Faria v Budget Rent a Car Operations Pty Ltd
[2014] VCC 1158
•15 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-04495
| DEAN FARIA | Plaintiff |
| v | |
| BUDGET RENT A CAR OPERATIONS PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 9, 12, and 13 May 2014 | |
DATE OF JUDGMENT: | 15 August 2014 | |
CASE MAY BE CITED AS: | Faria v Budget Rent a Car Operations Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1158 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – mental or behavioural disturbance or disorder – stresses in employment – concurrent cardiac disease – causation of work-related injury – burden of proof – leave granted
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Lianos v Inner & Eastern Health Care Network [2001] VSCA 53; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Mobilio v Balliotis [1998] 3 VR 833; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.
Judgment: Leave granted for pecuniary loss and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C F Thomson | Nowicki Carbone |
| For the Defendant | Mr P J Hayes | Lander & Rogers |
HIS HONOUR:
Introduction
1 The plaintiff, Dean Faria, seeks leave to commence a common law proceeding against the defendant in accordance with the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). He relies upon establishing serious injury as to defined in paragraph (c) of the definition contained in s134AB(37) in that he suffers a permanent severe mental or permanent severe behavioural disturbance or disorder.
2 Mr Faria had been employed by the first defendant (“Budget”) as an airport manager at Melbourne Airport from 2007 until April 2010. He has not worked since that time and seeks leave in relation to pursuant a claim at common law both in respect of pecuniary loss and pain and suffering damages.
3 Mr Faria is forty-eight years of age, married and has two dependent children. He has suffered cardiac problems since 2001 and was treated with a triple coronary bypass in December 2003. He has had a number of stenting procedures since that time and the cardiac condition remains a cause of concern for him.
4 Essentially the plaintiff relies upon work-related stress due to a number of factors broadly fitting the category of lack of management support as producing a mental or behaviour disturbance or disorder of sufficient magnitude to satisfy the statutory requirement. The condition is variously described in the medical material as a major depression, Post-Traumatic Stress Disorder (“PTSD”) and/or adjustment disorder. The plaintiff does not deny the existence of his cardiac condition and indeed referred to it in his initial claim for compensation lodged in April 2010.
5 The defendant identifies causation as the major issue in this application, submitting in essence that the timing of the plaintiff’s incapacity coincided with a worsening of his cardiac condition and was not causally related to any stress at work.
6 The hearing of this application ranged over six days with five lay witnesses required to attend for cross-examination. No medical witnesses were required and ultimately the matter fell to be determined largely on the factual evidence.
The lay evidence
7 The plaintiff swore five affidavits between 24 April 2012 and 7 May 2014 which were tendered in evidence as part of Exhibit A.[1] It is useful to set out the matters I found of assistance in the affidavit material:
[1]Exhibit A, page 13 – 26.9
·The plaintiff was born in India and educated to a high level, obtaining a Master’s Degree in Sociology in Hyderabad in approximately 1991.
·While still studying, he commenced as a sales representative for Air France in its cargo area and obtained further work as a catering supervisor for Air India and then a regional cargo manager for KLM Airlines. This was prior to coming to Australia in May 1991.
·Shortly after arriving in Australia, the plaintiff obtained work with Compass Airlines as a customer service operator but this ceased when the company went into liquidation. He was re-employed when the company recommenced trading and worked there until a further liquidation occurred in early 1993.
·After a short period, the plaintiff was briefly employed as a night porter in a hotel before securing employment with Avis Rent a Car as a rental sales agent in June 1993.
·With Avis the plaintiff progressed rapidly and in 1996 secured the role of duty manager which continued up until March 1997 when he commenced employment with Budget after a management buy-out.
·The plaintiff’s duties as airport manager involved the rental operations at Melbourne Airport including staff management and fleet maintenance. The plaintiff described the work as demanding and he would average working between 50 and 70 hours per week including work done at home after hours.
·The plaintiff in his affidavits described changes to the nature of the work after 2007 including the rationalisation of his own role to include responsibility for the car wash and training operations which previously had their own management structure. He also described a change in the management of his own position and referred to stressful situations involving his reporting to the State Manager, Sharon Walker (who gave evidence in the hearing).
·The affidavits referred to difficulties experienced in prioritising the usage of rental vehicles as between Avis and Budget fleets, problems with contract labour hire providers and ongoing stress due to a significant growth of the business.
·The affidavits refer to the termination of employment of the plaintiff’s state manager in February 2010 and the development of mental and physical exhaustion coupled with increasing angina symptoms and stress.
8 The plaintiff refers in his first affidavit to a past history of cardiac problems commencing in approximately April 2001. In particular I noted:
·A diagnosis of angina by Dr Lajoie in or about April 2001;
·Referral at or about that time to Dr Warren, cardiologist, who performed an angioplasty requiring two to three weeks’ absence from employment;
·In September 2001 Dr Warren performed a further angioplasty, again requiring two weeks off work;
·In August 2003 the plaintiff had a stent inserted requiring approximately two weeks off work;
·In December 2003 the plaintiff underwent coronary bypass surgery performed by Mr Skillington requiring about two months off work;
·Two further stents inserted in 2005 and 2006, the plaintiff remaining under the care of Dr Warren. Two weeks off work on each occasion.
·In 2008 the plaintiff underwent a right femoral popliteal bypass on the right leg and surgery on the left leg for severe atherosclerosis. The surgery was performed by Mr Westcott. He was off work for a total of approximately five weeks.
·In November 2011 and February 2012 the plaintiff had two further bouts of surgery on the right leg.
·The plaintiff remains under the care of Dr Warren, Mr Westcott and Dr Lajoie. Medications noted as Coversyl, Imdur, Noten, Aspirin, Crestor and Warfarin.
9 In the plaintiff’s second affidavit sworn 12 June 2013, he described his cardiac condition as stabilised and remained under the care of Dr Warren, cardiologist, and Mr Westcott, vascular surgeon. His medication remained largely unchanged and he continued to see Dr Lajoie.
10 In the plaintiff’s third affidavit, the cardiac condition was briefly referred to with the plaintiff again referring to his continued treatment by Dr Warren and Mr Westcott and the ongoing medication. He added that he was no longer attending hydrotherapy but continued to walk and use a treadmill on a regular basis. His cardiac condition was described in that affidavit as “relatively stable”.[2]
[2]Exhibit A, page 26
11 The plaintiff’s fourth affidavit sworn 20 March 2014 did not refer to his cardiac condition or indeed any other aspect of his health. It appears to have been prepared as a response to affidavit material relied upon by the defendants. His final affidavit sworn 6 May 2014 was in a similar vein and did not deal with aspects of the plaintiff’s health.
12 The plaintiff was cross-examined extensively over a period spanning some three sitting days. I noted in particular the following matters raised in cross-examination.
·The plaintiff was diagnosed with ischaemic heart disease or angina in April 2001.[3]
[3]Transcript (“T”) 44, L29–30
·An angiogram on 16 April 2010 revealed blockages of five stents and further treatment to be given by medication rather than surgery.[4]
[4]T 47, L7–25
·The plaintiff stated he was not shocked nor did he suffer any emotional response to the advice given by the cardiologist.[5]
[5]T 49, L8–13
·The stress in the workplace had built up over time whilst the plaintiff was at Budget from 2007.[6]
[6]T 55, L1–3
·There was no reference in the plaintiff’s five affidavits to him becoming mentally and physically exhausted before February 2010.[7]
[7]T 56, L19–22
·The plaintiff accepted that a note by Dr Lajoie on 21 April 2010 that he was having more angina and was considering retiring from work was accurate.
·The only noted complaints of workplace stress to Dr Lajoie were on 13 February 2008 and 26 April 2010.[8]
[8]T60, L11-17
·The plaintiff had no workplace counselling after complaining of stress in 2008 because he was embarrassed.[9]
[9]T61, L10-17
·The plaintiff first saw a psychologist, Dr Hicks, for work-related stress in November 2010. This was some seven months after he stopped work.[10]
[10]T95, L27 – T96, L2
·The plaintiff first saw Dr Polonowita, psychiatrist, in July 2012.[11]
[11]T96, L5-7
·The plaintiff’s WorkCover claim form signed 11 May 2010 referred to anxiety and depression, ischaemic heart disease due to constant pressures at work over the course of his employment. [12]
[12]T96, L22 – T97, L20
·Dr Lajoie certified the plaintiff as suffering from anxiety and depression on 11 May 2010.[13]
[13]T98, L19-23
·Dr Lajoie had mentioned counselling to him in 2008 but he did not attend.[14]
[14]T99, L4-8
·The plaintiff was not aware of a diagnosis of anxiety or depression until 16 April 2010 and had been given no medications for such a condition.[15]
[15]T99, L11-19
·The plaintiff had initially been employed by Avis in 1993 and regarded himself as an Avis person as opposed to a Budget person.[16]
[16]T100, L13-31
·In 2007 when applying for the position of airport manager, the plaintiff understood that this job would require additional responsibility on his part.[17]
[17]T101, L29-31
·When appointed initially on a relief secondment in February 2007, the plaintiff reported to the State Manager, Sharon Walker.[18]
[18]T104, L10-14
·A performance review on 30 June 2008 included a comment by Sharon Walker, “A great result, Dean, I look forward to another exciting and challenging year ahead.”[19]
[19]T111, L29-30
·In that performance review, there was no indication of the plaintiff making any complaint to Ms Walker about being stressed in the workplace.[20]
[20]T113, L26-29
·A further review in July 2009 was endorsed by Sharon Walker with, “Dean is consistently meeting goals and objectives of his position and demonstrates solid achievement.”[21]
[21]T116, L2-4
·Budget had been “more than accommodating” for the plaintiff’s medical treatment due to his cardiac condition.[22]
[22]T120, L2-6
·In 2009 the plaintiff was still performing well in his job and delivering on expectations. There was no reference in records to any workplace stress.[23]
[23]T120, L21-26
·The plaintiff’s performance reviews in 2008 and 2009 showed he was “exceeding expectations in the role and … able to cope with the job more than adequately.”[24]
[24]T121, L17-21
·The plaintiff at no time complained about work stress to Sharon Walker, to HR in Sydney, or other management in Sydney.[25]
[25]T121, L23-28
·The plaintiff was cross-examined at some length about the Budget employee assistance program but the plaintiff lacked confidence in its usefulness.[26]
[26]T126, L29 – T127, L5
·The plaintiff could give no reason to doubt that any complaint to management above Sharon Walker would not be treated confidentially or appropriately.[27]
[27]T140, L19-24
·In performance reviews, Sharon Walker had been very fair to the plaintiff.[28]
·The plaintiff maintained that he was suffering workplace stress but did not complain about it to Sharon Walker, but only to a secretary and a Mr Neil Corrigan (another witness).[29]
·The plaintiff worked with Mr Neil Corrigan between February and November 2007 when Mr Corrigan left. After that, Ms Sharon Walker took over the role of State Manager for the merged entity.[30]
·For the period of about six to eight weeks before the plaintiff left, Mr Phillip Brady had been the State Manager replacing Sharon Walker.[31]
·The plaintiff made no complaint of workplace stress to Mr Brady.[32]
·The plaintiff had a good working relationship with Mr Brady and told him on 28 April 2010 that he intended seeing his doctor while on leave in relation to his heart condition.[33]
·The plaintiff agreed he had not mentioned workplace stress in meetings he had with Mr Brady on 18 April or 12 May 2010.[34]
·The plaintiff had complained to Sharon Walker in relation to the car wash availability and the treatment of the Budget brand relative to Avis.[35]
·The plaintiff did not complain about his stress levels as a work issue because he believed his livelihood would be put at risk.[36]
[28]T141, L13-15
[29]T142, L9-14
[30]T150, L11-23
[31]T152, L4-7
[32]T152, L9-11
[33]T152, L21-28
[34]T153, L24-28
[35]T159, L26-29
[36]T160, L14-16
13 The cross-examination continued with extensive canvassing of operational issues. The proposition with which the plaintiff agreed was that he had not complained of work stress issues or work pressures either to his treating doctors or his managers prior to his ceasing work in April 2010.
14 There was also quite extensive cross-examination about the plaintiff’s activities since the cessation of that employment including some issues raised in relation to his involvement with local sporting clubs where his children were involved. To my mind, these matters did not touch upon the issue of causation which is central to this application. Although this line of cross-examination could properly be traversed as a means of testing the plaintiff’s credit, in my final assessment it had no persuasive effect on my decision.
15 The plaintiff was also cross-examined in relation to his domestic arrangements. I noted that he has lived with his wife and children on a 65 acre property in Lancefield where he and his wife conduct a small breeding operation for commercial beef. His wife additionally works as a part time librarian. I accept the evidence in cross-examination that there is some income generated by the plaintiff from the breeding operation and additionally he is involved in some day to day activity as might be expected. Once again, these issues, though properly raised, were not relevant to my ultimate decision.
16 When the plaintiff was re-examined, I noted the following matters relevant to the question of causation:
·The plaintiff would work on average 50 to 55 hours per week and was expected to be at work from seven in the morning till six in the evening, then on call, on his mobile and with access to a computer system to work from home.[37]
·Shortly after he assumed the position as airport manager, both the wash manager and the training manager resigned and he became responsible for all three positions. This was about two months after he had been in that role.[38]
·The plaintiff had expected the wash manager and the training manager would be replaced and expected a lot more help from his state manager.[39]
·He believed some of his staff were taking short cuts on cars which indicated that he was not doing his job properly.[40]
·When particular concerns such as car numbers or staff numbers arose, he did not want to go above Sharon Walker as it would strain his relationship with her.[41]
·He had a belief that Mr Neil Corrigan had taken an issue to HR which did not go smoothly and Mr Corrigan resigned.[42]
·The plaintiff did not feel comfortable going over Ms Walker’s head as he would have then involved Mr George Proos because he felt that taking his issues to Mr Proos concerning Ms Walker would be unwise because those two had a good working relationship.[43]
·It was the plaintiff’s belief that the pressures of work increased between 2006 and 2007 leading to the worsening of his cardiac condition.[44]
[37]T231, L12-15
[38]T231, L21-26
[39]T232, L16-20
[40]T233, L3-12
[41]T235, L26 – T236, L3
[42]T236, L17-22
[43]T241, L30 – T243, L1
[44]T245, L15-20
17 Mr Neil Corrigan had sworn an affidavit in August 2010 which formed part of Exhibit A.[45] Mr Corrigan had worked within the Budget organisation for approximately 20 years, including five years at Melbourne Airport. In his affidavit he deposed to having regular contact with the plaintiff on a daily basis. In essence, the affidavit stated that the plaintiff was working in a very stressful environment and according to Mr Corrigan, “I do not believe the correct structures were in place and there was effectively no support from his manager.”[46]
[45]Exhibit A, page 29-31
[46]Exhibit A, page 31
18 Mr Corrigan attended to give evidence and was cross-examined. Prior to being cross-examined, some further evidence was led establishing the basis of his knowledge of the both the plaintiff and the plaintiff’s manager, Sharon Walker. When cross-examined, I noted the following matters as relevant to my inquiry:
·Mr Corrigan’s background was with the Budget Rent a Car organisation prior to the merger with Avis. Avis was by far the larger company.[47] He had worked with Dean Faria specifically between February 2007 until he finished with Budget in November 2007.[48]
·In reality, he did not expect to get Sharon Walker’s job and he was thankful to have a role.[49]
·As fleet manager between February and November 2007, he was required to manage a fleet to be available to both Budget and Avis.[50]
·The plaintiff could access the Budget fleet and his Avis counterpart could access the Avis fleet but Sharon Walker and a couple of others could access the entire fleet.[51]
·It was a good system and told you what you needed to know.[52]
·There had been some element of personal discord between Mr Corrigan and Sharon Walker from day one.[53]
·There had been a mediation conducted by Janet Kruk based on Sharon Walker’s “writing my job back to nothing and trying to sack me”.[54]
·Mr Corrigan felt it extremely difficult to have respect for Sharon Walker.[55]
[47]T277, L1-10
[48]T277, L15-18
[49]T279, L1-2
[50]T280, L6-9
[51]T283, L17-25
[52]T283, L28-29
[53]T287, L17-18
[54]T290, L20-30
[55]T292, L17-24
19 In re-examination, I noted the following matters:
·After the merger, certain of the staff had a feeling that they were going to be treated as minnows by Avis.[56]
·Prior to the merger, Budget did not have a shared fleet and the shared fleet involving the Avis and Budget businesses complicated the structures.[57]
·After the merger, some senior people left and were not replaced. When the plaintiff took over he did not have the depth of experience which Avis had built into that structure over many years.[58]
[56]T296, L3-13
[57]T296, L17-19
[58]T297, L7-31
20 The plaintiff relied upon a number of medical reports both from treating practitioners and medico-legal consultants. These reports were tendered in evidence as part of Exhibit A. None of the reports were required for cross-examination. I will deal with the medical material later in the judgement.
21 The defendant had also tendered a significant amount of medical material, again received in evidence without objection nor any cross-examination. I will discuss the substance of this material later in the judgement.
22 The real thrust of the defence was directed towards the issue of causation. The defendant relied upon affidavits from Sharon Walker, Heidi Gromer, Phillip Brady, Jeanette Kruk and Jessica Muldoon. Mr Brady, Ms Gromer and Ms Walker were all required for cross-examination.
23 Phillip Matthew Brady had sworn an affidavit on 31 July 2013.[59] He had earlier given a statement to investigators on 26 May 2010. This statement was exhibited to his affidavit. From this statement, I noted the following:
[59]Exhibit 1, page 10-16
· Mr Brady was the State Manager of the defendant and was aware that the plaintiff had made a WorkCover claim alleging he had suffered work-related stress.
· His personal dealings with the plaintiff had been specifically since 18 March 2010, although he had known the plaintiff for about three years prior to that time.
· His impression was that the plaintiff was experienced in handling his role in a satisfactory manner based the personal contact with him on a reasonably regular basis.
· He believed there were no issues of concern with his actual position and found him to be positive, friendly, amiable and having the support of his team. “There was nothing in his history to suggest he was not a good manager”.[60]
[60]Exhibit 1, page 14
· He would have worked additional hours but not excessive hours. No issue was ever raised about overwork or excessive pressure.
· The plaintiff applied for annual leave between 29 April and 21 May 2010. His last day of work was 28 April, when he finished at 5pm. He mentioned that he intended seeing his doctor with regard to his heart condition.
· The next contact with the plaintiff was on 12 May 2010, when the plaintiff told Mr Brady of his heart condition and the medical advice he had been given. He handed a WorkCover claim and certificate of capacity, stating he intended coming back to work.
· When Mr Brady had made the statement in May 2010, the plaintiff had significant accrued entitlements of annual leave, long service leave and sick leave.
24 Mr Brady was cross-examined and I regarded the following matters as relevant to my determination:
· The majority of people in the office worked additional hours from time-to-time but two hours or two to three hours every day would be excessive over a period of time.[61]
[61]T307, L25-31
· As an Airport Manager for Budget, you would not need to attend a 7am given adequate support staff.[62]
[62]T308, L29-31
· Despite the change following the merger, the roles may have changed but the number of personnel has not changed a great deal.[63]
[63]T309, L26-30
· The plaintiff’s former position is now being performed by Heidi Gromer. She is the Airport Manager managing both brands and has an assistant manager working with her.[64]
· Mr Brady had returned to the State Manager position in March 2010 after Sharon Walker had left in February 2010.[65]
[64]T310, L16-21
[65]T312, L28-T313, L1
25 Ms Heidi Gromer had sworn an affidavit on 31 July 2013.[66] She was the Acting Airport Manager for the defendant and had held this position since June 2010. She had worked with the defendant since January 2008 and her affidavit referred to working with the plaintiff and Sharon Walker, who she described as, “A very professional manager who was very supportive”.[67] In her affidavit, she described seeing the plaintiff on a daily basis and, to her observation, he never appeared to be overly stressed, and she had never heard him complain about stress from work. She went on to say that the plaintiff would often offer assistance to her. Her affidavit went on to describe that she had taken over the plaintiff’s role in June 2010, in addition to managing the Avis operation, and had had an assistant manager since March or April 2012. Her affidavit stated, “Despite the increase in my workload I continue to perform this role and I never felt overly stressed or overworked”.
[66]Exhibit 1, pages 6-9
[67]Exhibit 1, page 7
26 Ms Gromer was cross-examined. I found the following matters of relevance:
· The Budget carwash system would be a little slower than the Avis system.[68]
[68]T327, L13-21
· There is now one wash facility for both Avis and Budget vehicles. The system changed about two years ago.[69]
[69]T328, L24-29
· Between 2007 to 2010, the carwash system belonged to Avis but would have been able to cope with the volume of both Avis and Budget vehicles.[70]
[70]T329, L11-24
· There were no special arrangements for Budget cars to use the carwash but the Avis cars were in a separate yard to Budget.[71]
[71]T332, L17-30
· There were separate areas for parking vehicles under both the Budget and Avis brands. The State office of Budget was located where the Budget vehicles were parked.[72]
[72]T333, L13-25
· A request for Budget vehicles to use the Avis carwash would go to Ms Gromer or, if she was not on-site, to Ms Walker, who was in control of the State.[73]
[73]T335, L19-22
· In terms of car availability, Ms Gromer could not comment on Budget but Avis vehicles were very tight on Monday, Tuesday and Wednesday and other peak times.[74]
[74]T338, L14-22
· If Avis were short of vehicles, it would be statewide and Budget would be in the same position.[75]
[75]T339, L16-17
· If there was a shortage of vehicles, the fleet manager would determine priorities.[76]
[76]T340, L8-27
· The market share as between the two brands was Avis at around 30 per cent and Budget at around 15 or 16 per cent of the market.[77]
[77]T342, L1-4
· The fleet manager would allocate vehicles between the pools for both brands.[78]
[78]T343, L10-12
· She believed Mr Corrigan was at Melbourne Airport as Victorian Fleet Manager for about three months or less after she started.[79]
[79]T343, L13-18
· Ms Gromer would have knowledge of the plaintiff’s discussions with the fleet manager or the state manager about obtaining vehicles only on very rare occasions.[80]
· She was aware that the plaintiff did have health issues that required time off.[81]
[80]T346, L31-T347-4
[81]T350, L12-13
27 The final witness required for cross-examination was Ms Sharon Walker. She had sworn two affidavits on 31 July 2013 and 30 April 2014.[82] In Ms Walker’s first affidavit, she described being employed between June 2000 and February 2010 as the State Manager in Victoria for Avis Australia. She referred to the plaintiff commencing as airport manager for Budget in early 2007 and deposed to being aware of his heart condition, which required occasional leave to receive treatment. Her affidavit described the plaintiff as having responsibility for 30-40 staff. The affidavit material generally disagreed with the plaintiff’s allegations of being overworked or stressed or that he lacked support. Specifically, in the first affidavit she deposed:
“I would also talk to him on most days about other issues which arose. We occasionally talked about issues with respect to the allocation of fleet but I never considered these to be complaints. The plaintiff never complained to me about being overworked or lacking support.”[83]
[82]Exhibit 1, pages 1-5, 16a-16d
[83]Exhibit 1, page 3
28 In her most recent affidavit, Ms Walker specifically comments on matters alleged by the plaintiff in his affidavit of 20 March 2014. In broad compass, Ms Walker denied conduct directed towards the plaintiff that could be interpreted as bullying and specifically deposed, “The plaintiff seemed to be content and satisfied in his role and seemed to enjoy his job in which he performed well.”[84]
[84]Exhibit 1, page 16c
29 Ms Walker was cross-examined. I regarded the following as significant to my determination:
· Ms Walker was unaware of any change in the plaintiff’s work circumstances when he returned after medical procedures.[85]
[85]T359, L7-8
· In terms of vehicle shortages, Ms Walker denied telling the plaintiff to “deal with it” but agreed there would be discussions at the State office on the availability of vehicles.[86]
[86]T360, L15-30
· She agreed that she had a conversation with Mr Neil Corrigan in which she reprimanded him for going and spending time in the Budget wash, saying, “I was very much conscious of the fact that we needed to run both brands equally”.[87]
[87]T361, L8-18
· She was unaware that the shortage of vehicles was causing anxiety to the plaintiff and a dread of coming to work.[88]
[88]T362, L19-27
· She had known the plaintiff when relocated to Melbourne in 2000 when she first took up the role of state manager. The plaintiff was then a duty manager with the Avis brand.[89]
[89]T362, L11-14
· From the period after 2006, she had a lot of contact with the plaintiff in her role as state manager and his role as airport manager for Budget.[90]
[90]T362, L15-22
· She had gone with another colleague to visit the plaintiff in hospital after a medical procedure.[91]
[91]T362, L23-27
· She could not recall the plaintiff saying to her that he was feeling stressed or feeling pressured over staff or the requirements of the job.[92]
[92]T363, L12-15
· She did recall the plaintiff having issues with some of his staff, in particular, a duty manager and a wash manager.[93]
[93]T363, L19-24
· She disagreed that in late 2008 she had left the plaintiff to his own devices when a need arose to employ eight new staff members.[94]
[94]T364, L30-365, L8
· In terms of the carwash usage, there were discussions about amalgamating the facilities but nothing happened for four years.[95]
[95]T367, L10-22
· In regard to the plaintiff’s working hours, she referred to “reasonable additional hours” noting that the nature of car rental business at the airport may involve management being required to work longer. She would not contemplate 50-55 hours as being required and was unaware that the plaintiff was working those hours.[96]
[96]T368, L6-21
· There were times when she would tell the plaintiff he could go home early as she was aware that, “Dean had put in some hard yards and there was an opportunity with the nature of our business to call it a day”.[97]
[97]T371, L5-10
· She was aware that the plaintiff had various times off work for cardiac treatment but did not recall seeing a certificate from his doctor.[98]
· After periods of medical treatment, she believed the plaintiff was capable of performing duties and, “He would assure me that he would be capable of doing that”.[99]
[98]T371, L25-31
[99]T372, L31-T373, L3
30 There was no evidence in re-examination from Ms Walker or the two earlier witnesses, Ms Gromer and Mr Brady.
The medical evidence
31 Although the principal issue in dispute between the parties is one of causation, it is important to note the medical evidence that was relied upon, particularly from those involved in the treatment of the plaintiff prior to his cessation of employment. The plaintiff tendered in evidence four medical reports from Dr Lajoie prepared between 30 June 2010 and 6 February 2014, together with a medical questionnaire as required by the WorkCover insurer on 25 June 2010.[100]
[100]Exhibit A, pages 50–62
32 In his first report, Dr Lajoie notes a history of ischaemic heart disease since 2001. He refers to treatment given by Dr Nawen, a cardiologist, at John Fawkner Hospital, and refers also to the surgery involving a three-level coronary artery bypass performed by Mr Skillington in 2003. His initial report contained the following comment:
“His employment was a significant contributing factor to his condition. His stress level at work has been high for many years. His anxiety levels were always significant. He was a manager for Budget Rent a Car and was responsible for all the administrative duties and customer service. His other risk factors include hypercholesterol and family history.”[101]
[101]Exhibit A, page 55
33 In the questionnaire prepared for the insurer and dated 25 June 2010 he notes the plaintiff as being unfit for any duties and suffering from “(1) work-related stress; (2) hypercholestaemia”. The initial consultation noting these complaints is recorded as 8 March 2001.[102] The further reports from Dr Lajoie in 2012, 2013 and 2014 recite a similar and somewhat familiar history of:
“[W]ork related stress due to poor availability of fleet stock, lack of staff and lack of support from the state manager ... he felt he was being used as a ‘workhorse’ managing a subsidiary which was losing resources. This in turn has led to alcohol abuse.”[103]
[102]Exhibit A, page 50
[103]Exhibit A, page 57
34 In Dr Lajoie’s most recent report, dated 6 February 2014, he notes that he had seen the plaintiff at the clinic on ten occasions since May 2013 and all attendances had been related to ischaemic heart disease, work-related stress and anxiety and depression. He regarded employment as “a considerable contributing factor”.[104]
[104]Exhibit A, page 61
35 The plaintiff relied on no formal reportage from any consultant involved in the management of his coronary condition. Unusually, a handwritten response from Dr Warren to a letter from the plaintiff’s solicitors dated 23 May 2013 was included in the tendered material. Apparently Dr Warren had commented briefly on a series of questions put to him describing his diagnosis as coronary artery disease which he did not consider to be related to employment. He regarded the prognosis of the plaintiff as “quite good” and thought the plaintiff had a capacity for work. There is also reference to a letter in the single-page document tendered in evidence. That letter is not in evidence before me. On the evidence that is before me, Dr Warren does not support the plaintiff’s claim.
36 The additional medical material from the plaintiff’s treating practitioners are two reports from Ms Alison Hicks, psychologist, who saw the plaintiff on three occasions in November and December 2010, and five reports from Dr Polonowita, consultant psychiatrist, who commenced to treat the plaintiff in July 2012.
37 Unsurprisingly, the defendant tendered two letters from Dr Warren to Dr Lajoie dated 17 June 2009 and 6 May 2010.[105] The first of those letters confirmed that the plaintiff was doing well and there was no change to his current medication. The letter written in May 2010, however, commented:
“The severity and progression of his disease means he is one person who would be entitled to stop work for medical reasons.”
[105]Exhibit 1, pages 65–66
38 The defendant additionally tendered a further letter from Dr Warren dated 6 October 2010 and addressed to the plaintiff’s solicitors, and the handwritten response to the plaintiff’s solicitors’ letter of 23 May 2013.[106] It was clear from that material that Dr Warren did not support a causal relationship between the coronary artery disease and the plaintiff’s employment. He had commented in October 2010:
“Mr Faria is not precluded from employment by his coronary artery state as long as he remains asymptomatic.”
[106]Exhibit 1, pages 66A–66B
39 The defendant also tendered a letter from Mr Mark Westcott, vascular surgeon, dated 21 January 2010 and addressed to Dr Lajoie. This letter stated:
“I was very pleased to review Dean today ... There has been no interim change since his last scan and he has excellent pedal pulses. He is back to playing cricket and doing very well indeed. I understand he saw Rod Warren today who is also happy with his cardiac function.”[107]
[107]Exhibit 1, page 67
40 Both parties relied on medico-legal reports. The plaintiff tendered reports from Dr Albert Kaplan and Professor Nicholas Paoletti, psychiatrists, and also reports from Professor Paul Nestel, consultant physician. Professor Nestel’s opinion as to an aggravation of the plaintiff’s cardiac condition is not persuasive in terms of the present application, save to the extent that a consequence of any paragraph (c) injury could be said to have caused organic consequences. The opinions of Dr Kaplan and Professor Paoletti as to the relationship between the plaintiff’s employment and the development of his psychiatric injury are largely dependent on the factual basis underpinning those opinions. Precisely the same analysis can be made in relation to the opinions given by Ms Hicks and Dr Polonowita.
41 The defendant obtained opinions from three consultant psychiatrists; initially Dr Chris Grant, who provided an early opinion on 25 May 2010. The history given to Dr Grant appears to have been accurate in terms of the longstanding cardiac problems, and he also noted the plaintiff’s history that he was “stressed by the nature of the work” and that he had noticed excessive tiredness for a few years. Dr Grant diagnosed the plaintiff as having an anxiety state and mood problem, “probably best described as an adjustment disorder with anxious and depressed mood”.[108] In terms of causation Dr Grant stated:
“This condition appears to arise mainly from his reaction to his cardiac condition, and possibly from cumulative work stress as a manager, but I think any work contribution is much less than the anxiety that arises from his cardiac condition.”[109]
[108]Exhibit 1, page 71
[109]Exhibit 1, page 71
42 The defendant’s solicitors sought a further psychiatric opinion from Dr Timothy Entwisle which was provided on 9 February 2011. Once again Dr Entwisle appears to have noted a thorough history of the plaintiff’s longstanding cardiac problems. He also noted the following in his report:
“Mr Faria continues to lead a somewhat reclusive existence and described symptoms consistent with that of an Adjustment Disorder with Depressed and Anxious Mood. Mr Faria did not report any stress-related matters to his employer and whilst he was somewhat critical of their lack of enquiry as to his health, Mr Faria continued to work for the company until he was advised to cease on medical grounds in April 2010.”[110]
[110]Exhibit 1, page 90
43 Dr Entwisle again diagnosed an adjustment disorder with depressed and anxious mood, and regarded it as of mild severity. He did not see the plaintiff’s employment as being a significant contributing factor to the development of this condition, and stated:
“It is his medical condition which has contributed to his current psychiatric symptoms, being those of an Adjustment Disorder with Depressed and Anxious Mood.”[111]
[111]Exhibit 1, page 91
44 The defendant’s solicitors also sought opinions from Dr Stephen Stern, consulting psychiatrist, who examined the plaintiff on 15 March 2012 and prepared a total of three reports which were tendered in evidence. He again took a history of the longstanding coronary artery disease and a further history that:
“In 2008 his workload increased. He was not getting support from management . When other managers left they were not replaced . He then took on their duties.”[112]
[112]Exhibit 1, page 94
45 He provided a diagnosis that the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety, depressed mood and alcohol abuse, and concluded that his psychiatric state was related to two factors:
“(a) The work stress with Budget Rent a Car from 2007 to 2010,
(b) His coronary heart disease and his peripheral vascular disease.
Employment has been a materially and significant contributing factor.”[113]
[113]Exhibit 1, page 97
46 In a further opinion dated 2 July 2012, Dr Stern expressed the view that the plaintiff would be psychiatrically fit for a number of job options including sales assistant, general clerk, mail clerk and customer service clerk “as long as there was no excessive pressure or workload”.[114]
[114]Exhibit 1, page 100
47 Finally, on 5 August 2013 Dr Stern provided another opinion to the defendant’s solicitors, having on this occasion been provided with affidavits from Heidi Gromer, Sharon Walker and Phillip Brady, and a Medical Panel Certificate of Opinion and Reasons for that opinion dated 22 August 2011. Dr Stern provided a further opinion as follows:
“The information provided by Mr Faria indicated that he was under work stress with Budget Rent a Car from 2007 to 2010. If this is not correct and there was no work stress then I would change my previous opinion. Under those circumstances it would seem that his psychiatric state was due to his coronary artery disease and his peripheral vascular disease ... My opinion is largely based on the accuracy of the information with which I have been provided. There is a discrepancy between the history given by Mr Faria and some of the independent information which has been provided.”[115]
[115]Exhibit 1, page 107–108
48 The final piece of medical material received was the Medical Panel Certificate of Opinion and Reasons dated 22 August 2011. In answer to a question concerning a work relationship between the cardiac injury and the psychological and psychiatric injury, the Panel provided the following opinion:
“The Panel is of the opinion that the plaintiff’s employment with the defendant could possibly have been, and was in fact, a significant contributing factor to the plaintiff’s temporary exacerbations of coronary artery disease manifest as angina (now resolved) on a background of severe constitutional coronary atherosclerosis and an adjustment disorder with anxious and depressed mood.”[116]
[116]Exhibit 1, page 123–124
49 In relation to the reasons given for the opinion, I am of the view that it was appropriate that they be tendered in evidence before me, as the history given to the Medical Panel was canvassed extensively with the plaintiff during cross-examination. Notwithstanding what was said by the Court of Appeal in Lianos v Inner & Eastern Health Care Network[117] as to the admissibility of reasons for the purposes of s68(4) of the Act,[118] in the present case the opinion of the Medical Panel is not binding upon me, but forms part of the medical evidence.[119]
[117][2001] VSCA 53
[118]Ibid at paragraphs [27]–[29] per Chernov JA
[119]Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Analysis
50 I was assisted by counsel in this case who provided detailed written outlines of their respective submissions. Mr Thomson on behalf of the plaintiff concentrated on aspects of the evidence, whilst Mr Hayes, who appeared for the defendant, provided a most thorough and detailed outline of the law generally as relating to this type of application. Having considered the written outlines and indeed the oral submissions of counsel, I am satisfied that the plaintiff does suffer an injury within the meaning of s5 of the Act which is properly described as a mental or behavioural disturbance or disorder. I am further satisfied that it is of little consequence as to whether the particular injury suffered by the plaintiff is described as “major depression, alcohol abuse and dependence”,[120] adjustment disorder with mixed anxiety and depressed mood,[121] or by a number of other descriptors as used by the various psychiatrists who have given opinions. It is the consequences of the particular injury, rather than its descriptive name, which are relevant for my assessment.
[120]Dr Polonowita, Exhibit A, page 49.2
[121]Dr Kaplan, Exhibit A, page 70
51 The remaining questions to be answered are as follows:
(1)Is the plaintiff’s injury relevantly connected with his employment?
(2)Are the consequences of the injury properly described as permanent and severe?
(3)Insofar as this specific application relates to pain and suffering and loss of earning capacity, have the statutory requirements of s134AB(38) of the Act been satisfied insofar as to warrant a finding that the consequences affecting the plaintiff can properly be described as severe?
52 The causation issue turns upon competing factual scenarios. The plaintiff’s version, corroborated to some extent by Mr Corrigan, is that the work environment was far from ideal with continual problems surrounding the competing interests of the Avis and Budget brands, inadequate staffing and excessive working hours. In addition to this, the plaintiff’s case focuses upon his apparent problems in receiving adequate management support, particularly from Sharon Walker, up until the time of her departure in early 2010.
53 The defendant’s position contends that the plaintiff was well supported and that his role as a manager, whilst requiring some additional working hours, did not represent a credible cause of any psychiatric or psychological disorder and the most probable cause is the deterioration in the plaintiff’s cardiac condition. The specific allegations directed towards Sharon Walker are forcefully disputed and I had an opportunity to assess Ms Walker being cross-examined on the material deposed to in her affidavit.
54 In resolving this issue, I have taken into account the absence of complaint made by the plaintiff either to Ms Walker or any other person in authority with the defendant. Additionally, the plaintiff was cross-examined at some length concerning his attendances on Dr Lajoie and the clinical notes were tendered as part of Exhibit 1. The evidence establishes that the only recording of stress related to employment prior to the plaintiff cessation of work, was made on 13 February 2008:
“Admits to high stress at home and work having atypical chest pains”[122]
[122]Exhibit 1, page 254
55 There were a further 12 attendances on Dr Lajoie until the next notation relating to stress, which was on 26 April 2010, where the notation made was:
“Considering leaving work due to stress long disc.”[123]
[123]Exhibit 1, page 257
56 An attendance four days prior to that date, recorded:
“Ischaemic heart disease. Having more angina. Is considering retiring from work.”[124]
[124]Exhibit 1, page 257
57 I am satisfied that by late April 2010, the plaintiff had determined that he would cease employment with the defendant which is consistent with evidence of Mr Brady and indeed the statement made by him which is exhibited to his first affidavit.[125] I am further satisfied that a significant, and perhaps the dominant reason for the cessation of the plaintiff’s employment from 28 April 2010 was a deterioration in his cardiac condition.
[125]Exhibit 1, page 14
58 I have also considered the medical opinions particularly from Dr Lajoie, who had treated the plaintiff for the cardiac condition, and noted at least on one occasion in 2008 a complaint of stress related in part to the plaintiff’s employment.
59 Whilst there is considerable force in the defendant’s submission that the cardiac condition was the overwhelming cause of the plaintiff’s cessation of employment, I am nevertheless persuaded largely on the opinion of Dr Lajoie that work-related stress as perceived by the plaintiff was a cause of his cessation of work. I am fortified in such a conclusion by the Medical Panel opinion provided on 22 August 2011 to the effect that the plaintiff’s employment with the defendant was in fact a significant contributing factor to a temporary exacerbation of coronary artery disease and an adjustment disorder with anxious and depressed mood.
60 I should also comment in relation to the lay evidence that it is unnecessary to make formal findings as to which version of events is ultimately correct. I do accept the plaintiff as a generally truthful witness, although the reliability of his evidence must be to some extent affected by his personal perception of the conditions of employment. The evidence of Ms Walker was also credible but she does not deny certain of the aspects of the plaintiff’s allegations which were said to produce stress. In particular, she admits he may have been required to work longer hours and accepts that there may have been some occasions when the supply of fleet or the maintenance of adequate staffing levels presented challenges. It would appear, particularly from Ms Gromer’s evidence, that these types of workplace occurrences presented no particular difficulty either to Ms Gromer or Ms Walker. The evidence of Mr Brady is limited to a relatively short time in the early part of 2010 and there is nothing in the plaintiff’s material that implicates Mr Brady as engaging in conduct which caused or aggravated the plaintiff’s psychological or psychiatric condition. Whether or not the actions or conduct of Ms Walker or any other employee of the defendant was objectively such as to be likely to cause psychiatric or psychological injury is not a matter which needs to be determined in this application.
61 I therefore find that the plaintiff has established on the balance of probabilities that the circumstances of his employment with Budget between 2007 and 2010 was a causal factor in the development of his psychiatric or psychological disorder. The reasoning in Grech v Orica Australia Pty Ltd & Anor is of assistance in cases such as this where I find the injury has more than one cause.[126]
[126](2006) 14 VR 602 at [58]
62 In terms of assessing the severity or otherwise of the plaintiff’s condition, I note that the plaintiff has not returned to employment and had previously been employed by Budget and its predecessors in increasingly responsible managerial roles since 1993. The totality of the medical evidence suggests that whilst he may have a capacity for limited non-stressful work of a clerical type nature, he has lost his capacity for managerial work which would necessitate, by its very nature, a greater resilience to the day to day stressors of that type of employment.
63 In terms of pecuniary loss, the plaintiff has not returned to any employment since ceasing with the defendant in late April 2010. This was shortly prior to his forty-fourth birthday. He resides with his wife and two school age children on a small rural property in Lancefield. Apart from providing some assistance in very small scale rural activities, he has done no other work. The 2008 and 2009 performance appraisals that were put to the plaintiff in cross-examination and tendered in evidence show that he was meeting or exceeding expectations in his role as an airport manager.[127]
[127]Exhibit 1, page 159–178
64 At present, the evidence from both Dr Polonowita, the treating psychiatrist, Professor Paoletti and Dr Stern are in agreement that the plaintiff will not return to his pre-injury employment. As early as 2012, Dr Stern expressed the following view in relation to the plaintiff’s capacity:
“He is psychiatrically incapacitated for pre-injury employment. He is psychiatrically fit for alternate duties but not with managerial responsibilities … My recommendation is that he not return to work in a managerial position or in car rentals. Other types of sales or clerical work would be suitable as long as there is no excessive stress or workload. I believe his psychiatric prognosis is of chronic anxiety, depression and partial work incapacity. He will probably never be psychiatrically fit to return to his pre-injury duties.”[128]
[128]Exhibit 1, page 101
65 Dr Polonowita felt, in September 2012:
“It is highly inadvisable for him to ever return to the environment of work for the employer. It is likely that employment elsewhere or self-employment in future could be of benefit. He is currently symptomatic and not ready for this.”
66 In his report to the plaintiff’s solicitors on 13 March 2014, Dr Polonowita modified his opinion somewhat, stating:
“It is very unlikely that he would make a full recovery. The ongoing WorkCover case, if unresolved, will contribute further to the maintenance of his symptoms. Should there be a resolution there would be a possibility of improvement sufficient to enable him to seek options of income sources. I have advised him that he should never seek to be employed as the thought of being exploited causes increased stress. However with sufficient improvement it may be appropriate for him to consider self-employment …”[129]
[129]Exhibit A, page 49.3
67 The most recent medico-legal opinion dealing with psychiatric capacity for employment from Professor Paoletti was dated 31 January 2014. In that report, he concluded by stating:
“Any future return to work, would have to occur in optimal circumstances of both cardiovascular stability and considerable improvement of his mental state. Prognostic outlook, whether clinical or occupational is guarded.”[130]
[130]Exhibit A, page 95
68 I should stress that Professor Paoletti felt at that time that the plaintiff still had no sustainable work capacity in the open job market and that this was likely to continue to apply for the foreseeable future. The longer term outlook was expressed in a very guarded manner.
69 I accept the opinion of Dr Polonowita, as the treating psychiatrist, consistent with the most recent medico-legal opinion of Professor Paoletti, that the plaintiff will probably have a limited residual capacity for suitable employment indefinitely into the future. The opinion of Dr Stern in 2012 that the plaintiff has a capacity for suitable employment is also consistent to a large extent with the opinion of the other two psychiatrists. Whilst Dr Stern states that the plaintiff would be psychiatrically fit for various jobs, that opinion is qualified by the cautionary statement “as long as there was no excessive pressure or workload”.
70 The unchallenged evidence in this case is that the plaintiff had a without injury earning capacity of $83,639.[131] In Dr Stern’s report dated 2 July 2012, he refers to a vocational assessment from Ayres Management dated 19 March 2012.[132] Given the restrictions pointed out above, the suggested job options referred to in Dr Stern’s report were that of sales assistant, general clerk, male clerk and customer service clerk. The earnings attributed to those positions ranges between weekly amounts of $733 and $946. When those figures are annualised, as required by the legislation, the maximum figure would be $49,192 for full-time work as a general clerk. I am not satisfied that, in the foreseeable future, Mr Faria will have a capacity for full-time work of any nature. Indeed, I prefer the opinion most recently expressed by Professor Paoletti which is largely in agreement with the opinion expressed by Dr Polonowita. However, if I am in error, the maximum earning capacity retained by the plaintiff, $49,192, is less than 60 per cent of his without injury capacity to earn being $50,183 (i.e. 60% of $83,639).
[131]Exhibit A, page 26.1
[132]Exhibit 1, page 109–120
71 I am satisfied that the psychiatric or psychological injury for which the plaintiff is currently being treated by Dr Polonowita is likely to be permanent in terms of its consequences affecting the plaintiff. I am also satisfied that it properly fits the descriptor of a mental or behavioural disturbance or disorder. Whether the condition is described as a major depression or an adjustment disorder has little relevance to the assessment I must make. I am satisfied that given the plaintiff’s present age of forty-eight years, his family situation with a wife and two school-age children, his inability to return to any employment and the unlikelihood of him having a capacity for full-time employment in the future is a consequence that would have a profound effect on the plaintiff. Added to this, the plaintiff was clearly distressed when cross-examined in terms of his credit on the basis that he had attended functions at his son’s cricket or football clubs or engaged in what many would regard as healthy family activity. To avoid any lack of clarity, I am satisfied that the consequences flowing to Mr Faria satisfy word “severe” in the sense that it provides a higher test to that required in the case of an organic injury.[133]
[133]Refer to Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA
72 The recent authority of Peak Engineering & Anor v McKenzie[134] re-affirmed the need for a serious injury assessment to give consideration to non-work-related injuries or conditions when making an assessment of the consequences claimed to flow from the relevant work injury. In the present case, this requires an examination of the consequences said to flow from the plaintiff’s cardiac condition. The two medico-legal opinions provided are from Dr Jeremy Hammond, on behalf of the defendant, and Professor Paul Nestel, on behalf of the plaintiff. The only material from any treaters concerned with the cardiac condition was that from Dr Warren, to which I have previously referred. Given that the plaintiff’s application for leave is based upon the psychiatric condition and not the cardiac condition or its aggravation, it is perhaps not surprising that this lengthy case was not further complicated by additional medical material.
[134][2014] VSCA 67
73 Dr Hammond expressed the following opinion about the cardiac condition and the plaintiff's work capacity in his most recent report, dated 13 January 2011:
“Mr Faria is asymptomatic whilst performing normal daily activities. He does suffer from underlying coronary atherosclerosis. ... I therefore believe that Mr Faria does have current work capacity. I would not regard Mr Faria as being unsuitable for work that involves heavy physical activity or work that involves repetitive physical activity of a moderate nature. I believe that he is suitable for work of a sedentary nature, or work that involves light physical activity.”[135]
[135]Exhibit 1, page 83
74 Professor Nestel provided reports to the plaintiff’s solicitors on two occasions in September 2010.[136] Following his examination of the plaintiff on 17 September 2010 he expressed the following opinion:
“Your client’s symptoms of angina and shortness of breath were aggravated by his employment especially during 2008–2010 when he was forced to cease working. It was one of the causes of his disability.
He could not be re‑employed in a similar capacity given the extent of disease progress and the almost certain reappearance of severe angina in an anxiety and stress-inducing environment.”
[136]Exhibit A, page 73-76
75 In his second opinion, after reviewing the report of the psychiatrist Dr Kaplan, he commented:
“Mr Faria would be unable to continue working in the position he held with Budget.”
76 I note also the comment from Dr Warren in his letter to Dr Lajoie dated 6 May 2010:
“He is stable and I have made no change to current medication and planned a review in twelve months. I have asked to be notified if there is any recurrence of anginal chest pain. The severity and progression of his disease means he is one person who would be entitled to stop work for medical reasons.”[137]
[137]Exhibit 1, page 66
77 On the basis of the above, the most up-to-date cardiological opinion is provided by Dr Hammond in January 2011. It would seem from the passage to which I have referred that he regarded the plaintiff as having a capacity, from a cardiac point of view, of returning to work of a sedentary or light physical nature at that time. Importantly, the Medical Panel opinion provided on 28 August 2011 found that the aggravation of the plaintiff’s coronary artery disease had been of a temporary nature and had resolved at the time of the Panel’s opinion.
78 I am satisfied that the plaintiff, by reason of an underlying progressive atherosclerosis, has probably a greater vulnerability to episodes of anxiety and stress producing psychiatric injury than do otherwise unaffected persons. Rather than the cardiac condition represent some impediment to him, it in fact assists him in proving the severity of consequences for him in this case. I take into account the fact that the plaintiff has suffered from a diagnosed and regularly treated cardiac condition since 2001. He has undergone numerous surgical procedures and generally received support from both the present defendant and its predecessor who was then his employer at Melbourne Airport. Equally he managed to return successfully to employment and progress to a senior level by 2007. Absent the supervening psychiatric injury, I do not find that the cardiac condition would have independently precluded him from continuing with his employment.
Conclusion
79 I am therefore satisfied that the plaintiff has an entitlement to leave to commence proceedings for pecuniary loss damages. It is unnecessary on the basis of that finding to further consider matters which may independently entitle him to sue for pain and suffering damages.[138]
[138]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
80 I propose to grant leave to the plaintiff in respect of a claim for damages for both pecuniary loss and pain and suffering for the psychological or psychiatric injuries however described arising during the course of his employment with the defendant between 2007 and 2010.
81 I will hear the parties in relation to the form of orders and any further matters.
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