Degroot v Horizon Petroleum Pty Ltd and VWA
[2011] VCC 1107
•18 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04458
| NADINE ELIZABETH DEGROOT | Plaintiff |
| v | |
| HORIZON PETROLEUM PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 and 8 August 2011 |
| DATE OF JUDGMENT: | 18 August 2011 |
| CASE MAY BE CITED AS: | Degroot v Horizon Petroleum Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1107 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – serious injury – whether the plaintiff had established that she had suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder – s.134AB(37).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden SC with | Maurice Blackburn Cashman |
| Mr I D McDonald | Gippsland Pty Ltd | |
| For the Defendants | Mr J L Batten | Minter Ellison |
| HIS HONOUR: |
1 This is an application brought by an Originating Motion by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her in the course of her employment with the first defendant in 2004 and 2005.
2 The injury relied upon is that of a permanent severe mental or permanent severe behavioural disturbance or disorder as set out in paragraph (c) of the definition of “serious injury” in s.134AB(37) of the Act.
Background
3 The plaintiff is a forty-nine year old woman, born on 21 May 1962. She is married with three adult children. She resides in Sale, in Gippsland, Victoria.
4 She was educated up to Year 11 in secondary school. In the years that followed, she had a number of different jobs in different areas. She worked for the Melbourne Stock Exchange, a stationery supply business, and at Target as a checkout operator. She established a business for a time caring for children at her family home, then in Maffra. She assisted her husband in his panel beating business in the early 1990s for approximately three years.
5 In 1994, she obtained an Integration Aide Certificate at Monash University in Churchill and was thereafter employed as an integration aide at two kindergartens in Sale. In 1997, she obtained employment with Tulloch Petroleum as manager of a service station at Stratford.
6 In December 2002, the plaintiff commenced employment with the first defendant as a console operator at a local service station. The first defendant operated a number of such businesses throughout Victoria.
7 In October 2003, she was promoted to a position as Team Leader at the Sale Ampol Service Station, and in May 2004, she was promoted to the position of Area Retail Manager. This position involved supervision of a number of different sites in the Gippsland area, working from the head office in Traralgon. It is during the course of this part of her employment with the first defendant that the plaintiff alleges that she was unfairly treated and bullied in the course of her employment by the General Manager, Mary Lynch, on a daily basis regarding work issues. She was blamed for various problems that arose at different sites operated by the first defendant. She alleges that Ms Lynch made false allegations against her, would raise her voice, bang her fist into her hand and wave her finger in the plaintiff’s face. She alleges that she was spoken to by Ms Lynch in an aggressive manner on a number of occasions.
8 In July 2004, the plaintiff consulted her general practitioner, Dr Nicolson, in Sale, regarding her emotional state, which she alleges was the result of the bullying and pressure that she had been subjected to in the course of her employment. She apparently took some time off work at that time.
9 In about August 2004, she was apparently transferred back to Sale as a Team Leader, a position in which she had previously worked. It would appear that this was a demotion.
10 Between August 2004 and February 2005, she continued to have problems in her relationship with Ms Lynch in relation to various matters connected with her employment. Ultimately, she ceased work in early March 2005 after being criticised and questioned by Ms Lynch concerning some missing monies. Initially, her general practitioner, Dr Nicolson, certified her as being unfit to work for approximately two weeks. However, she did not return to work thereafter.
Symptoms and Treatment
11 The plaintiff was treated by Dr Nicolson in respect of an inability to sleep, nightmares and panic attacks. He prescribed Zoloft, an antidepressant medication (referred to in his clinical notes as Sertraline), together with a sleeping medication, Oxazepam.
12 In November 2005, the plaintiff was referred by Dr Nicolson to Dr Anthony Sasse, a respiratory and sleep physician. She appears to have seen him on one occasion.
13 In early 2006, Dr Nicolson referred the plaintiff to a psychologist, Jeanette Gibson. At that time she had symptoms of agoraphobia. She developed a fear of leaving her home and a fear of strangers being near her home. She states in her affidavit that she, at one stage, was having daily panic attacks which included symptoms of heart palpations, sweaty palms and fear. At one stage she did not want to leave her home, even to go to the letterbox.
14 On occasions in or about 2006, the plaintiff had suicidal ideation. She states that she did not drive a car for approximately three years following the onset of her anxiety/stress condition until approximately March 2008. She continually felt tired and, for some years, was averaging only three to four hours of sleep each night. For a period of time she felt extremely anxious if she was to see a black car of the type that resembled the car driven by Ms Lynch. She stated that she had lost trust in people and felt worthless.
15 The plaintiff saw Ms Gibson on a number of occasions until approximately June 2009, when such consultations ceased.
16 Prior to 2004 and during the course of her employment, the plaintiff commenced a Masters Degree in Visual Art at Monash University Gippsland Campus. She continued this course during the period after which she ceased work with the first defendant. She stated that the course was largely a practical rather than a theoretical one. She was required to prepare portfolios of her work. Most of the work could be done from her home and from time to time she would deliver her work to the university campus. Generally her husband drove her to do so. The course involved painting and photography.
17 The plaintiff has continued to paint. She does so for pleasure rather than for any true commercial purpose, although she has sold some of her paintings for prices of up to $150. Others were given away.
18 The plaintiff concedes that her condition has improved over the last few years. In June 2009, she ceased attending upon the psychologist, Jeanette Gibson. She ceased all antidepressant medication in mid-2009. She has resumed driving a car since about March 2008. She is now sleeping better than she previously did and on most nights she deposes to being able to sleep for about six hours. She says that she still gets some nightmares but they are less frequent than they were.
19 She has recently made several job applications.
20 The plaintiff deposed in her affidavit sworn on 21 May 2010, that:
“I have recently forwarded my Resume in relation to several job applications relating to available positions at Target, Coles and Safeway. I also applied for a position at the RAAF Base in Sale in the Defence Credit Union Administration Section, and also a job advertised as a sales assistant at a jeweller’s shop in Sale. I did not get to an interview stage with any of such applications. I felt anxious about attending any possible interviews and was in fact relieved when I was not requested to attend. I am terrified that if I were to obtain a job, that I would be subjected to further bullying. My greatest concern would be working with a group of people and having an aggressive boss, and not knowing if my situation of panic attacks would be understood.”[1]
[1] Plaintiff’s Court Book (“PCB”) 25, paragraph 21
21 She deposed in her affidavit that she still feels anxious about attending places which are crowded and expresses concern about working with a group of people or having an aggressive boss. She avoids crowded situations. She maintains that she suffers from poor concentration and poor memory.
Legal Principles
22 In order to succeed in this application, the plaintiff must establish that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the course of her employment with the first defendant.
23 The term “permanent” is to be interpreted as meaning that “it is likely to last for the foreseeable future”.[2]
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 33
24 The term “severe” is not defined in the Act, but has been judicially considered by the Court of Appeal in Mobilio v Balliotis & Ors[3] as a word stronger than “serious”.
[3] [1998] 3 VR 833
25 I am required to assess whether the plaintiff’s injury is severe and permanent as at the present time.[4]
[4] Section 134AB(38)(j)
26 In order to establish that she has suffered a serious injury with respect to pain and suffering or loss of earning capacity, the term “severe” is to be satisfied by reference to the consequences to the plaintiff when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders.[5]
[5] Section 134AB(38)(b)
27 A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of sub-s.134AB(16), unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious, to the extent of being severe.[6]
[6] Section 134AB(38)(d)
28 The Court is not permitted to grant leave under sub-s.134AB(16)(b) on the basis that the plaintiff has established the loss of earning capacity required by sub-paragraph (38)(b), unless the plaintiff has established that, in addition to satisfying the matters set out in sub-paragraph (38)(d), she has suffered a loss of earning capacity of forty per cent or more. Such loss of earning capacity is to be measured by comparing the plaintiff’s gross income from personal exertion that she is presently earning or capable of earning in suitable employment at the present time, with the gross income that she was earning or was capable of earning, from personal exertion, during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity, had the injury not occurred.[7]
[7] Section 134(AB)(38)(e) and (f)
29 Further, the Act provides that the plaintiff will not establish the required loss of earning capacity where she has or would have had, after rehabilitation or retraining, a capacity for employment which, if exercised, would result in her earning more than sixty per cent of gross income from personal exertion as determined in accordance with sub-paragraph (38)(f), had the injury not occurred. I am required to take into account the plaintiff’s capacity for suitable employment and the reasonableness of any attempts made by her to participate in rehabilitation or training.
30 The parties agreed that at the time she last worked in March of 2005, the plaintiff was earning $706.26 per week, or $36,725 per annum.
The Medical Evidence
31 The plaintiff’s general practitioner, Dr Nicolson, reported that as at March 2005,[8] the plaintiff had told him that she was under some stress concerning the loss of a sum of money at work and that she felt intimidated by her supervisor. He felt that the plaintiff was not coping at that time and put her off work, initially for two weeks. By the middle of March 2005, the plaintiff had reported that she was now frightened to go to her place of employment and was developing something of a phobia about crowds. Dr Nicolson believed that she was suffering from an anxiety state at that time and had no doubt that her employment had been a significant contributing factor.
[8] PCB 28
32 In January 2006, Dr Nicolson reported that the plaintiff remained anxious and had become very reluctant to go out in public. He had prescribed an antidepressant, Sertraline Hydrochloride.
33 In September 2006, the plaintiff was referred by Dr Nicolson to a psychologist, Ms Gibson. Dr Nicolson reported that the plaintiff was having nightmares, but was continuing to study for her Masters Degree for Art and starting to paint. He believed that she continued to have anxiety directly related to her employment. Nevertheless, he reported on 7 September 2006[9] that:
“She continues to have the anxiety, which is directly related to her previous employment. She does have the capacity for her pre-injury duties. Suitable duties would be perhaps working in her own time in her art. If she were to obtain paid employment, it would have to be one where she is not in contact with the public and could work at her own time.”[10]
[9] PCB 32
[10] PCB 32
34 Neither counsel drew my attention to what I consider is a likely misprint in that report. It is likely that Dr Nicolson intended to say that the plaintiff did not have the capacity for her pre-injury duties.[11]
[11] PCB 32
35 In his report dated 22 June 2011,[12] Dr Nicolson included extracts from his clinical notes. Those notes extended up until 26 October 2009, although further clinical records after that time and up until May 2011 were tendered by the defendants.[13] Dr Nicolson’s opinion was that the plaintiff had developed anxiety with depression illness arising as a direct result from her employment. He reported that the plaintiff had continued to attend from time to time, “occasionally” asking for something to help her sleep. She was now (that is, by June 2011) “much more independent”. Her current complaints/symptoms were said to be that she has “occasional” episodes of anxiety and insomnia. She was using the drug Prochlorperazine for dizziness and nausea on an “as needs” basis. There was no opinion in the report as to whether those symptoms of dizziness or nausea or the use of that medication were linked in any way to the anxiety or depression the subject of this application. In the absence of such opinion, I do not consider that I can infer that they were related.
[12] PCB 33a
[13] Defendants’ Court Book (“DCB”) 55
36 In June 2011, Dr Nicolson was of the view that the plaintiff would not be able to cope with work in an office or service station environment because of her past experiences. It was his opinion that she is not able to return to the workforce as an employee. He stated that she lacks the necessary trust and confidence in an employer doing the right thing by her. He noted that she had qualifications in art and could follow her artistic bent at her own pace. In respect of future medical treatment, Dr Nicolson thought the plaintiff had a good prognosis but would need ongoing support, maybe counselling, from time to time. He noted that she had previously attended the psychologist, Ms Gibson, with a good result. Overall, he concluded that the plaintiff had made a good recovery but now lacked the necessary confidence to take up paid employment.
37 In his earlier report dated 5 July 2007,[14] Dr Nicolson opined that the plaintiff, at that time, remained unable to work, although he thought that she could probably do some work on her own account based on her artwork. At that time, Dr Nicolson did not feel that he should offer an opinion as to her impairment because her impairment or disability was one that was primarily a psychiatric disability and he commented that he was not a psychiatrist. However, he felt that he could say that she remained “disabled” at that time.
[14] PCB 35
38 Two reports from Ms Jeanette Gibson were tendered dated 2 June 2006 and 20 August 2007. In the first of those reports, Ms Gibson wrote to Dr Nicolson, commenting that:
“In addition to her negative work experience Nadine’s childhood issues
play a significant part in her current psychological state.”
39 At that stage, Ms Gibson had seen the plaintiff three times at the plaintiff’s home as nobody was available to drive her and the plaintiff was not prepared to travel to Ms Gibson’s rooms alone.
40 In her report dated 20 August 2007, Ms Gibson described the plaintiff’s symptoms over the course of her treatment between April 2006 and August 2007. Approximately four years have elapsed since that report was written. By August 2007, Ms Gibson noted improvement in the plaintiff’s condition.
41 In her report, Ms Gibson stated that, over the past few months (that is, prior to August 2007), the plaintiff had started to walk and visits friends without relying upon her husband or son for transport. She had overcome some aspects of agoraphobia. Nevertheless, Ms Gibson stated that the plaintiff continued to suffer from depression, was anxious and had a high paranoia score indicating that she was likely to distrust people. She had some schizophrenic features (but not schizophrenia), some borderline features, suicidal ideation at times, felt a lack of support, was non-assertive and had distant relationships with others.
42 Ms Gibson was of the view that the plaintiff’s very difficult childhood had contributed to her extreme reaction to the workplace issues.
43 Ms Gibson concluded her report with the following statement:
“Nadine has made some progress (see Current Status above); however, at this stage [she] is unable to return to work. I anticipate that Nadine will need at the very least, about 12 months before she is able to resume her previous lifestyle.”[15]
(emphasis added).
[15] PCB 41
44 The evidence disclosed that the plaintiff continued with consultations with Ms Gibson until about June 2009.[16] This is nearly two years after Ms Gibson’s report and more than two years ago. No further report or evidence from Ms Gibson was tendered.
[16] PCB 24, paragraph 18
45 The plaintiff was at no time referred to any psychiatrist for treatment. However, at the request of her solicitors, she was examined by psychiatrists, Dr Paul Kornan, in February 2006, and by Dr John Gill in November 2010.
46 In February 2006 (five-and-a-half years ago), Dr Kornan was of the view that the plaintiff was very anxious, sweating at times and prone to being “panicky”. She appeared to be someone who had significant fears, particularly about being on her own. She was markedly distressed. Dr Kornan’s diagnosis was that the plaintiff suffered from Panic Disorder with agoraphobia and Major Depression. Her main symptoms at that time were that she could not leave the house on her own as she would get anxious, panicky, sweaty, nervous and worried. There were daily suicide thoughts and feelings of wanting to harm herself. She suffered from nightmares. She was fidgety, moody and would cry a lot. She told Dr Kornan she had trouble concentrating and felt she was losing her memory. She complained of headaches and that she was “shaky”. Dr Kornan thought the prognosis at that time was not good and that she needed urgent referral to a specialist psychiatrist. In fact, soon after the attendance, Dr Kornan wrote to Dr Nicolson directly, advising him that the plaintiff needed referral to a specialist psychiatrist.[17] This never occurred. Dr Nicolson made no mention of this advice in his reports and the plaintiff’s solicitors do not appear to have requested any clarification from him.
[17] PCB 42
47 In his report dated 9 February 2006,[18] Dr Kornan stated that the plaintiff was totally unable to work, particularly as she was unable to leave the house on her own with her marked Panic Disorder and agoraphobia. At that time, he did not see the plaintiff working in the immediate, foreseeable future. At that time, he could not say whether the plaintiff’s panic attacks would be permanent. Dr Kornan’s opinions, expressed some five-and-a-half years ago, are of limited assistance in assessing her current condition. On any view, the plaintiff’s condition has improved substantially since then.
[18] PCB 43
48 In his report dated 1 December 2010,[19] Dr Gill noted that at that time the plaintiff had not made a return to the workforce. She was spending a lot of time with her family, particularly her young grandson. She also enjoyed her artwork, with painting and photography. He reported that the plaintiff was aiming at holding an art exhibition, although in her evidence, the plaintiff could not recall saying that to him. He noted that she had managed to complete a Masters Degree in Visual Arts and was now able to leave the house and get out and about. Dr Gill had read the reports of Ms Gibson and noted improvement in the plaintiff’s anxiety and depression, and some aspects of the agoraphobia.
[19] PCB 58
49 Dr Gill’s opinion was that the plaintiff had developed severe anxiety and panic symptoms following her promotion in 2004 and that she had described being bullied, criticised and yelled at, with her self-esteem being undermined. He noted that she had been subjected to humiliation and had developed severe anxiety and panic symptoms. The history he took from the plaintiff was that by early 2010, she had ceased psychotropic medication and that although she had subsequently had some increase in anxiety, her agoraphobic symptoms had now gone. The plaintiff remained somewhat anxious in crowded places, but she had learnt to effectively control her anxiety with psychological techniques. She reported, at that time, some fluctuating mood and occasional suicidal thoughts. At interview, the plaintiff had shown evidence of some anxiety and apprehension and some lowered mood.
50 Dr Gill considered the plaintiff’s present and future capacity for work. He stated:
“From a psychiatric perspective, Ms De Groot would have some work capacity for suitably modified employment. In particular, she would not be capable of performing any work associated with her previous employment at Horizon Petroleum but her current level of anxiety and depression would not preclude her from some suitable employment. It is likely that she will have some future work capacity provided that her psychiatric symptoms remain under control with appropriate treatment.
…
There is probably some partial permanent incapacity for work, in that she will be unlikely to cope effectively in high stress and high pressure work environments, or in any work associated with her former employment at Horizon Petroleum.
…
In my opinion, the prognosis is reasonable, given Mrs De Groot’s good response to psychological and psychiatric treatment. I would estimate that with appropriate treatment and support, she is likely to be able to contain her anxiety and depressive symptoms reasonably well. She may however need to resume the psychotropic medication and from time to time, she may require assistance from her clinical psychologist to maintain her improvement.”[20]
[20] PCB 63
51 At the request of the solicitors for the defendants, the plaintiff was examined by psychiatrists, Dr Grant, in October 2007, and Dr Entwisle in June 2011.
52 In October 2007 (nearly four years ago), Dr Grant considered the plaintiff had features of a Chronic Adjustment Disorder with Anxious and Depressed Mood.[21] He was also troubled that the plaintiff had not been referred to a psychiatrist for treatment. He thought that a substantial amount of her current symptoms could be related to her medication due to dependence on Oxazepam and an inadequate dose of Zoloft, or a failure to explore alternative antidepressant options. He thought that a substantially better outcome could be achieved if she was under the care of a psychiatrist.
[21] DCB 9
53 In June 2011, Dr Entwisle’s diagnosis was that the plaintiff had had an Adjustment Disorder with Depressed Mood, panic attacks and agoraphobia.[22] Her psychiatric functioning had improved subsequent to attendance upon the treating psychologist. Whilst still anxious, Dr Entwisle considered that the plaintiff was no longer agoraphobic and no longer suicidal. Whilst she was nervous and anxious in regard to the prospect of returning to work, from a psychiatric perspective he believed that she had a capacity for suitable duties but not for her previous employment at Horizon Petroleum. Her condition had not entirely resolved but had improved with treatment. He considered that her condition would not be regarded as severe at a clinical level at that time. He thought that her prognosis was for some partial permanent incapacity for work given her previous experiences at Horizon Petroleum and the effect of those upon her emotional and psychological functioning. He thought she was likely to struggle in high stress situations.
[22] DCB 1
54 The defendants tendered a more complete set of clinical notes from Dr Nicolson’s clinic in Sale. I note from those notes that the plaintiff had regular attendances on Dr Nicolson in respect of anxiety up until about January 2007. After that date, there were spasmodic references to an anxiety condition but only one since October 2009.[23]
[23] DCB 52-70
55 The notes disclose that the plaintiff had not been prescribed medication in relation to her condition since at least October 2009. The plaintiff stated in evidence that she would regularly discuss her stress-related condition with Dr Nicolson on each occasion that she saw him, but that he may not have noted her comments specifically.
56 The defendants also tendered an affidavit of Ms Lynch containing a statement concerning the plaintiff’s employment and her cessation of work duties in March 2005. It has relevance to matters relating to liability but I do not consider that the affidavit is relevant to the matters which fall to be considered in this application.
Discussion
57 The evidence referred to above leads me to conclude that, at least up until 2006, the plaintiff suffered from significant symptoms of anxiety and agoraphobia. An indication of this was her inability or reluctance to leave home without the company of her husband or son, and her inability to mix in crowds. Such symptoms would have made it extraordinarily difficult to re- enter the workforce in virtually any position.
58 However, it is clear that in the years since 2006, there has been considerable improvement in the plaintiff’s condition. I note the following matters disclosed in the evidence:
(a) Having had counselling with Ms Gibson between 2006 and 2009, there have been no such counselling sessions for the last two years. (b) The plaintiff ceased all psychotropic medication by October 2009, nearly two years ago. (c) The plaintiff was now able to regularly drive a motor vehicle. (d) The plaintiff was now able to leave her home for various purposes unaccompanied. (e) The plaintiff performed the normal range of household duties, including cooking and generally looking after the household for her husband and son, both of whom worked full-time and lived at home. (f) Her sleeping had improved considerably, although she conceded in cross-examination that her sleeping problems had been longstanding. . (g) She has never had any form of treatment from a psychiatrist. 59 In her evidence before the Court, the plaintiff acknowledged that she had applied for the jobs referred to in paragraph 21 of her affidavit.[24] She said she had applied for them because she thought it was the right thing to do.[25] She said she had applied for the jewellery shop position by personally delivering a job application and resume and had applied online for the other jobs referred to. She told the Court she had applied for both full-time and part-time work.[26] She explained that she thought it was her obligation to get back into the workforce to make life easier for her husband and to feel like she was useful and not useless.
[24] PCB 25
[25] Transcript (“T”) 46
[26] T 57
60 She gave evidence that the jewellery shop job was not one that she genuinely sought to get.[27]
[27] T 63
61 Whilst I accept that a desire to assist her husband and to feel useful were reasons for applying for the jobs in question, I do not accept that they were jobs that she did not genuinely seek. That evidence was, in my view, unconvincing. Application for the Defence Union job required the plaintiff to provide the name or names of character references and she had arranged for a friend to act as one. It is inherently unlikely that the plaintiff would have applied for those jobs and organized a reference unless she genuinely wanted to obtain such work and believed that she could perform such work, and I find accordingly.
62 On the basis of the evidence before me, I conclude that the plaintiff suffers from some symptoms of anxiety, probably amounting to an Adjustment Disorder with some Anxiety and Depressed Mood and that the plaintiff’s employment with the first defendant in 2004 and 2005 was a cause of that condition. However, I am not satisfied that she has discharged the onus of establishing that the present consequences of her condition are such as to warrant the description of a “permanent severe mental or permanent severe behavioural disturbance or disorder”. In particular, I am not satisfied that her injury is either permanent or severe at the current time.
63 I place particular importance on the following:
(a)
The plaintiff’s treating general practitioner, Dr Nicolson, has, at no time, considered it necessary to refer the plaintiff to a psychiatrist. No evidence was tendered from him by way of explanation.
(b) The plaintiff’s medication ceased approximately two years ago. (c)
Dr Nicolson has seen the plaintiff a number of times for a variety of complaints in recent years. In his clinical notes he has made reference to anxiety symptoms in respect of the plaintiff on two occasions since March 2009 and not at all since July 2010. Whilst the plaintiff may have discussed her anxiety condition with him on other occasions, I consider it likely that Dr Nicolson’s failure to record any mention of such discussions indicates that he did not consider them to be of a level of severity or importance that required them to be recorded.
(d)
In his report dated 22 June 2011, Dr Nicolson states that the plaintiff continues to attend from time to time and will occasionally ask for something to help her sleep. She is now much more independent.[28]
(e)
Ms Gibson, the treating psychologist, opined in August 2007 that the plaintiff would need, at the very least, about twelve months before she was able to resume her previous lifestyle.[29] Plainly, at that time, Ms Gibson was of the view that at some stage in the future a return to her previous lifestyle was likely. There was no attempt to obtain an up-to-date report from Ms Gibson, notwithstanding that the assessment of the severity or otherwise of the plaintiff’s condition is to be made as at the date of the hearing.
(f)
The plaintiff has applied for a number of jobs which, for the reasons stated above, indicate a preparedness to return to the workforce and a belief by her that she is capable of doing so.
(g)
Dr Gill considered that, as at December 2010, her level of anxiety and depression would not preclude her from some suitable employment.[30] No attempt was made by the plaintiff to have him further clarify that statement.
(h)
Dr Entwisle considered, as at June 2011, that whilst nervous and anxious in regard to the prospect of returning to work, the plaintiff had a capacity for suitable duties (but not with Horizon Petroleum).[31]
[28] PCB 33h
[29] PCB 41
[30] PCB 63
[31] DCB 5
64 I note that the plaintiff currently resides with her husband (a former police officer) and her adult son. No evidence was proffered from either of them concerning the plaintiff’s current situation or any problems encountered by the plaintiff by reason of her injury that were observable by them. There was no evidence that the plaintiff’s capacity to undertake domestic responsibilities was impaired.
65 Whilst Dr Nicolson describes the plaintiff as lacking the necessary confidence to return to work, in the same sentence[32] he states that she has made a good recovery. I am not satisfied that the described lack of confidence is a permanent condition.
[32] PCB 33j
66 Both counsel for the plaintiff and defendant referred me to the decision of Turner v Love & Transport Accident Commission.[33] I do not find that decision of assistance in this matter.
[33] (1995) 21 MVR 314
67 In Turner, Ashley and Hedigan JJ found that the plaintiff had suffered a major depressive illness and considered the consequences of that illness for her:
“Those consequences – namely, the combination of the probability of prolonged future medication at a high level, the persistence of symptoms despite or in part because of treatment, the likelihood of periodic exacerbation of symptoms despite treatment and the impact of the condition and its treatment on the social fabric of the appellant’s life – should be characterised as severe. The disturbance or disorder, accurately reflected by those consequences, should itself be characterised as severe. Further, the evidence which we accept satisfies us that both the condition itself and its consequences for the plaintiff will continue into the indefinite future if not permanently.”[34]
[34] Turner at 326
68 Both counsel, in their addresses, referred to the above quotation as providing “indicia” of consequences of such an injury. It was submitted by both counsel that these “indicia” could be checked off in subsequent cases with a view to demonstrating that the consequences of an injury that were such as would lead to a conclusion that an injury should be classed as severe or not severe depending on whether any or all of the suggested indicia were present. I do not consider that their Honours were attempting to lay down any such criteria but were merely setting out some of the consequences experienced by the plaintiff in that case. Each case will depend upon its own circumstances.
69 In respect of loss of earnings, the parties were in agreement that in order to succeed in establishing a serious injury in respect of loss of earnings, the plaintiff would need to establish, on the balance of probabilities, that there was no suitable employment in existence that she was capable of performing in which she would earn in excess of $22,035.00 per annum. There was no evidence before me as to the wages applicable to the jobs for which the plaintiff had applied shortly before she swore her affidavit in May 2010. However, it appeared that the plaintiff was applying for both full-time and part- time jobs. The onus is on the plaintiff to establish that there is no such suitable employment in existence. I am not satisfied that she has done so in this case.
Conclusion
70 For the reasons expressed above, I am not satisfied that the plaintiff has established that she currently suffers from a condition or injury that could be described as a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
71 Accordingly, the application will be dismissed.
72 I shall hear the parties as to costs.
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