Edwards v Supreme Packaging Pty Ltd
[2020] VCC 1135
•30 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02791
| CHRISTOPHER EDWARDS | Plaintiff |
| v | |
| SUPREME PACKAGING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 April 2020 | |
DATE OF JUDGMENT: | 30 July 2020 | |
CASE MAY BE CITED AS: | Edwards v Supreme Packaging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1135 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords:
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Popovski v Ericsson Australia Pty Ltd [1998] VSC 61; Noonan v State of Victoria [2013] VSCA 289; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; De Bono v Victorian Workcover Authority [2019] VSCA 85; Richter v Driscoll [2016] VSCA 142; Yilmaz v Speciality Fashion Group Ltd [2019] VSCA 100; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Paul Hayes QC with Mr B House | Minter Ellison |
HIS HONOUR:
Introduction
1 Christopher Edwards applies under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Accident Act”) or s335(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Workplace Act”) for leave to issue a proceeding for the recovery of damages in respect of injuries suffered arising out of or in the course of his employment with Supreme Packaging Pty Ltd (“Supreme Packaging”). The injury is said to be a mental injury. The mental injury has been variously described including Post-Traumatic Stress Disorder, Major Depressive Disorder and Adjustment Disorder. He claims his mental injury satisfies paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Accident Act or s325(1) of the Workplace Act. For the purposes of paragraph (c), “serious injury” means “permanent severe mental or permanent severe behavioural disturbance or disorder”. His application is made in respect of pain and suffering damages and pecuniary loss damages.
2 This application followed the usual course. I received oral evidence from Mr Edwards and his mother. The parties tendered various documents including affidavits, medical reports, notes and letters and vocational assessments.
Circumstances
3 Mr Edwards is 47.[1].He is single, living with his mother in Dromana. He is the middle of three children. He was born in England and came to Australia at the age of two and a half.
[1]Born on 21 May 1973
4 He completed Year 11 at secondary school, then attended TAFE and completed an Associate Diploma in accounting. He started, but did not finish, a Bachelor of Business degree in accounting. While studying, he worked as an accountant’s assistant full time for several years and, later, for about ten years, worked in his mother’s real estate business doing its books.
5 In June 2008, Supreme Packaging employed Mr Edwards as an assistant printer. Mainly, this involved operating a printing press. By September 2008, it made him a permanent employee. He enjoyed the work and enjoyed having stable employment. In his first year of this employment, he worked under another employee, Robert Mascardia. After that year, he moved to another printing machine and worked under another printer called “Marco”.
6 There is very little description of the defendant in the material. The most detailed is by the clinical psychologist, Robert Wilks, based on what Mr Edwards told him:[2]
“That was a small, c[irca] 30 staff, firm doing plastics printing in a single factory located at Clayton. He said that the company ran via 2 shifts, dayshift from 6am to 2 pm which involved c. 17 workers and nightshift from 3pm to 1am, which had only 4 workers”.
[2]Report dated 26 April 2012 at p 2
Assault
7 The genesis of this application lies in an event occurring in 2010:[3]
“In around March 2010, I went outside to take a smoke break, using an external door near the factory. ‘Robbie’[4] came over and started arguing with me. He thought I had got him in trouble for using the same door. We had a verbal disagreement. During the disagreement, Robbie became extremely angry and violent. He had a bar or a plank of some sort in his hands and was threatening me with it. He told me he was going to hit me. I feared for my safety. Luckily, my supervisor “‘Tang’ was nearby and he came over and stepped in and defused the situation.
About 45 minutes later, Marco and I had got back to work. We noticed that ‘Robbie’ was holding a screwdriver in his hands and walking up to us. ‘Robbie’ then suddenly lunged at me, attempting to stab me with the screwdriver. At that moment, ‘Tang’ grabbed ‘Robbie’ and restrained him. ‘Robbie’ then began to yell words to the effect of ‘I’m going to fucking kill you’. I believe I was only saved from physical harm because my supervisor ‘Tang’ stepped in.
This day was the worst day of my whole life. I have never been so scared. I believe that I was sent home immediately following this incident. I was in complete shock and took a few days off. I returned to work a few days later on the presumption that the company would sack ‘Robbie’ immediately following this incident.”
[3]Affidavit sworn 25 January 2019 at [12] to [14]
[4]Mr Mascardia
8 ‘Tang’ or ‘Tanga Hosea’ was Mr Edwards’ supervisor. In relation to the second paragraph, Mr Edwards did not notice “Robbie” walking towards him because he had his back to him.[5]
[5]Transcript (“T”) 32
9 Supreme Packaging did not sack Mr Mascardia. Instead, Mr Edwards transferred to a different shift, the night shift. He was no longer on the same shift as Mr Mascardia:
“…my employer said that – and I knew Robbie had a problem with ice and I – I empathised with him. I didn’t want any WorkCover claim or for it to go anywhere. My employer told me Robbie would...get some psychological help and, … in the meantime they would put me on night shift or put him on night shift…to separate us so I wouldn’t feel vulnerable and fearful at work. Because he had children he had to look after…it was me who went on night shift.”
10 On Mr Edwards’ account, the first incident was witnessed by ‘Tang’ and the second, by ‘Tang’ and ‘Marco’. Plainly, the defendant was aware of both incidents through its attempt to separate the men through different shifts.
11 Mr Edwards attended the Clayton Police Station and reported the incident. He did so on the Monday following the incident, which occurred on the previous Friday. He did not make a written statement. He also met with the person he describes as the “general manager” of Supreme Packaging.
12 Despite the reason for change of shifts, the defendant pressured Mr Edwards to return to the day shift. This came to a head on 8 November 2010, when Mr Edwards sent an email to ‘Tang’ saying he could not cope anymore. He says he went to see his general practitioner, Jack Lipszyc, that day, who issued a “WorkCover certificate”. Presumably, as a result of the certificate, Mr Edwards remained on the night shift.
13 Dr Lipszyc’s note for 9 November 2010 records:
“months ago physically attacked by workmate noted by supervisor, and union told work he could not work with him police investigated, work tried to cover up shifted him to night shift …”
14 Mr Edwards said the incident happened on a Friday and he saw Dr Lipszyc on the following Monday. The entry suggests this is the first mention of the incident to Dr Lipszyc. This is a problem with clinical notes and their presentation to the Court in this kind of application. There is no affidavit attaching the notes and explaining how they are generated or no witness to say whether there are earlier notes in a different form. The date of the entry and its content is an insufficient basis to doubt Mr Edward’s estimation of the date of the incident or his subsequent attendance upon Dr Lipszyc.
15 Pausing there. When he was about 24, Mr Edwards started using heroin. He did so until he was 27 when he undertook a rehabilitation program. It proved successful for by 2001, he had stopped using the drug. He believes he was not using heroin from 2001 until 2010.
16 While working on the night shift:[6]
“…I was still very anxious and had flashbacks of the assaults, especially when at work. I started isolating myself from my friends and was paranoid about seeing ‘Robbie’ around. At around this time, I relapsed and started using Heroin again in order to cope with my stress and get away from it all.”
[6]Affidavit at [16]
17 While he was separated from Mr Mascardia by different shifts, he coped.
18 In early September 2011, the defendant told Mr Edwards that night-shift work was no longer available and he would return to the day shift. He saw Dr Lipszyc on 9 September 2011. Dr Lipszyc issued a certificate of capacity, which the defendant received on 16 September. Mr Edwards stopped working.
19 On 9 September, Mr Edwards prepared an injury claim form, which, apparently, the defendant received on 3 October. Through its Senior Counsel, the defendant criticised the contents of the form. To the question “What is your injury/condition, and which parts of the body are affected?”, Mr Edwards wrote: “Stress related to work Anxiety stress(?)”. To the next question “What happened and how were you injured?”, he wrote “Unresolved work issues relating to previous assault”. There is a small space set aside for a worker to answer these two questions. The questions are ill-suited to a claim of mental injury. They presuppose a physical injury. In my experience, workers answer these questions very briefly and often cryptically. Mr Edwards’ answers are fairly typical of responses for physical injuries, let alone mental ones. The criticisms are unfounded.
20 In about June 2012, Mr Edwards returned to work after “Supreme Packaging persuaded me to return to work, saying they could keep me on nightshift after all. They also said that ‘Robbie’ was on his last chance”.[7] He saw Mr Mascardia from time to time because their shifts overlapped. When they did, Mr Mascardia would glare at him, which scared Mr Edwards. However, he improved, stopped seeing Dr Lipszyc and taking antidepressants.
[7]Affidavit at [19]
21 About 12 months later, Mr Mascardia left the defendant’s employ. Mr Edwards believed he had been sacked over another assault. Whether this was factually correct, it gave him a sense of relief: “I was hopeful that this would finally be the end of my ordeal…”.[8] It was not to be, for Mr Mascardia returned. Mr Edwards was shocked when he learnt of it and “became overcome by fear and anxiety at the thought of him doing something to me”.
[8]Affidavit at [20]
22 Between their shifts, Mr Edwards “could always feel his eyes on me”. In December 2014, Mr Mascardia said he would bash Mr Edwards. Mr Edwards contacted the authorised agent, asking for help to find another job. He also contacted his union.
23 In about January 2015, the defendant told Mr Edwards night-shift work was no longer available and he would return to the day shift. Mr Edwards pleaded his case to the “owner”, Mr Koppel, unsuccessfully. This left him: “..a wreck after this. I became extremely agitated and depressed. I couldn’t sleep. I couldn’t concentrate. I had to stop work”.[9]
[9]Affidavit at [25]
24 On 20 January, he saw Dr Lipszyc.
25 On 15 February 2015, Mr Edwards attended Peninsula Health on referral by Dr Tadros, his general practitioner. In part, the typed note reads:
“Client has taken the next 4 weeks off work and plans to commence a home detox tomorrow. GP has prescribed Suboxone and Valium – lives with Mother who is very supportive – Chris states that message can be left with Mother if he does answer – Chris requires withdrawal support and post withdrawal counselling * no current legal issues.”
26 A little later:
“IV Heroin abuse x 15 yrs – previous rapid detox x 2, started using again 4 yrs ago, 1 gram daily, last used 2 hrs ago….Depression (on medication) No hx of seizures, O.D 3 yrs ago”.
27 After speaking to the authorised agent, on 18 February 2015, Mr Edwards lodged another injury claim form. His claim was rejected. At that stage, he worked about 40 hours a week with some overtime. His usual hourly rate was $19.80 before tax.
28 During 2015, Mr Edwards did not work. He did not leave home unless with family members or friends. Because he was using heroin, he attended a rehabilitation programme at Windana. He did not stop using heroin. The note of his first attendance at Windana reads:[10]
“41 y/o male using 4-8 points 7/7 of heroin he last used at 3am this morning (he has been using this amount since June 2014). Chris was introduced to Heroin at the age of 21 and it became problematic at 25 where he would use to come down. Chris has done at least 4x rapid detoxes in the community. Chris’ longest period of abstinences was six years, four years ago. Chris works in a printing from 3pm to 3am and would use prior to work daily and have the ability to function in the community. Chris has been on and off with his partner for eight years and stated that if he could become sober again then that would mend the relationship.”
[10]Defendant’s Court Book (“DCB”) at p 175
29 Throughout 2015, he was “extremely depressed, anxious and traumatised by the events at work. I felt like killing myself”.[11]
[11]Affidavit at [28]
30 On 13 November 2015, Mr Edwards saw a psychiatrist, Dr Peter Graf, on referral from Dr Lipszyc. He could not continue seeing Dr Graf because of the rejection of his claim. After Dr Lipszyc retired, his new general practitioner referred him again to Dr Graf, who saw him on 11 October 2016 and regularly until his retirement in 2018. Initially, Dr Graf prescribed Avanza and Effexor. Later, after an incident with the water police, he was prescribed a mood stabiliser. To rid himself of his heroin use, he started with Suboxone. He stopped using heroin in October 2016.
31 During late 2016 or early 2017, Mr Edwards decided he needed to do something and get fit. He started running almost daily. His aim was to run a marathon. After Dr Graf retired, Mr Edwards saw another psychiatrist, Dr Robert Kruk, in October 2018.
32 During 2017 and 2018, his mood was the best it had been for two years. Dr Graf prescribed Effexor and Avanza. He was eating well and exercising daily. He stopped using drugs. He still struggled to sleep. He had flashbacks, but they were not as bad as before. He still had difficulty talking about the assault and his mental health.
33 In May 2018, Mr Edwards ran a half marathon. He injured his right knee. He was intending to run a marathon. Dr Graf and the other psychiatrists told him to do as much exercise as possible. However, there were limits to his recovery.
Spider bite
34 In late 2018, a spider bit the back of Mr Edwards’ neck. At the time he did not know a spider was responsible. This was confirmed later. The bite was painful, so much so, he was prescribed Targin and Endone. The effect of the bite has been difficult to treat. As he puts it, the wound continues to break down.
35 Immediately prior to the spider bite, Mr Edwards was incapacitated for work. He was working with his psychiatrists so he would be able to attend a job interview. He had lost his confidence. He had mood swings. He could get angry and cry if reminded of some things. His concentration was impaired as was his ability to keep his promises or commitments. He was taking significant doses of Effexor.
36 In June 2019, there was a “full skin graft” on the wound, which failed. Another flare up of the wound saw him taking Endone for a short while. For the flare-ups, he attends the Frankston Hospital. He is unable to exercise much. Both his physical and mental state deteriorated due to the effects of the spider bite.
37 On 14 May 2019, Mr Edwards saw a new psychiatrist, Dr Anthony Fernando, who increased his dosage of Effexor to 225 milligrams a day. He remained on Avanza. He also takes Temaze and Mirtazapine, 15 milligrams at night.
Current situation
38 Mr Edwards is not working and receives a sickness benefit. It is not a condition for the receipt of a sickness benefit to look for work and Mr Edwards does not anyway for:
“Every time I even think about returning to work, I get massively stressed out. The thought of it is frightening. I freak out about being in an ‘employee/employer’ relationship because of what happened with Mr Koppel, and the thought of having co-workers freaks me out too because of what happened with ‘Robbie’.”[12]
[12]Affidavit sworn 25 January 2019 at [49]
39 He eats poorly when he is stressed and has put on significant weight. His sleep is disturbed by thoughts and dreams. He is depressed most of the time although it is not as bad as it was. He credits the medicines for this improvement. His memory and concentration are poor. He has difficulty retaining new information:[13]
“I have ‘mind chatter’ all the time, where thoughts and fears turn themselves over in my head. I feel distracted and like my mind is racing to a million different places”.
[13]Affidavit sworn 25 January 2019 at [41]
40 This may be what Dr Lewis described as “increased stream of thought, which was frequently discursive and at times over inclusive”.[14]
[14]Report dated 22 August 2017 at p 8
41 He is irritable and angry. He worries and is anxious about his future. He is tearful and emotional. He startles easily. He has clear images of the incident but does not describe them as “flashbacks”. He stays away from the Clayton area, where he believes Mr Mascardia lives, for fear of meeting him. He had suicidal thoughts but not now. He says:[15]
“I feel trapped in my negative thoughts and feelings as a result of my work injury. Some days I am very angry and startle easily. I have even found myself lashing out at people close to me. Other days, I feel hopeless and numb and the fear that I will be like this forever causes me to shut down completely”.
[15]Affidavit sworn 16 January 2020 at [12].
42 He has returned to the Subuxone program. He takes Effexor SR, 225 milligrams a day. He takes Temaze in the evening and Mirtazapine, 15 milligrams, at night. He takes Avanza, 15 milligrams nightly, to help him sleep. He also uses what he calls “natural remedies” to help him sleep.
43 Before the spider bite, he ran, swam and went to a gymnasium to keep fit. Unfortunately, the lasting effects of the bite have ended those activities. There were other activities he performed, but has given up due to his mental state: Kayaking, competition “8-ball”, training search and rescue sniffer dogs.
44 Mr Edwards does not attend his general practitioner regularly as he is in the care of a psychiatrist. He attended a psychologist once, but does not do so now. His present psychiatrist is Dr Peralta. He continues taking Effexor. He no longer takes Avanza because of its side effects. Dr Peralta has changed that medicine to Valdoxan, which he believes is similar.
Valerie Edwards
45 Valerie Edwards is the plaintiff’s mother. She was a mother determined to tell the Court about her view of her son, irrespective of the questions asked. To that extent, she was an unresponsive witness. But the effect of her evidence was dramatic.
46 From the time he stopped work, her son:[16]
“…became a nervous wreck. I recall one morning he was standing in the kitchen making a coffee and his body was shaking violently. [I] remember he told me ‘Mum…I can’t do this anymore’ and he continued to shake. On the day he was scheduled for an appointment with an insurance doctor. I cancelled the appointment on his behalf and told Chris to make an appointment with his GP for an urgent referral to a psychiatrist. It was at this time that Chris began seeing Dr Graf”.
[16]Affidavit sworn on 18 September 2019 at [18]
47 And:[17]
“The most significant thing I have noticed with Chris is his inability to cope with normal things. It takes Chris much longer to organise himself on a daily basis. He is forgetful and often withdraws whenever things become too hard. The very idea of having an interview for a job causes severe anxiety and panic. It is also difficult to talk to him about anything to do with work cover or the legal process because it forces Chris to re-live the event of the past and this heightens his anxieties severely.”
[17]Ibid. at [22]
48 There was another stressor for her son and herself. There was dispute with a neighbour, causing significant stress and anxiety. It has been resolved through court orders.
49 She knew her son got into a drug culture in his teens, but was unaware of the drugs he used. She knew his drug addiction was serious in his twenties.
50 To her, everything came to a head when her son was required to work on the same shift as Mr Mascardia in December 2014. To her, this was contrary to the “workplace agreement”. When told he had to work on the same shift that put “everything back”. Before that he was coping reasonably well. She was adamant her son did not stop work because of the drugs.
51 Between 2015 and 2018, she believed her son tried very hard. But then there would be a trigger, “a little bit of stress” and he could not cope anymore. She believed he was off drugs in this period. Even in this period, the slightest trigger would cause him to spend “days and days in bed”.
52 Now, the garden is his sanctuary where he can potter. He does not potter every day. Something will go wrong and he will be in bed for a week.
Criminal record
53 Mr Edwards has appeared in court to answer criminal charges on five occasions between 29 November 1999 and 29 November 2018. His first appearance appears to be the most serious. He was found guilty of theft, attempting to obtain property by deception, attempting to obtain a financial advantage by deception and making and using a false document to the prejudice of another. Without conviction, he was placed on a community correction order for 12 months with conditions of performing unpaid community work and testing, assessment and treatment for drug or alcohol addiction.
54 In June 2000, without conviction, he was placed on a short six-month adjourned undertaking for possession of heroin.
55 In March 2010, he was fined, with conviction, for possessing cannabis. This was a small amount of cannabis found in his car. He denied using cannabis at the time.
56 There was a minor speeding charge in 2011.
57 In his last appearance, he was convicted of contravening an interim personal safety intervention order and the charge was adjourned for two years on an undertaking with two conditions, one of which was to pay $750 into the Court Fund. The contravened Interim Intervention Order concerned his neighbour. Apparently, each had obtained an intervention order against the other and Mr Edwards contravened the neighbour’s order.
58 The defendant’s counsel submitted this record was notable. I disagree. Judging by the sentences, it is relatively minor. The contravention of the Intervention Order was penalised lightly given it was an order of a court he contravened.
Drug addiction
59 Mr Edwards started drinking alcohol at 14, using speed and ecstasy when 16 (about 1989) and heroin at 21 (1994). From 24, his use of heroin was “heavy” and that continued until 26. During the 1990s, he underwent two rapid Naltrexone detoxifications. In about 2001, he stopped using heroin after undergoing a rehabilitation program. From about 2001 and 2010, he did not use opiates, but at some stage he was on replacement therapy, taking Buprenorphine.
60 In 2004, he attended the First Step Program in St Kilda and had attended Narcotics Anonymous.
61 In February 2007, he admitted using amphetamines two or three times a week and other drugs at the time. By then, he had tried rapid detoxing on at least four occasions (including Naltrexone twice) and had been on Buprenorphine for two years.
62 Mr Edwards had overdosed twice.
63 When he went to Peninsula Health in December 2006, he admitted using ecstasy, speed and cocaine in the period 2004 and 2005. He did not use them daily.
64 When he started working for Supreme Packaging, he was not taking drugs. He resumed drug usage after the incident. In fact, he had abstained for several years before.
65 Over the Christmas break between December 2014 and January 2015, Mr Edwards started using heroin again. He explains:[18]
“The underlying problem, the underlying problem was the assault that happened in 2011, the further threats that happened to me in 2014, the fact that I thought I was safe at work, I didn’t feel vulnerable because I had a return to work agreement and my employer took that away from me, and I’m happy to admit, which I’ve admitted to all the doctors since, heroin has been like a coping mechanism. So, when I was under pressure over that Christmas period and I had access to heroin, yes, my use did increase then.”
[18]T96
66 On 15 February 2015, he went to Peninsula Health. He was to start home detox on 16 February and had taken four weeks off work. The home detox did not work. His general practitioner, Dr Tadros, had prescribed Suboxone and Valium. He took a large amount of heroin in December 2014 because of the additional assault in the form of verbal threats and being required to go on day shift and work with Mr Mascardia. He did not stop work to get off heroin.
67 On 26 February 2015, he was admitted to Windana, which is a drug rehabilitation organisation. Despite what was recorded by Windana (he advised one of its workers, he was then, and had been since June 2014, using heroin daily between four and eight points), he says he took between .4 and .8 grams per day over a 4 to 6 week period (over the holidays), which caused him to seek help from Windana. He denied injecting that amount since June 2014 because it is a massive amount. He was using heroin in 2014, but not much. He agreed he had a substantial heroin problem, but places his resumption of heroin at the feet of Supreme Packaging.
68 Between 2016 and September 2018, Mr Edwards did not use drugs. After the spider bite, he was in pain, and after finding Panadol ineffectual he took a small amount of heroin for pain relief from the spider bite. His mental state deteriorated after the bite and after the death of his friend. It is possible he took heroin as recently as March 2020. However, he is unsure because of the massive amounts of pain-relieving medicines he takes. He has certainly used heroin since the spider bite. He sees managing his Post-Traumatic Stress Disorder as more significant than managing his heroin addiction. He took drugs to relieve stress and anxiety.
Medial evidence
General practitioners
69 Between November 2010 and May 2015, Mr Edwards attended a general practitioner, Jack Lipszyc, for treatment. Dr Lipszyc regularly attended him but not between June 2012 and January 2015. After Dr Lipszyc left the practice, Mr Edwards’ care was assumed by Gregory Ward, starting on 11 October 2016.
70 From the outset, Dr Ward saw him suffering from a severe anxiety disorder. Due to his anxiety, Dr Ward referred him to a psychiatrist, Dr Peter Graf. After a lengthy gap, Dr Ward saw Mr Edwards again on 11 May 2018. He felt Mr Edward’s condition had not improved. He noted Dr Graf had retired and he referred him to another psychiatrist. He noted Mr Edwards was taking Effexor and Mirtazapine. Dr Ward last saw Mr Edwards on 20 July 2018.
71 By the time of his report (19 May 2019), Dr Ward’s diagnoses were severe anxiety and Post-Traumatic Stress Disorder. The conditions were permanent, with little likelihood of improvement. He considered Mr Edwards incapable of returning to his pre-injury duties with the defendant, but might be capable in the future of alternate employment, provided he was sheltered from conflict. He needed ongoing psychiatric care.
Dr Hillol Das
72 Dr Das is an psychiatrist. He assessed Mr Edwards on 21 October 2011. Mr Edwards presented as alert and oriented. He spoke rapidly and was quite nervous. His affect was anxious and restricted. During the assessment, he became emotional and teary. There was no abnormality of thought content or form. There was normal perception and good insight.
73 Dr Das diagnosed an Adjustment Disorder with Anxiety. Interestingly, in light of subsequent events, he thought the best treatment was the avoidance of the anxiety-provoking work situation. He considered Mr Edwards fit for his pre-injury duties and hours while not working with Mr Mascardia.
Mr Robert Wilks
74 Mr Wilks is a clinical psychologist. He assessed Mr Edwards on 26 April 2012. Mr Edwards was angry with his employer because it had not dismissed Mr Mascardia. He denied suffering a variety of symptoms including suicidal thoughts, feelings of guilt, irritability, poor concentration, fatigue, insomnia, lack of interest in activities, low libido, chest pain, palpitation, sweats, tremors nightmares, intrusive recollections, emotional numbing, reactivity or avoidance, hypervigilance, or amnesia about the incident or panic attacks.
75 Although saying Mr Edwards had a strong, specific fear of Mr Mascardia, Mr Wilks did not diagnose a recognised disorder under DSM-IV. He considered there was no incapacity for work so long as Mr Mascardia was kept away from him.
Associate Professor Nick Paoletti
76 Associate Professor Paoletti is a consultant psychiatrist who examined Mr Edwards on 25 June 2015. He diagnosed a recognised disorder being an Unspecified Anxiety Disorder with phobic features and associated depressive symptoms. The symptoms of this disorder were too specific and severe and of such a duration that a diagnosis of an adjustment disorder would no longer apply.
77 Associate Professor Paoletti considered treatment by a psychologist as very appropriate. Mr Edwards had no capacity for work if he could be exposed to Mr Mascardia. Implicitly, he considered Mr Edwards was capable of performing suitable employment, noting he was keen to work.
78 As to drugs, Associate Professor Paoletti recorded: “He smoked some cannabis when he was young, but has not used other illicit drugs”.
Dr Peter Graf
79 Dr Graf is a consultant psychiatrist. He treated Mr Edwards between 13 November 2015 and 20 March 2018 when he retired from practice. He diagnosed Post-Traumatic Stress Disorder, adopting the earlier description of workplace bullying and assaults by Associate Professor Paoletti. He considered the Post-Traumatic Stress Disorder was complicated by a Major Depressive Disorder, a common complication to Post-Traumatic Stress Disorder. The Major Depressive Disorder responded well to antidepressants. There was an episode of hypomania. Initially, it was thought to signify a Bipolar Disorder, but that diagnosis was discounted following the change and cessation of two medicines. Mr Edward’s depression was under control and his mood stable between April 2017, until Dr Graf’s last appointment (20 March 2018). However, there was little progress made with his Post-Traumatic Stress Disorder:[19]
“He remained very fearful and anxious at the thought of returning to work and these anxiety symptoms, as well as flashbacks and memories of his past workplace bullying, including the threats and the assault he’d suffered in his former workplace proved to be a very real impediment to returning to work, despite his best intentions to do so and a lot of psychotherapy provided by me to try and address those fears.”
[19]Report dated 2 June 2019 at p 2
80 Dr Graf saw Mr Edwards’ “over the top” response to a dispute with his neighbour as an expression of the psychological problems of his Post-Traumatic Stress Disorder. His ability to maintain normal social relationships had been grossly affected by the disorder.
Dr Robert Kruk
81 Dr Kruk is a consultant psychiatrist. Dr Ward referred Mr Edwards to him. By 30 March 2019, he had seen him twice, on 3 October 2018 and 14 November 2018. Dr Kruk took a brief history of his illicit drug usage. He diagnosed a Chronic Adjustment Disorder and considered his treatment with Effexor and Avanza as adequate. He could not comment on Mr Edwards’ future fitness for work or long-term prognosis. He suggested a review in six months. I do not know whether this proposed review occurred.
Dr Anthony Fernando
82 Dr Fernando is a consultant psychiatrist. Following Dr Graf’s retirement, he saw Mr Edwards three times between 14 May and 3 September 2019. He diagnosed Post-Traumatic Stress Disorder and depression. He reduced Mr Edward’s intake of Mirtazapine because it caused him to put on weight. He increased the dose of Effexor. By 3 September, Mr Edwards was using Suboxone instead of methadone as pain relief for his neck pain. Dr Fernando referred him to a psychologist for trauma-focused psychology. He referred him to Ms McLeish.
Ms Julia McLeish
83 Ms McLeish is a psychologist, practising in the same clinic as Dr Fernando. She had one meeting on 11 October 2019. Her report adds nothing of value for the purposes of this application.
Dr Stephen Stern
84 Dr Stern is a consultant psychiatrist. At the request of an authorised agent, he examined Mr Edwards on 13 July 2017. Noting acceptance of liability, he assessed permanent impairment only.
85 Dr Stern made a detailed account of the events including:[20]
“In September 2016 he had suicidal thoughts of hanging or asphyxiation with car exhaust fumes. There have been no attempts because of his religion and his family. He is not currently suicidal…”.
[20]Report dated 13 July 2017 at p m3
86 As to drug use, Dr Stern noted:[21]
“…He used IV heroin for ‘a couple of years in the late 1990s’. He relapsed in 2007 and 2015. He was admitted to Windana Unit in March 2015 for 10 days. He relapsed again in 2016 but said he stopped using heroin in December 2016. He said he had not used any illicit drugs since.”
[21]Op cit at p 4
87 Dr Stern noted a very agitated person who was unable to relax, had rapid speech with content focused on anxiety and feelings of injustice. His affect was labile, between smiling and tears. His memory was reduced, but he could concentrate.
88 Dr Stern diagnosed a chronic Post-Traumatic Stress Disorder, noting a significant, and relevant, past history of drug abuse. His condition was “related” to the assaults at work in 2010 and 2014. His work-related psychiatric condition had stabilised. Using a particular guide,[22] he assessed Mr Edward’s impairment at 20 per cent, of which 5 per cent related to pre-existing factors. Because he was not asked, Dr Stern said nothing about Mr Edwards’ capacity for work, except noting his activities of daily living are not limited by psychiatric factors.
[22]Epstein, Mendelson and Strauss, The Guide to the Evaluation of Psychiatric Impairment for Clinicians (2005).
Medical Panel
89 On 9 November 2017, Dr Chris Grant and Dr Andrew Firestone, psychiatrists, constituting a Medical Panel, examined Mr Edwards. They did so for the purpose of an impairment assessment, noting an accepted psychiatric injury of 7 September 2011. After taking a detailed history, they diagnosed a Post-Traumatic Stress Disorder. They considered his condition static or well stabilised and unlikely to remit despite future medical treatment. They assessed his psychiatric impairment as less than Dr Stern, noting improvement since Dr Stern examined him. They took a reasonable history of use of illicit drugs. In fact, they reduced his impairment by 5 per cent due to his pre-existing drug use.
Associate Professor Peter Doherty
90 Associate Professor Doherty is a consultant psychiatrist. On 15 October 2015, he examined Mr Edwards at the request of the defendant’s solicitors.
91 Associate Professor Doherty took a detailed history. Although provided with few documents, he did see a circumstance investigation report. He noted it “paints a very different picture of the workplace than does the worker”.[23] Nevertheless, he noted very few, if any, clinically-significant symptoms of anxiety or traumatisation and concluded there was no diagnosable psychiatric condition. But there was “a significant psychological reaction of adjustment and fear to the claimed workplace incidents”[24]. This left Mr Edwards with a psychiatric incapacity due to his fear and anxiety about the presence of Mr Mascardia. In the absence of a diagnosable condition, the prognosis was very good.
[23]Report dated 2 November 2015 at p 51
[24]At p 52
92 In answer to a question, Associate Professor Doherty considered the alleged assault in 2010 caused an adjustment-disorder reaction which was reactivated by the roster changes in 2011.
93 Mr Edwards had an unrestricted capacity for work, but not at his original workplace. Returning there would cause a deterioration in his condition.
Dr Justin Lewis
94 Dr Lewis is a consultant psychiatrist. He examined Mr Edwards at the request of his solicitors on 17 August 2017 and on about 13 November 2019. He prepared a second report on 13 November 2019. Although Dr Lewis does not say when he saw Mr Edwards for the purposes of this report, it is clear from the text that he did so.
95 Because it is an issue in this application, Dr Lewis had a reasonable understanding of Mr Edward’s problems with illegal drugs.
96 At his first examination, Mr Edwards spoke of his mood as stable and being midway between good and very depressed. He lacked motivation, had mildly-lowered energy levels, but was exercising vigorously. He was sleeping better. He struggled with concentration and used the expression “constant mind chatter”. Lacking specific flashbacks, he recalled the attempt to stab him with a screwdriver. He was anxious talking about his workplace difficulties and described feelings of nervousness, irritability and a startle response. He enjoyed social contact but was not ready for a relationship.
97 After his second examination, Dr Lewis diagnosed an Adjustment Disorder with mixed anxiety, depressive and traumatisation features. The disorder was chronic. The depressive features included lowered mood, poor motivation, sleep disturbance and cognitive difficulties. The traumatisation symptoms included nervousness, agitation and a startle response. He offered a differential diagnosis of a partially remitted Post-Traumatic Stress Disorder. A further diagnosis was an opioid misuse syndrome, still in remission.
98 As to whether there are two injuries, not one, Dr Lewis said:[25]
“On the history available, Mr Edwards was reportedly psychologically well at the time of commencement of employment. He denied any difficulties at work from 2008 to 2010. He then gave a history of significant anxiety and traumatisation symptoms in the context of workplace bullying and harassment by a co-worker, who was physically threatening and intimidating. He gave a history of genuinely fearing for his safety during the attacks.
His symptoms were perpetuated by a lack of perceived support from management, who, on the history available, apparently re-employed the offending co-worker.”
[25]At p 8
99 After both examinations, Dr Lewis considered Mr Edwards incapacitated for his pre-injury duties and for all alterative duties, saying:
“The total work incapacitation is consequent to lowered mood, poor motivation, hyperarousal symptoms, emotional lability and cognitive difficulties. Mr Edwards would simply be unable to work on a consistent and reliable basis.”[26]
[26]Report dated 13 November 2019 at p 8
100 As to stabilisation, Dr Lewis said:[27]
“The psychiatric condition can be regarded as having stabilised, notwithstanding the recognised fluctuations seen in individuals suffering from traumatisation symptoms. By way of example, I note that Mr Edwards’ psychological state decompensated significantly in the context of a white tail spider bite and ensuring need for hospitalisation.”
[27]At p 8
101 As to prognosis, Dr Lewis said:[28]
“The psychiatric prognosis has become increasingly poor and negative. Whilst Mr Edwards had been progressing quite well in a psychological sense at the time of initial assessment, he subsequently decompensated in 2018 following a spider bite. This setback indicates that Mr Edwards is likely to be chronically prone to psychological set back in the face of psychological stress. He remains at chronic risk of relapse into opioid misuse given his past history. The psychological prognosis could potentially be improved with referral to a clinical psychologist for anxiety coping tools.”
[28]Op cit at pp 9-10
102 The repeated use of the word “chronic” is important. This condition has not disappeared and is unlikely to do so in the foreseeable future. It is this condition which exposes him to opioid misuse in the future through stress.
Dr Richard Prytula
103 Dr Prytula is a consultant psychiatrist. He saw Mr Edwards three times. The first examination was a disaster through Mr Edwards’ refusal to answer questions. The second examination occurred three weeks later on 20 April 2015. His presentation then was in marked contrast to that more than four years later on 19 August 2019 when he re-examined Mr Edwards. In 2015, coupled with his complaints, Dr Prytula then diagnosed Adjustment Disorder with anxious mood. The prognosis was reasonable with a capacity for suitable employment.
104 For the examination in 2019, he was given the report of Dr Kruk and the attendance notes of Dr Graf. Mr Edwards spoke of his reduced memory and concentration, his disturbed sleep, fatigue and irritability, tearfulness and emotionality, some suicidal feelings, isolation, significant anxiety, depression and traumatisation symptoms. How Mr Edwards presented to Dr Prytula was extraordinary. It is probably a testament to his skill that the examination was held at all for Mr Edwards started extremely distressed, anxious and agitated, speaking in a loud voice. These emotions faded during the interview. He blamed Dr Prytula for the ending of his weekly payments of compensation.
105 Relying on DSM-IV, Dr Prytula now diagnosed Post-Traumatic Stress Disorder and Major Depressive Disorder. Underlying these disorders were significant anxiety, depression, traumatisation, reduced memory and concentration, disturbed sleep, irritability and fatigue, increased tearfulness, some suicidal feelings and isolation. Mr Edward’s psychiatric condition resulted from his workplace circumstances. The condition leaves him with no “current work capacity”. He thought the past history of opiate use was of little significance. His prognosis was uncertain, but the ending of this litigation may see an improvement, but this was a guess.
106 During his oral evidence, Mr Edwards said he had become open about his drug usage with doctors since seeing Dr Graf. Judging from Dr Prytula’s report, he was told:[29]
“He has no recreational drug use.”
“He said that he had discovered that he suffered from ‘Bolan’s Syndrome’ which is the loss of a muscle in his chest resulting in back pain and this is why, as a teenager, he was given opiates in the 1990s which led him to become addicted to opiates and the use of drugs and heroin. He subsequently went to rehabilitation and detoxification and was able to get off these opiate medications”.
In the 1990s, he was using drugs as a consequence of what he has described earlier for a muscle and back problem. He was given opiate medications and this caused this condition. He subsequently recovered”.
[29]Report dated 19 August 2019 at p 4
107 As I said earlier, Dr Prytula was given a copy of Dr Kruk’s report, which he read. Dr Kruk said:
“Until eight years ago Mr Edwards abused heroin and until 2016 he had been treated with Suboxone”.
108 With this history, Dr Prytula observed:[30]
“There is a past history of the use of opiates related to its analgesic use for the back pain in the 1990s however this is of little significance in the current situation”.
[30]Ibid at p 8
109 It is unclear what exactly Dr Prytula understood of Mr Edwards’ addiction, especially since the effects of the spider bite. Dr Kruk’s report has his heroin use ending in about 2010, which is inaccurate.
Vocational reports
CoWork Pty Ltd
110 Joanne Bryant is an occupational therapist. On behalf of CoWork Pty Ltd, she interviewed Mr Edwards and reported on 25 October 2019. She found considerable transferable skills. There were three barriers to re-employment. His agitated presentation in her interview, with some regaining of control as the interview progressed. His history of drug addiction, but he showed some awareness and insight into his problem. His preference to work alone due to the employer trust issues and the long time out of the workforce. She identified five occupations as suitable: Dog trainer, estimator (Printing, print production clerk, administration/general clerk, printer.
111 Mary Oliver is a human resources consultant. She was engaged to assess Mr Edwards’ capacity to perform suitable employment. She interviewed him on 10 October 2019, His presentation to her was unusual:[31]
“Chris was initially evidently very upset and agitated and it was very apparent he did not want to attend the interview and stated, ‘I can’t deal with work – I wouldn’t be here only having to be here’ [appointment]. Despite his reluctance and negative attitude Chris was co-operative in answering my questions and became more responsive as the interview progressed”.
[31]Report dated 16 December 2019 at pp 1-2
112 He has considerable skills in business accounting and bookkeeping. He has considerable experience as a machine operator in the printing industry. Ms Oliver was confronted with Mr Edwards’ emotional instability. She commented[32]:
“In my opinion as a recruiter, emotional stability is fundamental to productively performing in the workplace and effectively engaging within the work environment…
Even work with the lightest demands, especially in the capacity of an employee, requires proactively engaging in the work environment, learning and retention of new information, and with a self-assured approach, confidence and projection of positive energy is essential and significantly increases if a person gains any responsibility”.
[32]Ibid at p 6
113 During his cross-examination. Mr Edwards was asked about the jobs of dog trainer, cost clerk in printing, print production clerk, general clerk in printing and printing and digital photocopier operator. He believed he could not perform any of them. Essentially, his reasons were an inability to deal with people, his significant issues due to his mental injury and the fact his doctors tell him he is incapacitated for work.
Legal considerations
114 This application is brought under one or other of the Accident Act or the Workplace Act. The initiating process stipulated the former. Counsel for Mr Edwards vacillated but, ultimately, nominated the former also. The defendant treated it as an application under the latter. Which Act applies depends on when the injury arose.
115 The evidence makes clear the mental injury was caused by the assaults in 2010. One need not go beyond his general practitioner, Dr Lipszyc:[33]
“I have attended Christopher approximately 20 times since November 2010 up until a week or two ago, regarding the prolonged and recurring anxiety, post traumatic stress disorder, all resulting from assault from a fellow worker in about mid 2010.”
[33]Report dated 19 May 2015
116 The Acts are largely similar insofar as serious injury applications are concerned. Apart from the dates, s134AB(2) of the Accident Act is the same as s327 of the Workplace Act. So too are the definitions of “serious injury” and the explanations of the meaning of the words “serious” and “severe” in s134AB(38) and s325(2) respectively. In the former, paragraphs (b) and (d) read:
(b)the terms “serious” and “severe” are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, 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 impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or 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.
117 It is undisputed Mr Edwards is a worker.
118 The necessary relationship between injury and employment in this context is governed by the words “arising out of, or in the course of employment, or due to the nature of employment”. The concept of “due to the nature of employment” has no application in this case. The concepts of “arising out of employment” and “arising in the course of employment” were discussed in Popovski v Ericsson Australia Pty Ltd.[34] Without needing to say which, the events of 2010 caused Mr Edwards to suffer an injury arising out of, or in the course of his employment with Supreme Packaging.
[34][1998] VSC 61. Reversed on appeal, but on that discussion.
119 As the concluding words of paragraph (d) make clear, severe is more than serious. As the Court said in Noonan v State of Victoria:[35]
“Because ‘severe’ is a stronger word than ‘serious’ the consequences of the relevant injury must be relatively more significant under part (c) of the definition than under part (a) or (b).”
[35][2013] VSCA 289 at [8]
120 Apart from severe, the disorder or disturbance must be permanent. In this context, “permanent” means likely to last for the foreseeable future.[36]
[36]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [2005] 14 VR 622 at [33]
121 To establish the loss of earning capacity consequence, Mr Edwards must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, is fairly described as being more than serious to the extent of being severe (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per cent or more, measured as set out in s134AB(38)(f); and
(c) he will continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more[37] (the threshold test).
[37]De Bono v Victorian Workcover Authority [2019] VSCA 85 at [47]
122 Paragraph (f) refers to the expression “suitable employment”, which is defined in s3(1) of the Workplace Act. The defendant drew my attention to a paragraph in Richter v Driscoll.[38]
[38][2016] VSCA 142 at [143]
123 Paragraph (g) is better quoted than paraphrased:
“a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempt to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the working earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
Discussion
Credit
124 The defendant attacked the credibility of Mr Edwards. It raised a number of issues of varying importance.
125 On many occasions, the Court of Appeal has said that in serious injury applications or trials, the credit of the plaintiff will often be critically important.[39] But credibility, whether truthfulness or reliability, is often difficult to gauge. The cautions listed by Kirby J in Whisprun Pty Ltd v Dixon[40] touch upon the truthfulness of a witness. The issue is complicated when one deals with a witness who is suffering from a mental disorder such as an adjustment disorder, Post-Traumatic Stress Disorder or Major Depressive Disorder. Whatever the description of the disorder or disorders, it is to the symptoms one must pay attention to in assessing a witness.
[39]Yilmaz v Speciality Fashion Group Ltd [2019] VSCA 100 at [73]
[40](2003) 200 ALR 447 at [118]
126 In 2019, Dr Lewis noted two depressive features, lowered mood and cognitive difficulties and traumatisation features of nervousness and agitation, while Dr Prytula noted the same features in reduced memory, concentration and ability to think. This is the witness who appeared before me and I must assess. For someone suffering no psychological disorders, his or her demeanour in giving evidence may point to a lack of truthfulness or reliability. The task of assessing a witness who is suffering a disorder with a very significant level of symptoms is more difficult.
127 Turning to particular issues. First, I see nothing misleading in his description of the occurrence of the injury in the injury claim form.[41] The size of the boxes on the form invites brevity. When describing his injury, Mr Edwards is brief. Nevertheless, he correctly reflects his injury as he sees it, bearing in mind that he had filled out other documents before this form and believed it would be read in the context of those documents. This is a reasonable belief. His failure to insert the names of witnesses reflects his assumption that the identity of these persons was already known.
[41]Dated 27 September 2011
128 Second, I would not find Mr Edwards is confused about the date of the assault in light of comments made by Dr Lipszyc in his entry on 9 November 2010. The comment is too brief to be used to deny Mr Edwards’ evidence that he saw Dr Lipszyc only days after the assault. Reliance upon that clinical note is a slender basis to contradict Mr Edwards in this regard.
129 Third, I do not consider Mr Edwards was evasive when explaining why he saw Dr Lipszyc once only between March 2010 and September 2011. Psychological injuries are very different from physical injuries. Generally, physical injuries are easy to identify and seek treatment. While psychological injuries are not. Mr Edwards’ answer that he did not seek treatment because he was not sure what was going on is plausible.
130 Fourth, Mr Edwards’ distinction between a physical attack and a threatened attack is of no moment. To a lawyer, what was alleged against Mr Mascardia was an assault. It remained so even though there was no contact. For Mr Edwards to say it was a physical attack is reasonable.
131 Fifth, the defendant submits the histories given by Mr Edwards to Peninsula Health and Windana in 2015 are likely to be more accurate than his oral evidence. Moreover, the failure to include those histories in his affidavits should weigh heavily against his credibility insofar as he now seeks to attribute his heroin use to Mr Mascardia’s return to work with the defendant in late 2014.
132 Although Mr Edwards’ evidence about his drug usage varied for the period leading up to late 2014, he returned time and again to his admission of using heroin up to late 2014, but intensifying his usage following the return to work of Mr Mascardia. I accept that evidence. It is corroborated by his mother’s evidence of the effect of stessors upon her son.
133 I also accept his evidence of his levels of usage. He knows heroin and the quantities he has used. Some of the recorded information does seem extraordinarily high for protracted use.
134 Sixth, the defendant submits Mr Edwards is an unreliable witness. It could have submitted he was untruthful because it pointed to untruthfulness to medical practitioners.
135 I do not consider his description of his drug usage in his first affidavit as evasive or even misleading. It is incomplete but, in this case, does not imply a motive, which would reflect on his credit. In that affidavit, Mr Edwards explained:[42]
“In the course of making my WorkCover claims for what happened to me at work, I have been asked by various doctors whether I have ever had a drug problem. I have told them ‘no’. At the time, I did not feel comfortable discussing my substance abuse problems with a doctor that I did not know at all. This was fed into by how traumatised I was after what happened at work. I was also a bit in denial about things at that time, and a bit ashamed that I had turned back to drugs. This has changed since seeing my former psychiatrist, Dr Graf. Dr Graf encouraged me to be open about my issues and since our sessions I have had no problem discussing it with everyone.”
[42]Sworn 25 January 2019 at paragraph [8]
136 It is true Mr Edwards has lied to some practitioners about his drug usage. To Dr Das in 2011, he said he was embarrassed to bring up his past.[43]
[43]T123
137 When returning to Dr Prytula after his aborted first visit, he revealed only cannabis use, without admitting his heroin and other drug use.[44] He claims admitting his substance abuse to Dr Prytula a few months earlier in 2015 but, in truth, he admits not mentioning his heroin and other drug use, giving the reason his focus was on the work incident.
[44]T129-130
138 In June 2015, he lied to Associate Professor Paoletti about his substance abuse and he cannot explain why.[45] Initially, he did not tell Dr Graf of his drug habit because he was embarrassed.[46]
[45]T126
[46]T136
139 In using illicit drugs, Mr Edwards committed criminal offences. Speaking about his drug usage in court would have had him admitting criminal offences and providing evidence of such. This led to the issue of a certificate under s128 of the Evidence Act 2008. Mr Edwards spoke about being uncomfortable when talking about his drug usage in the presence of strangers. This is understandable for the information is potentially dangerous. Although he did not know at the time, in criminal proceedings he enjoys no legal privilege preventing the doctors from disclosing the information he gave them.[47]
[47]In Victoria, there is the limited privilege conferred by s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 in relation to civil proceedings.
140 Despite his motive, Mr Edwards misled or lied to practitioners about drug usage. Clearly, he is capable of misleading through omission or lying. However, after granting him the Certificate, I consider he was a truthful and reliable witness. He no longer faced the prospect of his words being used against him. I would not use his earlier inconsistent statements as a reason to doubt his evidence to me.
141 Seventh, the defendant pointed out Mr Edwards had a number of general practitioners over time and he asked some to prescribe pain-relieving medicines while being treated with methadone for his heroin addiction. It submitted this affected his credit. Frankly, I do not see how. Methadone may have pain-relieving qualities, but is usually prescribed to prevent opioid use. Mr Edwards has used heroin to relieve pain, both psychological and physical.
142 Eighth, he denied legal representation when he saw Dr Das, but told Dr Lipszyc that he may have a WorkCover and common law case. If so, the inference is he saw a lawyer and because of his pending claim had everything to gain by concealing his addiction. I do not see his lying or omissions as motivated by this possible deception. The motive lies elsewhere.
143 Mr Edwards was cross-examined extensively. His cross-examiner was determined and skilful. In my opinion, he was a credible witness, both in terms of truthfulness and reliability. In arriving at that assessment, I was mindful of the symptoms of his mental state when he gave his evidence.
The credit of Mrs Edwards
144 The defendant attacked the credit of Mr Edwards’ mother, Valerie Edwards. She was determined to tell the Court about her view of her son’s condition. She was very distressed about what had happened to him. Her distress is reflected in her answers. Some were barely coherent. To an extent, she was unresponsive and argumentative, but not evasive. While some of her evidence is based on what her son told her and has little value, when she described her son’s condition, that was credible and valuable. It would be unfair to say she paints the same picture of her son before and after the spider bite. She certainly describes him as decompensating through “even a little bit of stress”.[48].
[48]T168
145 To me, Mrs Edwards was a truthful and reliable witness.
Injury
146 Mr Edwards suffers from a Post-Traumatic Stress Disorder and Major Depressive Disorder. Dr Graf diagnoses the Stress Disorder. Dr Prytula diagnoses the Depressive Disorder. This latter is controlled by high doses of antidepressants, Effexor and Valdoxan.
147 The 2010 incident caused the mental injury. The symptoms of the injury remained manageable while Mr Edwards and Mr Mascardia worked on separate shifts. The symptoms intensified when it was announced the men would work on the same shift. This intensification caused his incapacity for work.
148 Mr Edwards’ mental state improved after 2015 until the occurrence of the spider bite. The effect of this bite was to re-intensify his symptoms significantly. This is how he appears now.
Single injury
149 Mr Edwards suffered a mental injury through the two incidents on the same day in 2010. An important feature of the injury were traumatisation symptoms. These symptoms remained though their severity fluctuated. They worsened considerably in late 2014 when the prospect of Mr Edwards working on the same shift was raised. Sometimes they improved and sometimes worsened. They persisted despite the separation on different shifts, but were at a lower level of severity. The re-employment of Mr Mascardia and the desire to place both men on the same shift intensified the severity of the symptoms and caused Mr Edwards to cease work. He has suffered from the same mental injury throughout. He did not suffer an injury in 2010 and then another new injury in 2014 or 2015. What occurred in 2014 or 2015 was an increase in the severity of the symptoms or, as Dr Lewis put it, a perpetuation of symptoms.
150 After early 2015 and until the latter part of 2018, through treatment and his own efforts, Mr Edwards was recovering. By 2018, his mood was the best it had been in two years. He had stopped using drugs. He was running five days a week and going to the gym twice a day. He was working in the garden, walking his dog and had restarted sea kayaking. His flashbacks were not as bad, but he was still having difficulty sleeping. He was writing a book, had run a half-marathon and was intending to run a marathon. Nevertheless, his condition was still reasonably poor, as Dr Graf described. Despite these improvements, his symptoms had not disappeared. The effect of the spider bite, including the fact of treatment, intensified the symptoms to the state which he appears before the Court. Mr Edwards remains vulnerable to fluctuating symptoms, ranging from relatively moderate to very severe and this is due to stressors. He also remains vulnerable to drug usage for, after the spider bite, he relapsed into heroin use, explaining that Panadol would not work for pain relief.
151 This is a simple injury as opposed to an extended injury defined in paragraph (c) of the definition of “injury” in s3 of the Act. The condition which arose in 2014 or 2015 is not a recurrence, aggravation or deterioration of any pre-existing injury. It is the same injury characterised by fluctuating symptoms due to the presence or absence of stressors.
Intervening cause
152 Although not expressing it in these terms, the defendant submitted that the psychological effect of the spider bite upon Mr Edwards was an intervening cause or novus actus interveniens which broke the chain of causation. The defendant made its submissions in terms of the consequences from the perspective of pain and suffering and loss of earning capacity, encapsulated by submitting his current presentation has been subsumed by the effects of the non-compensable spider bite. As the general practitioner, Dr Shanasy noted in November 2018, the skin ulcer from the spider bite “really ruined his recovery regarding his work injury”.[49]
[49]Letter to New View Psychology dated 14 November 2018
153 The defendant submitted that in his first report in 2017, Dr Lewis paints an optimistic picture while his 2019 report does not. It submitted the consequences of Mr Edwards’ psychological state before the spider bite could not be categorised as “severe” and his current state is due to the bite.
154 The consequences of the spider bite should not be seen as an intervening cause. The opinion of Dr Lewis is decisive on this point. Twice in his second report does he deal with the issue:[50]
“The psychiatric condition can be regarded as having stabilised, notwithstanding the recognised psychological fluctuations seen in individuals suffering from traumatisation symptoms. By way of example, I note that Mr Edwards’ psychological state decompensated significantly in the context of a white tail spider bite and ensuring need hospitalisation.”
[50]Report dated 13 November 2019 at p 8
155 And again:[51]
“The psychiatric prognosis has become increasingly poor and negative. Whilst Mr Edwards has been progressing quite well in a psychological sense at the time of the initial assessment, he subsequently decompensated in 2018 following a spider bite. This setback indicates that Mr Edwards is likely to be chronically prone to psychological set back in the face of psychosocial stress.”
[51]Op cit at p 10
156 First, Mr Edwards suffers from a compensable injury. The mental injury was suffered in 2010. The injury is chronic. Its symptoms fluctuate depending on the presence or absence of stressors. In late 2014 or early 2015, the various factors including the prospect of working on the same shift as Mr Mascardia were stressors of sufficient strength to lead to decompensation. The spider bite and its aftermath is another such stressor. It, too, has led to a significant deterioration in Mr Edwards’ psychological state. Neither event should be seen as creating a new injury or, in the case of the spider bite, as an intervening cause which breaks the chain of causation demanded by the expression “arising out of or in the course of employment”. Accordingly, the principle in Petkovski v Galletti[52] has no application here.
[52][1994] 1 VR 436
157 It is incorrect to submit that after lodging his claim, Mr Edwards’ psychiatric symptoms were “largely unremarkable”. Dr Das saw him on 21 October 2011 and diagnosed an Adjustment Disorder with Anxiety. That is, his psychological state had developed into a recognised psychological disorder, not merely a psychological reaction falling short of a disorder. His mental state continued to constitute an “injury”, even though in April 2012 Mr Wilks said Mr Edwards never had a diagnosable psychological disorder. He had a fear of Mr Mascardia and a very narrow incapacity for work.
158 The fact Mr Edwards returned to work in about June 2012 and continued until December 2014 or January 2015 is not inconsistent with the presence of a mental injury.
159 The defendant submitted Mr Edwards suffers from non-compensable medical conditions and invoked the principle in Peak Engineering Pty Ltd v McKenzie.[53] In that case, the worker suffered injuries to his hand and knee, occurring at different times and in different employments. He claimed a serious injury for the pain and suffering consequence of the hand injury. Maxwell P said:[54]
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and…at least very considerable’. For that purpose, it is necessary – so far as the evidence permits – to identify the consequences properly referrable to the original injury, and to exclude the consequences referable to the subsequent injury.”
[53][2014] VSCA 67
[54]At [2]
160 The defendant submitted, since Mr Edwards suffered from a constellation of psychiatric symptoms, the Court needs to make findings about all of the pain and suffering consequences and exclude those unrelated to the incident(s). It further submitted the evidence is insufficient to enable disentangling the multiple causes of his current psychiatric symptoms. There is no separation in the reports of the mental injury due to incidents and any mental illness due to the spider bite.
161 My finding of a single injury denies any application of the principle in Peak Engineering. The effect of the spider bite is a stressor which has intensified the symptoms of his disorders. The intensified symptoms are not due to the effects of a non-compensable medical condition.
Fair climate
162 There is always a layer of fact, ascertained or assumed, underlying the opinion of an expert witness, or as Heydon JA said in Makita (Aust) Pty Ltd v Sprowles:[55]
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible evidence the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based”.
[55](2001) 52 NSWLR 705 at [64]
163 In whatever manner the fact is reached, it must bear a particular relationship to the facts found by the tribunal of fact. Heydon JA continued in the same paragraph:
“If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render of the expert of any value’, even though may not correspond ‘with complete precision’, the opinion will be admissible and material.”
164 After referring to two decisions, which I will discuss below, his Honour concluded the paragraph:
“One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusions must have some rational relationship with the facts proved”.
165 The two decisions involved litigation between Mr Paric and John Holland Constructions Pty Ltd. The issue of sufficient likeness was discussed at some length by Samuels JA in the NSW Court of Appeal.[56] After referring to two editions of Wigmore on Evidence and citing from two American cases, Samuels JA said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
[56][1984] 2 NSWLR 505 at 509-510
166 Mr Paric appealed, unsuccessfully, to the High Court. The Court approved of the opinion of Samuels JA, saying:[57]
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the propositions on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal…to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
As Wigmore states (at pp 941-2, Chadbourn rev), ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’.”
[57](1985) 62 ALR 85 at 87-8
167 It is true that some of the medical practitioners took little or no history of Mr Edwards’ drug usage. In October 2011, Dr Das recorded the assertion that there was no history of any substance abuse. In April 2015, Dr Prytula took a meagre, and misleading, history: “He used cannabis in the 1990s but not recently”. In June 2015, Associate Professor Paoletti took a similarly meagre and misleading history: “He smoked some cannabis when he was young, but he has not used other illicit drugs”. Dr Graf relied upon the 2015 report of Associate Professor Paoletti. However, there is evidence that Dr Graf was aware of his heroin and opiate addiction and two episodes of “rapid naltrexone detox” in his cryptic clinical note of 18 July 2017.
168 Dr Lewis had a reasonable understanding of Mr Edwards’ substance abuse. He knew it was longstanding and involved substances including heroin. He knew of the relapse into heroin use in 2015 and the circumstances: “in the context of workplace stress and traumatisation symptoms”. His knowledge was sufficient for a diagnosis of Opioid Misuse Syndrome. He considered the Syndrome was in remission. Whether the evidence of recent use is inconsistent with saying the Syndrome is in remission, I do not know. In any event, Dr Lewis had a fair climate in which to voice his opinions. His second report may not set out a complete history of Mr Edwards’ addiction, or even refer to the admission to Windana, but that is not a reason to say he did not enjoy a fair climate.
169 Arising out of his last assessment of Mr Edwards, Dr Prytula recorded an incomplete account of his drug usage. To Dr Prytula, his addiction to opiates seemed to have ended with rehabilitation and detoxification. This may be a reference to the early 2000s. It could be a reference to the rehabilitation in 2015. To record in August 2019, Mr Edwards has no recreational drug use may be correct, when one emphasises the word “recreational”. But he was using heroin for pain relief about then. I would say Dr Prytula did not have a fair climate to express the opinion his past history had “little significance in the current condition”.
170 Dr Fernando knew of the past addiction to opioids and Mr Edwards being off substances for a number of years until being put on methadone. He was reporting to a general practitioner and his report is very succinct. On the evidence of that report, I would not conclude he lacked a fair climate to express his opinions.
171 Associate Professor Doherty was misled. The only mention of drugs is in the present tense: “The worker told me he takes no illicit substances”.
172 In July 2017, Dr Stern took a reasonable history of drug abuse. Although noting his past history of substance abuse as relevant, he attributed Mr Edwards’ then psychiatric state to the events at work.
173 In November 2017, the Medical Panel also took a reasonable history of heroin abuse and relates the Post-Traumatic Stress Disorder to 7 September 2011. It reached a similar conclusion about Mr Edwards’ psychiatric state and his work.
174 Both Dr Stern and the Medical Panel enjoyed a fair climate to express their opinions.
Impact of heroin and other drugs
175 Mr Edwards has a drug addiction. He used heroin after the incident from time to time since. After the 2010 incidents, he was able to work in his normal duties and hours. His use of heroin did not affect his capacity for work.
176 His heroin use became a distinct problem after the events of late 2014. It became such a problem because of the deterioration of his mental state. He submits his heroin abuse and his psychiatric disorders are separate and distinct. They are in terms of symptoms. However, he uses heroin to cope when he is stressed by self-medicating. Speaking of the aftermath of 2014, he said, “heroin has been like a coping mechanism”.[58]
[58]T96-97
177 It is true that Mr Edwards continues to use heroin. It is not true his drug problem is greater than his employment injury. He was able to work full time after the events of 2010, even though using heroin. The events of late 2014 or early 2015 caused a marked increase in his heroin usage, causing him to seek professional help. Since then, heroin use has sat in the background of the effects of his mental injuries.
178 Dr Lewis identifies the symptoms underlying his diagnoses. By their nature, they relate to the Adjustment and Post-Traumatic Stress Disorders and not to the Opioid Misuse Syndrome. There are what he describes as “depressive features”, including lowered mood, poor motivation, sleep disturbance and cognitive difficulties. There are what he describes as “traumatisation symptoms” including nervousness, agitation and startle response. When Dr Lewis saw Mr Edwards in November 2019, it may be the Syndrome played no part in his presentation because it was in remission. As said earlier, I do not know whether recent use of heroin would make any difference to his opinion the Syndrome was in remission.
Pain and suffering consequences
179 Wherever one looks among the recent medical reports, Mr Edwards’ condition is very poor. To Dr Lewis, he suffers from lowered mood, poor motivation, hyperarousal symptoms, emotional lability and cognitive difficulties. To Dr Prytula, he suffers from significant anxiety, depression and traumatisation. Those psychiatrists, together with Dr Fernando and Dr Ward, paint a dismal picture of Mr Edwards and a similarly dismal future.
180 I can disregard the opinions of Mr Wilks and Associate Professor Doherty because of the time when they were made but, more importantly, because they stand in contrast to the other opinions about that time. Both seemed to have underestimated the severity of Mr Edwards’ condition.
181 Dr Prytula noted some suicidal feelings. Dr Lewis did not, nor did Dr Kruk in October and November 2018. In his first affidavit, Mr Edwards said he felt like killing himself during 2015.[59] In his cross-examination, when asked about 2017, he said:[60]
“Ah, mood is a very general question. Mood in did I want to kill myself and was I really depressed, no, it wasn’t.”
[59]Affidavit sworn 28 January 2019 at [28]
[60]T99
182 I will discount thinking about suicide as a factor.
183 Overall, the symptoms exhibited by Mr Edwards translate into severe pain and suffering consequences. They envelop him and leave him isolated, directionless, largely inactive and heavily dependent on his mother.
184 I disagree with the defendant’s submission that his pain and suffering consequences are not severe. I have already explained why the psychological consequences of the spider bite are relevant and cannot be disregarded.
Loss of earning capacity consequence
185 The views of Dr Prytula and Dr Lewis are that Mr Edwards is incapacitated for any work for the foreseeable future. Their views are critical because they have assessed Mr Edwards recently and I have no reason to reject their assessment of his capacity for work. Although neither factor in his drug usage in forming those opinions, I am of the opinion that Dr Prytula had insufficient information to do so. But Dr Lewis did have sufficient information. It may be, as the defendant submits, his drug addiction would affect his employment prospects, including his reliability as an employee. It did not in the past. If it had that effect, then it would be a relatively minor factor in the face of his profound psychological problems.
186 The defendant submitted Mr Edwards’ criminal record affects his capacity for work. I do not see how. Whether knowledge of the details of his criminal record would influence a potential employer is speculative.
187 The defendant submitted Mr Edwards has made no genuine attempt to gain employment when he was doing substantially better from late 2015 to September 2018. Over that period, Mr Edwards’ mental state did improve. In August 2017, Dr Lewis was able to say:[61]
“He gives a history of having progressively improved with respect to traumatisation symptoms, and there has been a marked improvement in mood symptoms since the introduction of Effexor. I note the treating psychiatrist’s report, which indicates that Mr Edwards had a probable hypomanic response to Effexor. However, his mood would now appear to have stabilised.
Mr Edwards presents as wholly committed to his recovery in a psychological sense, and is now exercising on a regular basis. There is a sustained improvement in mood symptoms. He reports some low-grade traumatisation symptoms.”
[61]Report dated 22 August 2017 at p 10
188 It may be during this period his condition improved to the extent where some form of employment was possible, but the evidence on the point is weak. Dr Kruk noted Mr Edwards felt too unwell to do any work. He saw Mr Edwards in October and November 2018, shortly after the spider bite. In any event, everything changed following the spider bite.
189 In personal injury cases, self-assessment by a plaintiff of his or her capacity for work is not necessarily accurate. In some cases it can be and others it is not. It may reflect over-optimism or pessimism. On 25 October 2019, Ms Bryant of CoWork Pty Ltd identified five occupations as suitable for Mr Edwards. I would not describe Mr Edwards’ answers in cross-examination about these occupations as obstinate. To the most promising, dog trainer, Mr Edwards felt incapable because he would have to deal with people. More generally, he maintained he was following his doctor’s advice. Since that advice is a complete incapacity for work, then following it would be sensible.
190 In my opinion, Mr Edwards has satisfied what I term the narrative test and the threshold test in relation to loss of earning capacity consequence. He is incapacitated for all work and that incapacity is permanent. The measurements required by the threshold test compares no income with a significant one earlier.
Jones v Dunkel
191 The defendant relied on the principle in Jones v Dunkel[62] in four instances: The failure of Mr Edwards to call any witness to give evidence about the alleged assault (e.g. Mr Hosea); the failure to lead evidence from Victoria Police about his reporting the incident; the failure to lead evidence from the Rosebud Hospital where he attended a week before the Peninsula Hospital; and not leading evidence from Drs Tadros and Korman, who treated him for drug addiction before and after the incident for the purposes of disentangling the effects of the work injury from his current symptoms.
[62](1959) 101 CLR 298
192 Mr Edwards made the same submission about the failure to call witnesses about the assaults.
193 In O’Donnell v Reichard,[63] Newton and Norris JJ explained the principle and its application. The principle only applies where a party without explanation fails to call as a witness a person whom the party might reasonably be expected to call if that person’s evidence would be favourable to that party.
[63][1975] VR 916 at 92
194 Given the nature of this application, I would not expect Mr Edwards to lead evidence from any of those persons or bodies. There are no pleadings. In the absence of being advised what is in issue, the parties would have only a general sense of the issues in dispute. Since there had been an acceptance of liability in the past, it would be reasonable to expect the incidents in 2010 would not be disputed in this application. A trial might be a different matter.
195 What the records of the Rosebud Hospital reveal is pure guesswork.
196 As to the two doctors, what they would say is speculative. There are two documents relating to Dr Tadros in the Defendant’s Court Book,[64] one in 2015 and the other a letter in 2019. Dr Tadros may remember the circumstances of the 2019 letter but possibly not the first.
[64]At pp 220 and 275
197 Dr Korman prescribed Buprenorphine to Mr Edwards in the early 2000s. I doubt he would remember much after such a long gap. He would rely on his notes, if they still exist.
198 I would draw no adverse inference. Nor would I do so against the defendant for its alleged failure to call any witness to the assaults for the same reason.
Conclusion
199 I will grant leave to Mr Edwards to commence a proceeding for the recovering of damages for pain and suffering damages and pecuniary loss damages.
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