De Petro, Pasquale v International Airlines Services Pty
[2009] VCC 1478
•30 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-05179
| PASQUALE DE PETRO | Plaintiff |
| v | |
| INTERNATIONAL AIRLINES SERVICES PTY LTD | First Defendant |
| (under external administration) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 and 14 October 2009 |
| DATE OF JUDGMENT: | 30 October 2009 |
| CASE MAY BE CITED AS: | De Petro, Pasquale v International Airlines Services Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1478 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – plaintiff suffered a mental or behavioural disturbance or disorder – whether the consequences were severe in terms of pain and suffering and loss of earning capacity: section 134AB (38) (d) and (f).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Nowicki Carbone & Co |
| Mr R Stanley | ||
| For the Defendants | Mr A Ramsey | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion 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 R McGarvie SC appeared with Mr R Stanley of Counsel for the plaintiff and Mr A Ramsey 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; • Dr Bott, psychiatrist, gave evidence and was cross-examined.; • The plaintiff tendered the following evidence:
ƒ The Plaintiff's Court Book ("PCB") pages 8-17; 23-42; 43-59A; 60-80;
81-83; 84-109; 110-112; 113-125 and 126-127: Exhibit Aƒ The plaintiff's payslip for week ending 5 February 2006: Exhibit B. • The defendants tendered the following evidence:
ƒ A letter dated 7 August 2007 from the ATO: Exhibit 1 ƒ The plaintiff's tax returns for the years ending 30 June 2003 and 30
June 2006: Exhibit 2ƒ Employment records of the plaintiff from Andrew’s Airport Parking:
Exhibit 3ƒ The Defendants’ Court Book ("DCB") pages: Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
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 3 June 1957. He presently lives with his domestic partner, Ines Patti.
10 The plaintiff's wife tragically died in 1999. She suffered a brain haemorrhage, resulting in her instant death.
11 The plaintiff's children born of his relationship with his deceased wife are now twenty-seven, twenty-six, twenty-one and seventeen years of age.
12 The plaintiff was last educated at Flemington High School where he completed Year 10. He subsequently completed an assistant projectionist certificate at RMIT, and on a later date, an occupational health and safety certificate.
13 The plaintiff followed a number of occupations between 1980 and 2005, before commencing employment with the first defendant.[5]
[5] PCB 9-10
14 The plaintiff was employed by the first defendant as a cabin dresser. That work required the plaintiff to enter aircraft for the purpose of ensuring that seats, cubicles and amenities on the aircraft were clean and presentable before the commencement of the next flight of that aircraft.[6]
[6] PCB 10 and 12
15 The plaintiff alleges that a number of leading hands engaged in conduct amounting to physical and mental abuse levelled at him.
16 Specifically, on 8 February 2006, the plaintiff was not feeling well. The humidity and temperature in the cabin of the aircraft in which he was working was unbearable. He suffered shortness of breath and impairment of vision which led to him making errors in the work he was undertaking which led to a leading hand approaching him and shouting profanities at him.
17 He was led from the aircraft. He was suffering blurred vision, shortness of breath and was dry retching. He was eventually removed from the aircraft. In the course of that exercise, he fainted and collapsed. An ambulance was called to attend upon him.[7]
[7] PCB 5-7
The Plaintiff's Medical Treatment
18 The plaintiff was assisted to a building where he saw a general practitioner at the airport. He was seen by Dr O'Gorman, general practitioner, who provided him with a medical certificate dated 8 February 2006 on which Dr O'Gorman recorded that the plaintiff complained of work stress; conflicting instructions; being told off and being the recipient of demeaning comments. He made a diagnosis that the plaintiff was suffering from acute anxiety and a peptic ulcer.
19 Dr O'Gorman also endorsed an observation on the medical certificate which stated that it was important for the plaintiff to work on, or significant anxiety would result. The plaintiff said that after he was examined by Dr O'Gorman he was advised to see his own general practitioner.[8]
[8] PCB 127. The medical certificate produced was a poor photocopy. It was difficult to decipher precisely the handwritten endorsement made on it by Dr O'Gorman.
20 The plaintiff says that he saw Dr Michail, general practitioner, on 9 February 2006. The only two reports of Dr Michail are a referral to Dr Das, psychiatrist, dated 22 March 2006 and a questionnaire completed by Dr Michail forwarded to him by an insurer asking for his diagnosis of the plaintiff's injury; the treatment provided by him, and a likely time when the plaintiff would be able to return to work.[9]
[9] PCB 43-45
21 The plaintiff did not see Dr Das. He was not treated by Dr Michail for much longer. Dr Michail told the plaintiff that he would not treat him because he was on WorkCover. He told him to go to another general practitioner.[10]
[10] Transcript 48-49
22 In the meantime the plaintiff saw Dr Saleem on 10 February 2006, that is, the day after he first saw Dr Michail. According to the plaintiff, both Dr Michail and Dr Saleem worked at the same medical practice.[11]
[11] Transcript 47-48
23 It would appear that Dr Michail continued to treat the plaintiff until he told him that he would not treat him any longer because he was on WorkCover. It was then that the plaintiff returned to Dr Saleem. Dr Michail next saw him on 21 April 2006.
24 It would also appear that Dr Michail referred the plaintiff to Miss Jones, psychologist, who worked at the Sunbury Community Health Centre Inc. Her clinical notes disclose that she saw the plaintiff in February 2006 for counselling on referral by Dr Michail. She counselled the plaintiff until July 2006, when she resigned.[12]
[12] PCB 118-121
25 A different counsellor took over the plaintiff's treatment. It is apparent that the plaintiff did not get on well with her, disagreeing with her approach to counselling, which he compared with the approach of Ms Jones. He stopped attending counselling altogether.
26 Dr Saleem referred the plaintiff to Dr Bott, psychiatrist. The plaintiff first saw him on 17 May 2006. The plaintiff continues to see Dr Bott. He has been principally responsible for the plaintiff's treatment.
27 The plaintiff was prescribed a number of different types of anti-depressants: Diazepam, Allegron, Efexor and Zoloft. He suffered side-effects from them which led to him avoiding the use of anti-depressants. He was also prescribed Stilnox to help him sleep. He experienced similar side-effects and has ceased taking that medication as well.[13]
[13] PCB 24-25 and Transcript 133
28 The plaintiff ceased working for the first defendant on 8 February 2006. He was out of work until he obtained a job with Andrew’s Airport Parking in about April 2008. He was assisted in obtaining that employment through a rehabilitation provider. The job involved driving airline passengers between the long-term car park and the airport.
29 The plaintiff said that he was required to work about 56 hours per week. By about May 2008, he was finding the work difficult for two reasons: firstly, he found that handling baggage caused an exacerbation of a pre-existing lower back condition, and, secondly, he was finding it difficult to cope psychologically, with customers describing a feeling of constant anxiety, vulnerability and difficulty in interacting with customers.[14]
[14] PCB 25
30 The plaintiff saw Dr Wasef in late April 2008 regarding the difficulties he was experiencing with the work he was required to undertake with Andrew’s Airport Parking. Dr Wasef provided the plaintiff with a letter dated 29 April 2008 in which he made reference to the plaintiff’s lower back injury. He recommended that the plaintiff’s hours be reduced down to a maximum of 40 hours per week.[15]
[15] PCB 83
31 The plaintiff said that he was also suffering from anxiety and not just lower back pain. He said he went to see Dr Wasef to obtain medication to treat his lower back, and to Dr Bott to treat the anxiety that the job was producing.[16] On 7 May 2008, Dr Bott provided the plaintiff with a medical certificate restricting his hours of work to not exceeding 30 hours per week.[17]
[16] Transcript 65-66
[17] PCB 56
32 According to the subpoenaed records of Andrew’s Airport Parking, the plaintiff did not work 56 hours in any week during that period he was employed. In some weeks he worked in excess of 40 hours per week.[18]
[18] Exhibit 3
33 In any event, the plaintiff ceased working for Andrew’s Airport Parking in about November 2008 and has not been able to return to any alternative or suitable employment since.
The Issues
34 At the commencement of the proceeding Mr Ramsey informed me that the defendants conceded that the plaintiff had suffered a compensable injury.
35 However, Mr Ramsey informed me that the plaintiff's credit was very much in issue. The basis for the attack upon his credit was the failure of the plaintiff to inform the medical practitioners who examined him of important background history relevant to the formulation of their opinions regarding the nature and extent of the psychiatric injury suffered by the plaintiff.
36 Mr Ramsey also informed me that if I were satisfied that the plaintiff had suffered a psychiatric injury which resulted in an impairment, then the consequences in terms of pain and suffering and loss of earning capacity failed to meet the statutory test.
Cross-Examination of the Plaintiff
37 Mr Ramsey's cross-examination of the plaintiff was very detailed in its scrutiny of the plaintiff's background and the extent to which that background should have been revealed in order that medical practitioners who examined him were in a position to competently and reliably express an opinion as to the cause of his psychiatric injury.
38 The essential features of that cross-examination upon which Mr Ramsey ultimately concentrated his efforts were as follows.
39 The plaintiff's wife died tragically in 1999. Following the death of his wife he was unemployed for a period, during which he looked after his four children.[19]
[19] Transcript 30
40 The plaintiff was referred to the Sunbury Community Health Centre for counselling. The clinical notes of the Health Centre disclose that the plaintiff was grieving over the loss of his wife and was having serious difficulties coping with his children and the assumption of the role of their carer.[20]
[20] PCB 113-118
41 The clinical notes reveal that counselling was also provided to the plaintiff through the Good Shepherd Services in St Albans. It would appear that the plaintiff's children were experiencing significant difficulties. The plaintiff’s sons were experiencing problems, as was one of his daughters.[21] The plaintiff was under pressure because his children were not giving him any assistance running the household, and he was feeling that his role as their father and carer was too much for him.[22]
[21] PCB 115 and 118 and transcript 34-35
[22] PCB 116
42 The clinical notes also reveal that there was a problem with the plaintiff's sister and her marriage, which appears to have involved the plaintiff to some extent. The plaintiff expressed anger and frustration because he had been abandoned by his own family who were not supporting him.[23]
[23] PCB 117-118
43 The plaintiff met Ms Ines Patti in about 2002 when they were both working at Salesian College. Their friendship developed into a domestic relationship. The plaintiff sold his house, and Ms Patti sold her house. They pooled their financial resources and purchased a house at Sunbury.
44 In October 2007, Ms Patti was diagnosed with breast cancer. She underwent chemotherapy and radiotherapy. The treatment was successful to the point where she is now in remission. She has some residual health problems. She has lost some of the sight in her left eye and has partial control of her left arm. One of the consequences of her residual health problems is that she is no longer able to drive a car.[24]
[24] PCB 29
45 The clinical notes of Dr Bott reveal that on an occasion when the plaintiff saw him on 6 November 2008, the plaintiff gave a history that one of his sons had become distressed and suicidal. He was made an inpatient at a hospital in Sunshine. The clinical notes reveal that the plaintiff also told Dr Bott that his son was okay, but that his health was still a concern to the plaintiff.[25]
[25] PCB 107
46 The plaintiff said that he believed that his son’s psychiatric problems arose as a consequence of the fact that he had not grieved for the loss of his mother. He said he was still worried for his son's health.[26]
[26] Transcript 102-103
47 Mr Ramsey cross-examined Dr Bott about the importance of each of the matters summarised above. Dr Bott admitted that they were.
48 Mr Ramsey submitted that the plaintiff did not give a history to any psychiatrist of all of the events summarised above until he saw Dr Bott on 6 July 2008, when he informed him of those events in some detail.
49 Mr Ramsey submitted that the history of those events was, firstly, important for the psychiatrists to understand in order to determine whether the physical and mental abuse alleged by the plaintiff was the only cause of the psychiatric injury, or whether any or all of the events summarised above also contributed.
50 Furthermore, Mr Ramsey submitted that in an overall sense the failure of the plaintiff to admit to all of those matters, which the plaintiff must have known to be relevant, undermined his credit in a serious way.
Medical Opinions
51 Dr Walton, psychiatrist, was the first psychiatrist to see the plaintiff following the events of 2006. He saw the plaintiff for the defendants on 22 May 2006.
52 Dr Walton was not given a history of the events referred to in paragraphs 37- 46. Mr Ramsey submitted that the plaintiff misled Dr Walton by telling him that he had not entered into a further sustained relationship and that he had no difficulty establishing friendships with women, but found it more of a challenge to commit to a long relationship.[27]
[27] DCB 29
53 By the time the plaintiff saw Dr Walton he was in a domestic relationship with Ms Patti which had all the appearances of being sustained and long-term.
54 Dr Walton was of the opinion that the plaintiff's pre-existing psychiatric condition had resolved. His reference to a pre-existing psychiatric condition was based upon a history he obtained from the plaintiff that he had undergone grief counselling after the death of his wife. Dr Walton was of the opinion that the plaintiff was suffering from anxiety and depression.
55 I will next deal with Dr Jager, psychiatrist, who first examined the plaintiff for the defendants on 22 September 2006. He re-examined him on 12 February 2007, 27 November 2007 and 20 March 2009.
56 Mr Ramsey submitted that the plaintiff misled Dr Jager by telling him that he had not previously claimed worker’s compensation, and by telling him that he had not entered into another relationship when he was in what appeared to be a sustained and long-term relationship.
57 Dr Jager was of the opinion that the plaintiff had suffered an adjustment disorder with anxiety. However, he was of the opinion that the condition was no longer related to his work with the first defendant. He was of the opinion that the problems which the plaintiff experienced with Andrew’s Airport Parking were the cause of the plaintiff’s anxiety.
58 Dr Jager considered that the plaintiff required treatment with anti-depressant medication, a sedative and psychiatric therapy. He was of the opinion that the plaintiff could work part-time consistent with five hours per day with a new employer.[28]
[28] DCB 3-4
59 The plaintiff did not tell Dr Bott of the events which Mr Ramsey referred to in paragraphs 37-46 above until an occasion when the plaintiff saw him on 6 July 2008. On that occasion, Dr Bott recorded the following history:
"… I subsequently saw him on the 6th of July as he wanted to tell me that he had not previously told me that he was actually living in a defacto relationship and that his partner had been suffering from some ill-health. He was apologetic for not speaking of this before although explained that he was concerned about how [t]he impact of her illness on him might have been interpreted particularly as he had had the experience, when he had first sought help for anxiety symptoms, of being questioned extensively about the effect of his wife's sudden death on him at the time of her death and subsequently." [29]
[29] PCB 58
60 Dr Bott considered that additional history and made the following observation:
"As an aside and a general comment I have not explored to a great extent the impact of Mr De Petro's partner’s illness on his psychological well-being as it had not really been something he has wanted to take up. Rather than contribute greatly to his anxiety symptoms, however, it seems to have left him more feeling sad or depressed at times and resentful about the unfairness of life."[30]
[30] PCB 58
61 Mr Ramsey put each of the events referred to in paragraphs 37-46 above to Dr Bott. Whilst Dr Bott did not disagree that they were of importance, it was not my impression that the addition of that history altered his opinion as to the cause of the plaintiff's present psychiatric injury. In his last report he expressed the following opinion, and at a time when he had the additional history:
"In terms of your specific questions as would be evident, my opinion is that essentially his diagnosis remains unchanged, an anxiety disorder. As I have outline[d] above, I also felt that he met the criteria for Depressive Episode towards the end of last year and the beginning of this year although not currently. I think that his condition is currently stable although I feel that he remains quite vulnerable to stress.
The treatment I have provided has been largely supportive apart from attempts to ameliorate his depression with medication as outlined above.
In terms of further treatment needs, I think he will need some ongoing support as he comes too terms with what is possible for him and negotiate his way through the WorkCover system.
In terms of the effect of his illness on activities outside the home, he describes a pattern of social withdrawal or avoidance consistent with his symptoms and significantly diminished pleasure in activities due to preoccupation with his health and finances.
I do not think he has any capacity for full-time, unrestricted pre-injury employment. I think the situation will continue into the foreseeable future.
In terms of Mr De Petro’s capacity for future employment, I think that he may be able to undertake part-time employment up to about 20 hours a week but that beyond that my opinion would be he would most likely end up in an unsustainable position and his symptoms would worsen.
My long-term prognosis is for continuing impairment related to an anxiety disorder."[31]
[31] PCB 59
62 Dr Paoletti, psychiatrist, examined the plaintiff on 5 May 2008 and 5 June 2009. The history recorded by Dr Paoletti on both occasions does not suffer from the defects which Mr Ramsey submitted were inherent in the histories taken by Dr Walton, Dr Jager and Dr Bott. Indeed, the history he recorded in his first report is very detailed.[32]
[32] PCB 62
63 Dr Paoletti was of the opinion that the plaintiff suffered from a panic disorder with agoraphobia, which he considered was an appropriate diagnosis consistent with the plaintiff’s anxiety and discomfort experienced in environments outside his home. He added that the plaintiff’s psychiatric injury was complicated by a depressive disorder most likely due to the presence of anxiety symptoms emanating from the panic disorder and the disabling effects of it.[33]
[33] PCB 76
64 Dr Paoletti considered that the plaintiff required medication, although he considered that it might not be successful given the plaintiff's stated sensitivity to medication.
65 Dr Paoletti was of the opinion that the plaintiff did not have a capacity to undertake his pre-injury duties, and had no sustainable current capacity for work.[34]
[34] PCB 77-78
Serious Injury
Pain and Suffering
66 Mr Ramsey did not contest that something occurred on the 8 February 2006 at the workplace which required the plaintiff to be removed from the workplace for the purpose of obtaining medical treatment.
67 According to the medical certificate provided by Dr O'Gorman, the plaintiff was suffering from anxiety when he saw him on 8 February 2006. It is a very compelling piece of evidence at a point in time immediately contemporaneous to the events which the plaintiff says were the cause of his psychiatric injury.
68 Mr Ramsey submitted that one of the alleged perpetrators of the physical and mental abuse, Ms Gail Jenkins, swore an affidavit on 15 June 2009 denying the plaintiff's allegations of physical and mental abuse.[35] However, she confirmed some of what the plaintiff said occurred on 8 February 2006.[36]
[35] PCB 37-40
[36] PCB 37-38
69 It is a common enough occurrence in applications of this kind that a worker will swear an affidavit in which reference is made to the event which led to the production of an injury which is contested by affidavits in reply sworn by servants and agents of the employer.
70 It is a difficult task for the trial judge to divine from competing affidavit material which version of events should be preferred, particularly considering that an application of this kind is a preliminary application to the damages trial.
71 For the purpose of this application, I prefer the evidence of the plaintiff because it is partly confirmed by Ms Jenkins, and also by the contemporaneous medical certificate provided by Dr O'Gorman which again is a compelling piece of evidence because of its reference to conduct on the part of employees of the first defendant consistent with the allegations of physical and mental abuse.
72 I accept the submissions made by Mr Ramsey that the plaintiff was less than frank in providing histories to Dr Walton, Dr Jager and Dr Bott. I find that the plaintiff deliberately withheld background history which was relevant for the purpose of the psychiatrists determining whether the physical and mental abuse alleged by the plaintiff was the cause of his psychiatric injury.
73 I am not persuaded that whatever motivated the plaintiff in deliberately withholding that background history, means that the subsequent opinions given by Dr Bott and Dr Paoletti are therefore unreliable.
74 I consider the proper and logical process of reasoning to be undertaken here is to determine whether Dr Bott and Dr Paoletti were given a full enough history of the plaintiff's background to be able to weigh that up in the context of the allegations the plaintiff made of physical and mental abuse, and the psychiatric injury he said resulted from that physical and mental abuse.
75 The background history eventually given to Dr Bott, and the full history given to Dr Paoletti, put them in a reasonable position to be able to determine the question of causation, and also the question of the degree to which the physical and mental abuse contributed to the plaintiff’s psychiatric injury.
76 Dr Bott gave evidence at one point, which I consider to be very telling, relevant to the approach he took in weighing up competing facts in determining what to accept in making a diagnosis in the context being cross- examined about his failure to disclose the relationship with Ms Patti:
"Well, I guess in my job you do a lot of reading between the lines, and it's not just what people tell you, it's the way things hang together, and a sort of consistent or coherent pattern emerges in what they describe."
77 I consider that Dr Bott gave his evidence in a careful and well considered way and with due acknowledgement to the fact that before 6 July 2008 he had not been given the full background history by the plaintiff.
78 I am fortified in reaching the conclusion that Dr Bott's opinion is reliable and that I should act upon it because Dr Paoletti was given the relevant background history and also arrived at the conclusion that the plaintiff suffered a psychiatric injury.
79 Furthermore, I am also fortified by the opinion of Dr Jager who found that the plaintiff was suffering a psychiatric injury, although due to a different cause.
80 Dr Jager's opinion does lend weight to the plaintiff's case that he has suffered a psychiatric injury which requires medical treatment, and which disables him to the extent that he is only fit for work on reduced hours.
81 Therefore, I find that the plaintiff did suffer a psychiatric injury as a result of the physical and mental abuse evident in his workplace which led to his mental breakdown on 8 February 2006.
82 I find that the relevant background history eventually revealed to Dr Bott and fully to Dr Paoletti, put both psychiatrists in a position where they could comment reliably on the cause of the plaintiff’s psychiatric injury and its degree.
83 Although the diagnoses of Dr Bott, Dr Paoletti and Dr Jager differ in terminology, they do not differ much in substance because they are based upon the same identified symptomology
84 I accept the plaintiff’s evidence that he continues to suffer from significant symptoms related to his psychiatric injury. I accept that his sleep is poor; that his concentration is adversely affected; that his capacity to deal with people in situations of even mild confrontation produces increased symptoms; that socially he is anxious, particularly in public, and that his relationship with family and friends is significantly different when compared to what it was like previously.[37]
[37] PCB 15-16 and that 26-28
85 I accept that the plaintiff has required medical treatment since 8 February 2006 principally from Dr Bott, but also from Dr Saleem. I accept that his symptoms require treatment with medication, but his sensitivity to medication has rendered him unable to tolerate it and to gain the benefits of it.
86 In conclusion, it occurs to me that the consequences to the plaintiff bear all of the characteristics which are deserving of the description "severe" for the reasons set out above. I have reached that conclusion by judging the plaintiff's case in comparison with other cases in the range of possible mental or behavioural disturbances or disorders.
Loss of Earning Capacity
87 I find that the plaintiff is not fit for his pre-injury work. That is consistent with the opinions of Dr Bott, Dr Paoletti and Dr Jager.
88 The plaintiff's attempt to return to work with Andrew’s Airport Parking failed. I accept that the plaintiff experienced pain in his lower back which Dr Wasef considered would require the plaintiff's hours of work being reduced. I find that the contact he had with members of the public and the reaction to him on occasions led him to suffer an increase in his symptoms which ultimately incapacitated him.
89 However, both Dr Bott and Dr Jager seem to be of a similar opinion that the plaintiff is fit to undertake part-time employment. The Dr Bott was guarded when expressing that opinion. He said the plaintiff "may" be able to undertake part-time employment, whereas Dr Jager was more emphatic that he could.
90 According to Dr Bott and Dr Jager, the plaintiff has a capacity to work somewhere between 20 to 25 hours per week. However, Dr Bott's last words on the subject of the plaintiff's capacity for work was that he did not believe the plaintiff would be able to return to work as a driver or in work similar to what he was doing with Andrew’s Airport Parking.[38]
[38] PCB 59A
91 Mr McGarvie submitted that the three years after injury referred to in subsection (38)(f) therefore include the work the plaintiff performed with Andrew’s Airport Parking, and therefore is a basis upon which I should measure whether the plaintiff meets the statutory test for loss of earning capacity.
92 Mr McGarvie submitted that the plaintiff had an earning capacity with Andrew’s Airport Parking consistent with working up to 86.5 hours in a fortnight which is consistent with his pay period ending 27 April 2008.[39]
[39] Exhibit 3
93 The plaintiff's hourly rate for that pay period was $22.25. Therefore, on that basis, the plaintiff had the capacity to work 43.25 hours per week at $22.25, which produces $962.31 gross per week and $50,040.12 per annum.
94 Taking Dr Bott's estimate of 20 hours per week is $445 gross per week and $23,140 per annum. Taking Dr Jaeger's estimate of 25 hours per week is $556.25 gross per week and $28,925 per annum.
95 Applying the relevant percentage of 60 per cent to $50,040.12 is $30,024.07. Whether the plaintiff is able to work 20 hours or 25 hours means that he satisfies the statutory test that he has a loss of earning capacity of 40 per cent or more because quite clearly the earnings referred to in paragraph 94 above are well under $30,024.07.
96 Mr McGarvie and Mr Ramsay provided written submissions relevant to the question of whether the plaintiff could satisfy the statutory test for loss of earning capacity. I have taken into account the substance of their written submissions.[40]
[40] However, for the pay period ending 27 April 2008, the plaintiff’s hourly rate was $22.25 and not $21.36 referred to in the written submissions.
97 Mr Ramsay submitted that relying upon the income which the plaintiff earned with Andrew’s Airport Parking is not the relevant basis for calculating the plaintiff's loss of earning capacity. I disagree. It is expressly permitted by subsection (38)(f).
98 The scheme provided by subsection (38)(f) is very straightforward. In the context of the plaintiff, it means that where a worker is able to return to work after suffering injury then the income earned from that work can be used in the formula to determine whether the plaintiff can demonstrate a loss of earning capacity of 40 per cent or more where it is within the three years after injury.
99 It must be capable of application in a situation where a worker returns to work after suffering an injury and earns an income, but for reasons related to the injury and the impairment caused by it, can then no longer work. The income earned from that employment forms part of the formulation of loss of earning capacity.
100 There is no warrant for fixing the plaintiff and his earning capacity to what he was earning before the injury occurred. The fabric of subsection (38)(f) focuses in on loss of earning capacity and the means of measuring it. The fact is that the plaintiff had an earning capacity between April and November 2008 with Andrew’s Airport Parking.
101 It is entirely legitimate, therefore, to determine what that capacity was, and the income which the plaintiff was earning in exercising that capacity for using the relevant formula to determine whether the plaintiff satisfies the statutory test for loss of earning capacity.
102 I accept the plaintiff’s evidence that he can undertake work in which he feels psychologically comfortable. However, his acceptance that he could work has to be judged in the context of the opinion of Dr Bott, who I consider to be in the best position to make an assessment of the prospect of the plaintiff being able to return to suitable employment.[41]
[41] Transcript 129
103 Dr Paoletti was of a different opinion to Dr Bott and Dr Jaeger. Essentially, he did not accept that the plaintiff had a capacity to work.
104 For the sake of completeness, I do not accept that the plaintiff’s lower back injury would prevent him from undertaking suitable employment of 20 to 25 hours per week. Again, returning to the letter of Dr Wasef, it is clear that Dr Wesef said that the plaintiff could work 30 hours per week with back pain.[42]
[42] Dr Bott gave a similar opinion (PCB 56), but based upon the plaintiff’s psychiatric injury and the extent to which it impaired his capacity for work.
105 Therefore, I find that the plaintiff has satisfied the statutory test for loss of earning capacity by demonstrating that he is capable of undertaking suitable employment of no more than 20 to25 hours per week. I find that the plaintiff tested his residual capacity for employment by working with Andrew’s Airport Parking and was unable to undertake that work because of the confrontation with customers which increased the symptoms of his psychiatric injury.
106 In arriving at the foregoing conclusions, I find that the plaintiff's loss of earning capacity is established and that it is at least very considerable when judged by comparison with other cases in the range of possible impairments or losses.
Conclusion
107 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 pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
108 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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