Crea v State of Victoria
[2024] VCC 73
•16 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-03715
| SERAFINO CREA | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 14 December 2023 | |
DATE OF JUDGMENT: | 16 February 2024 | |
CASE MAY BE CITED AS: | Crea v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 73 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychological injury – post-traumatic stress disorder – anxiety and depression – whether “severe” under the Act – whether the plaintiff satisfies the test for pain and suffering consequences as defined as “serious” under the Act – loss of earning capacity as defined under the Act.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; New South Wales v Moss (2000) 54 NSWLR 536
Judgment: The application by the plaintiff to bring common law proceedings to bring damages for pain and suffering and loss of earning capacity arising out of psychological/psychiatric injury from an incident which occurred on 24 June 2019 in the course of his employment with the defendant is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr B Cooper | Arnold Thomas & Becker |
| For the Defendant | Mr E Makowski with Mr L Howe | Russell Kennedy |
HIS HONOUR:
1By Originating Motion dated 8 September 2022, the plaintiff seeks leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by him arising out of or in the course of his employment with the defendant, the State of Victoria. The plaintiff alleges that the injury he suffered occurred at his place of employment on 24 January 2019.
2The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and for loss of earning capacity as a result of the psychological/psychiatric injury he suffered from the incident at his work. The application for leave pursuant to both pain and suffering damages and loss of earning capacity is, under the “serious injury” definition, a long-term mental or severe long-term behavioural disturbance or disorder.
3The following evidence was adduced in the course of the hearing. The plaintiff gave evidence and was cross-examined.
4The plaintiff tendered the following exhibits:
· Exhibit “A” ꟷ the Plaintiff’s Amended Court Book (“PCB”), dated 6 December 2023, pages 12 to 188, 216 to 231 and 255 to 269.
· Exhibit “B” ꟷ the Defendant’s Amended Court Book (“DCB”), dated 7 December 2023, pages 102 to 103.
5The defendant tendered the following exhibits:
· Exhibit 1 ꟷ the Defendant’s Amended Court Book dated 7 December 2023, pages 8 to 58, 81 to 87; 95 to 101 and 104 to 124.
· Exhibit 2 – a folder containing thirty-six pages, including Facebook and Instagram entries.
6At the commencement of the proceeding, Mr Makowski, on behalf of the defendant, identified the following matters to be of issue in this application:
(a) the plaintiff has not satisfied the psychological and psychiatric injury test required to support leave for the grant of a serious injury certificate;
(b) the plaintiff does not meet the threshold test for economic loss, being a reduction of 40 per cent of his “without injury” capacity;
(c) the plaintiff does not meet the test for pain and suffering damages;
(d) the credibility of the plaintiff is contested;
(e) in respect of the plaintiff’s loss of earning capacity certification, he has failed to establish a 40 per cent loss of income under the common law, as required for a worker under the age of twenty-six years.
The statutory scheme
7The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove he has suffered a permanent serious impairment or loss of body function.
8The 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 or in the course of his employment with the defendant on 24 January 2019;
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c) The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) Subsection (2)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in a range of possible impairments or losses of a body function, may be fairly described as being “more than significant” or “marked”, and as being “at least very considerable”;
(e) Subsection (2)(h) provides that 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;
(f) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622
9I am required 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, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
10It is not in issue in this case that the plaintiff was under twenty-six years of age at the time of the incident which gave rise to his claimed injury. The statutory prescriptions of measuring the loss of earning capacity, as set out in s325(f) to s325(g), are not relevant in this proceeding. The calculation of loss of earning capacity in this case is to be done in accordance with the common law principles enunciated by Heydon JA (as he then was) in the Case of New South Wales v Moss.[2] A summary of these principles is as follows:
(a) The evidence of past economic loss is some, though not conclusive, evidence of a reduced earning capacity;
(b) It is generally desirable to have precise evidence of what the plaintiff would have been likely to have earned before the injury and what he is likely to earn after it;
(c) In a case where the plaintiff has suffered a significantly-disabling injury which affects the range and nature of work he can perform, the Court, without specific evidence of what other persons with this kind of disability can earn, makes a judgment and assessment on a percentage basis, or otherwise, of the value of loss of capacity;
(d) The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It is an issue of calculating the damage to a capacity to carry out various careers. It is an exercise of possibilities, not proof of probabilities;
(e) The mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is unentitled to a nominal sum;
(f) The task of the tryer of fact is to perform a discretionary judgement by reference to not wholly determinative criteria within a fairly wide parameter.
[2](2000) 54 NSWLR 536
11The above principles are to be complied with in determination of this application for serious injury certification.
The Plaintiff’s background
12The plaintiff was born in November 1993 and consequently was twenty-five years of age at the time of his injury. The plaintiff has lived and worked in Australia his whole life.
13The plaintiff completed Year 10 at Werribee Secondary College and then commenced an apprenticeship as a cabinetmaker for a period of two years.[3]
[3]PCB 13
14Prior to his apprenticeship employment, the plaintiff had worked as a cleaner and truck jockey, but after ceasing his apprenticeship as a cabinetmaker, his next role was as a storeman.
15In 2015, the plaintiff travelled to England to pursue his cricket-playing career for Surrey Cricket Club. He did not make the professional level in the English cricket scene.[4] Upon return to Australia, the plaintiff obtained work as a storeman. He was working as a storeman in the years 2016 and 2017. He continued in the role of a storeman until the early part of 2019.
[4]PCB 13
16The plaintiff commenced a four-week course in respect of youth justice work, with the intention of working in that area. In mid-May 2019, the plaintiff commenced employment at the Youth Justice Centre in Parkville on a full-time basis.[5]
[5]PCB 14
17The plaintiff has been in a relationship with Natalie Green since his teenage years. He and Ms Green are now engaged. By May 2021, the plaintiff and Ms Green had moved into their new home. In November 2022, their son Lachlan was born.[6]
[6]Transcript (“T”) 50
18In the period between the date of the incident at work on 24 June 2019 and the time of the hearing, the plaintiff has been regularly and consistently involved in competition cricket and competition football. The plaintiff’s sporting life subsequent to the incident at work became a critical aspect of this case in relation to his credit.
19The plaintiff remained on payments of compensation until January 2021. He obtained employment as a teacher’s aide in April 2021 and continues in that employment to date. Until October 2023, the plaintiff had been working and had been paid for full-time hours of thirty-eight hours a week. The plaintiff reduced his hours to thirty hours per week in 2023, shortly prior to the commencement of this hearing.
The Plaintiff’s injury in the course of his employment with the Defendant
20The plaintiff was employed by the State of Victoria as a youth justice worker grade 1 employee. His standard hours of work were approximately thirty-eight hours per week and on occasion he would be required to work overtime.
21In his affidavit dated 4 May 2022, the plaintiff sets out in detail the incident which occurred at his place of employment. In summary, the plaintiff was assaulted by an inmate of the Youth Justice Centre by being struck in the head by the inmate. As a result of the assault, the plaintiff sustained a broken tooth, as well as bruising to his jaw and eye socket. The physical injuries have resolved. The plaintiff’s tooth has been cosmetically repaired. On the day of the injury, the plaintiff was taken to the Royal Melbourne Hospital for treatment.
Medical treatment
22The plaintiff was taken to the Royal Melbourne Hospital from the scene of the incident at the Youth Justice Centre in Parkville. He was examined and discharged. On 2 July 2019, the plaintiff attended upon his then general practitioner, Dr Alexander Chan. He was prescribed Escitalopram, 10 milligrams daily. On the following day, the plaintiff lodged a worker’s compensation claim with the State of Victoria.[7]
[7]PCB 18
23The plaintiff did not initially take the medication prescribed by Dr Chan. On 11 July 2019, Dr Chan referred the plaintiff to Dr Abbas Rajaee, general practitioner, who referred the plaintiff on to a psychologist, Mr Henry Alington-Maguire.
24It was not until September 2019 that Dr Rajaee convinced the plaintiff to commence his prescribed medication of Escitalopram,10 milligrams daily.
25The plaintiff ceased his psychological consultations with Mr Alington-Maguire in late 2020. It was at that time he was referred to his current psychologist, Ms Antoinette Graham. The plaintiff is currently prescribed 30 milligrams per day of Escitalopram.
26The plaintiff deposes that he was referred to a psychiatrist, Dr Akinsola Akinvi. The plaintiff sets that out in his affidavit sworn 4 May 2022. At the time of the hearing on 12 December 2023, the plaintiff had not attended upon any psychiatrist for treatment.[8]
[8]T14
27The plaintiff stated that his condition improved in the first month after the incident, but has been stable since that time.[9] At the time of the hearing of this application, the plaintiff’s medical treatment was limited to Dr Viraj Rajaguru, a general practitioner, and Ms Graham, psychologist.
[9]T19
Dr Viraj Rajaguru, general practitioner at Grant Street Medical Centre, Bacchus Marsh
28In his report dated 13 September 2023, Dr Rajaguru stated that he first saw the plaintiff on 11 January 2023. It was not related to a mental-health issue. On the second occasion, on 17 February 2023, the plaintiff reported to Dr Rajaguru that he had been assaulted and had some difficulties with Post-Traumatic Stress Disorder (“PTSD”). Dr Rajaguru, in his report, diagnoses the plaintiff with anxiety and PTSD. The general practitioner confirmed that the plaintiff was currently being prescribed 30 milligrams daily of Escitalopram. He also noted that the plaintiff was seeing a psychologist.
29Dr Rajaguru was unable to assess the extent of the symptoms for the plaintiff’s history of PTSD and anxiety. The general practitioner noted that he intended to refer the plaintiff to a consultant psychiatrist for a clarification of the diagnosis.
30To date, there has been no consultant psychiatrist treating or assessing the plaintiff.[10]
[10]PCB 230-231
Ms Antoinette Graham, psychologist
31The other treater of the plaintiff is Ms Graham, psychologist. Ms Graham has prepared four separate reports for the purposes of this application, dated 16 July 2021, 12 November 2021, 16 November 2022 and 7 September 2023. Ms Graham reports that the plaintiff complains of still having difficulty sleeping and negative thoughts at nighttime.[11] In her report, Ms Graham does not refer to any sporting activity or undertakings made by the plaintiff over the course of her treatment with him. The most recent report notes that the plaintiff complains of feeling tired and fatigued and unable to properly care for his newborn son. At the time of making this report, his son would have been approximately eleven months of age. Ms Graham notes that she does not, as a clinical psychologist, give a specific diagnosis. However, she accepts that others have diagnosed the plaintiff as experiencing PTSD symptoms. She notes he displays low mood and depressive symptoms.
[11]PCB 227
32Ms Graham’s treatment is sessions on a six-weekly basis, setting out cognitive behavioural therapies.
33Notably, Ms Graham does not recommend or support the proposition that the plaintiff should reduce his hours of work from thirty-eight hours as a teacher’s aide to the thirty hours that he is now undertaking. In his evidence, the plaintiff stated that he had support from his psychologist to reduce his hours. The evidence does not bear this out.
34Other than the treatment from Ms Graham and Dr Rajaguru, by way of prescribing medication, the plaintiff has no other treatment.
The credit of the Plaintiff
35I have had the advantage of observing the plaintiff giving evidence in Court. The credibility of the plaintiff was the main focus of cross-examination by the defendant’s counsel.
36The plaintiff was taken to paragraph 50 of his affidavit sworn on 4 May 2022.
Q:“So paragraph 50: ‘I feel depressed and lethargic. I have difficulty getting out of bed. I sleep most of the day and find it difficult to sleep at night.’ Was that true and correct?---
A:That’s true and correct, yes.
Q:You were spending most days of the week, were you, in bed?---
A:Yes.
Q:How many days out of a week?---
A:I would say between five to six days in bed for most of the day.
Q:I see. And you were having nightmares?---
A:Yes, of the incident.
Q:Regularly of the incident?---
A:Yes.
Q:You weren’t playing sport at that stage?---
A:I may have been playing sport to some degree, I’m not entirely sure because I can't remember all the years that I’ve played so I wouldn’t be able to say yes or no in a definitive answer.
Q:Well, it’s important so think carefully?---
A:Yes.
Q:You just said you were sleeping five to six days a week as at May 2022?---
A:Yes.”[12]
[12]T16, L9-26
37The plaintiff confirmed that he would be in bed five or six days a week during the daytime between 2019 and 2022.[13]
[13]T17
38The plaintiff was then asked about whether he had played any sport or had reduced his sporting activities in the period of 2019 until May 2022. The plaintiff responded as follows:
“I believe I was playing sport to some degree. Training would have been at night-time and games were during the day on Saturday so I was playing sport but I had about a year and a half or a year off after the injury I believe it was.”[14]
[14]T18, L9-13
39The plaintiff had given a history that he had a year-and-a-half of sport. When challenged about this, he stated that he knew that he did not play sport for that period of time.[15] When the plaintiff was brought back to this topic, the following exchange took place.
Q:“Did you stop any sport at all in the months after the incident because of the psychological impact?---
A:Yes.
Q:How long did you - is that when you took the year and a half off sport?---
A:Not for the whole time, no, but there was times where I didn’t play sport; correct.”[16]
[15]T18, L18-19
[16]T23, L25-29
40The plaintiff was then cross-examined extensively about his sporting activities in the period between the date of the incident and the time of the hearing. This was divided into two distinct sports, being cricket and Australian Rules football.
Football
41In the season of 2019, the plaintiff played at the Glen Orden Football Club.[17] The plaintiff played eleven games in that season.[18] On 29 June 2019, the plaintiff played in a game of football against Sunshine Heights.[19] I note here that that game of football was played five days after the day he said he was assaulted by a detainee at the Youth Justice Centre. In that season, the plaintiff was the best and fairest for the Glen Orden Football Club.[20] The plaintiff’s football team were premiers in that season, but he did not play in the Grand Final, as he had injured his right shoulder on 1 September 2019.[21] The plaintiff was asked about how his football had changed as a result of the incident the subject of this application, and he stated, “[y]eah my football hadn’t changed”.[22]
[17]T36
[18]T37
[19]Exhibit 2 at page 4 and T38
[20]Exhibit 2 at page 7
[21]Exhibit 2 at page 5
[22]T40
42In the season of 2020, the plaintiff moved to the Bacchus Marsh Football Club.[23] The plaintiff conceded this was a higher standard of football than the Glen Orden Football Club.
[23]T48
43In the 2021 season, the plaintiff returned to play with the Glen Orden Football Club. He played eleven games in that season and on three occasions was the best player.[24]
[24]Exhibit 2 at page 13
44In the season of 2022, the plaintiff returned to the Bacchus Marsh Football Club.[25] In that season, he played fourteen games of football and on five occasions was the best player, having kicked three goals.
[25]Exhibit 2 at page 16
45In the 2023 season, the plaintiff moved to the Ballan Football Club.[26] He played the season there. In the season of 2024, the plaintiff concedes that he had moved back to the Bacchus Marsh Football Club.[27] When all of these football matters had been put to the plaintiff, he repeated the statement, “my football hasn’t changed over years”.[28]
[26]Exhibit 2 at page 21
[27]Exhibit 2 at page 29
[28]T60
46In the four affidavits in support of his application for serious injury in this case, the plaintiff never once mentioned he played football during the time between the time of injury and the time of the hearing. This omission is significant in a case where the plaintiff is stating that he could hardly get out of bed and engage in life.
47The plaintiff was also asked about going to the gym during the course of the period during 2019 and the time of the hearing. He stated that he did go to the gym until COVID time and then ceased going. He stated that he had then set up some gym equipment in his garage at home. This physical activity of gym work is on top of the training for football and cricket, which occurred on Tuesdays and Thursdays.[29]
[29]T67
Cricket
48The plaintiff’s main sport is cricket. As mentioned in his affidavit, he travelled to England in 2015, with the hope of commencing a professional career in cricket. The plaintiff has played, prior to the injury, cricket at the Essendon Cricket Club and St Kilda Cricket Club. In the 2019/2020 season, the plaintiff played at the Bundoora Cricket Club. He played six games of cricket in that season and there was an entry in Exhibit 2 referring to his welcome to the Bundoora Cricket Club on 26 July 2019, which is only six weeks after the incident, which brings this matter to court.[30]
[30]T37
49In the 2020/2021 season, the plaintiff played cricket at the Grand United Cricket Club in the period between 21 November 2020 and 6 March 2021.[31] In total, he played twelve games of cricket. At the end of that same season in 2021, the plaintiff also played two games of cricket at the St Kilda Cricket Club.[32] Those games were played on 20 March 2021 and 27 March 2021.
[31]T42
[32]T44
50In the season 2021/2022, the plaintiff played at the St Kilda Cricket Club.[33] He played thirteen matches between 18 December 2021 and 2 April 2022. This was premier-grade cricket that the plaintiff was involved in, and he stated this was the highest level you can play in Victoria.[34] In that year, the St Kilda Cricket Club were premiers and he was part of that celebration.[35]
[33]Exhibit 2 at page 15
[34]T47
[35]Exhibit 2 at page 35
51In the season of 2022/2023, the plaintiff played cricket at Grand United Cricket Club.[36] In that year, he played fifteen games, taking thirty-two wickets as a left-arm swing bowler.[37]
[36]T51
[37]Exhibit 2 at page 22
52At the time of the hearing, the plaintiff had commenced the season of 2023/2024 at the Grand United Cricket Club. On 4 November 2023, the plaintiff had taken eight wickets for 2024 at Williamstown. This was some six weeks before the hearing of this matter.[38] In total, by the time of the hearing, the plaintiff had played five games for the Grand United Cricket Club, taking a total of sixteen wickets.[39]
[38]Exhibit 2 at page 28
[39]Exhibit 2 at page 33
53The plaintiff’s involvement in sport, both cricket and football, has been extensive and continuous in the period between the time of the incident giving rise to this application and the time of the hearing of the application itself. He has been fully and actively involved in both football and cricket and that fact is at odds with his description in his four affidavits of the condition of his mental state.
54The contents of the Facebook and Instagram photographs in Exhibit 2 also show, and the plaintiff accepts, that he has been involved in attending a wedding in December 2019;[40] a horse-riding trip to Halls Gap[41] and the purchasing of a home-and-land package in April 2020.[42] The plaintiff stated that he did the front garden of the property. In May 2021, the plaintiff and his de facto, Natalie Green, moved into the home.[43] In July 2022, Ms Green announced her pregnancy.[44] The baby, Lachlan, was born in November 2022. All of these activities are natural activities that can be, and were, engaged in by the plaintiff in the period where he depicts a completely-debilitated person who does not want to be anywhere near crowds. I do not accept that is an accurate description set out in his affidavits, nor, indeed his history to doctors about his ongoing condition. In conclusion, I find that the plaintiff’s credibility has been successfully challenged by the defendant and conclude that he has become compensation-focused and is not an accurate or reliable historian as to the symptoms and/or consequences flowing to him as a result of the incident in June 2019. I have not reached this conclusion easily, but it is an inevitable conclusion, based on the evidence before the Court.
[40]T41
[41]T41
[42]T42
[43]Exhibit 2 at page 14
[44]T50
The medical examiners
Plaintiff’s doctors
(a) Dr David Weissman, consultant psychiatrist
55The plaintiff has seen Dr Weissman on two separate occasions for medico-legal reporting purposes in this application. Dr Weissman’s first report was dated 9 January 2023 and his final report was dated 11 October 2023.
56In his first report, Dr Weissman was given the following history by the plaintiff:
“I asked him about his leisure activities. He told me that he has just got back into playing cricket this season and playing football last season, after having a ‘break’ for two and a half to three years, because of his assault-related symptoms. … .”[45]
[45]PCB 98
57In that same examination, the plaintiff told Dr Weissman the following:
“I asked him about his capacity to perform the personal activities of daily living. He told me that over the last six months he has started showering and dressing himself every day. However he told me that for an extended three-year period he was lying in bed often and often not showering himself for two to three days at a time. This was out of character for him.”[46]
[46]PCB 99
58Dr Weissman’s diagnosis of the plaintiff was chronic PTSD of moderate intensity and chronic Major Depressive Disorder and anxious distress of moderate intensity relevant to his work injury.[47] Dr Weissman went on to state that:
“There continues to be a significant and substantial impact upon his quality of life, level of enjoyment and pleasure, many aspects of his level of function (motivation, drive, interests, cricket and football) as well as an ongoing partial psychiatric incapacity for suitable employment.”[48]
[47]PCB 105
[48]PCB 106
59In the second report dated 11 October 2023, the plaintiff gave the following history to Dr Weissman:
“The … [plaintiff] told me that after he was assaulted, he had two years off cricket and football (despite not working on Saturdays). He told me he tried to return to St Kilda Cricket Club in Premier cricket. However he told me that he no longer had the ‘passion’ to play anymore at that high level. Therefore he has played only locally since then.”[49]
[49]PCB 112
60The plaintiff did mention to Dr Weissman that he had been playing football and cricket in the course of the year.[50]
[50]PCB 115
61In his second report, Dr Weissman diagnosed the plaintiff as suffering from chronic PTSD and chronic Major Depressive Disorder with anxious distress of moderate intensity relative to his work injury. In the second report, the plaintiff had reduced his work hours to 30.5 hours per week. Dr Weissman stated again:
“Again, there appears to be somewhere between a moderate to moderately severe decline, deterioration and downturn in … [the plaintiff’s] quality of life, level of enjoyment and pleasure, aspects of his level of function (socialisation and sporting) as well as day-to-day domestically-based functional impairment and overall life trajectory since the subject work-related assault.”[51]
[51]PCB 124
62Dr Weissman is a very experienced medico-legal reporter in respect of serious injury applications. His assessment is that the plaintiff has moderate to moderately-severe decline as a result of the work-related assault. That assessment is made without the full detail of the sporting activities and socialisation which the plaintiff has now admitted to undertaking. Dr Weissman’s report does not support a finding of a severe long-term behavioural disturbance or disorder in respect of either both pain and suffering or loss of earnings damages.
Defendant’s doctors
Dr Alex Chan, general practitioner
63Dr Alex Chan’s report is dated 2 July 2019. Dr Chan was the plaintiff’s general practitioner and saw the plaintiff on 27 June 2019 and 2 July 2019. Dr Chan noted that the plaintiff had suffered a chip to his tooth. He noted that the plaintiff’s jaw was sore and there was swelling and he was tender on the right side. Dr Chan noted the plaintiff was feeling shocked and having flashbacks about the incident, and not sleeping well.
64The second occasion the plaintiff attended Dr Chan was on 2 July 2019. The plaintiff gave a history of still having difficulty sleeping and Dr Chan thought he was moderately anxious and depressed. These reports from Dr Chan were a referral to Ms Lorraine McGregor, psychologist. There was no evidence from Ms McGregor.
Dr Greg White, consultant psychiatrist
65Dr Greg White re-assessed the plaintiff on behalf of the defendant. The assessment by Dr White was one month after the incident bringing the matter to the Court. The plaintiff told Dr White as follows:
“He was unable to sustain his normal self-care activities, and his shopping, cooking and cleaning activities were reduced because of his psychiatric symptoms.
During the day he was more frequently lying down to rest.
… [The plaintiff] was socialising less than usual.
He was driving less than usual.
He had friends, but was in contact less than usual.
He was struggling to regularly maintain a daily activity routine.”[52]
[52]DCB 13-14
66As previously discussed under the heading of Credit, the plaintiff was playing football on a regular basis at the time of the history given to Dr White. It is clearly incorrect. Dr White’s opinion was that the plaintiff met the symptoms for the criteria of PTSD.
Dr Stephen Stern, consultant psychiatrist
67Dr Stephen Stern prepared a report dated 22 June 2021 for the defendant. The plaintiff gave a history to Dr Stern that he had an interest in playing cricket and football. He went on to state that the plaintiff was gambling at the TAB for the last two years and loses approximately $500 per week. Based on the history given to him, Dr Stern diagnosed the plaintiff as having developed PTSD with a gambling disorder. Dr Stern noted that the plaintiff was seeing a psychologist and taking medications of 20 milligrams Escitalopram. Dr Stern’s opinion was that the plaintiff was psychiatrically fit for suitable employment.
Dr Dush Shan, consultant psychiatrist
68The plaintiff was examined by Dr Dush Shan for the purposes of this proceeding. Dr Shan prepared a report dated 13 September 2021. In his history to Dr Shan, the plaintiff stated as follows:
“His confidence has been very low. It was quite severe for some 12 months when he did not engage in any of his former interests and sports. However, this year he did participate in the cricket season of his club where his father is a coach. He also played some football.
…
The … [plaintiff] reported hypervigilance and fears of being attacked. After the injury he began going to a gym in order to build up his muscles so that he could protect himself.”[53]
[53]DCB 31-32
69Dr Shan’s opinion was as follows:
“On mental state examination the … [plaintiff] presented with some residual symptoms, mostly of a subjective nature.
At a functional level he is capable of engaging in some sport and going to gym while at home he does most of the cooking and household chores to support his partner, a property manager for a real estate firm.
It is concluded that there is a diagnosis of chronic Post Traumatic Stress Disorder … .”[54]
[54]DCB 34-35
70Dr Shan concludes that the symptoms are predominantly of a mild nature.[55]
[55]DCB 40
Dr Alan Jager, forensic psychiatrist
71The plaintiff has been examined by Dr Alan Jager on behalf of the defendant on two separate occasions. Dr Jager prepared two reports, dated 1 August 2022 and 11 April 2023. In Dr Jager’s opinion, the plaintiff has vestigial symptoms of PTSD and a strong sense of perceived injustice. In Dr Jager’s opinion, the plaintiff is suitable for full-time employment on the basis of his retraining. At the time Dr Jager saw the plaintiff, he was working as a teacher’s aide.
72In his second report dated 11 April 2023, the plaintiff stated that he enjoyed getting ready for football.[56] Dr Jager found that the plaintiff was still reporting vestigial symptoms of chronic PTSD. In Dr Jager’s opinion, there was no reason why the plaintiff could not work the full thirty-eight hours per week in his current work.[57]
[56]DCB 55
[57]DCB 58
The Medical Panel
73The plaintiff attended before the Medical Panel on 10 March 2022. The Panel handed down its decision on 17 March 2022. The Medical Panel have assessed the plaintiff as suffering from a chronic PTSD. The Panel assessed the plaintiff as suffering from a 20 per cent psychiatric impairment under the AMA Guides. This, of course, has no relevance in a direct sense, to the assessment of this application. The plaintiff did tell the Medical Panel that he was involved in playing football and cricket at that time.[58]
[58]DCB 91
74It was shortly after the Medical Panel’s decision was handed down that the plaintiff commenced his employment as a teacher’s aide.
Loss of earning capacity
75The plaintiff was employed by the defendant as a youth justice worker at the time of the incident on 24 June 2019. He had been at work since mid-May of 2019. In an affidavit sworn by the plaintiff on 22 May 2023, he outlined that he would at least become a grade 6 employee under the EBA relating to youth justice work.
76On 24 May 2023, Andrea Davidson, Commissioner for Youth Justice, swore an affidavit in response to the statements made by the plaintiff. In her affidavit, she noted that the role of operations manager attracted a grade 5 classification, not a category 6 role, as set out by the plaintiff. Ms Davidson stated that the plaintiff could not expect to earn the figure of $130,736 gross annually from that role. She then goes on to set out in her affidavit the progress that one would need to make through the youth justice worker employee system to obtain such a level of remuneration. In essence, the plaintiff was a youth justice worker grade 1. Within that grade, there are fifteen separate increments from youth justice worker grade 1.1 through to youth justice worker grade 1.15. I find that the plaintiff’s academic history has been set out in the affidavits, where he finished school at Year-10 level and has only partly completed subsequent certificates, and that he would not realistically reach the executive level referred to in his affidavit made on 22 May 2023.
77In the opinion of Paul Hartley, the vocational assessor relied on by the plaintiff, he states:
“… it must be noted that his year 10 education and lower level foundation skills provide a poor basis for advanced vocational study and no basis for university study.”[59]
[59]PCB 148
78The idea that the plaintiff has put forward that he would obtain an operational manager’s position at youth justice level is unrealistic and without proper evidentiary foundation.
79In the plaintiff’s most recent affidavit dated 13 October 2023, he stated that the type of work he would have pursued in the youth services sector included the following:
(a) coordinator, child safe, earning between $94,184 to $102,660.95 per annum, plus superannuation;
(b) family dispute resolution practitioner, earning between $92,400 to $103,270 per annum;
(c) family services practitioner, earning around $93,000 per annum, plus superannuation and salary tax benefits;
(d) mental health social worker, earning $110,912 per annum plus superannuation and salary packing;
(e) Orange Door intake worker, earning between $93,858 to $98,111 per annum;
(f) senior clinician, child and adolescent practice, earning between $116,552 to $127,621 per annum, plus superannuation;
(g) team leader, family counselling, earning around $96,000 per annum, plus superannuation and salary packaging.[60]
[60]PCB 49-50
80The roles referred to in the plaintiff’s affidavit have been considered by Erin Williams, a vocational assessor, in her report dated 27 October 2023. It is fair to describe Ms Williams’ opinion that the plaintiff, given his limited secondary education to Year-10 level, would face considerable obstacles achieving any other relevant qualifications before embarking on the careers he has identified. This is in light of Ms Williams identifying he had commenced two Certificate IV-level qualifications in youth justice and disability post-injury, but that the plaintiff only successfully completed Certificate III-level vocational qualifications. The plaintiff reports only having basic English literacy and reliance on his partner for job searching and responding to emails.[61] The occupations set out in the final affidavit of the plaintiff are unrealistic. The plaintiff had been working from April 2022 through to October 2023 on a thirty-eight-hour per week basis as a teacher’s aide. His annual salary in that role up until 30 June 2023, was $56,477. The plaintiff’s annual salary up until 30 June 2019 was $33,959.[62]
[61]PCB 212
[62]PCB 267
81The plaintiff had elected to reduce his hours of work in October 2023 to 30.4 hours per week. This would result in an annual income of $45,181. I am not satisfied, on the evidence before me, that the plaintiff needed to reduce his hours of work from thirty-eight hours per week to 30.4 hours per week as a teacher’s aide. I do not go as far to find that he has deliberately reduced his hours to increase his opportunity for proving a loss of earning capacity certificate, as was suggested to him during cross-examination, but I find that he has a capacity to work thirty-eight hours per week.
82The plaintiff states that he cannot go back to warehousing work, which was what he was performing before his engagement with the youth justice system. His evidence indicated that he did not want to work in that industry because he would come across people from an African background, similar to the assailant at the Youth Justice Centre. I note in the report of Ms Williams that her reasoning for him not being suitable for warehousing was that it was beyond his level of concentration. I do not accept her opinion in that regard. The plaintiff has the ability to engage in warehouse-type employment, if he chose to do so.
83Counsel for the plaintiff put forward a loss of earning capacity calculation document, which referred to three separate scenarios. The first scenario was premised on the basis the plaintiff would receive income of $3,000 a fortnight for a whole year, amounting to an annualised income of $78,000 approximately. This assumption is not appropriate and I do not accept it as a basis for calculating the loss of earning capacity or earning capacity of the plaintiff prior to injury.
84Scenario two was premised on the basis of the jobs which were referred to by Ms Erin Williams and I discount all those courses of employment as potential employment for the plaintiff. In respect of scenario three set out in the Schedule, the plaintiff, in my opinion, can engage in warehouse and despatch-clerk work if he chose to do so. He therefore has the capacity to earn an annualised income in the range of $83,000 to $84,000 per year in that capacity.
85I find that the plaintiff has elected to reduce his hours to 30.8 hours per week, as set out in that schedule, as a matter of personal choice to him, and not as a matter of necessity as a result of his psychiatric injury. His psychologist has not, in her support, referred to supporting a reduction in hours, and had noted that he was able to cope with the hours of work at thirty-eight hours per week. I find that the plaintiff has now elected to work as a teacher’s aide and engage in looking after his young son, and other domestic duties in combination with his fiancée, who works full-time as a real estate agent.
Pain and suffering consequences
86In the proceeding, the plaintiff has relied upon four affidavits sworn by him on 4 May 2022, 4 January 2023, 22 May 2023 and 13 October 2023. The plaintiff also relies upon histories given to doctors in the course of his examination for the purposes of this proceeding.
87In assessing the consequences of an injury to a plaintiff in a claim for long-term mental or severe long-term behavioural disturbances or disorders, a court is heavily dependent on histories and/or statements made by the plaintiff. In this case, I have previously dealt with my assessment of the plaintiff’s credibility and will not repeat it here.
88The consequences the plaintiff relies upon to establish pain and suffering certification for pain and suffering damages are as follows:
Loss of career
89The plaintiff, in his affidavits, refers to his loss of career as a youth justice worker as a result of the incident. The plaintiff had only worked in the position of youth justice worker for approximately six weeks, including his training time prior to the injury to him. The limited time working in the job, in combination with lack of formal academic qualifications, does not support the proposition that the plaintiff has lost a career as a youth justice worker, and certainly not to the extent to which he has deposed. I do not accept that the loss of career, as he would describe it, is a significant consequence for him.
Fear of crowds and being around certain people
90In his affidavit material, and also in his report to medical practitioners and assessors, the plaintiff has set out that he is fearful of being in the presence of people from an African background.[63] The plaintiff gave evidence that this arises from the fact that the person who assaulted him was Sudanese. When questioned about his ability to work in warehouses, he gave the possibility of Africans working there as being one of the reasons he could not go back to warehouse work. I do not accept that the plaintiff is affected to the extent he describes. It certainly does not apply to being around people, as the plaintiff has readily moved, both in football and cricket clubs, over the years since the injury on a number of occasions. This would necessarily have meant that he would be expected to be exposed to and meet new and different people as he came to each different club. This consequence is not a significant consequence.
[63]PCB 19
Lethargy and sleep
91The plaintiff has repeatedly stated that he sleeps most of the day for a long period of time.[64] The plaintiff has been working since April 2022, in a regular role as a teacher’s aide. Clearly, he has not be sleeping most of the day. He also gave evidence of lethargy and effectively low mood. I have previously documented the sporting activities of the plaintiff in the period since the time of the incident, the basis of this proceeding, and the time of the hearing. It is clear from the evidence that the plaintiff has been very active in a sporting capacity throughout that period of time and that there is no independent sporting evidence of lethargy displayed by him.
[64]PCB 20
“Let myself go” – appearance
92The plaintiff has outlined, both to medical practitioners and in his affidavits, that he has, due to his injuries, suffered as a result of the incident, let himself go and that he has not been taking care of his appearance. In particular, he stated that he had stopped showering and looking after himself in that way.[65] The photographs of the plaintiff over various periods of time in Exhibit 2, clearly show that the plaintiff has retained a consistent approach to his appearance. In particular, his fiancée, who swore an affidavit dated 7 February 2023, does not mention the plaintiff had ceased showering. His fiancée does give supporting evidence about difficulty sleeping and the like, but not on this topic of letting himself go. I find that this aspect of the plaintiff’s evidence is an exaggeration by him to support his application for serious injury certification.
[65]PCB 20
Ongoing treatment and medication
93The plaintiff is prescribed Escitalopram, 30 milligrams daily. His evidence is that he takes that medication. His fiancée states that, as a result of the medication, the plaintiff has improved. This medication is prescribed by his general practitioner. The plaintiff does not have any ongoing treatment regime with a psychiatrist. The treatment is limited to counselling sessions with Ms Graham, psychologist, every six weeks or so. I am not satisfied that the consequence of taking the medication, or his counselling sessions, as ongoing treatment, amount to a significant consequence for the plaintiff.
Sleep
94The plaintiff refers to suffering nightmares and disturbed sleep, including trouble getting to sleep. He is supported in that statement by his fiancée; however, she states that, after the medication was changed, he improved in this area.[66] The plaintiff also deposes that he suffers from nightmares.[67] I find that, based on all the evidence in this case, the plaintiff’s sleeping patterns have improved and have stabilised in the period since the incident. I have no doubt he initially did suffer nightmares as a result of the assault by a Sudanese detainee at the Youth Justice Centre. However, over a period of time, and with the assistance of medication, this consequence has ameliorated significantly and does, now, not represent a significant consequence for the plaintiff.
Cricket – lower level than the Plaintiff would like[68]
[66]PCB 90
[67]PCB 21
[68]PCB 51 at paragraph [16]
95The plaintiff is clearly a very good cricket player. The statement that he has not played at the level he wishes to does not bear out in the evidence. Since the incident, he has gone back and played at the St Kilda Cricket Club at State-grade level and in the seconds at that level. He has won a premiership there. The plaintiff has returned to playing at the Club that his father had been a coach at. I do not accept the fact that the plaintiff has returned to playing in, what would be described as, his home club, is a significant consequence for him.
Conclusion
96I am not satisfied that the plaintiff has proved, on the balance of probabilities, that the pain and suffering consequences deposed by him and outlined to the treating medical practitioners, when considered in a range of possible impairments to mental-health conditions, amounts to a severe long-term mental health or severe behavioural disturbance.
97The application by the plaintiff to commence proceedings to recover damages for pain and suffering as a result of the psychiatric/psychological injury arising from the incident in the course of his employment with the State of Victoria is dismissed.
98For the plaintiff to succeed in his application for serious injury in respect of loss of earning capacity damages, he has to maintain, on a common law basis, a loss of earning capacity of 40 per cent or more. The plaintiff has failed to do so for the reasons set out in the analysis of loss of earning capacity in these Reasons for Judgment. The plaintiff’s application for serious injury in respect of loss of earnings capacity damages is dismissed.
99I will hear the parties on costs.
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