Douthwaite v Seymour Health
[2022] VCC 637
•19 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-01090
| CHRISTINE JOY DOUTHWAITE | Plaintiff |
| v | |
| SEYMOUR HEALTH (ACN 91 289 605 355) | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 February 2022 | |
DATE OF JUDGMENT: | 19 May 2022 | |
CASE MAY BE CITED AS: | Douthwaite v Seymour Health | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 637 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – WORKPLACE INJURY
Catchwords: Serious injury – adjustment disorder, depression and anxiety – leave sought for pain and suffering and pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325, s327, s335(2)(d)
Cases Cited:Hunter v Transport Accident Commission [2005] VSCA 1; Katanas v Transport Accident Commission [2016] VSCA 140; Yirga-Denbuv Victorian WorkCover Authority (2018) 57 VR 545; Giankos v SPC Ardmona Operations Ltd (2011) VR 120; Transport Accident Commission v Katanas (2017) 262 CLR 550; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; 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; Humphries and Anor v Poljak (1992) 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Demmler v Transport Accident Commission [2018] VSCA 284; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A C Ryan | Shine Lawyers |
| For the Defendant | Mr S Scully | Hall & Wilcox |
Table of Contents
Introduction
Witnesses and evidence
Submissions
Relevant statutory provisions
Background
Injury with the Defendant
Medical history
Post-injury medical treatment
Treating practitioner reports
Dr Ali Almoosawi, general practitioner
Dr Nidham Oda, general practitioner
Mr Marc Lezon, psychologist
Medico-legal reports
Plaintiff’s medico-legal reports
Dr Brendan Hayman, consultant psychiatrist - report dated 7 June 2021
Associate Professor Damodaran, consultant psychiatrist - report dated 28 July 2021
Associate Professor Damodaran - report dated 6 August 2021
Associate Professor Damodaran - report dated 20 September 2021
Nabenet Vocational Assessment - report dated 10 September 2021
Nabenet Vocational Assessment - report dated 29 October 2021
Associate Professor Damodaran - report dated 8 November 2021
Mr Bill Radley, Job Options Consulting - vocational assessment report dated 16 December 2021
Dr Michael Epstein, psychiatrist - report dated 16 December 2021
Defendant’s medico-legal reports
Associate Professor Damodaran - report dated 24 January 2022
Nabenet - supplementary suitable employment report dated 3 February 2022
What injuries did Ms Douthwaite sustain?
Credibility
Is the Adjustment Disorder a “serious injury”?
Loss of earning capacity
Has Ms Douthwaite sustained a loss of earning capacity of more than 40 per cent?
What was Ms Douthwaite’s “without injury” earning capacity and the 60 per cent threshold?
What hours is Ms Douthwaite currently working and able to work in the future as a school bus supervisor?
What are Ms Douthwaite’s earnings at Dyson Bus Services?
What is Ms Douthwaite’s earning capacity in “suitable employment”?
Loss of earning capacity consequences – narrative test
Pain and suffering consequences
Pain
Sleep
Medication
Inability to engage in pre-injury employment
Activities of daily living
Personal care
Social interaction
Sports
Marital relationship
Hobbies
Grandchildren
Stoicism
Are the impairment consequences permanent?
Conclusion
HER HONOUR:
Introduction
1Between 2016 and March 2018, the plaintiff (“Ms Douthwaite”) was involved in a number of incidents and altercations with a work colleague in the course of her employment with Seymour Health (“the defendant”). As a result, Ms Douthwaite alleges that she sustained an Adjustment Disorder with Mixed Anxiety and Depression.
2The issue to be determined in this proceeding is whether, on the balance of probabilities, the injury Ms Douthwaite sustained was a “serious injury” within the meaning of paragraph (c) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) such that Ms Douthwaite should be granted leave pursuant to s335(2)(d) of the Act, to issue common law proceedings for the recovery of damages for pain and suffering and pecuniary loss.
3To succeed, Ms Douthwaite bears the burden of proof, on the balance of probabilities, to establish she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder” which is compensable because it arises out of or in the course of her employment with the defendant.
4The assessment of whether the injury is a “serious injury” for the purposes of the Act is assessed at the date the application was heard.
5For the reasons which follow, having considered all the evidence, I have formed the view that Ms Douthwaite suffers from an Adjustment Disorder with Mixed Anxiety and Depression which is a “permanent severe mental or permanent severe behavioural disturbance or disorder” for the purposes of s325(1) of the Act.
Witnesses and evidence
6At the hearing, Ms Douthwaite relied on the following evidence:
(a) An affidavit of Ms Douthwaite affirmed on 2 November 2020;
(b) A further affidavit of Ms Douthwaite affirmed on 29 October 2021;
(c) A second further affidavit of Ms Douthwaite affirmed on 10 February 2022;
(d) An affidavit of Rebekah Douthwaite, the daughter of the plaintiff, affirmed on 8 September 2021;
(e) An affidavit of Neil Douthwaite, the husband of the plaintiff, affirmed on 10 September 2021;
(f) An affidavit of Maria Mitsakis, former work colleague of the plaintiff, affirmed on 13 September 2021;
(g) Reports from Ms Douthwaite’s treating health practitioners including Dr Ali Almoosawi, general practitioner, Dr Nidham Oda, general practitioner, and Mr Marc Lezon, psychologist;
(h) Reports from medico-legal experts, Mr Brendan Hayman, consultant psychiatrist, dated 7 June 2021; Dr Michael Epstein, psychiatrist, dated 16 December 2021, and Mr Bill Radley, psychologist and vocational assessment specialist, dated 16 December 2021.
7The defendant relied on the following evidence:
(a) Five reports of Associate Professor Damodaran, consultant psychiatrist, dated 28 July 2021, 6 August 2021, 20 September 2021, 8 November 2021 and 24 January 2022;
(b) A report of Nabenet dated 10 September 2021; a supplementary report of Nabenet dated 29 October 2021 and a Nabenet suitable employment report dated 3 February 2022.
(c) Payslips from L C Dyson Bus Services Pty Ltd (“Dyson Bus Services”);
(d) Ms Douthwaite’s resume;
(e) Emails from Ms Douthwaite to Bentel Aged Care;
(f) Ms Douthwaite’s Certificate IV in Leisure and Health.
Submissions
8There was no dispute that Ms Douthwaite suffered from an Adjustment Disorder and that the injury was a compensable injury.
9It was submitted on behalf of Ms Douthwaite that her loss of earning capacity consequences and her pain and suffering consequences were “severe” and, accordingly, she had sustained a “serious injury”.
10The defendant contended to the contrary. It was submitted that Ms Douthwaite had not suffered the requisite 40 per cent loss of earning capacity as per the statutory formula in s325(e) and (f) of the Act and that neither her loss of earning capacity consequences nor her pain and suffering consequences were “severe”.
11The central issue at trial was whether Ms Douthwaite had sustained a loss of earning capacity of more than 40 per cent having regard to the hours she was able to work, and the occupations said to constitute “suitable employment”.
Relevant statutory provisions
12Section 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 …
(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 the case may be, fairly described as being more than serious to the extent of being severe; …
(e) if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that –
(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), 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); and
(ii)the worker (including 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) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f) for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing –
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional 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) had the injury not occurred;
(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;
… .”
13In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard[1] and must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[2]
[1]Section 325(2)(j) of the Act
[2]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
Background
14Ms Douthwaite was born in August 1961 and is currently fifty-nine years old.
15She is married with children and grandchildren.
16Ms Douthwaite completed school to Year 11 and then worked in a variety of roles including as a process worker, in administration, as a supervisor and cook, in catering and as a customer service officer.
17In 2007, Ms Douthwaite commenced employment with the defendant, working at the Seymour District Memorial Hospital (“the hospital”) as a food services assistant in the kitchen and preparing food for delivery to an ancillary aged care facility, also managed by the defendant.
Injury with the defendant
18Ms Douthwaite’s Adjustment Disorder with Mixed Anxiety and Depression initially arose from a series of trivial disagreements between Ms Douthwaite and her co-worker. Ms Douthwaite alleged that her co-worker spoke over the top of her, interjected during conversations with third parties and generally addressed her in a hostile manner.
19By 2016, a number of specific incidents had occurred which had exacerbated the disagreements and the breakdown of the relationship. On one occasion following meal service to patients, Ms Douthwaite said her co-worker accused her of undermining her. Their manager initiated an informal mediation to try to resolve the dispute.
20Subsequently, in November 2017, while Ms Douthwaite was working at the nursing home, a meal was missing and Ms Douthwaite said her co-worker blamed her and reported her to their manager. A further mediation was held on 29 November 2017 and some outcomes were agreed by both parties, which addressed how they would communicate and handle grievances.
21On 13 March 2018, while Ms Douthwaite was working in the kitchen, Ms Douthwaite said her co-worker entered the kitchen without a hairnet or hat. A further altercation arose after Ms Douthwaite told her co-worker she needed to put a hairnet on.
22On 17 March 2018, Ms Douthwaite’s co-worker told Ms Douthwaite she had reported the disagreement to their manager without speaking to Ms Douthwaite first. This upset Ms Douthwaite as she considered it was in contravention of their agreement. Ms Douthwaite then approached management herself the following Monday and ultimately made a formal complaint on 22 March 2018. The following day, management advised that no further action would be taken. This was distressing for Ms Douthwaite, who felt that her co-worker’s treatment of her had not been taken seriously.
23Ms Douthwaite described attending her general practitioner, who gave her a medical certificate, and she remained off work until 11 June 2018.
24When Ms Douthwaite returned to work, she recalled being tearful and feeling upset. She recalled hearing a song playing at work on 13 June 2018. She commented to a colleague that the song, “would be a good song to slash my wrists to”.[3]
[3] Exhibit A, affidavit of Christine Joy Douthwaite affirmed 2 November 2020, paragraph 22
25On 14 June 2018, Ms Douthwaite was requested to attend a meeting with her manager. She said her support person was not permitted to attend. The outcome was that Ms Douthwaite, and her co-worker, were not permitted to speak directly to each other. Whenever an issue arose, their manager said she would be required to be present to mediate it. Ms Douthwaite did not want to work in that environment.
26On 16 June 2018, at a further meeting, Ms Douthwaite said her manager handed her a counselling form. She said she started to cry. Her manager appeared to be smirking and starting to laugh. Ms Douthwaite broke down and was taken to the emergency department at the hospital. She was given medication to sedate her.
27Subsequently, Ms Douthwaite attended her general practitioner, Dr Ali Almoosawi, who prescribed her with Temazepam to assist her to sleep, put in place a mental health care plan and referred her to Mr Marc Lezon, a psychologist.
28Ms Douthwaite lodged a WorkCover claim on 3 July 2018.
29In August 2018, Ms Douthwaite commenced taking Lexapro. She also took Fluoxetine for her anxiety but found it did not really help her and she ceased taking it.
30In January 2019, Ms Douthwaite commenced a return-to-work plan. Initially, she was working at the nursing home, however, gradually she was given more shifts in the hospital kitchen and her hours increased to the point where she was effectively working her pre-injury hours. At that time, her co-worker was not working.
31Ms Douthwaite was concerned that she was not receiving weekend shifts and spoke to management about this at a further meeting on 28 March 2019. She said she was told she would not receive any weekend shifts and she felt criticised for speaking out against management. Her anxiety increased and she was unable to continue working.
32Dr Almoosawi issued Ms Douthwaite a medical certificate stating that she had no capacity for employment. She remained off work for over two months. She then took pre-planned leave from 27 May 2019 until 12 July 2019.
33On 15 July 2019, Ms Douthwaite had a further meeting with management at Seymour Health to discuss her return to work. She was told her co-worker would be returning to work and that it was expected that they would work together. Ms Douthwaite described her anxiety as going “through the roof” in response to being informed of that information. She was sent home and has not returned to work since.
Medical history
34Ms Douthwaite had no particular medical history of note. She had no previous workplace injuries and had not suffered any previous psychiatric conditions.
Post-injury medical treatment
35Following events at Seymour Health, Ms Douthwaite has continued to see her general practitioner regularly and he has continued to prescribe her Temazepam.
36She initially took Lexapro for around five months, and Fluoxetine. She did not like taking those medications and no longer takes them.
37Ms Douthwaite has also been seeing Mr Marc Lezon, psychologist, since July 2018. Initially, this was fortnightly and more recently it has been monthly.
Treating practitioner reports
Dr Ali Almoosawi, general practitioner
38Dr Almoosawi completed a medical practitioner questionnaire dated 24 July 2018 which detailed a history of bullying and harassment at the workplace for the previous four years. The initial consultation by Ms Douthwaite occurred on 24 May 2018. Her presenting symptoms included low mood, lack of motivation, intrusive thoughts and flashbacks about what she said was happening at the workplace.
39Dr Almoosawi considered that Ms Douthwaite was exhibiting severe mental stress. At a number of consultations Ms Douthwaite was in tears and reported that she was unable to go about her usual duties for fear of approaching the workplace. He considered that her social network of friends and relatives became limited because of her psychological trauma.
40Dr Almoosawi noted that Ms Douthwaite had been referred to a psychologist, was under regular review and had been commenced on Temazepam, 10-milligrams nocte, sleeping medication.
41A further treating practitioner questionnaire was completed by Dr Almoosawi on 19 March 2020. Ms Douthwaite was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depression. She was seeing a psychologist and was continuing to take Temazepam, 10 milligrams nocte.
42In his view, Ms Douthwaite was fit for any duties except for the duties at the Seymour Hospital.
Dr Nidham Oda, general practitioner
43Dr Oda prepared a medical report dated 30 November 2021.
44Dr Oda diagnosed Ms Douthwaite with an Adjustment Disorder with Mixed Anxiety and Depression. He said that her prognosis was unpredictable, with the possibility of symptoms flaring up intermittently. His opinion was that Ms Douthwaite’s psychological injuries were unlikely to resolve in the foreseeable future.
45He noted that Ms Douthwaite was taking Temazepam and was attending counselling. In his view, she was unfit to return to her previous duties. At this time, she had started a part-time job as a supervisor on a school bus.
Mr Marc Lezon, psychologist
46Mr Lezon prepared two reports, dated 14 November 2020 and 9 August 2021.
47In his report dated 14 November 2020, Mr Lezon referred to Ms Douthwaite’s diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He opined that she would never return to her previous position as she had lost all confidence in her ability. She did not have a current capacity for work, and he did not believe that she would be able to emotionally cope in a workplace for the foreseeable future. In his view, Ms Douthwaite was going to require ongoing psychological support and medication to help her sleep.
48He recorded that Ms Douthwaite had tried alternative employment at BaptCare for a very short time but had resigned after two weeks as she had not been able to cope.
49Mr Lezon considered that “the events that took place at work that led to the WorkCover claim and the subsequent treatment by the employer are likely to have a long-term impact [on Ms Douthwaite].”[4] He noted that Ms Douthwaite experienced high levels of anxiety when applying for jobs and thinking about how she would cope in employment. Her self-esteem and self-confidence had markedly deteriorated since she left work. She now seldom leaves her residence, has become more socially isolated and has lost confidence in her ability to interact with people.
[4] Report of Mr Lezon dated 14 November 2020, Exhibit A, p 47
50In his report dated 9 August 2021, Mr Lezon opined that Ms Douthwaite’s employment with Seymour Health continued to be a significant contributing factor to her psychological condition. She continued to experience anxiety and avoided travelling to Seymour to minimise seeing people she worked with and potentially having to interact with them.
51Mr Lezon noted that Ms Douthwaite was receiving treatment involving a form of cognitive behavioural therapy. He considered that further psychological and psychiatric treatment would be required.
52In his view, Ms Douthwaite remained incapacitated for full-time unrestricted pre-injury employment. He noted that she is currently employed for two hours in the morning and two hours in the afternoon, three days a week, as a supervisor on a school bus transporting students with special needs to school. The work involves minimal contact with adults, which limits the anxiety Ms Douthwaite suffers. Mr Lezon did not consider that Ms Douthwaite has the confidence or resilience to cope with more hours or days in this role for the foreseeable future. The workplace events have had a big impact on her behaviour. She is socially isolated and has lost confidence in her ability to interact with people. She avoids even people known to her.
Medico-legal reports
Plaintiff’s medico-legal reports
Dr Brendan Hayman, consultant psychiatrist - report dated 7 June 2021
53Dr Hayman examined Ms Douthwaite via a Zoom Telehealth consultation on 7 June 2021 and prepared a report dated the same day.
54Dr Hayman took a history of Ms Douthwaite’s injury which was substantially the same as that described by Ms Douthwaite in her affidavit.
55He noted that in January 2020, Ms Douthwaite commenced work with BaptCare assisting with the personal care of residents. He said that she lasted in the role for two weeks as she could not cope with the demands emotionally.
56She returned to work with Dyson Bus Services in February 2021 as a supervisor on buses with children with special needs. She also undertook a course in leisure and health for the aged in Kilmore. She was offered a work placement as part of her course and applied for, but was not successful in obtaining, an ongoing position.
57He noted that prior to events with Seymour Health, Ms Douthwaite did not have a psychiatric history. Her symptoms first arose in 2018. She had trouble sleeping and found herself becoming more anxious. She ruminated about the events of each day at night.
58Following the incident at work on 16 June 2018, Ms Douthwaite broke down. She was taken to the emergency department and given Diazepam. She subsequently attended her general practitioner, Dr Almoosawi and was prescribed Temazepam to assist with sleep. She was placed on a mental health care plan and referred to psychologist, Mr Marc Lezon.
59In August 2018, Ms Douthwaite was commenced on anti-depressant medication. Initially, she was prescribed Lexapro and subsequently, Fluoxetine. She disliked the side-effects and ceased these after two months. She has not taken anti-depressants since.
60According to Ms Douthwaite, her lowest point was in the second half of 2018. Dr Hayman recounted that she said she was frequently anxious, and, to a lesser degree, depressed. She was breaking down crying and was fearful of going out. She had lost confidence in herself and had begun developing panic attacks; although Dr Hayman said that there was never any suicidality.
61Ms Douthwaite’s condition was noted to have improved with time, although she continued to avoid the Seymour Hospital and Seymour generally. She worried she may upset someone or make a fool of herself in public.
62She felt she was a changed person. She had put on 20 kilograms in weight and her libido was diminished. She was more irritable and tended to isolate herself and close down. She was disinclined to go out socially and cried on average three times a week.
63Dr Hayman noted that Ms Douthwaite’s concentration had subjectively diminished, and that she needed to write things down more than she did.
64He noted Ms Douthwaite’s past history of sleep apnoea, hypertension and a benign breast biopsy. He then considered the diagnoses of Dr Almoosawi and Mr Lezon; the diagnosis of the IME psychiatrist, Dr Anthony Sheehan, dated 31 July 2018; the report of Dr Dielle Felman, IME psychiatrist, dated 11 November 2018; the report of Dr Hilos Das, IME psychiatrist, dated 11 March 2019; the report of psychiatrist, Dr Anupam Pokharel, dated 11 February 2020, and the report of Associate Professor Peter Doherty, psychiatrist, dated 19 November 2020.
65Dr Sheehan considered that Ms Douthwaite had a moderately severe Adjustment Disorder with Depressed and Anxious Mood. His view was she had no current work capacity due to her persisting symptoms. Dr Felman diagnosed an Adjustment Disorder. Dr Das diagnosed an Adjustment Disorder with Depressed and Anxious Mood. Dr Pokharel made a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, mild to moderate in severity, which he said was in partial remission. He considered that Ms Douthwaite had a capacity for pre-injury employment, as long as her concerns were addressed in a collaborative manner with her employer. Associate Professor Doherty diagnosed Ms Douthwaite with an Adjustment Disorder of mild severity, which he said had largely remitted.
66In his report, Dr Hayman opined that Ms Douthwaite developed an Adjustment Disorder with Anxious and Depressed Mood as a result of her employment with Seymour Health. Ms Douthwaite’s condition had improved, but she continued to have symptoms and continued to require psychological treatment. She could not return to her unrestricted pre-injury employment and likely could not return to a similar workplace because she feared a similar experience occurring again.
67Dr Hayman considered that Ms Douthwaite did have capacity for suitable employment and had moved back into the workplace. He said that “potentially the hours could be sequentially increased in a graded manner”. Suitable employment would include her current role or working as a lifestyle advisor role at a nursing home.
Associate Professor Damodaran, consultant psychiatrist - report dated 28 July 2021
68Associate Professor Damodaran prepared a report dated 28 July 2021. It noted that Ms Douthwaite was avoidant of other people. She felt she could not cope with the demands of the workplace. She had residual rumination, tearfulness and she had lost motivation. Associate Professor Damodaran diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He opined that employment was a significant contributing factor to Ms Douthwaite’s mental injury, and it continued to materially contribute to the injury.
69Associate Professor Damodaran was of the opinion that Ms Douthwaite had no capacity to perform her pre-injury duties and hours. He considered that Ms Douthwaite‘s Adjustment Disorder was in partial remission and with treatment she had capacity to perform suitable employment and her prognosis was good.
70Associate Professor Damodaran recorded that at the beginning of 2021, Ms Douthwaite secured employment with a bus company and by February 2021, she was working 12 hours per week. Emotionally, Associate Professor Damodaran considered that Ms Douthwaite was better. She still had some residual anxiety, but her rumination, pre-occupation and sleep were better. She was eating adequately and was trying to lose weight. She denied suicidal thoughts and psychotic symptoms. In his opinion, she needed to see a psychologist for a further six months.
Associate Professor Damodaran - report dated 6 August 2021
71In his subsequent report dated 6 August 2021, Associate Professor Damodaran commented on Dr Hayman’s report and opined that it did not cause him to alter his opinion.
Associate Professor Damodaran - report dated 20 September 2021
72Associate Professor Damodaran, in his report dated 20 September 2021, opined that from a psychiatric perspective, Ms Douthwaite had capacity to perform each of the roles identified by Nabenet in its report dated 10 September 2021 for up to 20 hours per week. The hours could be gradually increased to reach her pre-injury hours.
Nabenet Vocational Assessment - report dated 10 September 2021
73A vocational assessment report was prepared by Ms Jodie Pham, rehabilitation counsellor at Nabenet, dated 10 September 2021.
74The report identified that Ms Douthwaite had sound experience as a food services assistant, process worker and administration officer. There were five “suitable employment” options identified that Ms Douthwaite could fulfill: crossing supervisor, metre reader, administration officer/data entry, receptionist/ administrator and customer services assistant. The lifestyle advisor role was not recommended because Ms Douthwaite would have been required to coordinate and assist a large number of residents which would have been overwhelming, given Ms Douthwaite’s reported high levels of anxiety and difficulty coping with people in large groups. This would have exacerbated her psychological symptomatology.
Nabenet Vocational Assessment - report dated 29 October 2021
75A supplementary suitable employment report from Nabenet was prepared dated 29 October 2021. Ms Douthwaite was not interviewed for the purpose of preparation of that report. Nabenet noted that Ms Douthwaite had completed a Certificate IV in Leisure and Health and suggested roles as a lifestyle assistant and disability worker to be suitable for her without further re-training.
76The wage rate for the lifestyle assistant role had not been disclosed by the employer, however, comparative lifestyle assistant roles with that employer had a wage rate of $26 per hour. The Nabenet report noted that according to Job Outlook, the average full-time annual wage for nursing support and personal care workers was approximately $62,400 gross, which was the equivalent of $1,200 per week.
77Similarly, the role of disability support worker had an average full-time annual wage of $62,400 gross, which was equivalent to $1,200 per week.
78The report set out the duties and tasks required in both roles and the psychological requirements including attention to detail, communication skills, time management skills, judgement and decision-making skills and concentration skills.
Associate Professor Damodaran - report dated 8 November 2021
79In his report dated 8 November 2021, Associate Professor Damodaran considered the roles of lifestyle assistant and disability support worker to be “suitable employment” and suggested that Ms Douthwaite was capable of performing those roles for 20 hours per week with a gradual increase in hours to her pre-injury hours.
Mr Bill Radley, Job Options Consulting - vocational assessment report dated 16 December 2021
80Mr Radley prepared a report dated 16 December 2021 after he saw Ms Douthwaite via an online interview on 24 November 2021.
81After referring to Ms Douthwaite’s history, Mr Radley identified that Ms Douthwaite had a very limited range of transferable work skills and the skills she had were at the lower end of the occupational skill range. She had secondary education to Year 11, basic computer skills as well as a Certificate III in Aged Care, a Certificate III in Home and Community Care, a Certificate IV in Leisure & Health, a current First Aid certificate, a Basic Occupational Health and Safety certificate, and a Food Handling certificate.
82Ms Douthwaite was administered a number of standardised psychological and/or vocational tests. The Million Clinical Multiaxial Inventory 3 (MCMI-3) test indicated that Ms Douthwaite was introverted, socially detached, passive and fearful. Her mood was noticeably pessimistic, and she was at least mildly depressed and emotionally fragile. She was likely to become anxious in social settings and continued to engage in high level social avoidance. She was reporting symptoms of a moderate to high level of anxious mood and high level of depressed mood of a longstanding dysthymic nature. This was likely to significantly limit her capacity to engage in any type of work and would make it more difficult to retrain
83Mr Radley referred to Ms Douthwaite’s concentration and short-term memory and noted that she performed slowly and with a well above-average error rate on the first set of tasks. She struggled increasingly as the tasks grew harder and performed slowly with a high error rate. The results suggested that she had a moderate to high level of impairment in concentration and a high level of impairment in short-term memory.
84Mr Radley noted that Associate Professor Doherty had quantified Ms Douthwaite’s mood at 4 out of 10 and her anxiety at 7 out of 10. Ms Douthwaite reported mild persistent symptoms with avoidance.
85Based on an assessment of Ms Douthwaite’s existing qualifications, skills and experience, as well as injury limitations, his assessment of Ms Douthwaite was that she had no current capacity to return to her pre-injury employment. She also had no capacity to return to work in any occupation in which she had previously worked.
86He considered that she has a capacity for, and has returned to, alternative part-time employment as a school bus supervisor. Mr Radley noted that Ms Douthwaite “believes that she could cope with employment in this occupation for up to 20 hours per week”. Having also completed qualifications for employment as a leisure and health/recreational co-ordinator, he considered she could cope with employment in that occupation for up to 15 to 20 hours per week.
87Ms Douthwaite had some potential for occupational retraining and part-time employment in alternative occupations such as console operator, therapy aide or integration aide, but Mr Radley opined that she would need to complete an appropriate occupational retraining course.
88He considered that Ms Douthwaite was likely to have capacity for part-time employment only for 15 to 20 hours per week.
89Mr Radley considered it to be unreasonable to expect Ms Douthwaite to perform each of the roles as a meter reader, crossing supervisor, general clerk, receptionist /administrator, administration officer/data entry operator or customer service attendant, given her high level of impairment with short-term memory and concentration and given her lack of necessary skills, training and/or experience.
90In relation to the disability support worker role, Ms Douthwaite was noted to have previously worked as a home care personal care attendant with duties similar to a disability support worker, a food services assistant or a general personal care attendant, but had lasted only two weeks before she left because she could not cope with the work and the workplace demands. Mr Radley’s opinion was that the workplace demands of a disability support worker were too much for Ms Douthwaite, and she could not cope, particularly given comments in the medical reports that Ms Douthwaite continued to suffer low self-confidence and had become socially avoidant. He opined that the suggestion that Ms Douthwaite would be able to work as an administration officer/data entry operator in disability support services was impractical, as Ms Douthwaite did not have the necessary minimum educational entry qualifications. The role required computer literacy skills in relation to the operation of Microsoft Office Suite (Word and Excel) which Ms Douthwaite did not possess. Further, Ms Douthwaite did not have capacity to work in any type of occupation that required her to have frequent and close contact with other staff, patients and the general public. Work as a disability support worker was unrealistic.
91Similarly, the suggestion that Ms Douthwaite could work as a customer service attendant was also considered to be unrealistic. She lacked the minimum qualifications, and the social and interpersonal skills and self-confidence required to perform the role.
92Mr Radley concluded by stating that he considered that Ms Douthwaite had capacity to work as a lifestyle assistant/leisure health/recreational co-ordinator, a role in which she had previously worked for 30 hours a week for four weeks as part of her training placement. He agreed with Nabenet that this employment was a realistic option. However, given Ms Douthwaite’s ongoing impairment in concentration and short-term memory, and persistent anxiety and depression, particularly social anxiety, he suggested that she only had capacity for up to 20 hours a week. Mr Radley also suggested that the roles as a console operator, therapy aide, integration aide or Red Cross aide may be appropriate for Ms Douthwaite if she were to be undertake some occupational retraining to gain the appropriate qualifications.
93Mr Radley pointed to several matters that, in his opinion, would make it difficult for Ms Douthwaite to obtain and maintain employment. These included her age, her low general level of education (Year 11), her residential location in Heathcote junction, about 70 kilometres north of Melbourne, her limited work skills, the nature and extent of her psychological work injury, her significant impairment in her psychological, cognitive, interpersonal and social functioning, with limited progress in learning to adapt and manage her injury, and poor medical and psychological prognosis.
Dr Michael Epstein, psychiatrist - report dated 16 December 2021
94Dr Epstein interviewed Ms Douthwaite via Zoom on 16 December 2021 and prepared a report of the same date. He noted her allegations of bullying and harassment and referred to her examinations by other health practitioners including her referral by Dr Almoosawi to Dr Gudarzi, a psychiatrist.
95Dr Epstein referred to Ms Douthwaite’s employment with the Dyson Group in February 2021 on a casual basis as a school bus supervisor. He noted that Ms Douthwaite continued to work with the Dyson Group but was stood down from her job in October 2021 without pay for being unvaccinated against the Coronavirus.
96In May 2021, Ms Douthwaite completed a four-week placement at the Bethel Aged Care Facility for her Certificate IV in Leisure and Health. She subsequently applied for a job as a leisure and health assistant but was unsuccessful and had lost confidence as a result.
97On examination, Dr Epstein said that Ms Douthwaite gave a reasonable account of her history. She appeared depressed and anxious during the interview and her affect was restricted. There was no thought disorder and her cognition appeared to be within normal limits. Dr Epstein diagnosed Ms Douthwaite with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood of moderate severity. He considered her condition had improved but it was still present.
98In his opinion, Ms Douthwaite was unable to return to work with her pre-injury employer. Her mental state made it difficult for Ms Douthwaite to work full time because of fatigue, irritability and problems with memory and concentration. He considered that she would be able to work as a lifestyle assistant or as a disability support worker. He also noted that there appeared to be no other factors in Ms Douthwaite’s life other than her employment with Seymour Health that could have contributed to her condition.
Defendant’s medico-legal reports
Associate Professor Damodaran - report dated 24 January 2022
99In his final report dated 24 January 2022, Associate Professor Damodaran commented on the vocational assessment report completed by Mr Radley dated 16 December 2021. Associate Professor Damodaran noted the discrepancy between the view he had expressed in his report dated 8 November 2021 that Ms Douthwaite had a capacity for part-time employment including as a console operator, therapy aide and integration aide subject to completing an appropriate re-training course, and the view of Mr Radley that Ms Douthwaite had no current capacity to return to pre-injury employment. He also noted the various other medical reports and the detailed occupational assessments.
100He identified that Ms Douthwaite has limitations in her emotional and cognitive functioning and experienced social anxiety. At the same time, he highlighted that she had been able to complete an occupational training program with a qualification to work as a leisure assistant. He concluded that Ms Douthwaite was still suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. In his view, it was highly probable that Ms Douthwaite might not have capacity for full-time hours in alternative employment and that she may not be able to perform certain employment options which he had identified as suitable in previous reports. This had caused him to restrict his employment option recommendations to the options identified in the vocational assessment completed by Mr Radley, namely, lifestyle assistant, console operator, therapy aide and integration aide subject to additional training being undertaken.
Nabenet - supplementary suitable employment report dated 3 February 2022
101A final report dated 3 February 2022 was prepared by Nabenet. It considered the physical demands and labour market factors with the identified employment options set out in Mr Radley’s report dated 16 December 2021. Ms Douthwaite was not contacted or interviewed for the purposes of preparation of this report. Worksite assessments of actual job roles of console operator, therapy aide, integration aide and community worker that existed on the open labour market were completed.
102The final report assessed four possible roles: console operator, therapy aide, integration aide and community worker.
103The hourly wage for the console operator role was $24 per hour gross. It involved various duties and psychological and cognitive demands including frequent concentration, memory and attention to detail as well as frequent verbal communication, numerical literacy and constant working cooperatively with others.
104The role of therapy aide had an approximate hourly rate of $29 to $30 per hour. The duties included supporting clients to complete physiotherapy programs, assisting in planning, organising and implementing physiotherapy group programs, monitoring, maintaining and ordering physiotherapy supplies and undertaking administrative duties. Again, the role had significant psychological and cognitive demands including frequent concentration, use of memory and attention to detail as well as frequent verbal communication, numerical literacy, an ability to prioritise tasks and constant involvement of working cooperatively with others.
105The employer had not disclosed the salary for the role of integration aide. Nabenet suggested that market research showed the average full-time weekly wage for the role was $1,094. The role involved assisting students on an individual or group basis in specific learning areas, assisting with communication between students and teachers, providing basic physical and emotional care for students and generally assisting teachers. The psychological requirements of the job included attention to detail, communication skills, time management skills, judgement and decision-making and concentration skills.
106The final role identified was as a community worker. That role involved providing personal care such as showering, dressing, grooming and medication assistance to residents at an aged care facility. It also provided light household cleaning, laundry and meal preparation, social support, social activities, shopping and travelling to medical appointments and generally supporting residents. The psychological and cognitive demands of the role included frequently working autonomously, working co-operatively with others, frequent concentration, memory and attention to detail, occasional critical thinking, and frequent verbal communication.
What injuries did Ms Douthwaite sustain?
107I have considered the opinions of the various psychiatrists detailed above, as well as the diagnoses of other psychiatrists who examined Ms Douthwaite. There was a consensus that Ms Douthwaite was suffering from an Adjustment Disorder with Anxious and Depressed Mood.
108There was some dispute between the various experts in relation to the severity of the Adjustment Disorder. Consistent with Katanas v Transport Accident Commission,[5] it is unnecessary for me to characterise the severity of the Adjustment Disorder because regardless of the label,[6] the real issue is the severity of the consequences to Ms Douthwaite.
[5]Katanas v Transport Accident Commission [2016] VSCA 140
[6](Ibid) at paragraph [2]
109Based on the totality of the evidence, I find that Ms Douthwaite is suffering from an Adjustment Disorder with Anxious and Depressed Mood.
Credibility
110Ms Douthwaite was cross-examined generally about her ability to perform various roles and some of the consequences she claimed, however, her credit was not seriously challenged.
111Dr Hayman, in his report dated 7 June 2021, noted that Ms Douthwaite was a thoughtful and reflective historian who told her story in an honest and forthright fashion. He recounted how she briefly broke down crying when describing all that had occurred to her. Having observed Ms Douthwaite give evidence, I agree with Dr Hayman’s assessment of her which was consistent with the observations of Dr Hayman, Dr Epstein, Mr Radley and Associate Professor Damodaran.
112Ms Douthwaite struck me as an honest person who has genuinely struggled since the events leading to her injury transpired. She was often tearful while giving her evidence; especially when she discussed the social isolation and the lack of confidence, she now experiences. I believed her when she said she lacked the confidence or ability to engage with people regularly as part of her day-to-day life or job. She said for example that she formerly enjoyed playing social poker games and had tried twice in three years to get herself out and play again,[7] but she now avoided it “because there’s too many people. People I used to socialise with ask me how I am, what’s going on with me and I just don’t feel – I don’t want to be speaking with anyone about any of it.”[8] She said, “it’s just too hard”.[9] She recounted how she now generally tends to stay in the confines of her home.[10]
[7] Transcript (“T”) 31, Lines (“L”) 14-21
[8] T30, L31 – T31, L8
[9] T31, L9-13
[10] T32, L12-16
113I was struck by her genuine distress, her stoicism and willingness to try to do the best she could to progress her life and return to work. I also recognised the sense of hopelessness which she conveyed. Her summation of her situation was, “I’m trying to help myself, but it just seems one step forward and two steps back”.[11]
[11] T31, L20-21
Is the Adjustment Disorder a “serious injury”?
Loss of earning capacity
Has Ms Douthwaite sustained a loss of earning capacity of more than 40 per cent?
114To satisfy the requirements of s325(2)(e)(i) of the Act, Ms Douthwaite must establish that she has sustained a loss of earning capacity of 40 per cent or more, measured as set out in paragraph s325(2)(f) of the Act. This requires me to compare the gross income Ms Douthwaite is earning, or is capable of earning, in suitable employment, at the date of the application, with the gross income that Mr Douthwaite was earning, or was capable of earning, or would have earned, or been capable of earning, during that part of the period three years before and three years after the injury as most fairly reflects her pre-injury earning capacity.
What was Ms Douthwaite’s “without injury” earning capacity and the 60 per cent threshold?
115It is convenient to start by considering Ms Douthwaite’s “without injury” earnings. The parties agreed that Ms Douthwaite’s “without injury” earning capacity was $992 gross per week and that the relevant 60 per cent figure was therefore $595.20. I accept that these figures most fairly reflect what Ms Douthwaite was earning, or was capable of earning, or would have earned, or been capable of earning, during that part of the period three years before and three years after the injury had the injury not occurred.
116To determine Ms Douthwaite’s “with injury” earning capacity, it is necessary to consider the amount which Ms Douthwaite is earning, whether in suitable employment or not, or the amount she is capable of earning as at the date of the application, whichever is the greater.
117If Ms Douthwaite’s “with injury” earning capacity is less than $595.20 per week – which, put another way, represents a loss of earning capacity of more than 40 per cent compared to Ms Douthwaite’s $992 pre-injury earning capacity – then the claim for pecuniary loss must fail. The resolution of this issue requires me to assess:
(a) what Ms Douthwaite is currently earning as a school bus supervisor;
(b) what other occupations could constitute “suitable employment”;
(c) how many hours Ms Douthwaite can realistically work per week in such other occupations which could constitute “suitable employment”;
(d) what Ms Douthwaite’s earning capacity would be for each other occupation which could constitute “suitable employment”.
What hours is Ms Douthwaite currently working and able to work in the future as a school bus supervisor?
118The medical opinions each accepted that Ms Douthwaite cannot return to her pre-injury employment. I did not understand the defendant to submit otherwise.
119After leaving Seymour Health Ms Douthwaite managed to obtain alternate casual employment as a school bus supervisor for Dyson Bus Services working with special needs’ children. It was submitted on behalf of Ms Douthwaite, that 12 hours per week represents a realistic assessment of the hours which she is working and will be capable of working into the future. The defendant submitted that Ms Douthwaite will be capable of working at least 20 hours per week in this role into the future.
120Ms Douthwaite was cross-examined about her hours and agreed that they varied.[12] In re-examination, she said she did not think she would be capable of working more than 12 hours with Dyson Bus Services. She said:
“… the travel is one thing, but it’s the - mentally, I am drained. After each shift, I am just drained. Trying to - because I have to remember if kids have asthma or if they are epileptic, and I have to watch those kids, and it’s just - you know, a constant watching and remembering who is who, and where they have to get off, that sort of thing. … .”[13]
[12] T28, L17-23
[13] T54, L1-11
121Ms Douthwaite also described the difficulties she has working consecutive days. Having worked Tuesday, Wednesday and Thursday in the week prior to the hearing, she explained:
“… by the time I’d finished on the Thursday I was - my brain was sort of flat, scrambled, that sort of thing. I just wasn’t with it. It’s all day on the Friday the next day, I was like, confused and not really able to function greatly on the Friday, so just - I just found that the three days in a row was extremely difficult at this point.”[14]
[14] T12, L17-31
122Ms Douthwaite also described her current mental condition. Her evidence was that “emotionally I feel that I’m not stable”. Although she was better than what she had been immediately after the injury,[15] she said “my emotions run up and down. My sleep at times is still erratic, … maybe four hours last night.”[16] She explained that she had put on nearly 30 kilograms and was still attempting to lose weight. She said her mind raced constantly at night and that is why she had trouble getting to sleep.[17] She also indicated that as a result of her mental disorder, she had changed in herself and now lacked self-confidence, was generally anxious and avoided going out socially.[18] She said she liked working as the school bus supervisor because she had limited interaction with parents when the children got on and off the bus and she did not have to interact with too many people, which she found difficult.[19]
[15] T29, L23-25
[16] T29, L4-9
[17] T29, L9-13
[18] T30, L22-30
[19] T45, L16-26
123As Ms Douthwaite gave evidence and explained the impact of her disability, she was at times visibly distressed. She was shaking and tearful. When I consider her evidence in conjunction with the evidence of the medical experts, it is apparent that Ms Douthwaite avoids the Seymour Hospital and Seymour generally. She worries that she may upset someone or make a fool of herself in public. She feels like she is a changed person, is more irritable and tends to isolate herself and close down. She is disinclined to go out socially and cries on average three times a week. Her concentration has subjectively diminished, and she needs to write things down more. She has a moderate to high level of impairment in concentration and a high level of impairment in short-term memory. These matters are likely to significantly limit her capacity to engage in any type of work; will make it difficult for her to work full time and will make it more difficult for her to retrain.
124Mr Radley considered that Ms Douthwaite was likely to have capacity for part-time employment only for 15 to 20 hours per week.
125Associate Professor Damodaran did not specifically comment on Ms Douthwaite’s current role as a school bus supervisor, but he did consider that she had the ability to work up to 20 hours a week.
126I have considered the opinions of Mr Radley and Associate Professor Damodaran, and Ms Douthwaite’s and their conclusions as to the hours Ms Douthwaite will likely be able to work. Ultimately though, it is a matter of judgment as to how many hours Ms Douthwaite is now able to work each week. Relative incapacity must be considered by reference not just to the medical evidence, but also by reference to the whole of the evidence[20] at the date of the hearing of Ms Douthwaite’s application.
[20] Yirga-Denbuv Victorian WorkCover Authority (2018) 57 VR 545 (“Yirga-Denbu”)
127In my view, the extent of any additional capacity Ms Douthwaite may have beyond 12 hours per week is minimal. I do not consider she is capable of working more than 15 hours per week. I have arrived at this conclusion because I accepted Ms Douthwaite’s evidence that she finds working more than 12 hours a week to be a struggle. I have, however, also considered the opinions of Mr Radley and Associate Professor Damodaran, which suggest that she is capable of working more than 12 hours a week. Balancing all the evidence, and because Mr Radley is both a psychologist and a vocational assessment specialist, I consider his view of the minimum hours Ms Douthwaite is capable of working as most accurately reflecting her ongoing residual capacity. I find that Ms Douthwaite is capable of working 15 hours per week.
What are Ms Douthwaite’s earnings at Dyson Bus Services?
128I have concluded that Ms Douthwaite has an “after injury” ability to work 15 hours per week. I must next consider what Ms Douthwaite’s gross annual earnings – or in this case because weekly earnings were agreed between the parties, her gross weekly earnings – at Dyson Bus Services will be if she works 15 hours per week.
129A bundle of payslips from Dyson Bus Services for the period 22 February 2021 to 3 August 2021 were tendered by the defendant. These showed that Ms Douthwaite’s ordinary hours generally vary from week to week.
130Between 22 February 2021 and 3 August 2021, Ms Douthwaite’s hours ranged between 6.33 hours and 24 hours. Usually, though, Ms Douthwaite works about 12 hours per week, mostly on non-consecutive days – Mondays, Tuesdays and Thursdays – although there was one week where Ms Douthwaite worked 2 hours each weekday, but as Ms Douthwaite said in cross-examination, and given the difficulties identified with her memory and concentration, working consecutive days troubled her.[21]
[21] T47, L3-9
131Ms Douthwaite’s casual ordinary hourly rate as a school bus supervisor is $27.6980. There is a casual driver loading of 36 per cent, or $9.9712, applied to the casual ordinary rate.
132The defendant submitted that it was appropriate for the casual loading to be added to the casual ordinary hourly rate to give an overall hourly rate of $37.6692 gross per hour. Ms Douthwaite made no submissions about what hourly rate was appropriate to use when assessing what she was earning “with injury” in her role as a school bus supervisor with Dyson Bus Services. The possible hourly rates I should apply are therefore either $27.6980 or $37.6692 per hour.
133Regardless of which hourly rate I adopt, Ms Douthwaite’s gross weekly earnings for 15 hours per week are less than $595.20. An hourly rate of $27.698 for 15 hours per week gives total weekly earnings of $415.47, and an hourly rate of $37.6692 gives total weekly earnings of $565.03. Working as a school bus supervisor for 15 hours per week therefore results in a loss of earning capacity of more than 40 per cent.
What is Ms Douthwaite’s earning capacity in “suitable employment”?
134The final matter to be considered in assessing whether Ms Douthwaite has sustained a loss of earning capacity of more than 40 per cent, is to consider the alternate occupations which the defendant suggested constituted “suitable employment”.
135The defendant, who bears the evidentiary onus to establish the existence of jobs which are “suitable employment” and are within Ms Douthwaite’s “after injury” capacity,[22] submitted that Ms Douthwaite had a retained capacity to work as a school bus supervisor, as a leisure and health recreational co-ordinator, a lifestyle advisor and as a disability support services officer for 20 hours per week and possibly up to 30 hours per week.
[22]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
136Counsel for Ms Douthwaite submitted that when I consider the question of “suitable employment”, it will be apparent that there are some occupations put forward by the vocational assessors which Ms Douthwaite is capable of performing and some which she is not. It was submitted on behalf of Ms Douthwaite that even if she has a capacity to perform a relevant role, nevertheless she will sustain a loss earning capacity of more than 40 per cent when the hours she is capable of working and the hourly rates of respective jobs are taken into account.
137The Nabenet reports, the reports of Associate Professor Damodaran and the report of Mr Radley identified the role of lifestyle assistant/leisure health/ recreational coordinator as “suitable employment”. They also identified Ms Douthwaite’s current role as a school bus supervisor.
138At the hearing, Ms Douthwaite was asked about the role of a leisure and health recreational co-ordinator[23] or lifestyle assistant.[24] Ms Douthwaite agreed she had previously completed a four-week placement at the Bethel Aged Care Facility in May 2021 as part of her Certificate IV in Leisure and Health.[25] She also agreed that she had been asked to apply for a job as a leisure and health assistant after she completed her placement,[26] which involved providing activities to stimulate the residents[27] such as board games, bingo, resident interaction,[28] assistance with meals,[29] light tidying of residents’ rooms[30] and administrative duties.[31] Despite applying for the role, she had been unsuccessful in obtaining the job.
[23] T40, L4-6
[24] T34, L13-16
[25] T34, L11-27
[26] T35, L4-18
[27] T34, L13-20
[28] T38, L7-20
[29] T38, L26-30
[30] T38, L31 – T39, L4
[31] T39, L5-8
139In re-examination, Ms Douthwaite acknowledged the psychological requirements Ms Pham from Nabenet said she needed in order to be able to perform the tasks required of a lifestyle assistant were attention to detail, communication skills, time management skills, judgment and decision-making skills and concentration skills. Ms Douthwaite did not consider that her skills in those areas were sufficient to have enabled her to perform those duties in the workplace. She considered that she did not possess the required concentration skills, her attention to detail would “depend on the day” and she would not be able to multitask.[32]
[32] T51, L2-23
140Having considered the objective psychological tests undertaken by Mr Radley, as well as Ms Douthwaite’s evidence as to her concentration and memory difficulties, I accept that Ms Douthwaite lacks the skills required to perform this role. Mr Radley referred to her concentration and short-term memory difficulties as a result of which he observed that she performed slowly and with an above-average error rate, suggesting a moderate to high level of impairment in concentration and a high level of impairment in short-term memory. In my view, this is not a role which is “suitable employment” for Ms Douthwaite.
141Even if it had been a role which was suitable for Ms Douthwaite, Ms Douthwaite would still have sustained a loss of earning capacity of more than 40 per cent based on 15 hours per week at the applicable hourly rate identified in the Nabenet report.
142Adopting the hourly rate identified in the Nabenet report of $26 an hour for 15 hours, Ms Douthwaite would still sustain a loss of earning capacity of more than 40 per cent. This conclusion is reached by estimating the number of hours worked per week (15 hours) with the hourly rate identified in the Nabenet report ($26): 15 x $26 = $390. Even if 20 hours were the applicable number of hours, Ms Douthwaite’s total weekly earnings would constitute 20 x $26 = $520 and Ms Douthwaite would still have sustained a pecuniary loss of more than 40 per cent. The Nabenet report also referred to a “job Outlook” weekly sum of $1,200. However, the evidence did not disclose what that sum represented or how it was calculated. For that reason, in my opinion, the hourly rate, rather than the job Outlook weekly earnings, is to be preferred.
143Ms Douthwaite was also asked about the role of disability support worker.[33] She was familiar with the duties of a disability support worker including providing in-home support, cleaning, cooking, assisting with writing shopping lists, going to the shops, gardening, assisting with medical appointments, going out for lunch with participants and attending sporting activities with participants.[34] When asked whether she could perform those duties, she said she would like to think she could, but said “it’s a very challenging task. You have to have a lot of wits about you as to what’s going on with the client and surrounding areas, and I don’t think my concentration is up to [the] task at the moment …”.[35]
[33] T42, L30 – T43, L2
[34] T43, L13-21
[35] T43, L22-27
144Ms Douthwaite was challenged about her evidence, and it was put to her that she was managing with the bus attendant role. She agreed with that, but explained that she performed her role within a confined area and noted that the maximum amount of time that any child was on a bus was maybe an hour.[36] In re-examination, Ms Douthwaite explained that if she worked as a disability support officer, she would have trouble with the attention to detail required, as well as the communication skills, organisational skills, management skills, judgment and decision-making skills and concentration skills necessary to perform such a role.[37]
[36] T43, L28-31
[37] T51, L31 – T52, L11
145Again, in my view, this is not a role which is “suitable employment” for Ms Douthwaite. As with the lifestyle assistant role, Ms Douthwaite lacks the concentration and memory skills necessary to perform the role. Given her introversion, social detachment, as well as her anxiety in social settings identified by Mr Radley, I have reached the conclusion that she would also have difficulty with the communication aspects of the role.
146The Nabenet report dated 29 October 2021 does not disclose a wage rate from the employer for the role; however, it was suggested that the average weekly equivalent is $1,200 per week. As with the lifestyle assistant role, the report does not state how many hours each week that equates to. However, applying a 35-hour week, this equates to an hourly rate of $34.285. On the assumption that Ms Douthwaite would only be able to work 15 hours per week, her earnings would be $514.28 per week, which is still below the requisite amount of $595.20 and a loss of earning capacity of more than 40 per cent.
147A 40-hour week would give a lower hourly rate of $30 per hour. Adopting that hourly rate for 15 hours per week, Ms Douthwaite’s earnings would be $450 per week, which is still a loss of earning capacity of more than 40 per cent.
148Roles as a console operator, therapy aide, integration aide and community worker were also identified as “suitable employment” by Nabenet in its report dated 3 February 2022.
149Ms Douthwaite was cross-examined about the therapy aide role and the community worker roles. Ms Douthwaite was not familiar with the therapy aide role but accepted that it would involve tasks such as supporting clients to complete physiotherapy programs, assisting in planning, organising and implementing physiotherapy group programs, monitoring, maintaining and ordering physiotherapy supplies, undertaking administrative duties including client phone calls, scheduling appointments and group waiting list management.[38] She doubted she had the confidence to be able to manage those tasks and duties.[39] She did not think she would gain the confidence to perform the role even if she retrained and obtained an appropriate certificate to enable her to carry out such a role.[40] She said she would struggle with the interaction with the clients.[41] I agree with Ms Douthwaite’s assessment of her ability to carry out such a role.
[38] T44, L16-24
[39] T44, L25-28
[40] T45, L8-15
[41] T45, L16-18
150Ms Douthwaite also felt that because she would have to interact with people and go into their homes, she would struggle with the tasks required of a community worker, namely working autonomously and co-operatively with others; frequent concentration, memory, attention to detail, verbal communication, occasional critical thinking and problem solving. She said she would be unsure what to do and said that she did not have the confidence.[42] Her view was “I just wouldn’t be able to cope”.[43] I accept this evidence. The demands of this job would be too much for Ms Douthwaite, given her overall presentation.
[42] T46, L1-30
[43] T46, L29-30
151Having considered the tasks required for each of the console operator role, therapy aide, integration aide and community worker suggested by Nabenet in the 3 February 2022 report, I have formed the view that Ms Douthwaite is unlikely to be able to meet the demands of any of these roles. Her poor concentration, memory lapses and deficits in attention to detail, as well as her poor communication, and deficiencies in her verbal, numerical and literacy skills mean that the tasks these roles require are likely to be beyond her capability. I therefore find that roles as a console operator, therapy aide, integration aide and community worker are not “suitable employment” for Ms Douthwaite.
152Even if working as a therapy aide were “suitable employment”, on the basis of my finding that Ms Douthwaite is only capable of working 15 hours a week, assuming the approximate hourly rate of $30 as suggested by Nabenet, the average gross weekly earnings would be $450. Applying the 40 per cent test, Ms Douthwaite would have a loss of earning capacity of more than 40 per cent.
153Similarly, assuming Ms Douthwaite was able to perform the role of community worker, which I do not consider she would be, her earning capacity would be below the 40 per cent limit of $595.20. The Nabenet report dated 3 February 2022 suggests an hourly rate for a community worker is $37.50. Accordingly, adopting that rate at 15 hours per week, Ms Douthwaite would earn $562.50, and her loss of earnings would therefore exceed 40 per cent.
154For the above reasons, in my view, Ms Douthwaite has sustained a loss of earning capacity of 40 per cent or more, measured as set out in paragraph (f) of the Act.
Loss of earning capacity consequences – narrative test
155In addition to establishing a 40 per cent loss of earning capacity, for leave to be granted to recover damages for pecuniary loss, the narrative test must also be met.
156In a case involving a mental or behavioural disorder, the application of the narrative test involves a two-stage process, identified by the High Court in Transport Accident Commission v Katanas[44] 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.”[45]
[44]Transport Accident Commission v Katanas (2017) 262 CLR 550 (“Katanas”) (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ)
[45]Katanas (ibid) at 555, paragraph [6]
157In assessing the severity of a mental disorder, it is necessary for me to identify all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment. It is then necessary, based on all the evidence,[46] and not just medical opinions,[47] to evaluate the consequences of the impairment with respect to either pain and suffering or loss of earning capacity by comparison with other cases in the range of possible impairments. A determination must be made as to whether a plaintiff’s mental disorder, when judged objectively with other potential disorders, is to be correctly characterised as more than at least “very considerable”[48] having regard to its nature and resulting symptoms, the nature and extent of treatment, and all the consequences.
[46]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu (supra) 573 at paragraph [89]
[47]Noonan v State of Victoria [2013] VSCA 289, following Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 and Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
[48]Humphries and Anor v Poljak (1992) 2 VR 129 at 140, per Crockett and Southwell JJ
158While there were competing medical views about Ms Douthwaite’s capacity for suitable employment, all medical experts agreed that she cannot return to her pre-injury employment. The range of occupations in which she is able to work has been significantly curtailed. Having analysed the range of employment options which Nabenet, Mr Radley and Associate Professor Damodaran identified as possibly suitable for Ms Douthwaite, I have found that Ms Douthwaite does not have capacity to perform any role other than a school bus supervisor.
159I have also found that Ms Douthwaite is now only capable of working for 15 hours per week. In my view, her inability to engage in her pre-injury employment is objectively a very significant pecuniary loss consequence. When considered together with the diminution in her working hours and also that she now has extremely limited employment options[49] and can only effectively work as a school bus supervisor, in my view, her loss of earning capacity consequences meet the threshold of being “severe”.
[49] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Ellis”) at paragraph [48]
160Having determined that Ms Douthwaite has sustained a loss of earning capacity of more than 40 per cent and that the loss of earning capacity consequences are “severe”, I find that Ms Douthwaite has sustained a serious injury.
Pain and suffering consequences
161Having found that Ms Douthwaite has sustained a loss of earning capacity of more than 40 per cent and that the loss of earning capacity consequences are “severe”, it is not strictly necessary for me to consider the pain and suffering consequences separately.[50] However, in the event that Ms Douthwaite’s loss of earning consequences do not meet the requisite threshold, in my view, her pain and suffering consequences do.
[50]Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
162The Court must evaluate the extent to which pain limits the plaintiff’s functioning, performance of ordinary activities, physical capabilities, and enjoyment of life. This is done by considering the plaintiff’s account of her pain (both in court and to doctors); how she manages the pain (for example medication, rest, seeking medical treatment); what the doctors say about the extent and intensity of the pain, and what the objective evidence conveys about the disabling effects of the pain.[51] In her affidavits and evidence, Ms Douthwaite described the consequences of the Adjustment Disorder, and, in my view, they are more than “at least very considerable”.
[51]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
Pain
163Ms Douthwaite described her psychological pain. On the one hand, she has never needed inpatient or hospital treatment at any stage,[52] she has not been suicidal and she did not see a psychiatrist, although I note she was referred to Dr Gudarzi, psychiatrist, in 2018 for independent review.[53] Nevertheless, she continues to see her general practitioner, Dr Oda, every six weeks or so[54] in person, and consults her psychologist, Mr Lezon, by telephone on a monthly basis.[55] She is also regularly prescribed Temazepam,[56] which she takes twice a week on average.
[52] T47, L31-T48, L1
[53] T47, L23-30
[54] T29, L26 – T30, L6-7
[55] T30, L3-5
[56] T30, L8-9; T48, L2-6
164Dr Hayman, in his report dated 7 June 2021, referred to the fact that Ms Douthwaite has changed in herself. He noted that she was formerly a person who had good self-confidence who now lacks confidence and feels generally anxious. She avoids going out socially and tends to stay within the confines of her home and environments that she knows. She feels flat about 70 per cent of the time. Her self-esteem has dropped. She is bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and unsociable. Dr Hayman observed that Ms Douthwaite has problems with memory and concentration which Ms Douthwaite also referred to in cross-examination.[57]
[57] T49, L16-18
165Dr Epstein made reference to Dr Sheehan’s observation that Ms Douthwaite ruminates about what happened at work. She is constantly anxious and worried about going back to work. Her memory and concentration and confidence have all been reduced and she suffers from intermittent panic attacks.
Sleep
166Ms Douthwaite said that her sleep had been affected by her Adjustment Disorder. Dr Epstein noted that this had also been reported by her to Dr Sheehan and to Associate Professor Doherty, who observed that Ms Douthwaite had said that she had difficulty “switching off” when she goes to bed and thinks about day-to-day matters. Ms Douthwaite thought her mood was labile and she described persistent anxiety with a racing heart.
167Ms Douthwaite accepted that she had suffered from sleep apnoea in the past and had received treatment for that possibly in 2008, although she was unsure about this.[58] At the time, she said she felt she was sleeping alright but would wake up tired. She did not realise that her sleeping was as bad as it was until she underwent tests.[59]
[58] T48, L22-27
[59] T49, L1-5
168Now, she says she does not sleep. She says that she goes to bed between 11.00pm and 2.00am. She has difficulty getting to sleep because of racing thoughts sometimes beyond day-to-day matters. She said:
“… my mind just races. I can’t seem to switch my brain off. I can’t even tell you what races through my head at times, it’s just - it’s on like speed mode, and I try … to with the meditation to calm myself down and relax rather than rely on the medication to make me sleep. With the medication, when I wake up my mind is like when I have gone to - before I have gone to sleep, it just is non-motor speed. It just goes, whereas if I try naturally to sleep I wake up a bit more relaxed. … .”[60]
[60] T52, L25 – T53, L4
169She said she may take 20 minutes to get to sleep, but sometimes it takes much longer and then she gets up and watches some television, does some crocheting or eats some food. Once she is asleep, she usually stays asleep for five to six hours. She has disturbed sleep once or twice a week. She had nightmares about work but those have now stopped.
170She wakes up tired.[61] She is lethargic most of the day and sits and watches television.[62]
[61] T49, L6-15
[62] T52, L12-21
Medication
171Ms Douthwaite said she hates medication and prefers to try to work through things herself if possible and tries to regulate her sleep through meditation.[63] In the past she has taken two different types of psychiatric medication. She described the effects of the medication, saying:
“… when I take them, I just feel flat. I’ve got even less energy, I just - almost like zombie mode. So, I’d prefer not to take them so as I actually have some sort of feeling rather than nothing.”[64]
[63] T48, L2-21
[64] T53, L6-15
172Dr Hayman noted Ms Douthwaite’s disinclination to take prescription antidepressant medication and said that was to be respected.
Inability to engage in pre-injury employment
173Ms Douthwaite is no longer able to work in her pre-injury employment. This is a matter which may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[65]
[65]Haden (supra) at paragraph [15] (per Maxwell P); Ellis (supra) at paragraph [35]; Peak (supra) at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]
174The defendant suggested that because Ms Douthwaite enjoys her current employment,[66] Ms Douthwaite’s condition was not having a severe impact on her life. In my view, that was not the case. While Ms Douthwaite’s enjoyment is a relevant matter and what has been retained needs to be considered, impairment is ultimately concerned with what has been lost. In my view, the evidence established that insofar as her work life is concerned, Ms Douthwaite has lost a substantial amount. Her enjoyment of her work and her prospects for future employment are now significantly more difficult than they were before she was injured.[67]
[66] T21, L5-21
[67] T54, L1-11
175Ms Douthwaite now works day-to-day on a school bus for Dyson Bus Services. She works with disabled children, most of whom have behavioural issues, and some with intellectual issues.[68] She has difficulty with the unpredictability and large numbers of children.[69] She has no certainty in her hours as a casual employee.[70] She said she is unable to work consecutive days. Her evidence was she “struggled with it being consecutive days, like three days in a row. Like, it was just too hard. I just – my brain wasn’t functioning by the time I was driving home on Thursday”.[71] At the end of the day she said that she felt exhausted.[72]
[68] T11, L4-21
[69] T18, L27-30
[70] T13, L31 – T14, L2
[71] T18, L17-30
[72] T18, L31-T19, L10
Activities of daily living
176Dr Epstein noted that before her injury, Ms Douthwaite attended to a majority of the housework. After the events at work, Ms Douthwaite described to Dr Sheehan that she was still able to manage the housework, shopping and meal preparation. Dr Epstein noted that she does the sweeping and occasional mopping and cleans the bathroom and the toilet. She and her husband share the laundry and hanging out clothing. She does food preparation and cooking. Her husband does the lawn and garden maintenance. She goes shopping twice a week.
Personal care
177Dr Epstein noted that Ms Douthwaite had lost interest in her grooming. However, in her first affidavit, Ms Douthwaite said that she has a shower every morning and changes her underwear daily. She washes her hair weekly and cleans her teeth most days. She changes her outer clothing every two days or so.
Social interaction
178In her affidavit affirmed 2 November 2020, Ms Douthwaite’s evidence was that she avoided being around large groups of people because she was afraid that someone would ask her how she was feeling. She is socially avoidant and does not like to attend large family events.
179This evidence echoed what she said to Dr Epstein about having lost all but one friend since she ceased work. She speaks to that friend by phone every week or two. She has a work colleague she has occasional contact with also.
180Ms Douthwaite avoids going to Seymour as she is concerned about seeing her work colleague and manager.
181Dr Epstein also recounted that Dr Pokharel had described Ms Douthwaite as anxious when she thought about the workplace and increasingly anxious when she was in a large group of people such as her whole extended family. She does not visit friends.
Sports
182In her affidavit affirmed 2 November 2020, Ms Douthwaite’s evidence was that she no longer has the motivation to do any exercise and has put on almost 20 kilograms in weight. At the hearing Ms Douthwaite said she had gained 24 kilograms in weight.[73]
[73] T49, L16-18
183Ms Douthwaite was cross-examined about her former attendance at personal training. Dr Hayman noted in his report dated 7 June 2021, that Ms Douthwaite had previously done personal training twice a week and a group training session once a week. Dr Epstein also referred to Ms Douthwaite attending personal training twice a week and doing boxing and group classes at her trainer’s house. She no longer does this as she has lost interest and confidence. She said that she had not been to personal training at all since her injury.[74]
[74] T31, L22 – T32, L1
184Ms Douthwaite said she formerly enjoyed going for walks and riding a pushbike. Mr Lezon also noted this in his report dated 14 November 2020, as did Dr Hayman. Dr Epstein noted that she had previously walked 5 kilometres most days for fitness and had also ridden her bicycle up to 10 to 15 kilometres once or twice a week. These are activities which she is now disinclined to do.[75] She said she had not ridden a bike in three years, and she would be lucky to still go for a walk once a month.[76] This was confirmed by Mr Lezon, who noted that she has not done any of these things for quite some time.
[75] T32, L5-7
[76] T32, L8-11
Marital relationship
185Ms Douthwaite said in evidence that her libido has been impacted.[77] This reflected what she told Dr Hayman.
[77] T32, L2-4
Hobbies
186In her first affidavit, Ms Douthwaite said that she used to enjoy reading but has stopped because of the problems she has with concentration. Instead, she now watches television and plays games on her tablet and does some crocheting.
187Dr Epstein, in his report dated 16 December 2021, and Dr Hayman, in his report dated 7 June 2021, said that before her injury, Ms Douthwaite also enjoyed playing social games of poker. She played in local competitions two to three times per week. She ceased this in mid-2018 and has not returned to it. She tried once but felt too anxious to re-attend.
Grandchildren
188Ms Douthwaite had previously minded her grandchildren on Fridays when her daughter and daughter-in-law were working. Her daughter-in-law is now on maternity leave and so Ms Douthwaite does not need to do any regular childminding. She minds her grandchildren when required.
Stoicism
189In the circumstances, I find it pertinent to note that a stoical plaintiff who puts up with pain should not be treated less favourably than another person who resigns him or herself to his or her injury.[78] Ms Douthwaite struck me as being a stoical plaintiff. She has done the best she could to return to work.
[78]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]
190Ms Douthwaite’s credibility was not challenged to any significant extent in respect of her evidence of the ongoing pain and suffering consequences arising from her mental disorder. Consequently, I accept her affidavit evidence. I accept that she continues to see her general practitioner, Dr Oda, every six weeks and consults her psychologist, Mr Lezon, by telephone monthly. She is regularly prescribed and takes Temazepam twice a week on average. I find that she was formerly a person who had good self-confidence but is now someone who lacks confidence and feels generally anxious. Her memory and concentration have been affected. She now needs to write things down. She avoids going out socially. Her sleep has been affected. She has difficulty “switching off”. In the past she has taken two different types of psychiatric medication, but she is disinclined to do so now because they make her feel flat. She said “almost like zombie mode”. Her work has been affected. She has lost interest in grooming. She no longer has the motivation to do any exercise and she has gained 24 kilograms in weight. Her personal and marital life and her ability to engage in a range of day-to-day activities have been impacted. Her ability to read and play social poker, to engage with her family, and to exercise have all been affected.
191When viewed objectively in comparison with other mental disorders in the range of possible mental disorders, in my view, the pain and suffering consequences are “severe”. Her mental disorder means she has a need for ongoing sleep medication and psychological help. It has rendered her unable to return to unrestricted full-time duties. These are significant factors.
192Had it been necessary to determine whether Ms Douthwaite’s pain and suffering consequences met the required threshold, I would also have found that they do. However, for the reasons already expressed, it is unnecessary for me to make that finding.
Are the impairment consequences permanent?
193Mr Radley noted that there were no indications in the medical reports that Ms Douthwaite’s injury was likely to improve in the foreseeable future.
194Dr Epstein noted that the injury and impairment had been present for more than six months and considered that they could be described as chronic.
195Ms Douthwaite’s evidence about her adaptation to her injury was limited. However, it was apparent that cognitively and socially she struggles. Her general presentation suggested significant physical and psychological de-conditioning. I accept Mr Radley and Dr Epstein’s opinions that Ms Douthwaite’s injury and its impairment consequences are permanent, in the sense that they will persist for the foreseeable future.
Conclusion
196I find Ms Douthwaite has suffered a serious injury being an Adjustment Disorder with Anxiety and Depression.
197Accordingly, I grant leave for her to commence a proceeding to recover damages for pain and suffering and pecuniary loss.
198I will hear argument with respect to costs.
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