus Island riots

Pain and suffering consequences
Psychiatric injury in the police force in the 1990s
Right shoulder injury

Pain
Sports and hobbies

Psychiatric injury – Manus Island

Pain
Medication and treatment

Sleep

Sports and hobbies
Social activities
Activities of daily living
Relationship with partner
Relationship with daughters
Inability to work in security

Disentangling the pain and suffering consequences

Conclusion

HER HONOUR:

Introduction
1On 17 February 2014, the plaintiff, David Carroll (“Mr Carroll”), was injured in the course of his employment with G4S Australia Pty Limited (“G4S”). There was a riot on Manus Island where he was working as a security officer. Mr Carroll claims that because of his employment with G4S, and his presence during the riot, he suffers from a chronic Post-Traumatic Stress Disorder and associated consequences. Mr Carroll claims that the injury is a “serious injury” within the meaning of the definition in s134AB(37)(c) of the Accident Compensation Act 1985 (“the Act”) and seeks leave pursuant to s134AB(16)(b) of the Act to commence proceedings for damages for both pain and suffering and loss of earning capacity.
2To succeed, Mr Carroll must establish that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder” which is compensable because it arises out of, or in the course of, his employment with G4S on or after 20 October 1999.
3Mr Carroll bears the burden of proof to be determined upon the balance of probabilities.
4The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.

Evidence
5For the purposes of the proceeding, Mr Carroll prepared two affidavits. The first affidavit, sworn on 26 August 2020, was re-sworn on 30 July 2021. It incorporated Mr Carroll’s statement accompanying his serious injury application dated 27 August 2020. The second affidavit was sworn on 30 July 2021.
6At the hearing, Mr Carroll was the only witness. He was cross-examined and re-examined.
7In addition, medical reports and other extracts from the plaintiff’s and defendant’s court books were tendered.

Background and Mr Carroll’s evidence
8Mr Carroll was born in September 1956 in Sydney.
9He was married in 1980 and has three daughters. He divorced in 2009 and now has a new partner who he lives with in Sydney.
10After completing school to Form 4, he commenced work at the Commonwealth Bank as a postal clerk. He progressed to the role of teller and then moved to administrative roles in other organisations.
11In 1978, Mr Carroll entered the police academy and then served as a New South Wales police officer for twenty-one years.

Prior psychiatric injury – Police force 1990s
12Mr Carroll had an episode of depression while in the police force during the 1990s following involvement in the investigation of several murders. The last murder involved two six-month-old babies, a three-year-old child, and their mother. At the time he contemplated, and took steps toward, taking his own life. Fortunately, this did not eventuate. He had subsequent treatment and he said the depression resolved.
13Mr Carroll was discharged from the police force in 1998.

Employment with G4S
14Mr Carroll undertook various sales roles until 2002. He then commenced employment with Rail Corporation as a senior transit officer, progressing to Regional Operations Manager for the North Region.
15In 2008, Mr Carroll began work as a senior ranger with the Sutherland Shire Council. He remained in that role, subject to a six-month break, during which he managed a security company, until he was employed by G4S.
16In October 2013, Mr Carroll entered a contract of employment with G4S pursuant to which he was employed as a security officer/advisor, earning $109,600 gross per annum plus superannuation.[1] His role required him to perform general security duties at offshore detention facilities, including Manus Island, to ensure the safety and security of asylum seekers. The role was a ‘fly-in fly-out’ role based on a rotating roster requiring Mr Carroll to travel offshore for three weeks and then return home to Australia for a week.
[1] Exhibit A, Plaintiff’s Court Book (“PCB”), page 11

Incident at Manus Island
17From mid to late January 2014, there were demonstrations in one of the compounds at the Manus Island detention facility where the asylum seekers were housed. These escalated and the relationships between the G4S guards, the asylum seekers and the local Papuan New Guinean people broke down. At a meeting attended by Mr Carroll in late January or early February 2014, with the leaders of the Syrian, Iranian, Lebanese and Iraqi communities, direct threats were made to the safety of the guards.
18Following a rostered rotation home to Australia, Mr Carroll arrived back on Manus Island on the afternoon of 17 February 2014. He was rostered for duty the following day. Around 10.30pm, he was called for duty as there was rioting in one of the compounds and there was concern for the welfare of the asylum seekers.
19According to Mr Carroll, local Papua New Guinean staff were beating asylum seekers and the Papua New Guinean incident response team was “out of control”. Asylum seekers were running everywhere, trying to escape. Mr Carroll described the scene as “every man for himself” and “absolute chaos”.
20Mr Carroll said that he was assaulted by locals and was poked in the eye with a sharpened stick through a fence. The stick hit his glasses and he said he felt terrified. He also described being shot at by a mobile squad of Papua New Guinean police officers. He said there were ricocheting bullets and he was trapped in crossfire. He hid behind a shipping container and a bullet went past him and hit the container six inches from his face. Mr Carroll described feeling like he was going to die.
21People were injured – some critically – and there were gunshot wounds and broken bones. While on duty, Mr Carroll said that he witnessed an asylum seeker have his throat cut and saw some asylum seekers having their heads stomped on. One asylum seeker was seen lying on a metal grill with his head bashed and barely alive.
22Mr Carroll stated that he did what he could to take care of people and patrolled the centre. He found asylum seekers hiding under beds, and behind blankets and bags. They were scared and cowering. He described adult men having urinated and defecated their clothes.
23Mr Carroll worked until 10.30am on 18 February 2014 and then after a few hours’ sleep, reported back for duty at 3.00pm. He felt exhausted, terrified and said he could no longer trust the local guards, the incident response team, the mobile police, and some of the asylum seekers. He continued to work on for several days after the riots and was sent back to the compound where the rioting had been at its worst. He said he feared for his life. He stated that he was constantly on edge and could not relax. His adrenaline was high. He had a constant headache. There were rumours that a female expat was going to be raped. Overall, his recollection was that it was terrifying.
24Before 17 February 2014, Mr Carroll said he had not received training from G4S which would have prepared him for that night. As a police officer he had been involved in demonstrations and had been punched and spat on, but he said he had never seen anything like what he saw during the riots.
25After the riots, Mr Carroll worked out the remaining duration of his contract with G4S on Manus Island.
26He had a break for a few weeks to “try to get my head together and make sense of what had happened”.[2] He also said that he accessed counsellors through Wilson Security.
[2] Ibid
27He did not submit a WorkCover claim.[3]
[3] Transcript (“T”) 23, Line/s (“L”) 5-7

Subsequent events
28Mr Carroll continued to work with G4S after the riots.
29In 2014, following an application process, Mr Carroll said he commenced working with Wilson Security, also on Manus Island, in a different security position as a behavioural management specialist. The new role involved Mr Carroll working a rotating roster of three weeks on Manus Island and then returning to Australia for three weeks.
30Mr Carroll described that he was responsible for the mental wellbeing of asylum seekers who were threatening self-harm and preparing reports including for external contractors.[4]
[4] Exhibit A, page 18
31Mr Carroll remained working on Manus Island until October 2016. He said he performed his role to the best of his ability and claimed he was Wilson Security’s preferred candidate for a new position of security team leader.[5]
[5] T24, L4-9
32The maximum amount that Mr Carroll earned in his role with Wilson Security in the three years after the riots on 17 February 2014, was $139,583 gross in 2016.

Injury to Mr Carroll’s right shoulder
33Prior to leaving Manus Island in October 2016, Mr Carroll had applied for and was successful in obtaining a position with Corrective Services New South Wales, as a corrections officer based at Long Bay jail.[6]
[6]        T24, L10-15
34On 16 November 2016, Mr Carroll undertook training for his new role with Corrective Services New South Wales. During training for the position, Mr Carroll ruptured the biceps tendon of his right arm, requiring surgical repair (“right biceps’ injury”).[7] Because of his right biceps’ injury, Mr Carroll did not officially commence in the role with Corrective Services New South Wales and ultimately resigned from that role in May 2017.[8]
[7]        Exhibit A, page 18
[8]        Exhibit A, page 146
35Mr Carroll now works full time as a parking officer, earning $70,375 at the date of the application.

Medical evidence – treating doctors
36Prior to commencing work on Manus Island, Mr Carroll underwent a psychological assessment which was tendered. It revealed that he was deemed to have no pre-existing significant psychological problems. He successfully obtained employment.[9]
[9]        Exhibit A, page 26
37Following the riots on Manus Island on 17 February 2014, Mr Carroll said that he was not approached by G4S for a debriefing. He claimed he was not offered counselling, although a supervisor mentioned that there were psychological services available. Subsequently, he had psychological consultations with Mr David Whittingham from PsyCare on 27 and 28 February 2014.[10] It was suggested to Mr Carroll that he return home to Australia, but Mr Carroll said that he did not do so because he said he believed it was important to look after his mates and not to leave anyone behind.[11]
[10]       T18, L17-24
[11]       Exhibit A, page 17; T47, L23-29
38When Mr Carroll began working for Wilson Security, he said that there were on-island psychologists who he used to speak with, although he was unaware of whether his solicitors had obtained any evidence in relation to those discussions.[12]
[12]       T18, L24 – T19, L1
39Other than the psychological attendances upon Mr Whittingham from PsyCare and the on-island psychologists Mr Carroll saw when he was working with Wilson Security, his medical records did not disclose any discussions with his general practitioner or other health practitioners with respect to the riots on 17 February 2014 and their impact on him.
40He had not attended a psychiatrist in relation to his claim.[13]
[13]       T19, L2-4
41Mr Carroll said he had taken Temazepam to help him sleep[14] but at the date of the hearing, no longer took it. He said he used alcohol to help him sleep.
[14]       T21, L22

Independent medico-legal reports
Dr David Weissman – consultant psychiatrist
42Dr Weissman prepared a report dated 2 February 2021 following a WhatsApp consultation with Mr Carroll that day. In his report, Dr Weissman noted Mr Carroll’s medical history including an injury to his back in a fall in 1992 and an L5-S1 discectomy in 1996. He also recorded psychiatric issues experienced by Mr Carroll in the 1990s, when he was involved with investigating serious murders including a murder involving young children. He noted that Mr Carroll had considered suicide at the time.
43The report then set out the nature and extent of Mr Carroll’s current injuries. Dr Weissman noted that Mr Carroll has occasional mild residual symptoms and occasionally thinks about the traumatic events that occurred during his time in the police force. He opined that Mr Carroll still suffers from slight to mild and residual traumatisation features and depressive and anxiety features due to his previous employment with the New South Wales police force.
44Dr Weissman recorded Mr Carroll’s description of his treatment after the riots. He told Dr Weissman that he spoke with on-island psychologists. He said he saw them on a weekly or fortnightly basis. He was initially prescribed Temazepam. He said he continued to use that medication to treat his sleep disturbance.
45Other than the psychologists he saw through PsyCare and the psychology team who took over from PsyCare on-island, he said he had not seen a psychiatrist or psychologist. He told Dr Weissman that he had occasionally “raised” some of his symptoms with his general practitioner, Dr David Givney, “but not very often”. He said he tried to ignore his symptoms and “brush it off”.
46By the time Mr Carroll saw Dr Weissman, Mr Carroll said that he was not taking any current medication. He said his short-term memory was “not real flash”, but his long-term memory was good. His concentration was poor.
47Mr Carroll claimed that he did not like being around people. He hated crowds and became anxious, startled and jumpy with sudden loud sounds.
48He said that he “burst in[to] tears at the drop of a hat”. He claimed he had mood swings. He asserted he felt flat a lot of the time. Some days, he said he felt depressed and anxious.
49When asked about whether he had any suicidal thoughts, he replied: “Sometimes when I swim in the ocean I swim that little bit further and some days I don’t care if I get back”. Dr Weissman was of the view that there was no clear current suicidal ideation or delusions.

50Mr Carroll was asked about whether he thinks about Manus Island. He said that he often thinks about the police officer shooting in his direction. He said he went back and retrieved the projectile, and he has it in a box at home. He said that, on average, he thinks about the riots twice a week.
51He has trigger-sensitive flashbacks of the riots including when he sees something on the television about the violence or protests. He avoids the news.
52He told Dr Weissman that he continues to have bad dreams about the riots.
53Dr Weissman observed Mr Carroll as an “excellent historian”. He described Mr Carroll’s affect as quite flat and subdued. He said he was intermittently tearful and emotionally distressed during the interview when speaking about his traumatic experiences on Manus Island. He appeared to be at least moderately traumatised, at least moderately anxious and at least moderately depressed.
54Dr Weissman opined that Mr Carroll has a chronic, at least moderate, Post-Traumatic Stress Disorder and a chronic moderate Major Depressive Disorder with anxious distress, irritability, agitation, and traumatisation features because of the riots on Manus Island. There had been a significant and marked change in his personality, temperament, mood and activity. He had become socially withdrawn with avoidance and agoraphobia. He had significant psychiatrically-based cognitive dysfunction. His quality of life had been impacted.
55Dr Weissman recommended that Mr Carroll be encouraged to see a clinical psychologist or consultant psychiatrist: two to three weekly sessions over a 24-month period were suggested. He also suggested that Mr Carroll would benefit from anti-depressant medication, possibly a mood stabler agent and possibly also Prazosin at night. His prognosis was very uncertain and guarded. Dr Weissman considered it likely to be very poor, negative and unfavourable overall.
56Dr Weissman considered that Mr Carroll was totally and permanently disabled to return to his pre-injury duties. He considered he had a psychiatric capacity for alternate suitable duties and was currently working full time as a senior parking officer. He remained symptomatic and prone to stress and pressure. He considered there was a significant partial loss of earning capacity with associated pecuniary disadvantage. Mr Carroll’s prognosis was uncertain and guarded and likely to be very poor, negative, and unfavourable overall.
Associate Professor Saji Damodaran – consultant psychiatrist
57Associate Professor Damodaran examined Mr Carroll on behalf of the defendant via a NEXUS Telehealth assessment and expressed the opinion that he had a psychiatric injury from the exposure to the riots and now had an inability to perform his pre-injury duties. His diagnosis was that Mr Carroll was suffering from Post-Traumatic Stress Disorder with variable severity, along with Alcohol Use Disorder.
58Associate Professor Damodaran took a history from Mr Carroll. It included reference to Mr Carroll having previously worked as a police officer and having been exposed to traumatic events. He noted that the various traumas did not impact on Mr Carroll’s functioning, save for some re-experiencing of traumatic memories after the Manus Island event.
59Associate Professor Damodaran reported that while Mr Carroll was working with G4S before the riots he had described having difficulties sleeping. He described having difficulty trying to relax and analysing everything. During the two-and-a-half years after the riots while Mr Carroll was working, Mr Carroll claimed that he continued to have ongoing issues in relation to his emotional state. He asserted that he was hypervigilant, anxious and was finding it difficult to trust people. He said to Associate Professor Damodaran that he was feeling sad and was drinking a significant amount of alcohol. He told Associate Professor Damodaran that in the past, he had been drinking one to two bottles of red wine almost every day. He said he continued to have nightmares and flashbacks and his behaviour changed.
60Mr Carroll reported to Associate Professor Damodaran being assaulted by an asylum seeker in October 2016. He described patrolling on his own in the compound where the previous incident had occurred when he was suddenly assaulted and punched in the face. Mr Carroll claimed that the incident significantly brought back the memories of the riot and reportedly he did not go back to work at that employment.
61Mr Carroll told Associate Professor Damodaran that by that time, he was not coping well. He was anxious and irritable and was drinking a significant amount of alcohol. He said he secured employment with New South Wales Corrective Services. He was working with them as a correctional officer and while he was undergoing training, he was injured. According to Mr Carroll, he over-extended his hand and tore his biceps and had to cease work.
62Mr Carroll reportedly told Associate Professor Damodaran that on a few occasions he thought about just going to the ocean and swimming beyond his capabilities so that he would not return. His partner, he said, was concerned for his emotional state. At the same time, Associate Professor Damodaran noted that Mr Carroll did not really want to seek any help. Mr Carroll denied any suicidal plans and there were no suicidal thoughts or delusions, notwithstanding that Mr Carroll’s thoughts were dominated by intrusive memories, rumination, preoccupation and trauma symptoms.
63At the time Mr Carroll saw Associate Professor Damodaran, Mr Carroll reported having continuing flashbacks and intrusive thoughts about the Manus Island incident. According to Mr Carroll, he had increased physical arousal characterised by hypervigilance, irritability, anger and rage. He said he had poor attention and concentration, was absentminded and forgetful. He said he was emotionally numb.
64Associate Professor Damodaran also noted Mr Carroll’s account of persistent trauma symptoms and lowered mood. He believed the lowered mood, emotional numbness and depression were a part of the trauma reaction, rather than a stand-alone psychiatric condition.
65From a psychiatric perspective, Associate Professor Damodaran considered that Mr Carroll was suffering from Post-Traumatic Stress Disorder of variable severity, along with Alcohol Use Disorder. He believed Mr Carroll had no capacity for pre-injury duties and hours with another employer. However, he considered that Mr Carroll did have capacity for the alternate duties as a parking officer that he was already performing on a full-time basis. Associate Professor Damodaran recommended that Mr Carroll be referred to a psychiatrist and suggested that he may require psychological therapy, and psychotropic and other medication to bring down the emotional hyperarousal. He considered his overall prognosis to be guarded, given the protracted nature of his symptoms.
Mr Stephen Stern – consultant psychiatrist
66Mr Carroll was also examined by Dr Stephen Stern as part of an assessment for impairment benefits. Dr Stern prepared a report dated 12 August 2020. He described Mr Carroll as cooperative and pleasant. He said that Mr Carroll maintained eye contact and answered appropriately but his affect was anxious and depressed, although he did not see himself as disabled. Dr Stern took a medical history which included the pre-existing Major Depression that Mr Carroll experienced in the 1990s. He also referred to the right biceps’ injury in 2016 in respect of which he noted that Mr Carroll had undergone successful surgery.
67Dr Stern noted Mr Carroll’s psychiatric symptoms. He said that Mr Carroll’s mood fluctuated. He was tearful at times and short-tempered. He felt anxious and had a fear of being assaulted. He had occasional suicidal thoughts and took risks like swimming out to sea, but there had been no suicide attempts since the Manus Island riots. His sleep was disturbed, and he woke frequently. He also had nightmares about Manus Island and distressing recollections about blood stains, bullet holes and injured people. He got emotional watching television and hearing people with foreign accents.
68Dr Stern recorded that Mr Carroll attended his general practitioner and saw a psychologist on Manus Island but had not seen one since. He took no antidepressant medication but sometimes took a sleeping tablet (Temazepam or Melatonin).
69Mr Carroll described suffering depression while in the New South Wales police force. He said he still has visions and thoughts about one incident of a murder of a mother and her three children. He was on medication for about five years and drank excessively at that stage. Dr Stern considered the past history of depression with the New South Wales police force to be relevant.
70The report concluded that Mr Carroll suffers from a chronic Post-Traumatic Stress Disorder with alcohol abuse which has stabilised.
71Each of the doctors attributed the Post-Traumatic Stress Disorder suffered by Mr Carroll to the events of 17 and 18 February 2014 on Manus Island.

Submissions
72Both parties accepted that to assess whether Mr Carroll should be granted leave pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering and for loss of earning capacity, it is necessary to consider the scheme in s134AB(38) of the Act to determine what constitutes a “serious injury”. Further, that the terms “serious” and “severe” are to be satisfied by reference to the impairment consequences of the mental or behavioural disturbance or disorder.
73Mr Carroll submitted that:
(a)   he suffers from a mental or behavioural disturbance or disorder;[15]
(b)   the mental or behavioural disturbance or disorder is of such magnitude that it results in a 40 per cent loss of earning capacity;
(c) because the mental or behavioural disturbance or disorder is of such magnitude that it results in a 40 per cent loss of earning capacity, it satisfies the test in s134AB(38)(b) of the Act and the impairment consequence is “severe”;[16]
(d)   consequently, he should be granted leave to recover damages for loss of earning capacity. It was contended that it follows that a claim for the recovery of damages for pain and suffering should also succeed without the necessity to separately consider the pain and suffering consequences;
(e) even if it were to be necessary to consider the pain and suffering consequences, the long-term impairment consequences are “severe” and resultingly satisfy s134AB(38)(d) of the Act. Mr Carroll has had a Post-Traumatic Stress Disorder since he was fifty-seven – he is now sixty-five – and the Post-Traumatic Stress Disorder is going to persist for life and have an influence on his day-to-day domestic and recreational activities.
[15]       T81, L7-21
[16]       T78, L2 – T79, L3
74The defendant submitted that:
(a)   Mr Carroll bears the onus of establishing that he has suffered a severe permanent mental or behavioural disturbance or disorder;
(b)   there is some evidence that Mr Carroll suffered a mental or behavioural disturbance or disorder following the incident at Manus Island in February 2014;
(c) Mr Carroll’s impairment consequences are not “severe” as required by the Act;[17]
(d)   any loss of income is the result of the injury to Mr Carroll’s right shoulder/arm, a new intervening event, in respect of which no claim is made. The loss of earning capacity is not the consequence of any psychological or psychiatric injury caused by the riots;[18]
(e)   the right shoulder injury is required to be taken into account in applying the 40 per cent loss of earning capacity test and, when taken into account, Mr Carroll’s claimed loss of earning capacity consequences do not meet the requisite 40 per cent threshold;
(f)    the right shoulder injury is also required to be taken into account in determining the severity of the impairment consequences claimed by Mr Carroll. When taken into account, Mr Carroll’s injury does not meet the narrative test criterion of “severe” for either loss of earning capacity or pain and suffering.
[17]       T72, L31 – T74, L15
[18]       T63, L3-15

Legal principles
75The provisions of the Act apply where a plaintiff seeks to commence common law proceedings for damages for pain and suffering and pecuniary loss, in respect of an injury sustained before 1 July 2014.[19]
[19] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s5(1)
76Section 134AB(16) of the Act provides that:
“If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(a) …
(b)a court, other than the Magistrates’ Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.

… .”
77Section 134AB(17) of the Act provides that:
“For the purposes of paragraphs (a) and (b) of subsection (16), a worker who satisfies subparagraph (i) of subsection (38)(b) but not subparagraph (ii) of that subsection, is entitled to bring proceedings in accordance with subsection (16)(b) for the recovery of damages for pain and suffering only.”
78Section 134AB(19) of the Act then sets out when a court may grant leave. It provides:
“For the purposes of subsection (16)(b)—
(a) a court, other than the Magistrates’ Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;
(b)for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;

… .”
79“Serious injury” is defined in s134AB(37) of the Act as being:
“ In this section—
…
serious injury means—–
(a)    permanent serious impairment or loss of a body function; or
(b)    …
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)    … .”

80Section 134AB(38) of the Act details how the terms ”serious” and “severe” are to be satisfied with respect to pain and suffering and loss of earning capacity consequences:
“ For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)—
(a)    …
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)      pain and suffering; or
(ii)     loss of earning capacity —
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)    …
(d)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;

(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;

(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”

How does Section 134AB(38) operate?
81To determine whether there has been a ”serious injury”, it is necessary to decide whether there has been a “permanent serious long-term impairment or loss of a body function” or a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
82Pursuant to s134AB(38)(b) of the Act, the terms “serious” and “severe” are to be satisfied by reference to the consequences to the worker of any impairment, loss of body function, disfigurement or mental or behavioural disturbance or disorder, with respect to pain and suffering or loss of earning capacity consequences.
83The Act distinguishes between injuries and impairments. In conformity with Barwon Spinners & Ors v Podolak,[20] it is therefore necessary, first, to identify a relevant body function or functions, disfigurement or mental or behavioural disturbance or disorder, and to decide whether that body function, disfigurement or mental or behavioural disorder or disturbance has been impaired or lost. Next, it is necessary to consider whether the impairment is permanent; that is, likely to last for the foreseeable future, and finally, whether the impairment consequences for the plaintiff are such as to satisfy the test contained in s134AB(38)(d).
[20] (2005) 14 VR 622 (“Barwon Spinners”)

84In deciding whether an injury is “serious”, pain and suffering consequences and loss of earning capacity consequences must be considered separately.[21]
[21]Legislative Assembly, Hansard, 13 April 2000 (Volume 446, p 1002); s134AB(38)(b) of the Act
85Where a plaintiff has sustained multiple injuries, it is necessary to consider whether there is impairment to one or more body functions and whether the injuries occurred on the same or different occasions. If a plaintiff has been injured on different occasions, the Court is required to separate out the components of each injury to determine whether each injury, individually, is a “serious injury”. The onus is on the plaintiff to disentangle the consequences of each impairment. An assessment can then be made as to what consequences are attributable to which impairment or body part.[22] A determination can then be made as to whether an injury responsible for the loss or impairment is a “serious injury” according to the tests in s134AB(38) of the Act.
[22]        Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [24]-[25]
86A plaintiff cannot succeed merely by showing that he or she has suffered a serious injury through the combination of a compensable event and a later event.[23] The question is whether the compensable event caused a serious injury.[24]
In what order should loss of earning capacity consequences and pain and suffering consequences be considered?
[23]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] 34 VR 309 at paragraphs [35]-[36]; Petkovski v Galletti [1994] 1 VR 436
[24]       Rowe v Transport Accident Commission [2017] VSCA 377 at paragraphs [82]-[86]
87In accordance with s134AB(17) of the Act, if a worker establishes that an injury is “serious” or “severe” by reference to pain and suffering consequences only, and not loss of earning capacity consequences, the worker is entitled to bring proceedings in accordance with s134AB(16)(b) for the recovery of damages for pain and suffering only.
88There is no equivalent of s134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements of s134AB(38)(b), but not the pain and suffering requirements, from being granted leave to commence proceedings to recover damages for pain and suffering. Provided the requirements of s134AB(38) are met with respect to the claimed loss of earning capacity consequences (that is, that the loss of earning capacity consequences are “serious” or “severe” as the case may be), in addition to being granted leave to commence proceedings for the recovery of damages for loss of earning capacity, a claim for the recovery of damages for pain and suffering may also be brought.[25] As a matter of practical application, it is therefore efficient to consider whether the loss of earning capacity consequences are “serious” or “severe” before considering the pain and suffering consequences.
In what order are the tests in s134AB(38) of the Act for determining loss of earning capacity to be applied?
[25]        Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
89Section 134AB(38) of the Act contains tests which must be satisfied before the consequences to a worker of any impairment or loss of body function, disfigurement or mental or behavioural disturbance or disorder with respect to loss of earning capacity will be considered “serious” or “severe”. The narrative test identified in Humphries and Anor v Poljak[26] is codified in s134AB(38)(c) and (d) of the Act and s134AB(38)(e) contains the 40 per cent loss of earning capacity test.
[26] [1992] 2 VR 129 (“Humphries”)
90The application of both tests may lead to different results. An applicant may satisfy only one, both or none of the tests. Where it is argued that satisfaction of the 40 per cent loss of earning capacity test is enough in and of itself to establish that the loss of earning capacity consequences of an injury are ”severe”, it is necessary to consider in which order the tests are required to be applied. That is, is it necessary for the Court to consider the narrative test in s134AB(38)(d) before considering the 40 per cent loss of earning capacity test in s134AB(38)(e) or should the tests be considered in the reverse order?
91The narrative test contained in s134AB(38)(c) and (d) appears in the Act before the 40 per cent loss of earning capacity test.
92In Acir v Frosster,[27] in applying the various tests for loss of earning capacity, J Forrest J, considered that it was necessary for the applicant to satisfy the narrative test with respect to loss of earning capacity before any consideration was given to the application of the further 40 per cent loss of earnings and permanence tests in s134AB(38)(e) and (f). His Honour said that:
“… satisfaction of the narrative test overcomes the first hurdle for a worker. It is then necessary for Mr Acir to satisfy the separate tests laid down by sub-ss 134AB(38)(e), (f) and (g). … .”[28]
[27]        [2009] VSC 454 (“Acir”)
[28]       Acir (supra) at paragraph [156]
93On the other hand, in Guppy v Victorian WorkCover Authority,[29] the Court of Appeal considered that the first step in the analysis was for the injured worker to satisfy the 40 per cent loss of earning capacity test in s134AB(38)(e)(i) and (ii). Emerton AJA considered s134AB(38), and said as follows:
“The effect of the requirements in s 134AB(38) is that to establish that he has suffered ‘serious’ injury, Mr Guppy must first satisfy the test in paras (e)(i) and (ii), that is, he must establish that his post-injury earning capacity is at least 40 per cent less than his pre-injury earning capacity and that he will continue permanently to have such a loss of earning capacity. In addition, Mr Guppy must satisfy the test in para (c), that is, he must establish that the loss of earning capacity consequence of the second injury can be fairly described ‘as being more than significant or marked, and as being at least very considerable’, when judged by comparison with other cases in the range of possible impairments.”[30]
[29][2010] VSCA 164 (“Guppy”) per Emerton AJA with whom Maxwell P and Nettle JA agreed
[30]        Guppy (ibid) at paragraph [17]
94Subsequently, the Court of Appeal in De Bono v Victorian WorkCover Authority[31] determined that a failure by an applicant to establish any one of those three matters would require the dismissal of his or her application to commence a proceeding claiming damages for pecuniary loss.[32] That is, even if the 40 per cent loss of earning capacity test in s134AB(38)(e)(i), measured in accordance with s134AB(38)(f) were to be met, an applicant would nevertheless also need to demonstrate that he or she would permanently have such a loss of earning capacity and that he or she satisfied the narrative test in s134AB(38)(c) and (d).
[31] [2019] VSCA 85 (“De Bono”)
[32]        De Bono (ibid) at paragraph [48]
95Following the Court of Appeal’s approach in Guppy,[33] it is necessary to consider the 40 per cent loss of earning capacity test first. Regardless of the outcome, the narrative test must also still be met.
[33]       Supra
Operation of Section 134AB(38)(e) and (f) of the Act – 40 per cent loss of earning capacity test
96For leave to be granted to seek damages for pecuniary loss, the worker must establish at the date of the hearing, that they have a loss of earning capacity of 40 per cent or more as set out in s134AB(38)(e)(i), measured in accordance with s134AB(38)(f).
97In Acir,[34] J Forrest J summarised the principles applicable to measurement of loss of earning capacity as set out in s134AB(38)(f). These were subsequently accepted in The Herald & Weekly Times Limited v Jessop[35] and referred to with approval in Yirga-Denbu v Victorian WorkCover Authority:[36]
“First, and importantly, s 134AB(38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.
Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages.   Rather, it compares the worker’s earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently).
Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It, I think, is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury. Rather, it requires the Court to fix a figure which ‘most fairly reflects the worker’s earning capacity’ without injury.
Fifth, the legislature chose to use the expression ‘earning capacity’. Traditionally, this expression has been used in the context of loss of earning capacity where a determination is made of the loss of the ability of the injured plaintiff to earn money or money’s worth by looking at factors relating to an individual’s body and mind and external factors such as the availability of work. It follows, I think, in the context of s 134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. On this analysis a Court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial. In this case Mr Acir’s condition was asymptomatic until at least February 2006 when the liver function tests, ordered by Dr Munir, revealed the abnormality.
Sixth, as I see it, the primary purpose of the without injury provisions of the sub-section is to determine earning capacity as at the date of injury but also to permit variations where that inquiry does not allow an accurate reflection of the earning capacity of the worker. If this be the true purpose, it would militate against consideration of independent supervening events.
Seventh, if Frosster’s argument is accepted, the arbitrary nature of the exercise becomes self-evident. A worker could be hit by a bus and be placed in a vegetative state one day before the expiry of the three year post-injury period and, on Frosster’s argument, that would eliminate his work capacity, whilst, if it occurred one day after the three year period, it would be disregarded. Moreover, as this case demonstrates, a worker may have a nil capacity due to the supervening event during the three year window period but his or her condition may be ameliorated by medical treatment or may naturally improve after the period ceases. Such capricious results could not, I think, have been intended by the legislature.”[37]
[34]       Supra
[35] [2014] VSCA 292
[36] (2018) 57 VR 545 (“Yirga-Denbu”)
[37]        Acir (supra) at paragraphs [171[-[177] (footnotes omitted)
98As J Forrest J observed, s134AB(38)(f) of the Act does not require the Court to assess damages or to fix gross income accurately. It is a gateway provision which requires a practical application of the words of the statute. What is required is a comparison between what the worker was earning at the date of the hearing of the application, and the worker’s pre-injury earning capacity. The essence of the enquiry is to “fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury”.[38]
[38]        Acir (supra) at paragraph [167]
99Similarly, the Court of Appeal in Yirga-Denbu[39] also observed that s134AB(38)(f) of the Act is a gateway provision that does not require an assessment of loss of earning capacity as in a claim for damages. What is required is an application of a statutory formula. A mathematical assessment of “without injury” earnings is not necessary.[40]
[39]Supra
[40]       Yirga-Denbu (supra) at paragraph [78]
100“Without injury” earning capacity is determined by comparing the amount that the worker was earning, or capable of earning, at the date of the hearing of the application with the gross income the worker was capable of earning in suitable employment, had the injury not occurred.[41]
[41]       Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 (“Crossways”) at paragraphs [97]-[98]
101For the purposes of determining a worker’s “without injury” earning capacity, if, after a worker sustains the injury in respect of which the claim is made, a further supervening event occurs which diminishes the worker’s earning capacity, such as a further injury which is not an aggravation of the earlier injury, then the supervening event is to be disregarded for the purposes of determining the worker’s pre-injury earning capacity.[42]
[42]Crossways (ibid) at paragraphs [97]-[98]
102This then leads to a further issue: should a supervening event be taken into account in assessing “with injury” earnings or the gross income that the worker was capable of earning in suitable employment had the injury not occurred?
103The cases discussed above, insofar as they considered the relevance of supervening events to the calculation of loss of earning capacity, did so in the context of assessing ”without injury” earnings for the purposes of the 40 per cent loss of earning capacity test. None of the cases considered whether a supervening event is relevant to, and should be taken into account, in calculating a worker’s “with injury” earning capacity or what a worker is capable of earning “with injury”.
104The focus of the enquiry in Acir[43] was on whether a non-work-related supervening event which diminished the worker’s earning capacity, was required to be taken into account for the purposes of determining the worker’s “without injury” earning capacity. The issue in Crossways[44] was whether a later supervening event unrelated to the first incident, could be taken into account in determining the extent of the plaintiff’s “without injury” earning capacity arising out of the first incident. Yirga-Denbu[45] involved the application of the post-injury earning test, but no question of a subsequent supervening event arose for consideration.
[43]       Acir (supra)
[44]       Supra
[45]        Yirga-Denbu (supra)
105Whether a supervening event is required to be taken into account for the purposes of the analysis of an applicant’s “with injury” earning capacity therefore falls to be determined by the terms of the statute.
106The words of the statute simply require consideration of what a worker is earning and is “capable of earning in suitable employment” at the date of the hearing. The section, according to its terms, does not require the Court to enquire into causation or to take into account supervening events. The words of the statute do not direct attention to what the worker might have been capable of earning ”but for” the happening of the supervening event.
107Further, because the statute requires the enquiry to be made “as at that date”, being the date of the hearing of the application, what a worker is earning, and is capable of earning, in suitable employment is a prospective enquiry made on the facts as they exist at the date of the hearing.
108Additionally, consistent with the observation of J Forrest J in Acir[46] and the Court of Appeal in Yirga-Denbu,[47] s134AB(38)(f) is a gateway provision. The function performed by the section is to give access, if its conditions are satisfied, to an ability to bring common law proceedings. That function would be thwarted if it were to be necessary to take into account the effect of supervening events after the date of injury but before the date of hearing of the application, in calculating “with injury” earning capacity.
[46]        Supra
[47]        Supra
109In my view, s134AB(38)(f) of the Act does not require detailed analysis or a forensic assessment of future earning capacity in a mathematical manner. In the end, whether the terms of the section are met is a matter of judgment.[48]
Volume 446, p 1004
[48]        Ibid
110It follows, in my view, that s134AB(38)(f) does not require the effects of supervening events to be taken into account in calculating a worker’s “with injury” earnings or in calculating what a worker is capable of earning “with injury”.
Is proof of a loss of earning capacity of at least 40 per cent in accordance with s134AB(38)(e)(i) of the Act a sufficient loss of earning consequence of itself, to establish that a mental or behavioural disturbance or disorder is “severe” and consequently to demonstrate the “seriousness” of injury for the purposes of the narrative test?
111The 40 per cent loss of earning capacity test in s134AB(38)(e)(i) was introduced into the Act with the intention of providing an objective standard of the extent to which interference with working capacity could be considered a serious consequence.[49] A forty per cent loss of earning capacity lay within the range of loss of earning capacity found by the Full Court in Petkovski v Galletti[50]– a case which considered an aggravation of a pre-existing back injury – to be “very considerable”. It established that the loss of earning consequences were “serious” and consequently demonstrated the “seriousness” of injury for the purposes of the narrative test.[51]
[49]       Legislative Assembly, Hansard, 13 April 2000 (Volume 446, p 1002-1003)
[50]       Supra
[51]       Guppy (supra) at paragraph [51]
112In introducing the 40 per cent test, Parliament recognised that “there may be cases where that threshold may have an unintended consequence”.[52] For that reason, the Act retained the previous common-law requirement “that the loss of earning capacity consequences still meet the standard of ‘serious’ or ‘severe’”.[53]
[52]       Legislative Assembly, Hansard, 13 April 2000 (Volume 446, p 1004)
[53]       Ibid
113The Second Reading Speech also identified that the government recognised that:
“… it is proper to maintain a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition. The code does not define the meaning of the word ‘severe’. The meaning of that word was considered by the Court of Appeal in Mobilio v. Balliotis & Ors 1998 3 VR 833. The Court of Appeal decided that the words ‘serious’ and ‘severe’ should not be equated and that the word ‘severe’ has a stronger meaning than the word ‘serious’. The government accepts the correctness of that approach in respect of the determination of the consequences of pain and suffering. In the case of the consequences of the loss of earning capacity it will be sufficient to meet the 40 per cent loss of earning capacity test, subject to the common-law measure of severe or serious still being met.”[54]

[54]       Ibid
114The effect is that where the impairment consequences of a mental or behavioural disturbance or disorder are being considered, it will be enough to establish a 40 per cent loss of earning capacity according to the test in s134AB(38)(e)(i) measured in accordance with s134AB(38)(f), provided that the mental or behavioural disturbance or disorder is “severe” for the purposes of the narrative test. Proof of a 40 per cent loss of earning capacity, of itself, while necessary, will not necessarily be sufficient to satisfy the narrative test.
115The Court needs to look very closely at whether the claimed loss of earning capacity consequences are more than “at least very considerable”. For that reason, it is necessary to provide reasons which make clear whether a plaintiff succeeds or fails at the narrative test level or the 40 per cent loss of earning capacity test threshold and the basis for the finding.
Narrative test – consequences with respect to loss of earning capacity and pain and suffering
116In determining whether the narrative test is met, the consequences of the impairment with respect to either pain and suffering or loss of earning capacity must be evaluated by comparison with other cases in the range of possible impairments and a determination made as to whether the impairments or losses, are more than at least “very considerable”.[55]
[55]       Humphries (supra)
117In a case involving a mental or behavioural disorder, the application of the narrative test involves a two-stage process, identified by the High Court in Transport Accident Commission v Katanas.[56]Referring to Humphries,[57] the High Court identified the task required as follows:
“6.… the application of the narrative test entails a two-stage process:
(1)an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’; and
(2)a determination of whether the injury as thus assessed is objectively ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’ when compared with the range or ‘spectrum’ of comparable cases.”[58]
[56] [2017] HCA 32 (“Katanas”) (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ)
[57]       Humphries (supra)
[58]Katanas (ibid) at 555, paragraph [6]. See also for example Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraphs [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 191 (“Stijepic”) at paragraph [42] per Ashley JA and Beach AJA; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115])

118Assessment of the severity of an injury will ordinarily be informed by the extent of its symptoms and consequences, but as the High Court observed in Katanas,[59] there is not always a “bright line” between injury, consequences and symptoms. What might be characterised as a symptom may, at the same time, be relevant as a consequence.[60]
[59] Supra
[60]Katanis (supra) at 546, paragraph [29]
119Mental disorders will vary in their nature and in their consequences. There are many ways in which the question of severity might be approached, each of them being incomplete in itself.[61] There may be evidentiary indications of a severe psychological injury for instance, such as hospitalisation, psychiatric treatment, medication, suicidal ideation or attempts.[62] However, a diagnosis of a particular condition does not automatically result in a conclusion that the condition is permanent or that its consequences are severe.[63] Similarly, a psychiatric disorder may have severe consequences even though a sufferer has had limited treatment, just as extensive treatment will not necessarily point in the direction of a disorder being more severe.[64] The question is whether, overall, determined by all the evidence and not just medical opinions,[65] a plaintiff’s mental disorder, when judged objectively with other potential disorders, is to be correctly characterised as “severe” having regard to its nature and resulting symptoms, the nature and extent of treatment, and all the consequences – whether with respect to pain and suffering or loss of earning capacity – informed by an analysis of ordinary activities before, compared to after, an accident.
[61]Katanas v Transport Accident Commission [2016] VSCA 140 at paragraphs [19] and [30] (per Ashley and Osborn JJA)
[62]Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 (“Papamanos”)
[63]Noonan v State of Victoria [2013] VSCA 289 (“Noonan”)
[64]Katanas (supra) at paragraph [26] referring to Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [30]
[65]Noonan (supra), following Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 and Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
120In assessing the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, it is necessary to identify all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment. It is then necessary to make a value judgement as to relative incapacity based on all the evidence,[66] in accordance with the principles enunciated in Poljak.[67]
[66]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu (supra) at paragraph [89]
[67](Supra) at 140, per Crockett and Southwell JJ
121The Court must evaluate the extent to which pain limits the plaintiff’s functioning, performance of ordinary activities, physical capabilities, and enjoyment of life. The plaintiff’s experience of pain including the intensity, frequency, and duration of the pain must be assessed. This is discharged by considering the plaintiff’s own personal account of their pain (both in court and to doctors); how the plaintiff manages the pain (for example medication, rest, seeking medical treatment); what the doctors say about the extent and intensity of the pain, and what the objective evidence conveys about the disabling effects of the pain.[68]
[68]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
122Other matters which may also be relevant include the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[69]
[69]Haden (supra) at paragraph [16]
123The inability of a worker to engage in employment which he or she undertook is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[70] Similarly, it may also be relevant that because of the injury sustained, an applicant has more limited employment options.[71]
[70]Haden (supra) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Ellis”) at paragraph [35]; Peak (supra) at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]. .
[71]Ellis (ibid) at paragraph [48]
124In undertaking the required assessment, regard must be had to what is retained by a plaintiff as well as what is lost. As Ashley JA in Dwyer,[72] observed:
“… impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[72](Supra) at paragraph [27]
125Where a plaintiff can continue to work or return to work, it will ordinarily be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[73] However, a stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[74]
[73]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic (supra) at paragraph [47]; Haden (supra) at paragraph [15]
[74]Dwyer (supra)
126The credit of the plaintiff will often be critical to the resolution of a serious injury application.[75] The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[76] For instance, if the plaintiff exaggerates his or her symptoms or provides an inaccurate medical history, the account may be of less weight.[77]
[75]Johns v Oaktech Pty Ltd [2020] VSCA 10
[76]Haden (supra) at paragraph [12], citing Dwyer (supra) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (“Sejranovic”) at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[77]Sejranovic (supra) at paragraph [145]; Zepic at paragraph [91]; Papamanos (supra) at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74]
127A plaintiff’s credibility is also relevant to the reliability of the medical evidence and to the plaintiff’s account of his or her pain and suffering consequences to doctors and to the Court.[78] The opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[79] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[78]Haden (supra)
[79]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing); Sejranovic (supra) at paragraph [146]
128If a court determines that a plaintiff is not a reliable witness, either in general, or in respect of certain matters, this does not mean that all medical opinions relied upon by the plaintiff should be disregarded automatically.[80] The opinions of doctors depend on credibility, but it would be remarkable if there were not variations in accounts given over time to different doctors.[81]
[80] T71, L19-22
[81]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317
129The Court is required to give detailed reasons for decision which disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.

Analysis
Compensable injury
130The starting point of the serious injury exercise is the identification of all relevant injuries suffered by Mr Carroll.
Mental disorder injury sustained by Mr Carroll on 17 February 2014
131The defendant accepted that Mr Carroll sustained a psychiatric injury while working during the riots on Manus Island on 17 February 2014 which was a compensable injury.[82]
T71, L19-22
132Dr Weissman opined that Mr Carroll has a chronic Post-Traumatic Stress Disorder and a chronic Major Depressive Disorder with anxious distress, irritability, agitation, and traumatisation features because of the riots on Manus Island.
133Dr Weissman also considered that there had been a significant and marked change in Mr Carroll's personality, temperament, mood, and activity. He considered that Mr Carroll had become socially withdrawn, with avoidance and agoraphobia.
134Associate Professor Damodaran diagnosed Mr Carroll with Post-Traumatic Stress Disorder with variable severity, along with Alcohol Use Disorder because of the exposure to the riots. He said Mr Carroll now has an inability to perform his pre-injury duties; however, he does have capacity for alternate duties as a parking officer on a full-time basis.
135Dr Stern concluded that Mr Carroll suffers from a chronic Post-Traumatic Stress Disorder with Alcohol Abuse which has stabilised. The Post-Traumatic Stress Disorder suffered by Mr Carroll was attributed to the events of 17 and 18 February 2014 on Manus Island by all doctors.
136In my opinion, the weight of the medical evidence favours the view that Mr Carroll suffers from a chronic Post-Traumatic Stress Disorder because of the riots on Manus Island on 17 February 2014. I therefore find that consequent upon the riots on Manus Island on 17 February 2014, Mr Carroll sustained a compensable psychiatric injury namely a chronic Post-Traumatic Stress Disorder (“mental disorder”) which impaired the function of Mr Carroll’s mind.
137It is unnecessary for me to characterise the type of the Post-Traumatic Stress Disorder sustained by Mr Carroll because, consistent with the observation of Ashley and Osborn JJA in Katanas v Transport Accident Commission,[83] regardless of the label,[84] the real issue is the severity of the consequences to Mr Carroll as a result of the disorder.
[83][2016] VSCA 140
[84](Ibid) at paragraph [2]
Right shoulder injury sustained on 16 November 2016
138As set out above, in November 2016 Mr Carroll undertook training for a new role with Corrective Services New South Wales as a corrections officer based at Long Bay jail. During training for the position Mr Carroll ruptured the biceps and tendon of his right arm.[85] This required surgical repair.[86]
[85]Exhibit A, page 18
[86]Exhibit 1, page 30
139According to the medical records of the Family Medical Practice of Dr Jane Givney, Mr Carroll was prescribed Endone 5mg tablets on 25 November 2016.[87] The consultation note of the same day identified that this prescription followed re-attachment of Mr Carroll’s right bicep.[88]
[87]Exhibit 1, page 25
[88]Exhibit 1, page 30
140Other than that prescription, Mr Carroll did not receive any other medication in relation to his right shoulder.
141In December 2016, Mr Carroll commenced physiotherapy in respect of his right biceps’ injury.[89]
[89]Exhibit 1, page 110
142The consultation note of Beachside physiotherapy and sports clinic dated 21 December 2016 identifies that Mr Carroll was sleeping poorly but that there had been steady improvement since the operation.[90] By 28 December 2016, Mr Carroll’s range was improving, and he had less pain.[91]
[90]Exhibit 1, page 111
[91]Exhibit 1, page 109
143By 29 March 2017, Mr Carroll was sleeping better and had begun to ride his bike again. He was feeling alright.[92]
[92]Exhibit 1, page 107
144In mid-2017, the Beachside Physiotherapy and Sports Clinic notes report that Mr Carroll had begun to develop some neck tightness and was observed to have a sore forearm. This improved and Mr Carroll was noted in December 2017 to have become more active.[93]
[93]Exhibit 1, page 101
145In April 2018, the Beachside Physiotherapy and Sports Clinic notes record that Mr Carroll reported feeling pain in his lateral elbow. There was also some numbness.[94] Mr Carroll continued intermittently to have issues with his neck, biceps, and elbow.[95]
[94]Exhibit 1, page 96
[95]Exhibit 1, page 90-94
146The entry in the Beachside Physiotherapy and Sports Clinic notes dated 28 June 2018 records that Mr Carroll was continuing with the gym and swimming,[96] although he was still sore.
[96]Exhibit 1, page 87
147By 11 September 2018, Mr Carroll was reporting “constant pain ant shoulder/biceps/thumb (trigger finger)”.[97] This continued throughout October and by November 2018, in addition to complaining of constant pain in his anterior biceps, Mr Carroll was also reporting “pain with overarm swimming …”[98]
[97]Exhibit 1, page 81
[98]Exhibit 1, page 75
148The notes record that Mr Carroll consistently undertook exercises at the gym and continued swimming.[99]
[99]See for example Exhibit 1, page 72
149By 12 April 2019, Mr Carroll was recorded as swimming 2-3 times per week, and he was also undertaking a home rehabilitation program.[100]
[100]Exhibit 1, page 71

Is Mr Carroll’s injury permanent?
150In his report, Dr Weissman opined that Mr Carroll remained symptomatic and prone to stress and pressure. He considered that Mr Carroll’s prognosis was uncertain and guarded and likely to be very poor, negative, and unfavourable overall.
151Professor Damodaran recommended that Mr Carroll be referred to a psychiatrist and suggested that he may require psychological therapy, and psychotropic and other medication to bring down the emotional hyperarousal. He considered Mr Carroll’s overall prognosis to be guarded given the protracted nature of Mr Carroll’s symptoms.
152Dr Stern did not proffer an opinion as to whether the psychiatric injury was likely to persist.
153Mr Carroll’s evidence was that he had not seen his general practitioner and had not sought psychiatric treatment in respect of the injury he sustained on 17 February 2014, although he was considering doing so.[101] His explanation for not speaking with his general practitioner and not getting a referral to a psychiatrist, as he had done in relation to the psychiatric issues he experienced in the 1990s, was that he had been dealing with it in his own way and in the way he was trained and brought up to deal with problems. He did not know whether treatment and medication would have assisted him, but he said he had tried “to compartmentalise it and pack it away”,[102] “instead of going through the stigma”[103] that he went through previously as a police officer. He said that he also did not seek psychiatric treatment in respect of the riots because he did not want to be reliant on medication. He observed though, that it had “gotten to a point with everything that’s taking place that it’s something that I need to get looked at”.[104]
[101] T19, L2-8
[102]T20, L16-20
[103]T20, L6-15
[104]T19, L5-14
154Arguably, Mr Carroll’s evidence leaves open the possibility that he might be able to receive some treatment for his injury in the future. However, whether the effects of treatment would be successful is speculative at best. The medical evidence supports the position that Mr Carroll continues to suffer from Post-Traumatic Stress Disorder notwithstanding that the Manus Island incident occurred several years ago in 2014. I am satisfied that the evidence establishes that Mr Carroll’s Post-Traumatic Stress Disorder is permanent, in the sense that it will persist into the foreseeable future.

Credit and reliability
155Acceptance of the severity of the impairment consequences claimed by Mr Carroll depends upon acceptance that Mr Carroll is a credible and reliable witness.
156The Defendant pointed to several matters as undermining Mr Carroll’s credit and reliability.
157First, the Defendant contended that Mr Carroll did not leave Manus Island because he was distressed because of an assault by an asylum seeker in October 2016 as claimed. Rather, he left because he had sustained an injury to his right biceps on 16 November 2016 during training for a new position with Corrective Services New South Wales and that was the catalyst for his loss of earning capacity consequences, not the psychiatric injury he sustained during the Manus Island riots.
158Having considered all the evidence, I do not accept as credible, Mr Carroll’s account that the reason he left his position on Manus Island was because he had been assaulted by an asylum seeker. I have reached this conclusion for several reasons.
159First, at the end of September 2016 Mr Carroll took leave from Wilson Security to undertake training for a new job in New South Wales.[105] This is consistent with Mr Carroll’s decision to leave Manus Island having been made before October 2016 when he actually left Manus Island.

[135]T78, L16
[136]Supra
[137](1998) 3 VR 833
200It follows that I do not accept the submission made on behalf of Mr Carroll that to establish a “severe” mental disorder it is enough, of itself, to demonstrate only a 40 per cent loss of earning capacity pursuant to the test in s134AB(38)(e)(i). The Act requires that Mr Carroll also satisfy the narrative test.
Pursuant to s134AB(38)(e)(ii) of the Act, will Mr Carroll continue permanently to have such a loss of earning capacity?
201I have set out above the reasons for my conclusion that Mr Carroll’s Post-Traumatic Stress Disorder is permanent, in the sense that it will persist into the foreseeable future. I have also outlined the medical opinions of Dr Weissman and Associate Professor Damodaran which support the position that Mr Carroll is totally and permanently disabled to return to his pre-injury duties or has no capacity for his pre-injury duties and hours.
202Both Dr Weissman and Associate Professor Damodaran were also of the opinion that Mr Carroll’s prognosis overall is guarded, uncertain and likely to be very poor, negative and unfavourable overall; particularly given the protracted nature of his symptoms.
203In my view, Mr Carroll has a permanent restriction on his earning capacity because of the injury he sustained during the riots at Manus Island on 17 February 2014. He consequently satisfies s134AB(38)(e)(ii).
Narrative test with respect to loss of earning capacity consequences
204The narrative test requires that I consider whether, pursuant to s134AB(38)(d), the loss of earning capacity consequences of the Post-Traumatic Stress Disorder were subjectively “severe” to Mr Carroll and, if so, whether they can be fairly described as being more than “at least very considerable” when judged objectively in comparison with the range of mental or behavioural disturbances or disorders.
Claimed loss of earning capacity consequences
205Mr Carroll, in his affidavit material, pointed to two principal loss of earning capacity consequences. First, he said that he was now earning “about half” what he previously earned as an offshore worker in detention centres.[138] Second, Mr Carroll said that he can no longer work in an offshore role or do security work.
[138]Exhibit A, page 19
206In relation to the first claimed consequence, at the time of the Manus Island riots, Mr Carroll’s gross earnings were $109,609 per annum. In 2016, well after the Manus Island riots, Mr Carroll’s gross earnings increased to $139,583. His gross earnings as a parking officer at the date of the hearing were $70,375. Unlike the 40 per cent test, the narrative test does not direct specific attention to what Mr Carroll was earning “in detention centres” at any time. Nor does it depend on the earnings in the three years before and after injury as the 40 per cent test does. The outcome of the narrative test may consequently be different to the outcome of the 40 per cent test. So, while it is not incorrect to say, as Mr Carroll did, that he is now earning “about half” what he earned previously “in detention centres” – because $70,375 is “about half” of $139,583 – that is not the analysis required for application of the narrative test.
207The narrative test focuses on what has been lost in a broad sense as a consequence of the injury.[139] Any loss must be a result of the claimed injury. It is therefore necessary to consider what the loss of earning capacity consequences were of the psychiatric injury Mr Carroll claims he suffered.
[139]Section 134AB(38)(b) of the Act
208In relation to the second claimed consequence, Mr Carroll said that he can no longer work in an offshore role or do security work. He said he does not have capacity to work in highly demanding or high-stress positions within the security industry. Mr Carroll said that in his role as a parking officer, he is regularly confronted with threats of intimidation. He finds this distressing and it brings on his anxiety.[140] He was not sure how long he was going to be able to continue in his current employment. He said that “the thought of putting on a uniform, which identifies me as a Parking Officer, and therefore a target is becoming too much. I worry for my safety. I find it very difficult to cope with the stigma of being a parking officer, and people are not afraid to be abusive towards me. This takes me back to Manus Island.”[141] Mr Carroll said that if not for the riots, he would still have been working on Nauru or at Manus Island in the transition centre. He said that he enjoyed the offshore roles and would otherwise have been working in another senior role at a security organisation. He said that as it was, he could no longer do security work. He was exhausted and had had enough.[142]
Are the loss of earning capacity consequences subjectively “severe” for Mr Carroll and is the mental disorder “severe” when judged objectively by comparison with other cases in the range of comparable cases?
[140]Exhibit A, pages 23-24
[141]Exhibit A, page 24
[142]Exhibit A, page 19
209I have considered the effect of Mr Carroll’s affidavits and his evidence, and I have formed the view that Mr Carroll does consider his loss of earning capacity consequences to be subjectively “severe”. He regards the loss of earning capacity consequences he has sustained – including the reduction in his income and his inability to now work offshore at Manus Island as a security advisor/officer – as subjectively severe.
210Next, I must consider whether the subjective loss of earning capacity consequences, when judged objectively by comparison with other cases in the range of possible mental disorders, are severe.
211In considering whether the narrative test with respect to loss of earning capacity consequences is satisfied, the consequences of the mental or behavioural disturbance or disorder sustained during the riots on Manus Island, cannot be aggregated with either the mental disorder suffered in the police force in the 1990s or with the injury to Mr Carroll’s right shoulder/arm sustained on 16 November 2016. Each of the injuries arose out of different incidents sustained on separate occasions and with different employers.[143] Further, no claim is made in this proceeding by Mr Carroll in respect of either the mental disorder he suffered in the police force in the 1990s or his right shoulder/arm. In addition, this is not a situation where the mental disorder injury sustained because of the Manus Island riots was said to have been aggravated by the later right shoulder/arm injury, such that the aggravation amounted to a “serious injury” of itself.
[143]T24, L7-9; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
212It is necessary to identify the loss of earning capacity consequences of each of the mental disorder sustained in the police force in the 1990s and the right biceps’ injury and then, to identify the loss of earning capacity consequences of the mental disorder suffered as a result of the Manus Island riots.
Loss of earning capacity consequences of the mental disorder in the police force in the 1990s
213There were no relevant loss of earning capacity consequences of the mental disorder suffered by Mr Carroll in the police force in the 1990s identified.
Loss of earning capacity consequences of the right biceps’ injury
214With respect to the loss of earning capacity consequences of Mr Carroll’s right biceps’ injury considered on its own, when Mr Carroll sustained his right arm/shoulder injury, he was advised to discontinue working on Manus Island and in security. He inevitably then lost the option of flexibility in his employment. He also suffered a loss of earning capacity because of the change in his occupation. According to the medical reports, Mr Carroll now has no capacity to return to his employment as a security officer on Manus Island and he is now working as a parking officer. These are relevant loss of earning capacity consequences of Mr Carroll’s right biceps’ injury.
Loss of earning capacity consequences of the mental disorder sustained following the Manus Island riots
215Before the riots on Manus Island, Mr Carroll earned $109,609 gross per annum. After the riots in which he sustained the mental disorder, he did not immediately lose income. He retained the ability and continued to work in his pre-injury employment and to earn an income. Initially, his gross earnings were the same as he had previously been earning. Later, he was able to earn more than he had been earning before the Manus Island riots. It was not until after Mr Carroll injured his right arm/shoulder that his income was reduced. For that reason, I do not consider that any loss of income he has sustained is a consequence of his claimed mental disorder impairment.
216Similarly, before Mr Carroll sustained the mental disorder during the Manus Island riots, he was able to perform his duties as a security officer/advisor for G4S. After the riots, Mr Carroll was still capable of functioning well enough to do the same work.
217On the contrary, the evidence suggested that Mr Carroll was performing his role reasonably well and without substantial incapacity. Mr Carroll voluntarily approached Wilson Security and was successful in obtaining another security job on Manus Island working as a behavioural management specialist. That role involved, amongst other things, responsibility for the mental wellbeing of asylum seekers who were threatening self-harm. It therefore posed similar ongoing triggers for a post-traumatic stress condition.[144] Mr Carroll accepted in cross-examination that he was Wilson Security’s preferred candidate for the role of security supervisor.[145] Successful maintenance of that job for over thirty months after the riots is inconsistent with a “severe” mental disorder as required by the narrative test. Further, the evidence did not support a conclusion that Mr Carroll was forced to change his position to accommodate any consequences of the mental disorder he had sustained.
[144]T47, L17-22
[145]T24, L7-9
218Overall, I do not consider that an inability to perform a role as a security officer/advisor was a loss of earning capacity consequence of the mental disorder said to arise from the Manus Island riots.
219In my view, after disaggregating the consequences of both the claimed mental disorder and the right biceps’ injury, I have concluded that Mr Carroll’s reduction in income and consequent loss of earning capacity, as well as his inability to work on Manus Island or as a security officer, were caused by the right biceps’ injury which Mr Carroll sustained during training for the position with Corrective Services New South Wales. They were not consequences of the mental disorder he sustained during the Manus Island riots. As a result, Mr Carroll’s claimed loss of earning capacity consequences do not satisfy the narrative test of ”severe”.
220In reaching this conclusion, I have considered the argument that Mr Carroll was stoic to the extent that he continued to work in the face of “severe” loss of earning capacity consequences; however, having found that any loss of earning capacity consequences he suffered were the result of his right shoulder injury, and not the mental disorder, and, consequently, that they were required to be disregarded, it is unnecessary for me to consider this argument further.
Pain and suffering consequences
221If the mental or behavioural disturbance of disorder does not satisfy the narrative test for loss of earning capacity or does not result in a 40 per cent loss of earning capacity, I am required to separately consider whether the impairment consequences satisfy the narrative test for pain and suffering.
222I have found that Mr Carroll’s loss of earning capacity consequences do not satisfy the narrative test; however, I must also consider whether his claimed pain and suffering consequences meet the required threshold of “severe”. This requires me to determine whether, when judged by comparison with other cases in the range of possible mental disorders or disturbances, the consequences of the plaintiff’s injury can be fairly described as more than ”at least very considerable” when compared to other cases in the range.
223To perform this analysis, I am required to bring to account the relevant circumstances personal to the plaintiff and then make a value judgement in accordance with the principles enunciated in Poljak.[146]
[146](Supra) at 140 (per Crockett and Southwell JJ)
224Again, the pain and suffering consequences of the mental or behavioural disturbance or disorder cannot be aggregated with the consequences of the earlier psychiatric injury which he suffered in the police force in the 1990s or Mr Carroll’s right biceps’ injury. In assessing whether the consequences to the plaintiff are “severe” as required, it is necessary that I consider the consequences of each impairment separately. As I did with the loss of earning capacity consequences, I shall start by identifying all the pain and suffering consequences the plaintiff has sustained. I will then seek to disaggregate the consequences to identify which are attributable to which impairment or body part.
Psychiatric injury in the police force in the 1990s
225Mr Carroll had a full psychiatric capacity for work and was not receiving psychiatric support or treatment immediately before he commenced employment with G4S. Notwithstanding this, both Dr Weissman and Dr Stern considered that Mr Carroll’s psychiatric disorder from the time he worked with the police force in the 1990s was still relevant at the time they assessed Mr Carroll for the purposes of this proceeding.
226Dr Weissman considered that, in his view, Mr Carroll still suffered from slight to mild and residual traumatisation features and depressive and anxiety features due to his previous employment with the New South Wales police force. He noted that Mr Carroll has occasional mild residual symptoms and occasionally thinks about the traumatic events that occurred during his time in the police force.
227Associate Professor Damodaran took a history from Mr Carroll, which included reference to Mr Carroll having previously worked as a police officer during which time he was exposed to traumatic events.
228Dr Stern considered Mr Carroll’s past history of depression with the New South Wales police force to be relevant.
229It was unclear from the evidence what the continuing consequences of the earlier psychiatric injury in the 1990s were for Mr Carroll; however, based on the medical evidence, there was at least a mild degree of psychological pain which was still impacting on Mr Carroll.
Right shoulder injury
Pain
230One of the consequences of Mr Carroll’s right biceps’ injury was that it caused him a substantial amount of pain. There were several references to ongoing pain in the records of the Family Medical Practice of Dr Jane Givney and also in the records of Beachside Physiotherapy and Sports Clinic. For instance, on 11 September 2018, Ms Emily Rohr recorded that Mr Carroll reported “constant pain ant shoulder/biceps/thumb (trigger finger)”.[147] This continued throughout October, and by November 2018, in addition to complaining of constant pain in his anterior biceps, Mr Carroll was also reporting “pain with overarm swimming …”.[148] The pain experienced by Mr Carroll also seemed to incorporate right shoulder and neck pain and continued through until the last entry in the Beachside Physiotherapy and Sports Clinic medical record on 15 June 2020. Taking into account Mr Carroll’s right biceps’ injury on its own, I consider that it accounted for at least some of Mr Carroll’s ongoing pain and discomfort.
[147]Exhibit 1 at page 81
[148]Exhibit 1, page 75
Sports and hobbies
231Prior to his shoulder injury in November 2016, Mr Carroll paddle-boarded three times a week; he played tennis; he attended the gym, and he swam.[149] He remains able to participate in activities he previously enjoyed before he suffered the claimed mental disorder including wakeboard paddling, weightlifting, attending the gym, running and swimming.[150] He is no longer able to play tennis. In my view, Mr Carroll’s inability to play tennis was a consequence of his right biceps’ injury and not the mental disorder suffered during the Manus Island riots.
Psychiatric injury – Manus Island
[149]T36, L24 – T37, L1
[150]T37, L6-10; T34, L15-29
Pain
232In his first affidavit, Mr Carroll gave an account of his pain and suffering. He said that since the riots on Manus Island, he has had difficulty watching the news. He bursts into tears over small things. Even loose reminders of what happened on Manus Island can trigger him to relive the assaults.
233In his subsequent affidavit, Mr Carroll said that he now has a very short attention span. He has started to feel hopeless and does not trust anyone.
234He avoids crowds and situations where there is a potential for conflict.
235He says he has a hair trigger and overreacts to things like hearing an accent or seeing the name of a person from the same country as an asylum seeker. Rioting in the United States has been upsetting for him. He snaps and can become verbally abusive. He avoids confrontation.
236Mr Carroll says he feels broken. There are not many happy days in his life.
237Dr Weissman said that, according to Mr Carroll, he “burst in tears at the drop of a hat”. He claimed he had mood swings and felt flat a lot of the time. Mr Carroll said that some days he feels depressed and anxious.
238Associate Professor Damodaran noted that Mr Carroll’s thought content was reported by him to be dominated by intrusive memories, rumination pre-occupation and trauma symptoms. He had increased physical arousal, characterised by hypervigilance, irritability, anger and rage.
239Each of Dr Weissman, Associate Professor Damodaran and Dr Stern described Mr Carroll’s account of going into the ocean and swimming beyond his capacity, and the concern his partner had as to his emotional state.
240Dr Stern also noted fluctuations in Mr Carroll’s mood. He was tearful and short-tempered and felt anxious.
241I accept that there is some pain which Mr Carroll suffers as a consequence of his claimed impairment. However, no attempt was made by Mr Carroll to disentangle the various sources of pain from which he suffers, and the medical evidence was to the effect that there is some mild psychological pain still present from the mental disorder he sustained in the police force during the 1990s.
Medication and treatment
242When he swore his first affidavit, Mr Carroll said that he was taking medication – Serotonin and sometimes Temaze – to assist him with his sleep. He also said he self-medicated with alcohol and had suicidal thoughts, although those had declined. He had not seen a psychiatrist because he did not want the stigma of doing so. He said this was because his police training and culture was to cope, and that is what he preferred to do. When he swore his subsequent affidavit, he said he no longer takes Temazepam. He says he now abuses alcohol. He uses it as a crutch and to help him sleep.
243As set out above, there is a discrepancy in the histories of alcohol use which Mr Carroll has given to different doctors at different times. I find that Mr Carroll’s alcohol use lies somewhere between a bottle of wine a week and a bottle a day, and I take it into account as a consequence of his psychiatric condition.
Sleep
244Mr Carroll said that his sleep is terrible. He is lucky to get four to five hours’ sleep a night, but it is not unusual for him to wake as early as 1.00am and he always rises by 4.00am. In his further affidavit, Mr Carroll said that his sleep and poor concentration had not improved and had worsened since consultant psychiatrist appointments.

245Dr Weissman recorded that Mr Carroll had sleep disturbance which Mr Carroll described as “terrible”. Mr Carroll also said that he has bad dreams about the riots.
246Associate Professor Damodaran referred to the fact that Mr Carroll reportedly had difficulties in his sleep and was finding it difficult to relax.
247Dr Stern referred to nightmares which Mr Carroll was having about Manus Island.
248I accept that Mr Carroll initially had difficulty sleeping after the Manus Island riots. He was previously prescribed Serotonin, and sometimes Temaze, to assist him with his sleep. After the prescription on 12 January 2016, Mr Carroll’s prescription of Temaze ceased for a period of time. Consistently with a conclusion that Mr Carroll’s sleep had improved, the Beachside Physiotherapy records of 23 February 2016 recorded that Mr Carroll was “feeling strong and sleeping well”.
249Mr Carroll was not then prescribed Temaze until 25 November 2016 after he had injured his right shoulder. Following that injury, the Family Medical Centre records recorded that Mr Carroll’s sleep was poor. This suggests that any deterioration in Mr Carroll’s ability to sleep was a result of his right shoulder injury. Even if this is not correct, by 29 March 2017, Mr Carroll was reported to be “sleeping better” and by 23 October 2017, Mr Carroll ceased being prescribed Temaze or Serotonin. The lack of ongoing prescription of Temaze or Serotonin is consistent with a diminishment of Mr Carroll’s sleeping difficulties over time.
250While I accept that Mr Carroll may still have some sleeping difficulties in terms of bad dreams and that is a consequence which I am able to take into account, I consider the sleeping difficulties to be a mild, or at best a moderate, consequence of Mr Carroll’s mental disorder sustained during the Manus Island riots. They may also partly be a result of the earlier traumatic events he experienced in the police force in the 1990s.
Sports and hobbies
251Prior to his shoulder injury in November 2016, Mr Carroll paddle-boarded three times a week; he played tennis; he attended the gym, and he swam.[151] After the right arm/shoulder injury, Mr Carroll agreed that he had not played tennis for quite some time but said that he maintained his fitness. He said he was still able to participate in activities he previously enjoyed before he suffered the claimed mental disorder including wakeboard paddling, weightlifting, attending the gym, running, and swimming when he had the opportunity, and the weather was good.[152]
[151]T36, L24 – T37, L1
[152]T65, L1-8
252In my view, Mr Carroll has retained an ability to enjoy the sports and hobbies he enjoyed prior to sustaining the mental disorder. If he continues to have any inability to play tennis, in my view, that is a result of his right shoulder injury and not the psychiatric disorder.
253I take into account as an impairment consequence, that there may be an impact on Mr Carroll’s enjoyment of sports and hobbies, but I assess this as being very mild.
Social activities
254In relation to his social activities, Mr Carroll said that he used to enjoy watching boxing, but he can no longer do that.
255In his first affidavit, he said that he has lost all his pre-Manus Island friends. He felt stigmatised for having worked for G4S.
256In his further affidavit, he said he has a small group of friends who he sees and with whom he plays darts, but he generally avoids people. He feels isolated.
257If Mr Carroll has lost his pre-Manus Island friends because he feels stigmatised for having worked for G4S, that is a consequence of his choice to work for G4S. It is not a consequence of his psychiatric disorder. I do not take that into account. However, I accept that because he is now more avoidant of people his social activities may have decreased. Again, I assess the impact of this as mild.
Activities of daily living
258Dr Stern considered that Mr Carroll’s social activities had reduced, but in his opinion Mr Carroll’s activities of daily living were not limited by any psychiatric factors.
259Dr Weissman, similarly, said Mr Carroll is able to perform activities of daily living. He showers and dresses himself independently.
260Having considered the evidence with respect to activities of daily living, I have formed the view that Mr Carroll’s activities of daily living have not been impacted to any significant extent as a result of the mental disorder. I do not consider that an inability to perform activities of daily living is an impairment consequence that I must take into account.
Relationship with partner
261Mr Carroll said that his physical and emotional relationship with his partner has been significantly affected. His partner, Miriam, is supportive, but Mr Carroll said that he tended not to show her any affection anymore. He said he feels distressed at his inability to initiate sexual relations.
262Dr Weissman recorded that Mr Carroll’s intimate relationship with his partner had been impacted.
263Associate Professor Damodaran noted Mr Carroll’s relationship difficulties and loss of intimacy.
264There has been an impact on Mr Carroll’s relationship with his partner which I take into account. I assess this as being a moderate impact.
Relationship with daughters
265Mr Carroll said that no longer speaks to his youngest two daughters. He claimed that this was because they think he was assaulting and mistreating people on Manus Island; however, as set out above, he told Dr Weissman he has not seen them since his divorce in 2009. I consider that if this is a consequence of the psychiatric injury, its impact has been mild.
Inability to work in security
266Mr Carroll claimed that he is no longer able to work in security and that this was a consequence of his psychological disorder. For reasons already expressed, if Mr Carroll is no longer able to work in security, that is a result of the injury to his right biceps. It is not an impairment consequence of Mr Carroll’s psychiatric disorder.
Disentangling the pain and suffering consequences
267I have had regard to the evidence, and I have taken into account the consequences which Mr Carroll has satisfied me are associated with the mental disorder injury alone consequent upon the Manus Island riots. I have considered those consequences by reference to the range of possible impairments across the spectrum of other cases and impairments. Having done so, I find that by reason of the mental disorder injury sustained by Mr Carroll because of the Manus Island riots alone, the impairment consequences which he suffers are a moderate degree of mental pain and distress; mild to moderate disturbed sleep with bad dreams, and flashbacks; excessive alcohol use; a mild impact on social activities; a mild impact on sports and recreation; a moderate impact on his relationship with his partner and a mild impact on his relationship with his children.
268I do not consider that any inability to return to work in the security industry or to Manus Island was a result of the mental disorder sustained by Mr Carroll on Manus Island. Rather, it was a result of the right biceps’ injury. I therefore do not take that into account as a relevant pain and suffering consequence.
269Having considered the impairment consequences I have found, I have concluded that when judged objectively by comparison with other cases in the range of comparable cases, the mental disorder suffered by Mr Carroll as a result of the Manus Island riots is not objectively ”severe”.
270I accept that Mr Carroll has suffered some moderate psychological pain as a result of the Manus Island riots, but I do not consider it to be as severe as he claimed. I have given consideration to what Mr Carroll said about his mental disorder and the effect it has had on him. Because of the view I have taken about the reliability of his evidence, I am very cautious in accepting his account of his pain.
271I accept that, as he stated, he bursts into tears over small things and loose reminders of what happened on Manus Island can trigger him to relive the assaults; however, the severity of those claimed symptoms must be weighed against the doctors’ opinions, what Mr Carroll did about the pain in terms of medical treatment and medication and also, what the objective evidence demonstrates about the disabling effect of pain.
272First, there was very limited objective contemporaneous evidence that Mr Carroll sustained a mental or behavioural disturbance or disorder injury of any sort, not least a “severe” mental disorder as a result of the Manus Island riots; however, the medical experts accepted and diagnosed Mr Carroll as suffering from a chronic Post-Traumatic Stress Disorder. It is accepted that the diagnosis of Post-Traumatic Stress Disorder is a serious diagnosis. However, the issue is not the seriousness of the diagnosis, but rather, whether the consequences of the psychiatric disorder are “severe”. A psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment, just as the extent of treatment made necessary by a psychiatric disorder may suggest that the disorder should be considered to be severe. For those reasons, it is also necessary to consider what Mr Carroll did about his claimed pain and its disabling effects (if any).
273Second, treatment is a valuable indicator in assessing the severity of someone’s injury. In this case, there was evidence of two psychological consultations occurring shortly after the riots, and reference to ongoing on-island psychological consultations while Mr Carroll worked on Manus Island. There was no evidence that Mr Carroll discussed the riots or any injury he sustained with his general practitioner,[153] even if he is now considering doing so. Further, the only evidence of medication taken by Mr Carroll were some prescriptions for Serotonin and Temaze which were said to have been for sleeping issues.[154] The prescriptions ceased for a period between 12 January 2016 and 25 November 2016. On 25 November 2016, there was one prescription of Endone. There was one further prescription of Temaze on 23 October 2017, after which there were no further prescriptions of Temaze.[155] Mr Carroll made no claim against G4S in respect of medical expenses or for weekly payments for time off work.[156] Additionally, at the date of the hearing, no treatment or medication had been sought by Mr Carroll, even though litigation had been on foot for eighteen months.[157] In my view, each of these matters is telling and points away from a conclusion that the injury was more than at least very considerable and consequently “severe”.
[153]T19, L15 – T20, L5
[154]Exhibit C, page 25
[155]T61, L18 – T62, L14 and Exhibit 1 at page 25
[156]T14; T16, L12 – T17, L1
[157]T65, L1-8
274Third, the evidence suggests that the impact of the mental disorder on the sporting and recreational activities which Mr Carroll could undertake was minimal. As detailed already, the mental disorder did not reduce Mr Carroll’s recreational activities. Prior to the right shoulder injury, Mr Carroll maintained the ability to participate in the full range of the recreational activities he enjoyed. If it is accepted that notwithstanding over 100 physiotherapy attendances over five years, Mr Carroll’s right biceps’ injury had not completely resolved,[158] the only activity that he said he was unable to undertake was tennis. In my view, that is a consequence of the right biceps’ injury, which, in assessing the severity of the consequences of the claimed mental disorder, I am required not to consider. In my view, these matters tend against a conclusion that Mr Carroll sustained a severe mental disturbance.[159]
[158]T21, L4-16
[159]T66, L20-31
275Fourth, while there was evidence that Mr Carroll’s relationship with two of his daughters had broken down, this was as a result of his divorce in 2009 and not as a result of the psychiatric injury he sustained on Manus Island.
276Fifth, evidence of what Mr Carroll has retained tends against the claimed severity of his psychiatric injury. He has maintained a relationship with his partner, albeit that it has been impacted. He has friends who he socialises with and, to the extent he has lost friends, that is not a consequence of his psychiatric impairment.
277Having considered all of the claimed pain and suffering consequences, and their severity, I have reached the view that they do not rise to the level of being “severe”. I am not satisfied that the plaintiff’s impairment consequences are more than “at least significant or marked” or more than “at least very considerable”,

Conclusion
278Having considered the evidence, I have formed the view that:
(a)   consequent upon the riots on Manus Island on 17 February 2014, Mr Carroll sustained a compensable psychiatric injury, namely a chronic Post-Traumatic Stress Disorder which impaired the function of his mind;
(b)   Mr Carroll’s Post-Traumatic Stress Disorder is permanent, in the sense that it will persist into the foreseeable future;
(c)   Mr Carroll was not wilfully dishonest; however, there were inconsistencies in his evidence and matters which he omitted or minimised, diminishing the overall reliability of his evidence;
(d)   In respect of Mr Carroll’s claim seeking to recover damages for loss of earning capacity:
(i)Mr Carroll’s pre-injury earning capacity was $139,583;
(ii)His “with injury” earning capacity was $70,375; his gross earnings from his role as a parking officer. It is unnecessary to take Mr Carroll’s supervening right biceps’ injury into account in determining “with injury” earning capacity;
(iii)Comparing Mr Carroll’s pre-injury earning capacity figure of $139,583, with his “with injury” earning capacity of $70,375 as required by s134AB(38)(f) of the Act, pursuant to s134AB(38)(e)(i) of the Act, Mr Carroll has a loss of earning capacity of 40 per cent or more;
(iv)Mr Carroll has a permanent restriction on his earning capacity and consequently satisfies s134AB(38)(e)(ii) of the Act;
(v)Mr Carroll’s loss of income and consequent loss of earning capacity were not caused by the claimed Post-Traumatic Stress Disorder. The economic loss was caused by the right biceps’ injury sustained by Mr Carroll during training for the position with Corrective Services New South Wales. Accordingly, pursuant to s134AB(38)(d) of the Act, the loss of earning capacity consequences of the Post-Traumatic Stress Disorder do not satisfy the narrative test and cannot be fairly described as being more than “at least very considerable” to the extent of being “severe” when judged objectively in comparison with the range of mental or behavioural disturbances or disorders;

(e) In respect of Mr Carroll’s claim for leave to recover damages for pain and suffering, the impairment consequences also do not satisfy the narrative test for pain and suffering. Even if “severe” in a subjective sense, they are not more than “at least very considerable” such that they meet the test of being “severe” when judged objectively in comparison with the range of mental or behavioural disturbances or disorders;
(f) Consequently, although Mr Carroll has satisfied the 40 per cent loss of earning capacity test in s134AB(38)(e)(i) of the Act, because his claimed impairment consequences do not satisfy the narrative test in s134AB(38)(d) of the Act with respect to either loss of earning capacity consequences or pain and suffering consequences, Mr Carroll’s claim must fail;
279Accordingly, I dismiss Mr Carroll’s claim.
280I shall hear the parties with respect to costs.

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[2022] VCC 764

2 June 2022