Debono v Victorian Workcover Authority
[2022] VCC 1317
•24 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01508
| RHYS DEBONO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 July 2021 | |
DATE OF JUDGMENT: | 24 August 2022 | |
CASE MAY BE CITED AS: | Debono v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1317 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right hip injury – Adjustment Disorder with Depressive Features – Cannabis Use Disorder – Methamphetamine Use Disorder – paragraphs (a) and (c) of the definition of “serious injury” – leave sought to bring common law proceedings for pain and suffering damages and pecuniary loss damages – nature and extent of any right hip injury – nature and extent of psychiatric condition
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325, s335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries and Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; HadenEngineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Demmler v Transport Accident Commission [2018] VSCA 284; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas [2017] HCA 32; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Noonan v State of Victoria [2013] VSCA 289; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan & Anor [2006] VSCA 254; Hunter v Transport Accident Commission [2005] VSCA 1; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; State of New South Wales v Moss (2000) 54 NSWLR 536; Mobilio v Balliotis [1998] 3 VR 833; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Dart v JC Decaux Australia Pty Ltd [2021] VCC 741; Jarvis v Woolworths [2012] VCC 1329; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services [2018] VCC 1658; Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Wellington Shire Council v Steedman [2003] VSCA 115; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering damages and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr L B R Allan | Slater and Gordon Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahony |
Table of Contents
Introduction
Legal principles
Background and employment history
Medical history
Incident on 1 August 2014
Employment post injury
Medical history
Witnesses and evidence
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Compensable injury
Right hip
The mental disorder
Credit
Impairment consequences
Loss of earning capacity
What was Mr Debono’s pre-injury earning capacity?
What was Mr Debono’s post-injury earning capacity?
Has Mr Debono suffered more than 40 per cent loss of earning capacity?
Are the loss of earning capacity consequences permanent?
Pain and suffering consequences
Conclusion
HER HONOUR:
Introduction
1On 1 August 2014, the plaintiff, Rhys Debono (“Mr Debono”) sustained an injury to his right hip while working as a warehouse assistant. He was lifting scaffolding for his employer, Royal Plywood Pty Ltd (“the employer”), which operates a trade centre in Thomastown selling formwork for construction and hiring out scaffolding.
2By Originating Motion dated 6 April 2020, Mr Debono seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings for damages for pain and suffering and loss of earning capacity. Mr Debono claims to have suffered a serious injury, characterised by the loss of the function of his right hip, pursuant to paragraph (a) of the definition of “serious injury” in s325(1) of the Act, being a permanent serious impairment or loss of a body function, and also a “serious injury”, characterised as an Adjustment Disorder, pursuant to paragraph (c) of the definition of “serious injury” in the Act, being a permanent severe mental or permanent severe behavioural disturbance or disorder.
Legal principles
3Section 325(2) of the Act relevantly provides as follows:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of body function, … with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible … mental or behavioural disturbances or disorders …
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d) a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless –
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity consequence –
is when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as to case may be, fairly described as being more than serious to the extent of being severe.
…
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)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;
(j) the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
… .”
4It is necessary first, to identify the nature and extent of the injury relied upon and the consequent impairment of the body function said to have been produced. Consideration can then be given to whether the consequences for the plaintiff are “serious” for the purposes of s325(2)(b) and (c).[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [33] (per Ormiston, Chernov and Phillips JJA)
5To establish “serious injury” within the meaning of paragraph (a) of the definition, the plaintiff must satisfy the Court, on the balance of probabilities, that the organically-based physical pain and suffering consequences, when considered separately from psychological or non-organic consequences, satisfy the statutory criterion of being “more than ‘significant’ or ‘marked’” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function.[2]
[2] Section 325(2)(b) of the Act
6The test to be applied is a subjective test in that the effect on a body function of a particular applicant is what must be considered. However, the determination must be objectively made.[3]
[3]Humphries and Anor v Poljak [1992] 2 VR 129
7The assessment of whether the consequences of an impairment are “at least very considerable” and certainly more than “significant” or “marked”, involves matters of degree, impression, and value judgment[4] as to relative incapacity.[5] The task requires the Court to consider the whole of the evidence to try to place a particular claimant’s injury within a spectrum of seriousness of injuries.[6] Within that range is a point at which an injury becomes “very considerable”.[7]
[4]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[5]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 (“Papaconstantinou”) referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
[6]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[7]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”)
8In Haden Engineering Pty Ltd v McKinnon,[8] the Court of Appeal identified that the “pain and suffering consequences” of an injury encompass both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must be assessed. This involves consideration of the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the doctors’ views about the extent and intensity of a plaintiff’s pain, and what the objective evidence demonstrates with respect to the disabling effect of the pain.[9]
[8]Supra
[9] Haden (supra)
9Other matters which may also be relevant to an assessment of the seriousness of an injury include the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[10]
[10] Haden (supra) at paragraph [16]
10The inability of a worker to engage in employment which he or she undertook is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[11]
[11]Haden (supra) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]
11In a case involving a mental or behavioural disorder, the plaintiff must establish that the consequences of the mental or behavioural disorder are “severe”. Application of the narrative test involves a two-stage process, identified by the High Court in Transport Accident Commission v Katanas.[12]Referring to Humphries,[13] the High Court identified the task required as follows:
“6.… the application of the narrative test entails a two-stage process:
(1)an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’; and
(2)a determination of whether the injury as thus assessed is objectively ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’ when compared with the range or ‘spectrum’ of comparable cases.”[14]
[12] [2017] HCA 32 (“Katanas”) (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ)
[13] Humphries (supra)
[14]Katanas (supra) at 555, paragraph [6]. See also for example Dwyer (supra) at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraphs [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 191 at paragraph [42] per Ashley JA and Beach AJA; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115])
12Assessment of the severity of an injury will ordinarily be informed by the extent of its symptoms and consequences, but as the High Court observed in Katanas,[15] there is not always a “bright line” between injury, consequences and symptoms. What might be characterised as a symptom may, at the same time, be relevant as a consequence.[16]
[15] Supra
[16]Katanis (supra) at 546, paragraph [29]
13Mental disorders will vary in their nature and in their consequences. There are many ways in which the question of severity might be approached, each of them being incomplete in itself.[17] There may be evidentiary indications of a severe psychological injury for instance, such as hospitalisation, psychiatric treatment, medication, suicidal ideation or attempts.[18] However, a diagnosis of a particular condition does not automatically result in a conclusion that the condition is permanent or that its consequences are severe.[19] Similarly, a psychiatric disorder may have severe consequences even though a sufferer has had limited treatment, just as extensive treatment will not necessarily point in the direction of a disorder being more severe.[20] The question is whether, overall, determined by all the evidence and not just medical opinions,[21] a plaintiff’s mental disorder, when judged objectively with other potential disorders, is to be correctly characterised as “severe” having regard to its nature and resulting symptoms, the nature and extent of treatment, and all the consequences – whether with respect to pain and suffering or loss of earning capacity – informed by an analysis of ordinary activities before, compared to after, an accident.
[17]Katanas v Transport Accident Commission [2016] VSCA 140 at paragraphs [19] and [30] (per Ashley and Osborn JJA)
[18]Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
[19]Noonan v State of Victoria [2013] VSCA 289 (“Noonan”)
[20]Katanas (supra) at paragraph [26] referring to Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [30]
[21]Noonan (supra), following Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 and Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
14In assessing the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, it is necessary to identify all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment. It is then necessary to make a value judgement as to relative incapacity based on all the evidence,[22] in accordance with the principles enunciated in Poljak.[23]
[22]Papaconstantinou (supra), referring to Yirga-Denbu (supra) at paragraph [89]
[23](Supra) at 140, per Crockett and Southwell JJ
15The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[24] The opinions of the doctors are dependent on the credibility and reliability of the history given to them by the plaintiff and may be of less weight if the plaintiff is not an accurate historian.[25]
[24]Haden (supra) at paragraph [12], citing Dwyer (supra) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[25]Dordev v Cowan & Anor [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing)
16In determining the application, Mr Debono has the burden of proof on the balance of probabilities. The psychological or psychiatric consequences of the right hip injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.[26] The Court must make the assessment of “serious injury” at the time the application is heard.[27] The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[28]
[26] Section 325(2)(h) of the Act
[27] Section 325(2)(j) of the Act
[28] Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33] to [36]
Background and employment history
17Mr Debono was born in August 1992 and at the date of the hearing was twenty-eight years old.
18Mr Debono attended Craigieburn Secondary College and then Kangan Batman TAFE. While at school, he completed a Certificate III and IV in Information Technology and worked as a part-time sales assistant at the Reject Shop.
19After leaving school, Mr Debono worked briefly as a labourer for a caravan manufacturing company. He then commenced an apprenticeship with Baker’s Delight, which he subsequently discontinued after roughly three months. He was out of work for a few years. He then attended Foresite Training, where he completed Certificates I to IV in Transport and Logistics.
20On or about 11 April 2012, Mr Debono commenced employment as a warehouse assistant with the employer. He was employed on a part-time basis, working approximately three days or 22.5 hours per week.
21Mr Debono’s duties involved driving a forklift, getting orders ready, loading and unloading trucks, assisting in delivering orders, stacking hire equipment and fixing damaged hire equipment and lifting and carrying of formwork and scaffolding.
Medical history
22In January 2013, Mr Debono suffered injury to his right foot when he dropped a steel prop on it. He submitted a WorkCover claim which was accepted. He was off work for two or three weeks before returning to his normal duties. His evidence was that he did not continue to suffer any ongoing effects from that injury.
Incident on 1 August 2014
23On 1 August 2014, Mr Debono was bending over to lift a scaffolding frame at work when he noticed a burning sensation on the outside of his right hip and his right groin area. He reported the incident to his sales representative, who instructed him not to do any more manual handling that day. Mr Debono performed administrative work duties until he left work at 5.00pm.
Employment post injury
24Following his injury on 1 August 2014, Mr Debono said he had several weeks off work, returning in mid-August 2014, working two days, rather than three days, per week. Despite being allocated light duties, Mr Debono claimed, in practice he continued to perform his pre-injury tasks. As a consequence, he continued to experience a constant burning pain in his right hip, which would intermittently radiate as a sharp, stabbing pain into the right side of his lower back and right groin. He also developed a clicking sensation in his right hip when he moved, which he found uncomfortable.
25Mr Debono said he continued trying to work until about mid-August 2015, at which time he ceased work.
Medical history
26Following the incident on 1 August 2014, Mr Debono consulted Dr Joseph Philip, general practitioner, concerning the burning sensation in his right hip and right groin. Dr Philip suspected that Mr Debono had a hernia and referred him for an ultrasound.
27On 6 August 2014, Mr Debono underwent a bilateral groin ultrasound which identified the presence of a small reducible right femoral hernia.[29]
[29] Plaintiff’s Amended Court Book (“PACB”) 26
28Dr Philip referred Mr Debono to Mr Ernest Lim, general surgeon, who arranged an MRI scan on 3 October 2014 of Mr Debono’s right hip and groin. This revealed that there was no hernia, and that the ligamentum teres was intact. There was a low-grade CAM impingement/lesion and a signal abnormality within the superolateral labrum, suggestive of a small labral tear. There was also a further hyperintense signal demonstrated within the anterosuperior labrum, extending beyond 50 per cent, suggestive of a small labral tear. The injury was associated with secondary symptoms of moderate pain to the lower back and to the right leg.
29Dr Philip referred Mr Debono to Mr Bernard Lynch, orthopaedic surgeon, who noted, upon examination, there was irritability of Mr Debono’s right hip with adduction and internal rotation. He also commented that the MRI scan was suggestive of injury to the superolateral and anterosuperior labrum. Mr Lynch recommended that Mr Debono see one of his orthopaedic colleagues with an interest in hip arthroscopy.
30On 20 April 2015, Mr Debono was examined by Associate Professor Ian McInnes, senior specialist surgeon. Associate Professor McInnes prepared a report of the same date. He noted that Mr Debono had not experienced any previous injuries to his right hip preceding the incident. He presented with no sign of femoral hernia on either side. Examination of his right hip revealed a negative Trendelenburg test, with visual inspection as normal. There was slight tenderness laterally on deep palpitation. Movement of his right hip had limited flexion in the extreme and at 30 degrees of abduction. His opinion was that Mr Debono had suffered a soft-tissue injury to his right hip and possibly a CAM lesion or labral tear.
31Following his consultation with Mr Lim, Dr Philip referred Mr Debono to Mr Andrew McQueen, orthopaedic surgeon, who he saw at Melbourne Orthopaedic Group on 29 April 2015. Mr McQueen requested a further MRI scan and arranged for Mr Debono to have a Celestone injection into the hip under x-ray control.
32On 16 June 2015, the further MRI scan was performed on Mr Debono’s right hip. The scan revealed a focal superior labral tear, involving more than 50 per cent of the labral depth (which had previously been less than 50 per cent), which constituted a slight propagation of Mr Debono’s labral tear superiorly.
33On 23 June 2015, Mr Debono received the Celestone injection into his hip under x-ray control, which provided minimal improvement.
34Mr Debono was referred by Mr McQueen to Mr Phong Tran, orthopaedic surgeon, with a view to undergoing a hip arthroscopy.
35In a letter from Mr Tran to Mr McQueen, dated 4 August 2015, Mr Tran noted Mr Debono displayed a very irritable right hip joint. He considered that the MRI scan showed a CAM lesion with a labral tear, and he recommended arthroscopic repair.
36On 31 August 2015, Mr Tran performed arthroscopic repair surgery on Mr Debono’s right hip.
37The operation report, dated 31 August 2015, was not tendered; however, its contents were referred to in the report of Mr Russell Miller, orthopaedic surgeon, dated 18 May 2020. Mr Miller identified that the surgery performed on 31 August 2015 had included arthroscopy, femoral ostectomy, ligamentum teres debridement and synovectomy. The arthroscopic findings were CAM impingement, femoral head normal, with degeneration of cartilage over the CAM, ligamentum teres tear and radiofrequency debridement, moderate synovitis, but no labral tear. The labrum was said to have been intact and the acetabular cartilage was described as normal.
38Debridement of the ligamentum teres was also referred to by Mr Tran in a letter to Dr Philip, dated 7 September 2015, as was excision of the CAM lesion. No mention was made of repair of a tear in the labrum.
39On 5 October 2015, six weeks following his surgery, Mr Debono was continuing to experience discomfort in his groin, which was irritable to move. Mr Tran noted on examination, that Mr Debono had no areas of localised sensitivity and he likely had ongoing inflammation in his hip joint.
40Mr Debono’s pain did not improve and on 21 October 2015, Dr Tran arranged for Mr Debono to be administered a further 1-milligram injection of Celestone and 9 milligrams of 0.5 per cent Marcain, into his right hip by Dr Elissa Botterill. This proved to be ineffective.
41On 9 November 2015, Associate Professor McInnes examined Mr Debono again and prepared a second report. His second report noted that Mr Debono’s right hip remained very painful, with limited movement, and Mr Debono could only tolerate physiotherapy and hydrotherapy treatment. The cortisone injections administered after surgery were ineffective in relieving pain. Mr Debono reported that he walked with a limp. He felt pressure building in his right hip and could only walk a few steps around the house. He struggled with bending and toileting, and he encountered difficulty with sleeping. He claimed his only improvement was that the “popping sound” emanating from his right hip had disappeared. Palpation of Mr Debono’s right hip precipitated a hypersensitive response in all areas, with marked deep tenderness.
42Mr Tran wrote a letter dated 10 November 2015 to Dr Philip. He noted that Mr Debono was experiencing pain globally around his hip, and although his hip was not irritable to move, the pain was still quite significant.
43In a further letter to Dr Philip dated 10 December 2015, Mr Tran noted that Mr Debono had begun taking Lyrica, but it had not reduced his pain. Instead, it had caused him to become oedematous and put on weight. Accordingly, Mr Debono was asked to cease taking the Lyrica. Mr Tran said Mr Debono was receiving ongoing physiotherapy, hydrotherapy and acupuncture. Mr Tran felt this had some effect, but as Mr Debono had not responded to the fluoroscopic injection, Mr Tran felt that his pain could be neuropathic. He referred him to Dr Nick Christelis, pain specialist and anaesthetist.
44In the letter of referral from Mr Tran to Dr Christelis, also dated 10 December 2015, Mr Tran stated that, since the surgery on 31 August 2015, Mr Debono had experienced pain around his buttock and hip. The pain radiated down his thigh and was globally tender to touch and hypersensitive. He informed Dr Christelis that Mr Debono had previously undergone a guided injection to his hip joint. He had also been prescribed Lyrica. He had not responded to either treatment.
45On 18 February 2016, a further MRI scan on Mr Debono’s right hip was taken due to continuing post-surgery pain. The scan showed a small hip joint effusion. There was also a small defect within the anterior capsular ligament and deformity was seen in the femoral head/neck junction. The MRI scan showed a labral tear which was unchanged in size and appearance when compared to the prior study.
46On 22 February 2016, Associate Professor McInnes examined Mr Debono for a third time and prepared a report on the same date. He described Mr Debono’s recovery as slow, with residual symptoms in his right hip from the injury and from the subsequent surgery. Mr Debono was described as suffering a constant stabbing pain in his right hip which would radiate down into his right buttock and right leg. The “clicking” in his right hip was also referred to as having returned.
47Mr Debono was observed to walk normally without a limp but stood weakly on his right leg. He could not perform any form of squat. There was tenderness present over the whole of his right hip. He had a slight increased range of movement with no neurological abnormality in his right leg, and there was no sign of any clinical femoral hernia.
48Associate Professor McInnes opined that Mr Debono’s pain was neuropathic and presented as a residual soft-tissue injury in his right hip following his original injury and arthroscopy treatment for the CAM deformity. He was also of the opinion there was a slight degree of psychological overlay.
49On 25 February 2016, Dr Christelis prepared a report following a clinical examination of Mr Debono prompted through referral from Mr Tran. Mr Debono had widespread pain in the upper right thigh, anterior and posterior, with an area of moderate to severe brush hypoalgesia and toothpick allodynia. His pain manifested in flare ups, ranging in intensity between 3 out of 10 and 6 out of 10. He scored high on the disability scores and moderate on a DASS 21 screen. He was considered unable to work. Dr Christelis thought that Mr Debono had neuropathic pain with significant psychological and physical fallout, and consequences. Mr Debono was also noted to exhibit a lot of fear avoidance, stiffness, weakness and deconditioning, secondary to his pain and lack of movement over the year.
50Mr Debono was medicated with Norspan and had trialled some Lyrica which caused weight gain, as well as Mobic and Endone, which only provided temporary relief. Dr Christelis recommended an aggressive medication management approach, including the use of anti-neuropathic medication to reduce Mr Debono’s pain and acute sensitivity to touch, and the discontinuance of Norspan due to its ostensible ineffectiveness. He prescribed Gabapentin, 100 milligrams to 200 milligrams, and Cymbalta, 30 milligrams daily. He also recommended a full team assessment of Mr Debono through his team of physiotherapists, occupational therapists and psychologists, in order to formulate an individualised treatment plan. He also prescribed a pain management program.
51Dr Christelis reviewed Mr Debono further on 6 April 2016 and on 11 May 2016. His findings were referred to in a subsequent report he prepared dated 25 October 2017.
52On 6 April 2016, Dr Christelis noted that Mr Debono had achieved around 10 to 15 per cent pain reduction from taking Gabapentin and Duloxetine. He recommended that Mr Debono gradually titrate up to Gabapentin, 600 milligrams twice daily – if he could cope with it – and 60 milligrams per day of Duloxetine.
53Upon review on 11 May 2016, Dr Christelis noted that Mr Debono was doing well and was taking Gabapentin, 300 milligrams twice daily; and Duloxetine, 60 milligrams daily. He was undertaking physiotherapy, occupational therapy and psychology, and was making progress in all areas. He had reportedly been suffering from drop attacks, and reported having blacked out a few times before opening his eyes while on the ground, which prompted Dr Christelis to reduce his Gabapentin to 200 milligrams twice daily, to see if they stopped. He did not see Mr Debono again.
54Associate Professor Peter Doherty, consultant psychiatrist, also examined Mr Debono on 11 May 2016 and subsequently on 28 June 2016. He provided reports dated 26 May 2016 and 26 July 2016. In his report dated 26 May 2016, Associate Professor Doherty stated that, in his opinion, Mr Debono did not suffer from a mood-related psychiatric condition, including an Adjustment Disorder with Depressed Mood, or any condition that would cause distress or interfere with social or occupational functioning. He considered Mr Debono complained of pain more than expected for his injury and treatment. He opined that there was no Somatic Symptom Disorder or pain-related psychiatric condition. His view was that there were insufficient clinically significant symptoms which would reflect such a disorder. Psychological factors did not apparently influence the onset, exacerbation or maintenance of pain. To the extent that Mr Debono was taking antidepressants, they were suitable only to modify his experience of pain and not for treatment of a depressive disorder.
55On 23 August 2016, another MRI scan was taken of Mr Debono’s right hip and groin. The findings correlated with an earlier study on 2 February 2016. There was a small right hip joint effusion, and the labral tear was still present and remained unchanged.
56Associate Professor Doherty examined Mr Debono a second time on 28 June 2017 and prepared a second report, dated 26 July 2016 (which most likely should have been dated 26 July 2017). At the second examination, Mr Debono presented as relatively settled and co-operative, but there were pain-related behaviours. He rated the average pain in his right hip as a 5 out of 10. The pain came and went with secondary pain in his right buttock. He was experiencing significant difficulty bending, pivoting and squatting, and could walk for only about ten minutes.
57Mr Debono also said he was experiencing difficulty sleeping. He reported waking every two hours and having discomfort in the morning with “nibbles” at his right hip area. He ruminated on his injury and financial position. He said that, despite engaging in a gym program at Empower Rehab, he had made no progress physically, and had become significantly non-social; felt worried about the future; felt useless; often felt angry, and would often try to do things but would get into trouble. He had a good day about one out of seven days and listed his general anxiety as a 7 out of 10. He reported now having horrible concentration and memory.
58Mr Debono rated his mood as 5 out of 10. His thoughts appeared linear and well connected, with no melancholia, self-blame or pervasive downturn in mood. There were no features of traumatisation. He appeared to be alert, aware and oriented, and his insight and judgement appeared to be unimpaired by any psychiatric condition.
59Associate Professor Doherty gave consideration to whether Mr Debono had a current psychiatric condition, that is diagnosable using usual clinical criteria. He considered that he probably did not. He noted that despite an increase in his antidepressant medication, there had been no progress made. There had been no reduction in mood symptoms, and there was persistent pain and functional limitations beyond what would have been likely to be expected. Associate Professor Doherty considered that Mr Debono had no evident anxiety, perturbation, distress or tearfulness and no significantly distressing symptoms that warranted the giving of a psychiatric diagnosis.
60Associate Professor Doherty observed that Mr Debono’s predominant symptom was pain. There were some mild pain-related behaviours evident during interview and examination. There was also an emphasis on Mr Debono’s disability. Mr Debono had attended a pain management program, which he thought had achieved little, and was no longer attending.
61Associate Professor Doherty’s opinion was that there were features both of a Pain Disorder and an Adjustment Disorder. There were some minor objective signs of a significant Mood Disorder, including a Pain Disorder and an Adjustment Disorder; however, Associate Professor Doherty did not consider the features met the necessary criteria for a diagnosis of a psychiatric condition. He also rejected the presentation of a Somatic Symptom Disorder or pain-related psychiatric condition.
62Associate Professor Doherty opined the reported mood and pain symptoms were due to the right hip complaint.
63Mr Debono said he discontinued his usage of pain medication in 2018. He claimed that none of the recommended treatments had been beneficial. Although he trialled various medications, including Norspan, Mobic, Endone, Lyrica and Gabapentin, they had all ultimately failed to provide any significant relief. He said that hydrotherapy had a soothing effect on his pain and was far more effective. However, that treatment was discontinued once it was no longer provided by WorkCover.
Witnesses and evidence
64At the hearing, Mr Debono and his sister, Carly Pettifer, gave evidence and were cross-examined.
65Mr Debono relied upon an affidavit sworn by him on 24 October 2019 (“Mr Debono’s first affidavit”); a further affidavit sworn by him on 26 July 2021 (“Mr Debono’s second affidavit”), and an affidavit of Carly Pettifer sworn 27 July 2021 (“Pettifer affidavit”).
66Extracts from the Court Books of both Mr Debono and the defendant were tendered and included claim documents, diagnostic radiological investigations; various treater’s reports of medical professionals; vocational reports; medico-legal reports; Medical Panel opinion; medical letters and bank transaction summaries.
67I have considered all of the documents tendered in reaching my decision.
Issues and submissions
Plaintiff’s submissions
68It was submitted on behalf of the plaintiff that:
(a) Mr Debono suffered an injury while working for the employer on 1 August 2014, namely, a CAM deformity with a labral tear in his right hip, which was a permanent serious physical impairment or loss of function of his right hip, pursuant to paragraph (a) of the definition of “serious injury” in s325(1) of the Act.
(b) Mr Debono sustained a consequent psychiatric disorder, which was a permanent severe psychiatric disorder pursuant to paragraph (c) of the definition of “serious injury” in s325(1) of the Act.
(c) Mr Debono sustained more than 40 per cent loss of earning capacity, having regard to the probable income from personal exertion which Mr Debono would have earned, but for the injury, over his probable earning life. Mr Debono was under twenty-six years of age at the time of suffering injury and, therefore, in assessing whether he had sustained more than 40 per cent loss of earning capacity, the formula in s325(2)(f) of the Act did not apply. Mr Debono’s earnings in the periods three years before and three years post injury, and the issue of suitable employment as defined in the Act, were consequently not relevant. Further, the stipulation in s325(2)(g) should be disregarded: A worker does not establish the loss of earning capacity required by paragraph (b), if taking into account the worker’s capacity for suitable employment and where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, the worker has or would have, a capacity for any employment including alternative employment, which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f). Reliance in this regard was placed upon Capper v Munday Sales Pty Ltd & Anor,[30] and the principles concerning loss of earning capacity outlined by Heydon JA in State of New South Wales v Moss[31] were submitted to apply. Further, it was submitted, Mr Debono could not return to his pre-injury employment. Consequently, the loss of earning capacity consequences for Mr Debono were “serious”.
(d) Finally, the pain and suffering impairment consequences were also submitted to be “serious”.
[30] [2013] VCC 1015 at paragraphs [144]-[147]
[31] (2000) 54 NSWLR 536 at paragraphs [64], [66], [71]-[72], [74] and [87]
Defendant’s submissions
69The defendant submitted that the plaintiff’s injuries were not “serious”. Mr Debono had not suffered a loss of earning capacity of more than 40 per cent and the pain and suffering consequences did not meet the threshold required for a serious injury.
70Mr Debono was not credible or reliable, and what he said about the consequences of his injury should not be accepted. Reference was made to authorities, including Mobilio v Balliotis,[32] Barwon Spinners[33] and Petrovic v Victorian WorkCover Authority,[34] to the plaintiff’s criminal record, to admissions made in Court, and to references in various medical reports.
[32] [1998] 3 VR 833
[33] Supra
[34] [2018] VSCA 243 at paragraph [74]
Compensable injury
Right hip
71It was not disputed by the defendant that Mr Debono had suffered a compensable right hip injury;[35] however, there was dispute over the exact nature of the injury.
[35] Transcript (“T”) 22, Line/s (“L”) 6-7
72Counsel for Mr Debono, Mr Mighell, invited the Court to find that Mr Debono suffered a serious injury while working for the employer: Namely, a CAM deformity with a labral tear, and a consequent psychiatric disorder.[36]
[36] T22, L21-24
73The presence of a CAM deformity or CAM impingement was not really in dispute. Dr Mary Wyatt, occupational physician, prepared two reports, dated 21 March 2020 and 31 March 2021. In her report dated 21 March 2020, Dr Wyatt opined that CAM deformities, like the one experienced by Mr Debono, are conditions individuals develop given an abnormal shape in their hips from birth, which puts abnormal strain on the hip joint.[37] From the tendered materials, this was the only explanation of what a CAM deformity was. I therefore accept it. Consequently, I find that when Mr Debono sustained injury with the employer he had a pre-existing CAM deformity.
[37] Defendant’s Court Book (“DCB”) 88
74Further uncontroversial elements of Mr Debono’s injury, which I find Mr Debono sustained, were persisting moderate synovitis, and a small right hip joint effusion.
75Chronic pain, as promulgated by Dr Christelis, in his report dated 25 October 2017, is pain that has persisted for longer than three months following an injury and constitutes a maladaptive response to tissue inflammation or neurological damage.[38] I am satisfied that Mr Debono plainly experiences pain on a consistent basis, caused by his injury.
[38] PACB p35
76The remaining issue is whether Mr Debono has a persisting labral tear.
77From the history of Mr Debono’s injury outlined above, there exists some disconformity between the MRI scan findings, both before and after Mr Debono’s operation, and the operation report dated 31 August 2015 of Mr Tran. The consistent finding in the radiology reports over several years before and after Mr Debono’s surgery, has been that there is evidence of a labral tear.
78The MRI scans before Mr Debono’s surgery revealed that Mr Debono had sustained a low-grade CAM deformity and a labral tear.
79Further MRI scans of the right hip/groin, dated 18 February and 23 August 2016 respectively, after Mr Debono’s operation, found there had been surgical correction of the CAM deformity with a small hip joint effusion. The MRI scans also identified a subtle fluid signal cleft at the chondrolabral junction superolaterally, and stated that there was an anterosuperior labral tear, unchanged in size and appearance, as compared with previous MRI scans. There was no paralabral cyst, and the articular cartilage appeared to be preserved.
80On the other hand, the operation report of Mr Tran, which was not tendered, but which, from Mr Miller’s recitation of what it contained, suggested that during the operation, Mr Tran had identified that the labrum was intact and was not torn.
81In his report dated 18 May 2020, Mr Miller diagnosed Mr Debono’s condition as a CAM impingement with degeneration of cartilage over the CAM, a ligamentum teres tear, and synovitis, which had moderately improved following surgery, but which was still affected by ongoing symptoms due to probable persisting synovitis, low-grade chondral pathology, possible labral tear and subsequent Chronic Regional Pain Syndrome.[39]
[39] PACB 67
82Mr Miller noted the physical and mental symptoms arising from Mr Debono’s injury. His physical symptoms included an ache and discomfort and pain in his right hip, which radiated down to his knee. It was difficult for him to walk for prolonged periods of time, and up and down stairs, or on uneven ground. His symptoms fluctuated, and there had been no pattern of improvement. Mr Debono walked with a slight limp and had difficulty with kneeling, squatting or hopping on the right leg. Mr Miller did not identify any neurological deficit.
83Mr Miller identified that Mr Debono’s improvement since surgery had been moderate; however, that improvement had been accompanied by persisting synovitis, low-grade chondropathology, development of a Chronic Regional Pain Syndrome, and a possible labral tear. Mr Miller said that treatment to date had been appropriate, and that Mr Debono will require ongoing conservative treatment, that may include pain management and rehabilitation. Mr Debono may require further arthroscopic intervention, which has been discussed with his treating surgeon.
84Mr Michael Dooley, orthopaedic surgeon, in his report dated 26 May 2020, described ongoing symptoms in Mr Debono’s right lower extremity, a reduced range of motion in the lumbar spine, and a good range of motion in the right hip. He considered that there were inconsistent signs between the hip and right lower limb. Like Mr Miller, he was of the opinion there was no objective neurological deficit in the lower extremity. He considered that Mr Debono had experienced an adverse psychological reaction to the work injury because his complaints of pain were greater than one would expect, considering the features of the organic injury, the surgical intervention performed and the duration of time since the injury occurred.
85Mr Dooley considered that there was an unlikelihood of benefit from further surgical intervention although, like Mr Miller, he noted the possibility of further arthroscopy and also the possibility of a combination of a soft-tissue injury and an aggravation of a pre-existing femoroacetabular impingement and CAM-type lesion which may have progressed to a labral tear. He considered Mr Debono’s injury to have constituted a soft-tissue injury, possibly a small CAM lesion with some undisplaced tearing of the acetabular labrum, as well as the possibility of a musculoligamentous strain-type injury to the right low lumbar region.
86In his second report, dated 21 July 2021, Mr Miller reviewed Mr Dooley’s report of 26 May 2020. He considered Mr Dooley’s report to be broadly similar to his own; however, he disagreed with Mr Dooley’s assessment that Mr Debono presented with inconsistent signs in his right hip and lower right limb.
87In his report dated 13 May 2021, Associate Professor Max Esser, orthopaedic surgeon, stated that Mr Debono presented as significantly overweight – in the obese category – weighing 135 kilograms. He said that upon examination, Mr Debono had half the usual range of flexion in his spine movements, although when getting off the examining couch, he demonstrated a full range of lumbar spine flexion.
88Associate Professor Esser reported the Trendelenburg signs of both Mr Debono’s hip joints were negative, which was consistent with normally functioning hip joints, and the circumferences of his thighs – 59 centimetres on the right compared to 60 centimetres on the left – were not significantly dissimilar. He demonstrated a slight loss of balance when standing on his right symptomatic hip when compared to a single stance phase on his left hip.
89There was a gross loss of sensation in the entire right lower limb from the right iliac crest, right thigh, right leg and right foot. Both knee reflexes, and reflexes on plantars, were present and equal in both legs. Dorsiflexion, plantar flexion, eversion and inversion of the ankles, and subtalar joints, were equal and normal in both lower limbs.
90Associate Professor Esser found no convincing objective evidence of any pathology affecting Mr Debono’s right lower limb. There was significant illness behaviour which indicated a significantly depressed affect.
91Associate Professor Esser conducted an analysis of the medical imaging reports, the operation report, and other medical documents, and provided detailed evaluation. He considered the MRI scan of the right hip/right groin dated 3 October 2014 and noted the abnormal signal in the supralateral labrum located at the chondrolabral junction suggestive of a small labral tear. He also noted that there was a signal demonstrated at the anterior superior labrum suggestive of another small labral tear. There was also minimal oedema deep in the tibial tract. In his opinion, the findings indicated a low-grade CAM deformity in the right hip and a small undisplaced labral tear of the right hip.
92A further MRI scan of the same area dated 16 June 2015, indicated a slight propagation of the labral tears superiorly.
93Associate Professor Esser referred to the operation report from the arthroscopic surgery on 31 August 2015 prepared by Mr Tran and stated that “apparently a CAM impingement was identified and treated, and a labral tear was repaired”.[40] However, he also noted that Mr Tran’s findings of the right hip arthroscopy were that there was “no labral tear” and “the labrum was in fact intact”.[41] Further right hip arthroscopy was considered, but Mr Debono had not had any further surgery to his hip at the date of the hearing.
[40] DCB 111
[41] DCB 115
94Associate Professor Esser suggested Mr Debono presented with pain and discomfort in his right hip which was out of all proportion to any objective abnormality that he could detect, with no convincing signs of persisting intra-articular pathology or any wasting of the right hip. He considered Mr Debono’s right groin and right hip pain as being associated with a psychological response, rather than any physical abnormality.
95Dr Wyatt examined Mr Debono on 18 March 2020 and prepared a report dated 21 March 2020. Mr Debono attended as a heavyset and deconditioned man. He walked without an evident limp. His weight was 126 kilograms. There was no wasting of the right buttock. The right thigh was one centimetre less in circumference than the left thigh and his calves were of equal circumference.
96Dr Wyatt took a history of Mr Debono’s injury and progress. She noted that he commenced his job in 2012 and worked three days a week receiving, sorting and picking goods used for scaffolding. The job involved heavy and repetitive work handling heavy tubes and frames.
97Following Mr Debono’s injury and surgery in 2015, Dr Wyatt recorded that Mr Debono had experienced ongoing pain which did not abate. He returned to work on light duties in February 2016 and worked for a year. He has largely remained off work since 2017, when the modified duties were withdrawn.
98Mr Debono’s current physical state was described as soreness at the outer aspect of the right hip and into the groin. The pain was constant. Dr Wyatt noted that the pain could extend into the right buttock and right lower back. It was eased with rubbing, but sitting with the right leg at 90 degrees, turning quickly, running, jumping and lifting were aggravating factors.
99Mr Debono indicated having widespread tenderness, including over the right thigh and buttock, the front and outer aspect of the right hip and the right side of the back, and extending up to the upper lumbar region. Spinal movements were reduced.
100Dr Wyatt noted the various investigations which had been undertaken and the CAM deformity at Mr Debono’s right hip. She said that “[t]his is basically something an individual is born to develop and because the shape of the hip is abnormal, it puts abnormal strain on the hip joint. This is often associated with a lateral tear.”[42] She also said “CAM deformities or abnormal shape of the hip is the most common cause of early hip osteoarthritis”.[43] In her report dated 21 March 2020, Dr Wyatt characterised Mr Debono’s injury as persistent hip girdle pain with an underlying CAM deformity at the hip. Dr Wyatt did not consider Mr Debono had a labral tear, because a labral tear was not discovered during surgery.
[42] DCB 88
[43] Ibid
101The Certificate of Opinion of the Medical Panel and Reasons were tendered by Mr Debono. They were not relied upon by the defendant. The Medical Panel considered the imaging reports and noted they showed a small joint effusion, changes in the superior lateral aspect of the hip consistent with resection of a CAM lesion, and some minor signal change of the superolateral labrum. It was unnecessary for the Medical Panel to make a finding in relation to the nature of the injury sustained by Mr Debono, as it was assessing the degree of permanent whole person impairment resulting from an accepted injury to Mr Debono’s hip. It is notable, though, that the identification of the signal change of the superolateral labrum is consistent with a labral tear.
102I have considered the radiological findings before and after Mr Debono’s right hip arthroscopy surgery, as well as the clinical observations of his treating health practitioners. I have also considered the findings of the right hip arthroscopy, and the views of the various medico-legal experts. Having done so, I have concluded that, notwithstanding any findings Mr Tran may have made during the operation, on the balance of probabilities, there was a labral tear present in Mr Debono’s right hip.
103My reasons for forming this view are as follows:
104First, labral tears were identified on the MRI scans before and after surgery.
105Second, they were referred to by each of Mr Miller, Associate Professor Esser and Mr Dooley as likely to have been present.
106Third, symptoms experienced by Mr Debono, including the persistence of ongoing stabbing and burning pain in his right hip area, were consistent with a labral tear.
107Finally, in the absence of the operation report, there is limited evidence that there was not a labral tear.
108Accordingly, I find that, on the balance of probabilities, as a result of his workplace injury, on the background of a pre-existing CAM impingement, Mr Debono sustained a physical injury, being persisting moderate synovitis, a small right hip joint effusion, a Chronic Regional Pain Syndrome and a labral tear.
The mental disorder
109Mr Debono claimed he also sustained a permanent severe psychiatric disorder pursuant to paragraph (c) of the definition of “serious injury” in s325(1) of the Act. He relied upon a number of medical reports.
110Dr Justin Lewis, consultant psychiatrist, examined Mr Debono on 8 April 2021 and provided a psychiatric report dated 13 April 2021. When examined, Mr Debono reported that his walking capacity was limited to ten minutes’ duration. He experienced lowered mood and feelings of dysphoria in a setting of pain, physical restrictions and occupational incapacity. He missed playing basketball, attending the football, and socialising with his friends, all of which had been curtailed due to his pain. He said he had gained a significant amount of weight – from 90 to 130 kilograms - following his surgery but had more recently lost 25 kilograms.
111Mr Debono described his average mood as a 3 out of 10. His sleep remained disrupted due to his pain. He woke roughly every two hours, and he found his sleep unrefreshing. He suffered from impaired concentration, loss of confidence and poor self-esteem.
112In his report, Dr Lewis described Mr Debono as portraying a flat demeanour with a mildly depressed mood and despondency, but with no evidence of suicidal ideation or psychotic features.
113Dr Lewis opined that Mr Debono was suffering from an Adjustment Disorder with depressive features of mild severity; lowered mood and feelings of despondency in a setting of pain; physical restrictions; occupational limitations, and poor response to treatment. He additionally met the criteria for a Cannabis Misuse Disorder and an Amphetamine Misuse Disorder. Dr Lewis considered Mr Debono’s Adjustment Disorder had stabilised but was ongoing in the context of chronic pain and physical restrictions. As such, he considered that Mr Debono was likely to suffer from his mood difficulties as his pain continued.[44]
[44] PACB 97
114As for the severity of Mr Debono’s psychiatric condition, Dr Lewis emphasised that Mr Debono did not necessarily require antidepressants at that point in time, and that psychological treatment would primarily focus on strategies to help mitigate the risk of substance misuse. Dr Lewis noted that Mr Debono was an individual who was poorly motivated and functionally deconditioned.
115Dr Alan Jager, psychiatrist, also considered Mr Debono’s psychiatric condition. In his report dated 28 June 2021, he concluded that Mr Debono suffered from a Chronic Adjustment Disorder with Depressed Mood by disturbance of emotions and conduct, and cannabis and methamphetamine abuse, both in remission. Dr Jager noted that Mr Debono believed his physical injury to have caused his condition. Dr Jager also considered his mood to have been adversely affected by his cannabis and methamphetamine abuse, rather than his substance abuse being caused by his mood.[45]
[45] DCB 123
116I was invited by Mr Mighell to consider Mr Debono’s methamphetamine and cannabis use as a psychiatric condition of his injury. Dr Lewis acknowledged that Mr Debono claimed to engage in drugs to help manage his pain and difficulties with poor motivation, but he fell short of characterising his behaviour as a manifestation of his psychiatric condition. In fact, Dr Lewis noted that, before his workplace injury, Mr Debono used “party drugs” every two months.[46]
[46] PACB 97
117In his report dated 2 March 2020, Mr Dooley opined that Mr Debono had a psychological reaction to his situation which significantly influenced his ongoing symptoms and that treating his ongoing pain as though it was only organically based was pointless.[47]
[47] DCB 82
118In his report dated 27 July 2020, Mr Miller voiced agreement with Mr Dooley and described Mr Debono as suffering from a Chronic Regional Pain Syndrome, manifesting as a secondary consequence of his hip injury.[48]
[48] PACB 65
119Mr Debono’s treating general practitioner, Dr Philip, in his report dated 27 July 2021, considered Mr Debono to suffer from a permanent Adjustment Disorder and depression due to his physical injury.[49]
[49] PACB 112
120Upon assessment of the medical evidence regarding Mr Debono’s psychiatric condition, I am satisfied that he does suffer from an Adjustment Disorder with Depressed Mood, as well as Cannabis Abuse and Methamphetamine Abuse Disorder.
121Dr Lewis, Dr Jager and Dr Philip, who all provided reports in 2021, each diagnosed Mr Debono as suffering from an Adjustment Disorder with Depressed Mood. In addition, both Dr Lewis and Dr Jager diagnosed him as suffering from Cannabis Abuse and Methamphetamine Abuse Disorder. Conversely, Mr Dooley, who provided a report in 2020, diagnosed Mr Debono as suffering from a “psychological reaction” and Mr Miller, who also provided a report in 2020, diagnosed him with a Chronic Regional Pain Syndrome.
122Associate Professor Doherty’s opinion stands in contrast to the preponderance of the medical opinion evidence. He considered that Mr Debono was probably unaffected by a mood-related psychiatric condition. He opined that, although there were features of an Adjustment Disorder, they were insufficient to justify a diagnosis. This was due to Mr Debono’s unresponsiveness to his increased use of antidepressant medication, lack of observable tearfulness or distress during examination, the apparent lack of interference his pain had on his daily activities, and his ostensibly “well versed” descriptions of his mood and anxiety.
123I do not find the reasons expressed by Associate Professor Doherty sufficient to favour his opinion over the other practitioners, particularly when he last examined Mr Debono on 28 June 2017. Antidepressants are not necessarily effective for every patient. What may have appeared as a “well versed” summary of pain may well have merely reflected the preponderance of that pain in Mr Debono’s life. I also do not accept that Mr Debono’s pain has had no effect on his daily activities, as demonstrated by his significant idleness and inactivity. Further, notwithstanding that Associate Professor Doherty did not diagnose Mr Debono with a psychiatric condition, he did consider that there were some minor objective signs of a significant Mood Disorder, including a Pain Disorder and an Adjustment Disorder.
124Taking all of the evidence into account, I prefer the opinions of Dr Lewis and Dr Jager, who each diagnosed Mr Debono as suffering from an Adjustment Disorder with Depressed Mood and as suffering from Cannabis Abuse and Methamphetamine Abuse Disorder.
Credit
125I was invited by the defendant to dismiss Mr Debono’s evidence on the grounds he was not credible. According to the defendant, Mr Debono’s credit was impugned due to his driving and criminal history, and his convictions for fraud offences.
126The defendant claimed that Mr Debono’s evidence that he had limited driving capacity due to pain – most notably in his right hip – was not credible. It was submitted that this did not accord with the likely amount of driving done by Mr Debono when the number of driving convictions he had incurred were considered. It was suggested that “the clearest example of the plaintiff’s credibility being put into the spot light, and … exposed, is when he spoke and deposed to matters concerning his inability or difficulty in driving and riding a motor bike”.[50]
[50] T121, L13-17
127In cross-examination, the defendant put the following to Mr Debono concerning his car driving activity:
Q:“And you say that driving was uncomfortable and painful for you?---
A:Yeah.
Q:And that you only drive short distances?---
A:Yeah.
Q:Was that true when you swore this affidavit?---
A:Yes.
Q:And it was true then. Is it still true today?---
A:Yes.
Q:Did you drive a car regularly after the surgery in August 2015?---
A:No.
Q:No. How often approximately?---
A:I didn’t, for - - -
Q:Not at all?---
A:At least a year or two.
Q:You didn’t drive at all for at least a year or two. Was there a time you returned to it, or did you pretty much stay away from driving?---
A:I - when I was doing that pain management course that’s - they were trying to get me to go for a drive, like little drives like five to 10 minute drives, but - - -
Q:Just to clarify for Her Honour, when was the pain management course that you’re talking about?---
A:2017 I’m pretty sure.
Q:And as part of that course they were encouraging you to get into the car and drive short distances, were they?---
A:M’mm. Yeah.
Q:But beyond that there was virtually no driving; is that right?---
A:Maybe a one minute drive here or two minute drive there, but nothing more than that because I couldn’t sit in the seat.”[51]
[51] T35, L23 ꟷ T36, L15
128Mr Debono’s motorbike riding activity was also a feature of cross-examination:
Q:“… And so when you say effectively in your affidavit that you’re unable to ride and you had to get rid of your bike, was that true at the time?---
A:Yes.
Q:That you swore the affidavit?---
A:Yes.
Q:And is that still true today?---
A:Yes.” [52]
[52] T41, L10-14
129According to the defendant, Mr Debono’s evidence stood in sharp contrast to his driving record incurred over the course of five years, stretching from 11 July 2015 to 24 January 2020. The defendant suggested that the real driving picture depicted “a person getting high and joy-riding whenever he felt like it around the northern suburbs”,[53] which allowed the inference to be drawn that Mr Debono must have been driving frequently. It was argued that this rendered his claim of limited driving due to pain to be untruthful and consequently cast doubt on his presentation as a credible witness.
[53] T123, L23-28
130There was considerable reference to Mr Debono’s driving capacity in the evidence. In his first affidavit, dated 24 October 2019, Mr Debono stated:
“Driving is also uncomfortable and painful for me, particularly as I have to use my right leg for the brake and accelerator, which results in increased pain in my right hip. As I have difficulty sitting for long periods of time, I tend to only drive short distances.”[54]
[54] PACB 18
131This is consistent with the claims he made about his driving ability to a number of practitioners including Mr Miller,[55] Dr Lewis and Associate Professor McInnes[56] at various times.
[55] PACB 66
[56] PACB 91
132It was put to Mr Debono that he had dishonestly claimed he was unable to drive between 2015 and 2019, and that this compromised his credibility. Mr Debono denied this and said:
“… before this injury I was loving my life. I was happy. And after - as soon as this injury happened on 1 August 2014 my life has turned to hell. And I don’t think you quite understand what I’ve been through and what I’ve - to where I am now, it’s hell. I wouldn’t wish it on anyone.
…
… if I had to get somewhere I would drive if I had to. I’d find - to do it with great difficulty. I’d be in pain, but like I said, if I couldn’t walk there, couldn’t get any other way there, I’d drive. If it was the city, no, but Craigieburn, different story. Just two or three minutes anywhere in Craigieburn.”[57]
[57] T59, L31 ꟷ T60, L14
133Given Mr Debono’s explanations of his driving ability, and their consistency, I do not consider Mr Debono’s claim, or the effect of his evidence, to be that he could not drive at all. Rather, he consistently said he drove sometimes for only a few minutes, but that he found driving painful and difficult. At times, driving was too painful and difficult for him to drive at all, and at other times the consistency and duration of his driving was significantly limited.
134Despite Mr Debono’s driving record, I am not satisfied that it is appropriate to make the inference that Mr Debono is lying about his limited driving capacity due to pain and discomfort, or that he was driving at such a frequency, or over such a distance, to dispel the overall credibility of his evidence. Such an inference is not supported by the whole of the evidence. Mr Debono had clearly driven his car in the five years preceding the hearing. He frankly admitted that he had been convicted of offences arising on 11 July 2015, 17 July 2015, 20 December 2016, 22 January 2019, 29 June 2019, 9 January 2020 and 12 January 2021, most of which involved driving in the Craigieburn area, where Mr Debono was living at the time of those convictions.[58] Further, Ms Pettifer, when cross-examined, said she was aware that Mr Debono drove “occasionally, not far”.[59] She gave the example of Mr Debono driving from his house around the corner to Woolworths. The extent of Mr Debono’s driving, in my view, was not such as to affect his overall credit, or his credit with respect to the levels of pain he said he was experiencing.
[58] T69, L23 – T70 L17; DCB 128
[59] T111, L2
135Even if it was accepted that Mr Debono’s driving record in some way adversely impacted upon his credit, I am not necessarily required to discount his evidence in its entirety as not credible or as being unreliable. I am not prepared to do so, because there are objective radiological scans which demonstrate a cause of his pain consistent with his evidence.
136Secondly, the defendant suggested to Mr Debono that, between the time he finished work in early 2016 and up to February 2019, there were multiple occasions where he was riding his motorbike. Mr Debono was challenged about this. He explained that he found it difficult to ride his bike, but he did not say that he did not ride it at all. Ms Pettifer was also asked about Mr Debono’s motorbike riding. She corroborated what he said and made the point that he could not go out riding his motorbike with his mates. Having considered both Mr Debono’s affidavit and his oral evidence, as well as Ms Pettifer’s evidence, in my view, Mr Debono was consistent in maintaining that he found it difficult to ride, as opposed to not being able to ride at all.
137Thirdly, the defendant also challenged Mr Debono’s credibility by claiming that his explanation for disposing of his motorbike was not correct. In his first affidavit, Mr Debono claimed he had to get rid of his motorbike because he could no longer ride it and that this caused him grief.[60] The defendant explained that, on 29 September 2019, roughly one month before he disposed of his motorbike, Mr Debono was pursued, and subsequently arrested, by police for unlicensed motorbike driving, failing to stop, failing to wear a helmet and driving on a footpath. The defendant argued that:
“In light of that evidence, it almost beggars belief that the plaintiff less … than four weeks after that incident … would go on sworn affidavit and say, ‘I ended up getting rid of my motor bike because it was not being used. Not having my motor bike any more is a huge loss to me’.”[61]
[60] PACB 19
[61] T126, L11-16
138There exists confusion over which motorbike Mr Debono was riding at the time he was intercepted by police on 29 September 2019. In his affidavit, Mr Debono expressed his regret over no longer being able to ride a motorbike, and consequently having to sell his 450cc motorbike. In cross-examination, Mr Debono gave evidence that, at the time of his interception by police, he was riding a Yamaha PeeWee 50. He did not state he was riding his 450cc. I am satisfied Mr Debono was in fact riding a Yamaha PeeWee 50, rather than his 450cc, during the police interception on 29 September 2019.[62] His evidence that he sold his 450cc motorbike because he was not able to use it was not challenged.
[62] T48, L18-22
139Fourthly, the defendant submitted that I should make an adverse finding about Mr Debono’s credit due to his fraud convictions in relation to a stolen cheque. In cross-examination, Mr Debono accepted he was charged and convicted for posting fake advertisements of mobile phones on Gumtree throughout the period between 2019 and 2020.[63] Those convictions arise in their own context, some five years after Mr Debono’s claimed injury. It is not appropriate to conclude that he has been dishonest about his pain which has been present since his injury occurred in August 2014, because he was involved in deceitful conduct in 2019.
[63] T72 ꟷ T73
140The defendant also suggested that I should be concerned about Mr Debono’s credit and how seriously he takes his oath because of his use of illicit drugs. In cross-examination, an endeavour was made to paint a picture of a man who, because of his undesirable past conduct, should simply not be believed. Mr Debono made admissions in relation to past criminal conduct and some of the other things he had done to try to earn “quick cash”. He also made sensible concessions during cross-examination when factual matters were put to him against his interest. He did not shy away from the mistakes he had made. When his inability to work was questioned, he frankly explained that he could not work. He said:
“… I’m in too much pain, I get woke up, I hurt myself because I’m not thinking about the pain. I know how my body is. I know what it’s been through the last six years, I know what - I know it’s not going to work out.”[64]
[64] T89, L13-27
141I have considered Mr Debono’s account of his pain and his presentation overall, including his evident discomfort while giving evidence. I have taken into account the medical evidence and the lack of suggestion by the doctors that he had exaggerated his description of the symptoms of his right hip. I have also considered the corroboration provided by Ms Pettifer in relation to the claimed extent of his pain and restriction. I have considered the fact that the defendant admitted it had video surveillance of Mr Debono, but did not play it, and I draw an inference that it would not have assisted the defendant’s case. Having considered all of the evidence, overall, I find Mr Debono was, on balance, a truthful witness. I did not find his evidence, or the medical evidence based on the histories he provided to the various medical practitioners, to be untruthful. Given the consistency of his accounts of pain over a long period of time, I have concluded that Mr Debono was both credible and reliable in relation to his experience of pain and restriction.
142Accordingly, I do not make an adverse credit finding in relation to Mr Debono.
Impairment consequences
Loss of earning capacity
143For leave to be granted to seek damages for pecuniary loss, Mr Debono must establish, at the date of the hearing, that:
(a) he has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i);
(b) pursuant to s325(2)(e)(ii), Mr Debono will continue permanently to have such a loss of earning capacity, and
(c) the narrative test in s325(2)(b) is met.
144Section 325(2)(e)(i) provides that:
“… the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); …”
145It was not in dispute that where a worker is under the age of twenty-six years at the date of injury, the effect of s325(2)(e)(i) is that the formula in s325(2)(f) does not apply to the worker under the age of 26.[65]
[65] Capper v Munday Sales Pty Ltd & Anor (supra) at paragraph [144]
146The defendant submitted that, notwithstanding that the formula in s325(2)(f) did not apply, s325(2)(g) of the Act applied to Mr Debono and imposed a requirement that he establish that he would not have a capacity for “suitable employment” which would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred.
147The question whether paragraph (g) of s325(2) was intended to apply to a worker under the age of twenty-six arose for consideration in Capper v Munday Sales Pty Ltd & Anor.[66] In that case, her Honour Judge Millane considered that the intention of Parliament was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the date of injury.
[66] Ibid
148In Dart v JC Decaux Australia Pty Ltd,[67] her Honour Judge Tsalamandris noted that some judgments of this Court have subsequently held that the obligations in s325(2)(g) apply to a worker under the age of twenty-six.[68] Other, more recent decisions, have held that they do not.[69] Her Honour did not need to decide the issue.
[67] [2021] VCC 741
[68]Jarvis v Woolworths [2012] VCC 1329; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services [2018] VCC 1658
[69]Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444
149In my view, Mr Debono is not required to discharge the onus as to capacity for suitable employment found in s325(2)(g) of the Act. Nor is he required to establish the reasonableness of his attempts to participate in rehabilitation and retraining. This is because the intention of Parliament in enacting s325(2)(e) of the Act was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the date of injury. Instead, it was intended that the usual common law position as to the assessment of loss of earning capacity applies and the Court may have regard to the probable income from personal exertion which a worker would have earned, but for the injury, over the worker’s probable earning life.
150Having determined that common law principles apply to s325(2)(e) of the Act, as her Honour Judge Millane noted, imposing a requirement that a worker under the age of twenty-six years establish that he would not have a capacity for “suitable employment” which would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred, would re-introduce, via s325(2)(g), the statutory formula in s325(2)(f) for the assessment of the loss of earning capacity of a worker under the age of twenty-six at the time of injury. It would also have the practical result of restricting the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of injury contrary to the intention of the legislature.
151The result is that in assessing loss of earning capacity of a worker under the age of twenty-six, what a worker was earning, was capable of earning or would have earned during the three-year pre and post-injury period is not relevant. Nor is the concept of suitable employment. Instead, the usual common law position as to the assessment of loss of earning capacity applies and the court may have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life.[70]
[70]Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M.M. Gould, Minister assisting the Minister for WorkCover)
152In State of New South Wales v Moss,[71] Heydon JA identified the common law principles used to assess the loss of earning capacity of a plaintiff injured in a school accident at the age of fourteen years. Those principles included:[72]
[71] Supra
[72] (Ibid), at paragraphs [66]-[87]
“… in general it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it … .
…
The second theme in the authorities was summed up by Reynolds JA in Yammine v Kalway [1979] 2 NSWLR 151 at 155, as follows:
‘… [W]here a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can, therefore, perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity.’
…
Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v. Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 459 (sic) at 566, per Windeyer J. … It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities … .
194Mr Debono presented with altered sensation in the distribution of the lateral cutaneous nerve of his right thigh, but was otherwise normal to vibration sensation, temperature sensation, power and tone.
195Mr Debono did not present with antalgic gait. He was only able to half squat, and when attempting the Trendelenburg test, was only able to stand on the right with support against the wall. The slump test was 90 degrees on the left and on the right was resistant at 40 degrees.
196Dr Horsley referred to the MRI scans taken of Mr Debono’s right hip and groin dated 3 October 2014, 16 June 2015, 18 February 2016 and 23 August 2016. The MRI scan, dated 3 October 2014, was noted to show the ligamentum teres intact, with no abnormality involving the anterior or posterior capsular ligaments, and no acetabular retroversion. Suggestion of low-grade minimal reduction in the femoral head neck junction offset was detailed, best appreciated in the axial images. There was no impingement, but cyst formation (CAM deformity) was identified. The articular cartilage appeared to be well preserved.
197There was signal abnormality within the superolateral labrum at the chondrolabral junction, suggestive of a small tear. There was a further hyperintense signal demonstrated within the anterosuperior labrum, extending 50 degrees, which was also suggestive of a small labral tear. Dr Horsley considered the iliotibial bands on the lateral aspect of the hip and the gluteus medius and minimus tendons satisfactory. There was minimal oedema in the iliotibial band.
198Referring to the MRI scan taken on 16 June 2015, Dr Horsley noted a focal superior labral tear, which appeared slightly more conspicuous than on the previous scan. It involved more than 50 per cent of the labral depth. There were stable appearances of the shallow CAM lesion and minimal oedema. There was no focal fibrous cystic change. Mr Debono’s hip joint cartilage was preserved and his gluteus minimus and medius tendons appeared intact with normal trochanteric bursa.
199Reporting on the MRI scan performed on 18 February 2016, Dr Horsley noted a small hip effusion with the ligamentum teres intact. In keeping with Mr Debono’s previous surgery, there was a small defect within the anterior capsular ligament, and the posterior capsular ligament was intact. There was notable deformity involving the femoral head, consistent with the previous correction of a CAM deformity. No marrow oedema was noted within the femoral head, neck or proximal femoral shaft. Subtle fluid signal cleft was again seen at the chondrolabral junction superolaterally, consistent with a labral tear, which had remained unchanged since the previous MRI scan. Mr Debono’s articular joint cartilage remained preserved, with no evidence of significant trochanteric bursitis.
200In relation to the MRI scan of 23 August 2016, Dr Horsley observed a more stable appearance of the right hip compared to the scan of 2 February 2016, with surgical correction of the CAM deformity again noted and a small right hip effusion. The appearance of the anterior and superior labral tear was unchanged, with no paralabral cyst, and the articular cartilage was preserved.
201Dr Horsley noted that the MRI scans suggesting labral tear were not confirmed by the operative report of Mr Tran. The operative report of Mr Tran on 31 August 2015 recorded no labral tear, but anterior and anterosuperior CAM impingement. Mr Tran had performed a femoral ostectomy and a ligamentum teres tear was noted. This was treated with radiofrequency debridement. Moderate synovitis, which was also detected, was treated with a synovectomy.
202Dr Horsley opined that Mr Debono presented with persistent and increasing disability relating to his right hip, which was characterised by irritability and resistance to movement. He also presented with ongoing mechanical back and left hip pain, although there were no radiology materials provided for those areas.
203Mr Debono was also noted to further present with significant mental health issues, with little family support. Although he consulted a psychiatrist for ten weeks in 2018 and was prescribed Seroquel, he had not engaged in therapy since that time. Dr Horsley noted that his Beck Depression Inventory test had returned a score of 21, suggestive of moderate depression, but with no suicidal ideation. His Beck Anxiety Inventory returned a score of 11, suggesting mild anxiety. Dr Horsley recommended he receive formal evaluation by a psychiatrist.
204Dr Horsley opined that, due to the time since his injury, Mr Debono’s symptoms were likely to persist. He required proactive management to keep him from developing chronic invalidity.
205Mr Debono had significantly diminished functional tolerance characterised by a sitting tolerance of roughly 30 minutes; a standing tolerance of two minutes and a walking tolerance of up to an hour if he was capable of “pushing through the pain”, and two hours if his hip was not irritable. Due to his right hip, Dr Horsley was of the view that he could not engage in work that involved repetitive reaching; pushing and pulling; truncal rotation; prolonged sitting and standing; using equipment with a vibratory foot plate; repetitive squatting; lifting items greater than 10 to 12 kilograms; repetitively lifting items up to 10 kilograms, or repetitive stair and hill ascending and descending.
206Dr Horsley considered Mr Debono to be seriously deconditioned, with poor functional tolerance, poor mental health and no realistic or reliable capacity for work without a restoration program and proactive management. Even if those approaches were to be successful, her opinion was that he could only return to a sedentary role, ideally with a sit/stand workstation, on a part-time basis of up to fifteen to twenty hours per week initially. Mr Debono’s prognosis was guarded.
207Dr Horsley provided a second report on 7 July 2021, after considering additional materials, including the medical report of Dr Philip, dated 21 August 2020, the medical report of Dr Lewis, dated 13 April 2020, the Nabenet Suitable Employment Report, dated 11 May 2020, and the clinical records of the Craigieburn Superclinic.
208Dr Horsley noted that, Dr Philip, in his report dated 21 August 2020, had been of the view that Mr Debono’s mental health and physical setbacks had greatly impacted on his daily life. At the time of Dr Philip’s report, his WorkCover certificate certified Mr Debono as able to perform modified duties for only fifteen hours per week. He was subsequently referred back to a psychiatrist, with follow-up sessions with a psychologist.
209Dr Horsley reiterated that, based on Mr Debono’s physical presentation on 17 December 2020, and on the further materials, he had no realistic or reliable capacity for work. She opined that Mr Debono was only twenty-eight years of age. He was heading down the path of chronic invalidity and required proactive multidisciplinary management. This would only change if his functional tolerance and mental health were to significantly improve. He required vocational counselling; proactive management; counselling with a psychologist; management with a psychiatrist; a functional restoration program; substance abuse support and occupational therapy, as well as referral to a dietician.
210Dr Horsley’s report, dated 7 July 2021, was stated to be based on physical grounds only. However, it made reference to the psychiatric assessment undertaken by Dr Lewis, dated 13 April 2021, which noted that Mr Debono continued to present with features of ongoing lowered mood and despondency in a setting of pain and physical restrictions. He was disengaged and was noted to be lacking drive. He was diagnosed with an adjustment disorder with depressive features of mild severity. Mr Lewis was of the opinion that Mr Debono had a theoretical capacity to undertake pre-injury duties, but taking into account his residual mood, sleep and cognitive difficulties, only for up to twelve hours per week. He was also of the view that the work should be performed across three non-contiguous days, four hours per shift. The reality, though, he said, was that Mr Debono was at “significant disadvantage in the open labour market”.[82] He had no actively managed return-to-work plan and he was functionally deconditioned.
[82] PACB 98
211After considering both Dr Horsley’s and Dr Wyatt’s reports, I prefer the opinion of Dr Horsley. It makes reference to Dr Lewis’s psychiatric opinion, as well as the opinions of a variety of doctors with respect to the restrictions to Mr Debono’s physical capability. It reaches a conclusion as to Mr Debono’s capacity to work based on his psychological, as well as his physical, condition, and was also based on his presentation when seen on 17 December 2020. Dr Wyatt’s report, on the other hand, was prepared without the benefit of Dr Lewis’s report as to Mr Debono’s psychiatric condition. In any event, Dr Wyatt acknowledged that Mr Debono would require retraining to be more employable and accepted that Mr Debono’s capacity to work would be affected by his low mood and difficulty with concentration.
212Based on Dr Horsley’s report, the maximum number of hours which Mr Debono would be able to work, taking into account his physical capability only, would be twenty hours per week. I find that Mr Debono is capable of part-time employment for a maximum of twenty hours per week.
213Based on the Flexi Personnel report, if Mr Debono could perform a role as a logistics coordinator, his maximum earning capacity would be $100,978 per annum for a full-time, thirty-eight-hour week. I have found that Mr Debono is not capable of working full time and that his earning capacity is limited by his ability to work only up to twenty hours a week. Further, the sum of $100,978 would be the amount likely to be paid to an experienced supervisor. Mr Debono is not an experienced supervisor. He also now has psychiatric issues, as well as ongoing physical pain issues, which are likely to impact his ability to become a supervisor or take on a managerial role. Dr Lewis observed, for example, that Mr Debono is at a significant disadvantage in the open market.
214Because I have found that Mr Debono is only able to work twenty hours a week, based on the roles identified by Nabenet, Mr Debono’s maximum post-injury earning capacity for an administration support officer would be $34,000. In my view, a part-time role as an administration support officer is a more realistic assessment of Mr Debono’s post-injury earning capacity at the date of the hearing, than what he might have expected to earn in a supervisory role as a part-time logistics coordinator, assuming such a role were to be available. I therefore find that Mr Debono’s maximum post-injury earning capacity would be based on a part-time role for twenty hours per week as an administration support officer and would consequently be $34,000.
Has Mr Debono suffered more than 40 per cent loss of earning capacity?
215Comparing Mr Debono’s pre-injury earning capacity of $100,978 to his post-injury earning capacity at the date of trial of $34,000, I am satisfied that Mr Debono has sustained a loss of earning capacity of more than 40 per cent.
Are the loss of earning capacity consequences permanent?
216I am also satisfied that pursuant to s325(2)(e)(ii), Mr Debono will continue permanently to have such a loss of earning capacity. Mr Debono has now ceased working for the employer, so his ability to advance in his career at that workplace has been lost.
217Mr Debono’s physical injury is long term. He has had surgery to his hip which did not resolve his problems. He continues to have pain and ongoing disability. Mr Dooley is of the view that further surgery will not assist him. According to Dr Horsley, Mr Debono “presented with no realistic or reliable capacity for work”.[83] His prognosis was, at best, guarded. Other medical practitioners noted that Mr Debono will have restrictions on his future ability to work and noted the difficulties he will likely experience with sitting and standing. Further, because Mr Debono has a psychiatric injury, as Dr Lewis opined, he is at a significant disadvantage on the open labour market.
[83] PACB 85
218For each of these reasons, I have concluded that Mr Debono will continue, into the foreseeable future, to have a loss of earning capacity of more than 40 per cent.
219I also find that Mr Debono’s inability to perform his pre-injury employment is a significant loss of earning capacity consequence, as is his ability to achieve promotion to a supervisory position. He therefore satisfies the narrative test, such that the consequences of the impairment with respect to loss of earning capacity, by comparison with other cases in the range of possible impairments, are more than “at least ‘very considerable’”.[84]
[84] Humphries and Anor v Poljak (supra)
220Accordingly, leave will be granted to Mr Debono to issue proceedings to recover damages for loss of earning capacity.
Pain and suffering consequences
221Having made a finding that the requirements of s325(1) are met with respect to the claimed loss of earning capacity consequences ꟷ that is, that the loss of earning capacity consequences are “serious” ꟷ in addition to being granted leave to commence proceedings for the recovery of damages for loss of earning capacity, a claim for the recovery of damages for pain and suffering may also be brought by Mr Debono.[85] Consequently, I find that Mr Debono is also entitled to bring a claim for damages for pain and suffering in respect of his right hip and his mental disorder.
[85] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
222For completeness, if I had been required to consider Mr Debono’s pain and suffering impairment consequences I would have concluded that the consequences of his right hip injury were serious, and his mental disorders were severe.
223It was evident during the hearing that, since suffering his injury, Mr Debono has experienced significant pain and restriction, most notably in the outer side of his right hip and down into his right groin, right thigh and down to his knee. He has also been diagnosed with a mental disorder, being an Adjustment Disorder with Depressed Mood, as well as Cannabis Abuse and Methamphetamine Abuse Disorder. He emphasised, both to the medical practitioners and to the Court, the intensity and duration of the restriction, pain and mental distress these have caused him.
224Mr Debono is restricted in his ability to sit, bend, walk and/or stand for prolonged periods, before he eventually has to lie down and rest. It is particularly bad over uneven ground or up and down stairs.
225He has pain all the time at some level and is always uncomfortable. He can never relax, and the pain is always on his mind. In his second affidavit, dated 26 July 2021, he described the pain in his right hip, which radiated to his right lower back, right groin and right knee. He said he is prone to regular flare ups, and he is constantly uncomfortable. He described his pain as increasing throughout the day. It is painful if he tries to lift something heavy, turn sharply, or move too quickly. He pushes through the pain, but he said it is not a good way to live. The medical practitioners also referred to the pain he experiences, and Mr Miller noted the possibility of future arthritic disease and possible further surgery.
226The pain Mr Debono experiences was reflected during his in-court presentation and evidence. He described a lack of concentration and was observed to be clearly uncomfortable in the witness box.
227The pain and limitations caused by Mr Debono’s hip injury necessitated him seeking treatment, including from Dr Philip, as well as surgery and injections. He has taken periodic medication such as Gabapentin and, at the date of the hearing, he was continuing to use marijuana and methamphetamine for pain relief. He was also taking some Advil.
228To deal with his pain, Mr Debono said he takes ongoing cannabis and uses methamphetamine intermittently. Otherwise, his only form of pain management is walking, which seems to ease his pain and “loosen him up”.
229Mr Debono continues to suffer from a range of symptoms, including a chronic ache to the outside of his right hip and a burning sensation to his right thigh, which comes and goes, and is occasionally associated with extreme sensitivity. The pain radiates down to his right groin, right thigh and right knee. The pain can intensify into “flare up” episodes, either randomly or through exertion. These cause him to lie down and rest for several hours. Mr Debono also complains of a “dead” feeling in his hip, which has become increasingly infrequent, but still persists upon waking up.
230Mr Debono’s injuries have significantly and detrimentally impacted his work capacity. He can no longer perform his pre-injury role, or other roles which would potentially have been available to him.
231Mr Debono experiences very poor and disrupted sleep. He said he wakes every two hours during the night due to pain. He feels drowsy in the mornings and tired during the day. He said he often takes naps to try to catch up on sleep.
232The difficulties he has sleeping were described by Mr Debono to Dr Wyatt and were also recognised by Dr Lewis. Mr Debono said to Dr Lewis that his sleep remains disrupted secondary to pain symptoms, and he wakes at two-hourly intervals. The quality of his sleep was described as “unrefreshed”. The impact of Mr Debono’s injury on his sleep contributed to Dr Lewis’s opinion that Mr Debono would be unlikely to work in excess of twelve hours.
233Mr Debono’s injuries have caused him difficulty with dressing and a disinterest in socialising. He told Dr Wyatt that, domestically, he manages tasks in a stop/start fashion.
234Mr Debono told Dr Wyatt that he avoids driving as much as possible but said he would drive if he had to.
235Mr Debono noted, in his affidavit dated 24 October 2019, that his injury has impacted his previous social and recreational interests. Prior to his injury, he enjoyed going to the football with his family and friends. He had a Carlton Football Club membership. However, since his accident, he said it is too painful for him to sit for long periods, so he rarely goes. He also used to play basketball socially and shoot some hoops with friends or family. He now finds these activities too painful.
236Because he is no longer working, Mr Debono also said that he has gained considerable weight. He said that this has impacted on his ability to socialise.
237In my view, when judged in comparison with other cases in the range of possible impairments or losses, the consequences of Mr Debono’s right hip injury may be fairly described as being “more than significant or marked” and “at least very considerable”.
238Mr Debono also experiences consequences as a result of his mental disorder. In addition to his diagnosis of an Adjustment Disorder with Depressed Mood, as well as Cannabis Abuse and Methamphetamine Abuse Disorder, he experiences lowered mood and feelings of dysphoria in a setting of pain, physical restrictions and occupational incapacity. His sleep is disrupted and unrefreshing due to pain, and he wakes roughly every two hours. He suffers from impaired concentration, loss of confidence and poor self-esteem. He does not require antidepressants, but that has to be viewed in the context that he is taking marijuana and methamphetamine to function. He is poorly motivated and functionally deconditioned.
239Associate Professor Doherty did not agree with the diagnosis of Mr Debono. However, as already noted, he last examined Mr Debono on 28 June 2017. Notwithstanding the time that has since elapsed, even when Associate Professor Doherty prepared his second report, he noted that, despite engaging in a gym program at the Empower Rehab, Mr Debono had made no progress physically, and had become significantly non-social; felt worried about the future; felt useless; often felt angry and would often try to do things but would get into trouble. He had a good day about one out of seven days and listed his general anxiety as a 7 out of 10 and his mood 5 out of 10. He had horrible concentration and memory. He was unmotivated and he ruminated on his injury and financial position.
240Mr Debono has now been diagnosed with an Adjustment Disorder with Depressed Mood as well as a Cannabis Abuse and Methamphetamine Abuse Disorder. I have found that he continues to suffer from these conditions. Having outlined the pain and suffering consequences of these mental disorders to him, they may be fairly described as being more than “serious” to the extent of being severe; particularly when Mr Debono’s young age is taken into account. Mr Debono’s mental disorder continues to cause him considerable mental pain. He described how, before his injury, he was loving his life and was happy. After he was injured, he said “since that date when this injury happened … it’s F word my life in a way.”[86] His sleep is severely disrupted and although he does not take prescription medication, he continues to require marijuana and methamphetamine.
[86] T101, L22-24
Conclusion
241The requirements of s325(1) having been met with respect to the claimed loss of earning capacity consequences, I grant leave for Mr Debono to commence a proceeding to recover damages for loss of earning capacity. I also grant leave to Mr Debono to commence a proceeding to recover damages for pain and suffering in respect of his right hip injury and psychological disorder.
242I will hear argument with respect to costs.
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