Colahan v Victoria Police
[2011] VCC 283
•16 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02550
| JOHN COLAHAN | Plaintiff |
| v | |
| VICTORIA POLICE | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 and 9 March 2011 |
| DATE OF JUDGMENT: | 16 March 2011 |
| CASE MAY BE CITED AS: | Colahan v Victoria Police & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 283 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – whether the consequences of a depressive disorder resulted from the compensable injury – whether other factors contributed to the consequences of the depressive disorder – whether the consequences were serious in terms of pain and suffering and loss of earning capacity: section 134AB (38)(d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC | Nowicki Carbone |
| with Ms M Pilipasidis | ||
| For the Defendants | Ms A Ryan | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed 16 June 2010 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.[1]
[1] The Originating Motion was not reproduced in the plaintiff’s Court Book
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr A Keogh SC appeared with Ms M Pilipasidis of Counsel for the plaintiff and Mr A Ryan of Counsel appeared for the defendants.
4 The plaintiff submitted that he suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Mrs Debra Lee Colahan gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 9-19; 25; 147-149: Exhibit A;
•
The plaintiff tendered the clinical notes of Dr Doswell, general practitioner: Exhibit B;
•
The defendants tendered their Court Book ("DCB"), pages 224-292, and from the plaintiff’s Court Book, pages 103 and 117-118: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[2]
(b)
The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e)
Subsection (38)(I) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[4] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners (supra), I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[2] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[3] Barwon Spinners, at paragraph 33
[4] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Injury
9 The plaintiff was born on 13 March 1951. He is now fifty-eight years of age. He is a married man. He has three daughters who are twenty, eighteen and fifteen years of age.
10 The plaintiff joined the Victoria Police in 1975. He served as a police officer until some time in June 2006. He has not worked since.
11 In 2003, the plaintiff was stationed at the Camberwell Police Station. One of his supervisors was Sergeant Rodgers. The plaintiff experienced a number of problems working under the supervision of Sergeant Rodgers who he described as behaving in a belligerent and belittling manner towards him in both his behaviour and in his speech.
12 The plaintiff said that Sergeant Rodgers spoke in a similar manner to other officers, which the plaintiff found not only very uncomfortable, but created circumstances in which he felt that his confidence and self-esteem were being undermined.
13 There were a number of incidents which occurred which the plaintiff said were of particular relevance in the causation of a depressive disorder which he later developed. The first involved a suggestion which the plaintiff made relevant to the manning of the new watchhouse which he said led to a distinct change in Sergeant Rodgers’ attitude towards him.
14 The second involved Sergeant Rodgers speaking to the plaintiff in a demeaning manner regarding the plaintiff's use of a disused locker which Sergeant Rodgers forbade him from using.
15 The plaintiff applied for a transfer. He had a meeting with two senior officers. It was suggested to him that he go onto WorkCover, with a view to being transferred to the Ashburton Police Station. He was on WorkCover from February 2004 to 19 April 2004. He sought medical treatment and was provided with an anti-depressant for about six months. His claim for WorkCover was accepted. He was paid weekly payment of compensation and his medical and like expenses were also covered.
16 On 20 April 2004, the plaintiff commenced working at the Ashburton Police Station on a graduated return to work. His depressive disorder improved. He regained his confidence and self-esteem.
17 However, a number of incidents occurred from about late 2005 which led to the plaintiff ultimately ceasing work altogether. The first was an occasion in late 2005 when he attended court. The defendant in the case in which the plaintiff was involved had attended the court earlier and had the matter heard in the plaintiff’s absence. The plaintiff then went home believing that he was entitled to do so. A senior officer recommended that the plaintiff be investigated for fraud. The plaintiff believed there were officers who harboured resentment towards him. He experienced feelings of apprehension and stress based on his belief that there were officers who were out to take revenge on him.
18 The second involved the assistance he intended to give to another officer who also wanted to make allegations of bullying and harassment against Sergeant Rodgers. The plaintiff believed that a senior officer reacted negatively to the assistance given by the plaintiff, and was then out to take revenge on the plaintiff.
19 The fourth involved the plaintiff's investigation into a road rage incident on 25 April 2006. The plaintiff made a recommendation that both parties were at fault and that there was insufficient evidence for a conviction to be obtained. His recommendation was approved; however, as a result of a complaint by one of the drivers, a senior officer concluded that the plaintiff's investigation into the incident was flawed. The plaintiff found the process that was involved difficult. It led him to conclude that he needed to watch his own back. He said he was feeling stressed.
The Plaintiff's Medical Treatment
20 The plaintiff initially saw Dr Doswell, general practitioner.[5] I was informed by Mr Keogh that his instructing solicitors had taken steps to obtain a report from Dr Doswell unsuccessfully, but had obtained a copy of her clinical notes which reflected the treatment she afforded the plaintiff from December 2000.[6]
[5] Dr Doswell was then in general practice at the Camberwell Junction Medical Clinic in Camberwell
[6] Exhibit B
21 Dr Doswell's clinical notes disclose that on 2 February 2004, the plaintiff consulted her for treatment for a depressive disorder. Dr Doswell's notes are brief in the extreme, but disclose that the plaintiff complained to her of difficulties with his work, which led her to note the following:
"… Reactive depression secondary to work and home pressures >
counselled at length > psychologist + beyond blue + review."
22 The plaintiff subsequently saw Dr Doswell on 17 February; 4 March; 25 March; 19 April, and on 19 May 2004 for treatment for the depressive disorder. On 10 February 2004, she recorded that the plaintiff was seeing a psychologist. On 17 February 2004, she prescribed him Zoloft, 100 milligrams, and provided him with a WorkCover Certificate.
23 The plaintiff subsequently saw Dr Doswell in May and June 2004. Her cryptic notes suggest that she was providing the plaintiff with WorkCover Certificates; that he returned to work in about mid-April 2004, and that by about May-June 2004, he was coping well.
24 The foregoing seems to me to be entirely consistent with the plaintiff's evidence that he was not coping with his work, and that it resulted in him suffering a depressive disorder for which he needed treatment.
25 The plaintiff next saw Dr Doswell for treatment for a depressive disorder on 8 August 2005. The note made by Dr Doswell on that occasion are as follows:
"General counselling > not coping at work > politics in office > slightly
depressed > not wanting to take medication."
26 The foregoing appears to coincide with the occasion when the plaintiff attended court from which the allegation was made that he was guilty of fraud.
27 The plaintiff saw Dr Doswell on 7 June 2006. It is a particularly relevant consultation because of what Dr Jane, general practitioner,[7] recorded in the practice clinical notes:
"Stress at work starting to make him unwell, low[e]red mood, difficulties in sleeping unable to get out of bed worried re future of job etc fearful of going to work
Related to harassment by inspector in current station (Ashburton), feels vulnerable and unable to go to work similar situation a few years ago when he had Workcare claim > resolved we moved.
Request for cert for WorkCare."
[7] Dr Joan was obviously one of a number of medical practitioners also working from the Camberwell Junction Medical Clinic
28 The foregoing appears to coincide with what the plaintiff described was happening from late 2005 into mid-2006, and I infer that the consultation on 7 June 2006 probably related to the road rage incident and the internal inquiry into the plaintiff's work in investigating that incident.
29 The plaintiff continued seeing Dr Doswell from June 2006. The plaintiff saw her on two further occasions in 2006; on three occasions in 2007; on one occasion in 2009; and then began seeing her more frequently in 2010.
30 It would appear that the explanation for the drop-off in attendances with Dr Doswell occurred because the plaintiff began seeing Dr Black, occupational physician. He first saw him on 8 June 2006. Dr Black provided three medical reports covering the period of his treatment from August 2006 to some time in 2009.[8] Dr Black has since retired, which I infer is the reason why the plaintiff has seen Dr Doswell more frequently in 2010.
[8] PCB 39-49
31 Dr Black said he saw the plaintiff regularly from that first occasion in 2006. In his first report dated 16 August 2006, he was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Anxiety and Depression. He considered he was unfit for work, but he was hopeful that the plaintiff would be able to return to work.[9]
[9] PCB 41
32 In his next report dated 15 February 2007, he made the same diagnosis. His optimism regarding the plaintiff's prospect of returning to work evaporated. He was of the opinion that the plaintiff was completely incapacitated for any employment. He noted some improvement over some months, but notwithstanding the improvement, he considered that the plaintiff's symptoms were both severe and incapacitating. He considered that the plaintiff required anti-depressant medication and psychological counselling.[10]
[10] PCB 44
33 In his next report dated 26 May 2009, he was of the opinion that the plaintiff was suffering from a Major Depressive Disorder. He expressed the same opinion regarding the plaintiff's capacity for work, but there was a palpable change in his opinion, in that he considered that the duration of the plaintiff’s incapacity for work would be indefinite, and that the plaintiff had sustained a significant degree of permanent impairment.[11]
[11] PCB 48-49
34 Dr Black referred the plaintiff to Mr Carfi, psychologist. The plaintiff first saw him in June 2006. At the time when he swore his first affidavit on the 23 December 2009, he was still seeing Mr Carfi about every four weeks. In his second affidavit, sworn 25 February 2011, he made no reference to any current treatment provided by Mr Carfi. Therefore, I assume that he had ceased seeing Mr Carfi by that time.
35 In Mr Carfi's last report, dated 2 March 2007, he expressed the opinion that the plaintiff’s depressive disorder had improved markedly, with the plaintiff acquiring an emerging capacity for work. He suggested that the plaintiff required assistance in pursuing career options. He observed that the plaintiff was positive and keen to participate in investigating employment options.
36 Dr Black referred the plaintiff to Dr Marriott, psychiatrist. The plaintiff first saw him in April 2009, and has continued to see him about every three weeks since. Dr Marriott has treated the plaintiff with anti-depressants. Initially, the plaintiff was using Cipramil (an antidepressant), and the later Lamictal (a mood stabiliser). Dr Marriott was of the opinion that the plaintiff was suffering from a Chronic Adjustment Disorder with Anxiety and Depression; a Major Mood Disorder with depression, and symptoms of a Post-Traumatic Stress Disorder.
37 Dr Marriott was essentially of the opinion that the plaintiff was unfit for any work. He was specifically asked whether the plaintiff could be a delivery driver or a chauffeur. He was firmly of the opinion that he would not be capable of undertaking work of that kind.[12]
[12] PCB 62-66, and in particular at 66
The Medico-Legal Opinions
38 Ms Ryan submitted that a very different view of the plaintiff’s depressive disorder is apparent upon tracing through the examinations conducted by a number of psychiatrists who examined the plaintiff on a medico-legal basis.
39 The first is Dr Cole, psychiatrist, who examined the plaintiff for the defendants on 22 July 2004. Dr Cole obtained a history from the plaintiff that he had experienced marital problems which were serious over the two years preceding the consultation; that he had lost interest in sexual intercourse; that his wife would not cook for him, and that separation had been discussed.
40 I should pause to observe that Ms Ryan submitted that the plaintiff had given histories to a number of psychiatrists of not only marital problems, but difficulty coping with his three daughters, and also with the death of his mother. I will refer to those alleged problems, for the simple sake of convenience, as the plaintiff’s psycho-social problems. Ms Ryan submitted that although the defendants admitted that the plaintiff suffered a compensable injury, they contested whether the consequences contended for by the plaintiff were entirely due to the depressive disorder.
41 Dr Cole was of the opinion that the plaintiff had well-developed obsessional personality traits, and had stopped work due to major depression largely due to his marital problems. He doubted that the plaintiff had been bullied or harassed based upon the lack of independent evidence in that regard. However, if the incidents occurred, then he was of the opinion that they had aggravated his depressive state. He was also of the opinion that the plaintiff’s successful treatment with anti-depressants suggested that he was prone to suffering from depression.[13]
[13] DCB 249-250
42 Dr Duke, psychiatrist, examined the plaintiff for the defendants on 27 June 2006. He observed that the plaintiff developed what he described as a depressive swing in 2004 which was treated with counselling and Zoloft (an anti-depressant) over a six-month period. He said it was regrettable that the plaintiff ceased taking the anti-depressant because of the high likelihood of relapse after the cessation of the use of an anti-depressant.
43 Dr Duke seems to place some emphasis on the fact that the plaintiff's mother passed away in March 2006, as if to say that it was a factor to some degree in the occurrence of the plaintiff's depressive disorder. He said that the plaintiff told him that after being off work for three weeks, his symptoms basically disappeared, which led to Dr Duke to conclude that the plaintiff was capable of returning to work. However, Dr Duke was of the opinion that the plaintiff was suffering from a recurrence of a depressive disorder.[14]
[14] DCB 257-260
44 Ms Ryan emphasised in her submissions that the plaintiff had apparent difficulties with his daughters; there were positives which came out of Dr Duke's mental state examination, and the plaintiff's admission that he undertakes woodwork and household jobs. Ms Ryan submitted that the difficulties the plaintiff had with his daughters and the death of his mother were contributors to the recurrence of the depressive disorder, and the positives which came out of the mental state examination regarding the plaintiff's capacity for work and desire to undertake activities, suggested that the recurrence was of modest significance.
45 Dr Ratnayake, psychiatrist, examined the plaintiff for the defendants on 1 November 2006. Unlike the history of marital problems, problems with his daughters and the death of his mother, which the plaintiff apparently disclosed to Dr Duke, Ms Ryan submitted that the plaintiff disclosed very little of that when he was examined by Dr Ratnayake.
46 Dr Ratnayake also referred to the Major Depressive Disorder which the plaintiff suffered in 2004; the prescription of Zoloft, and the vulnerability to which the plaintiff was exposed after ceasing the use of medication. He considered that what occurred in 2006 was a relapse of the Major Depressive Disorder. He considered the causative factors were the death of the plaintiff's mother and the perception of bullying by senior officers.
47 Dr Ratnayake was of the opinion that the plaintiff was capable of returning to full-time work, but would likely benefit from working at a different police stations. He expressed some doubt as to whether the depressive disorder was related to the plaintiff’s work. He was of the opinion that the plaintiff had recovered from the recurrence of the Major Depressive disorder, adding that he felt that the plaintiff had a genetic vulnerability to such a disorder and that there was a possibility of recurrence in the future.[15]
[15] DCP 267-271
48 Dr Prytula, psychiatrist, examined the plaintiff for the defendants on 11 November 2009. He was of the opinion that the plaintiff was suffering from a Major Depressive Disorder of mild severity. It would appear that he considered that it was caused by the plaintiff’s work. He arrived at that conclusion despite having the reports of Dr Duke and Dr Ratnayake which exposed him to competing and contrary opinions not only on causation, but as to whether the plaintiff was suffering from a psychiatric disorder of any particular gravity.
49 Dr Prytula was aware that the plaintiff was being treated by Dr Marriott. He considered that the treatment provided by Dr Marriot was both reasonable and necessary.[16]
[16] DCB 275-277
50 Dr Jager, psychiatrist, examined the plaintiff for the defendants on 29 July 2008, and then again on 16 April 2010. Dr Jager was provided with the affidavits of Sergeant Robinson, sworn 17 May 2010;[17] Sergeant Rodgers, sworn 19 May 2010, [18] and retired Inspector Tucker, sworn 27 April 2010.[19] He was also provided with the medical reports of Dr Black, Dr Duke and Dr Ratnayake.
[17] DCB 224-226
[18] DCB 227-232
[19] DCB 233-238
51 After he first examined the plaintiff he was of the opinion that the plaintiff had suffered a work-related moderately serious Major Depressive Disorder and that the plaintiff was unfit for all employment. At the time of his second examination, he also had the affidavits referred to above, the report of Dr Prytula, and the plaintiff's first affidavit. He was asked a very difficult question, whether he preferred the plaintiff's version of what occurred in 2004 and 2006 or the version of the other officers, and if so, to what extent his opinion was influenced by the version of the other officers. Dr Jager did not change his opinion, but re-stated it.[20]
[20] DCB 93-95 and 96-97
52 The plaintiff's solicitors had him examined by Professor Tan, psychiatrist, on 8 July 2009, and by Dr Paoletti, psychiatrist, on 15 July 2010. Dr Tan was of the opinion that the plaintiff was probably suffering from an Adjustment Disorder, but because he considered that his emotional state was so severe and persistent, that the diagnosis that was warranted was one of a depressive illness. He doubted the plaintiff had the capacity to return to work.[21] Dr Paoletti was of a similar opinion, although his diagnosis was that of a Major Depressive Disorder. He was firmly of the opinion that the plaintiff was totally and permanently incapacitated for work as a police officer, but could possibly do some sheltered work.[22]
[21] PCB 70-71
[22] PCB 83-84
The Issues
53 The substantive issue raised by the defendants was that the plaintiff suffered from psycho-social issues comprising marital problems; loss of libido; problems with his daughters; grieving the loss of his mother in 2006, and more of a perception of bullying and harassment than was real.
54 The foregoing, it was submitted, were major contributors to the plaintiff's depressive disorder, and were major contributors to the consequences contended for by the plaintiff.
55 It is reasonably obvious that the plaintiff suffered sufficient problems in 2004 to warrant a diagnosis of a depressive disorder, to be off work for a short period of time, and to be treated by medication for depression.
56 It is also reasonably obvious that in 2006 the depressive disorder recurred and became entrenched, to the point where the plaintiff obtained medical treatment which became an established level of treatment provided by Dr Doswell, Dr Black, Mr Carfi and Dr Marriott. His treatment from 2006 involved the use of medication and very frequent consultations with Dr Marriott, being approximately every three weeks.
57 The plaintiff denied that the psycho-social issues were of any particular significance. He admitted that he had suffered marital problems prior to 2004 and that he had a diminished interest in any sexual activity with his wife. However, it was my strong impression from the evidence contained in the plaintiff's affidavits and his oral evidence, that whatever the state of affairs was with his relationship with his wife, it worsened after 2004 and certainly after 2006.
58 The foregoing is consistent with the evidence of the plaintiff's wife, who said that there were problems with intimacy before the plaintiff suffered his depressive disorder (and I assume that Ms Ryan meant prior to 2004 in asking that question), but they became worse after the issues in his work became apparent.[23]
[23] Transcript 46
59 Furthermore, the plaintiff's wife denied that the plaintiff had any particular difficulties with his daughters, describing those difficulties as being slight in degree, but which the worsened later on, and I infer that she meant after the plaintiff suffered the depressive disorder.[24] The plaintiff also denied that the issues which he had with his daughters were of any particular significance.[25]
[24] Transcript 45
[25] Transcript 34-35
60 After considering the evidence of the plaintiff contained in his affidavits, his oral evidence and the evidence of his wife, and the histories which Ms Ryan referred to in the medical reports, I have reached the conclusion that the so- called psycho-social issues are of little consequence in my determination of whether the depressive disorder has caused the consequences contended for by the plaintiff.
61 The plaintiff may well have had some psycho-social issues affecting his relationship with his wife and his children, but it must be remembered that his marriage was intact, as was his relationship with his children up to 2004, and in between 2004 and 2006. Of particular importance is the fact that he was able to continue working save for a brief period off work in 2004 when he was on WorkCover and under medical treatment by Dr Doswell.
62 It seems to me that the so-called psycho-social issues are a furphy. The concentration on those issues by the defendants became little more than a distraction in the course of the hearing of this application. The real issue was the diagnosis of the depressive disorder, whether it constituted a compensable injury, and whether the compensable injury materially contributed to the consequences tendered for by the plaintiff.
63 Sure enough a number of psychiatrists who examined the plaintiff for the defendants recorded positives in the plaintiff's outlook in his life in 2006, and sure enough they doubted whether the bullying and harassment was rather more apparent than real.
64 I do not accept the opinions of Dr Cole, Dr Duke and Dr Ratnayake. They are in dramatic contrast to the clinical notes of Dr Doswell which speak volumes of the seriousness of what was happening to the plaintiff in 2004 and then in 2006. Further, they are in remarkable contrast to the opinions of the plaintiff’s treating medical practitioners; namely, Dr Black, Dr Marriott and the plaintiff’s treating psychologist, Mr Carfi.
65 Furthermore, what is very curious about the defendants’ case is that they had the plaintiff examined by Dr Cole, Dr Duke and Dr Ratnayake and relied upon their opinions, but rather than have any of them re-examine the plaintiff more recently to determine whether they stood by their earlier expressed opinions, the defendants engaged Dr Jager whose opinion is entirely compatible with the opinions of Dr Black, Dr Marriott, Dr Tan and Dr Paoletti. It struck me as being a very odd way to challenge the plaintiff’s case, and really amounted to a challenge based upon very stale evidence of doubtful persuasion bearing in mind the large body of medical evidence which followed in which contrary medical opinions were expressed.
66 Furthermore, I consider that the real seriousness of the plaintiff's depressive disorder is consistent with the opinions of Dr Black, Dr Marriott, Dr Jager, Dr Tan and Dr Paoletti. It occurs to me that their opinions are soundly based on a reasonable understanding of what occurred to the plaintiff in 2004 and 2006.
67 Ms Ryan submitted that an answer which the plaintiff gave during cross- examination suggested that there were other reasons why his condition worsened in 2009. The worsening of his condition is referred to in a report of Dr Black dated 26 May 2009 in which he observed that over the preceding few months the plaintiff's depressive state had deteriorated significantly.
68 During cross-examination, the plaintiff was asked whether there were any other stressors which were a cause of that deterioration. He said only the normal stressors relating to his children.[26] Ms Ryan submitted that the answer was tantamount to the plaintiff saying that the plaintiff had problems with his children at that time. However, that interpretation takes the answer entirely out of its context. The question was asked in the background of the plaintiff suffering a Major Depressive Disorder, and his answer was directed to whether there was any other cause other than the work he performed in 2004 and 2006.
[26] Transcript 34
Serious Injury
69 I find that the plaintiff suffered a Major Depressive Disorder as a result of the events which he described in 2004 and 2006. I find that the Major Depressive Disorder is permanent and that the consequences of it easily deserve the description of being “severe”.
70 I accept the plaintiff's evidence contained in his affidavits sworn 23 December 2009 and 25 February 2011. The plaintiff is in a parlous state of health. He requires ongoing medical treatment provided by Dr Marriott, and the prescription of anti-depressant medication in an endeavour to assist him in controlling the severity of the symptoms of the Major Depressive Disorder. The flavour of the medical evidence I accept carries with it a suggestion that the plaintiff will never be free of the necessity to have psychiatric treatment over the balance of his life.
71 It is clear from the plaintiff's affidavits and from his oral evidence that nearly every aspect of his life has been adversely affected in a most serious way by the Major Depressive Disorder. For example, his self-esteem and dignity; his capacity to be motivated and to do the simple things for himself and around his home and for his family; and his capacity to engage in general social activities has been seriously affected.
72 The plaintiff's wife gave some very telling evidence in that regard. She described the worsening of their relationship after the plaintiff suffered the onset of the Major Depressive Disorder. He does some cooking, some vacuuming and will hang out some washing, but otherwise does very little around the home. She described him as lacking desire or “the oomph” to do these things. She does all of gardening. He mows the lawns. She took her daughters on a camping trip to Coffs Harbour by herself. The plaintiff did not accompany her or his daughters on that trip.[27]
[27] Transcript 46
73 The strong impression I have of all of the evidence of the plaintiff, his wife, and Mr Morris, who swore an affidavit on 3 February 2011, coupled with the medical evidence, which I accept, paints a grim picture for the plaintiff's future.
74 I find that the pain and suffering consequences deserves the description “severe”, and easily meets the requirements of the statutory test. I also find that the plaintiff is totally and permanently incapacitated by reason of the compensable injury, and in that regard, has suffered a loss of earning capacity which easily meets the requirements of the statutory test.
Conclusion
75 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
76 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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