Fatouros, Harry v State of Victoria (Department of
[2009] VCC 1761
•4 December 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03759
| HARRY FATOUROS | Plaintiff |
| v | |
| STATE OF VICTORIA (Department of Education) | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 and 12 November 2009 |
| DATE OF JUDGMENT: | 4 December 2009 |
| CASE MAY BE CITED AS: | Fatouros, Harry v State of Victoria (Department of Education) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1761 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Holding Redlich |
| Mr G Coldwell | ||
| For the Defendant | Mr R M Meldrum QC with | Minter Ellison |
| Ms A C Ryan | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant between 20 October 1999 and December 2001 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (c), claiming he has suffered a permanent severe mental or permanent severe behavioural disorder.
4 The body function relied upon in the case is psychiatric impairment.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and more than “significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Pty Ltd (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied on three affidavits and was cross examined. The plaintiff’s partner, Marie O’Brien, swore an affidavit on 4 March 2009. The plaintiff’s general practitioner, Dr Dimitroff, attended for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is aged sixty, having been born on 3 April 1949. Until recently he lived with his long term partner, Marie, when she moved to the Wangaratta area for work early in 2008.
7 Having obtained university and teaching qualifications, the plaintiff taught at various locations before commencing teaching at Doveton Secondary College (“Doveton’) in January 1993.
8 In the early years working at Doveton, the plaintiff taught Year 9 to 12 students in various subjects and, in addition to his teaching load, he updated the school’s TV studio, initiated and ran school assemblies and participated in other school activities.
9 The plaintiff undertook further study in 1994 and 1995, after which he was put in charge of the library where he planned and introduced a computer system and coordinated planning of extensions to the library. He was appointed AST3 grade teacher in charge of school wide resources and also continued to teach.
10 Prior to the period of employment, the plaintiff had been generally fit and well but he had had two previous stress related episodes.
11 The first occurred in 1988 when there was a fire at Preston Secondary College that burnt down the computer network the plaintiff had installed. The plaintiff was upset following the fire and he was prescribed anti-depressants, which he took for a couple of months.
12 The second episode occurred in 1995 during a staff meeting at Doveton when the plaintiff had chest pain. The plaintiff attended hospital and was told he had had a panic attack.
13 The plaintiff believed he recovered from both episodes.
14 The plaintiff had difficulty with his work at Doveton after Nigel Hutchinson (“Hutchinson”) was appointed principal in the late 1990s. The plaintiff made numerous formal complaints to him about disciplinary problems. He felt he had an ongoing lack of support from Hutchinson, who would either do nothing in relation to his complaints or he would undermine the plaintiff by taking the students’ side.
15 On 27 February 2001 (“the said date”), the plaintiff was involved in an incident with a student, David Morrison (“Morrison”), one of the worst behaved students at the school. On that date, Morrison demanded to be let into the library. Having been told by the plaintiff that the library was shut, Morrison threw his books and yelled, “I’m just trying to return the fucking book, you cunt” (”the incident”).
16 The plaintiff left the library following Morrison and told the vice principal, Noel Chapple (“Chapple”), what had happened. Morrison then approached the plaintiff and Chapple, swearing loudly, and he threatened to fight with the plaintiff. In frustration, the plaintiff said to Chapple, “Get this fucking idiot away from me”, and then walked off.
17 The next day the plaintiff was advised that Chapple had made a complaint against him and requested he attend a disciplinary meeting, which took place on 5 March 2001. Following this meeting, the plaintiff was referred to a psychologist for counselling.
18 The plaintiff attended his general practitioner Dr Dimitroff on 7 March 2001 feeling terrible and he was having problems sleeping. However, he continued to work with difficulty, feeling stressed and anxious.
19 On occasions when driving to work, the plaintiff would pull over the side of the road and dry retch. He continued to attend Dr Dimitroff with chest pains, nausea and anxiety and he developed problems with sexual functioning. He no longer enjoyed his work and “began to shut down”.
20 The plaintiff continued working for the rest of 2001 because he did not want to let his VCE students down, but by December, he could not cope any longer and he applied for long service leave.
21 Whilst on long service leave the plaintiff had very little motivation and he was preoccupied with the incident.
22 In June 2002, when his long service leave was to finish, the plaintiff could not face going back to work and he re-attended Dr Dimitroff for treatment for anxiety and panic attacks. Dr Dimitroff prescribed Luvox, an anti-depressant, and Cipramil.
23 In 2003, the plaintiff’s condition deteriorated further, and in February he was referred to Dr Adey, a psychiatrist, who changed his medication to Efexor. He continued to see Dr Adey for the next year until Dr Adey retired.
24 When cross examined about the lack of psychiatric after he ceased seeing Dr Adey in late 2003 until he saw Dr Cole in September 2007, the plaintiff said he thought because Dr Adey was retiring, he would “take care of it himself and hopefully come good”. He agreed he probably did not have treatment as he felt he did not need to but he then disagreed that he was “going ok” because friends pointed out to him some of the things he was doing and he was losing friends.
25 During this gap in treatment, Dr Dimitroff prescribed Cialis and the plaintiff stopped taking other drugs and did not ask Dr Dimitroff for any antidepressants. The plaintiff agreed during this time he saw Dr Dimitroff for nasal problems, left arm weakness, a neck problem, a left thumb condition and upper respiratory tract infection.
26 If there was no mention in Dr Dimitroff’s notes of depression during this time, the plaintiff probably did not complain to him about it. The plaintiff would not generally bother the doctor. It was hard to get an appointment with Dr Dimitroff and he was not the kind of person who would sit down and ask how everything was going.
27 In earlier years when things went bad at Doveton the plaintiff went to Dr Dimitroff because he was upset – “then when things were relatively … – he did not want to take up his time”. Also Dr Dimitroff was a “very local doctor” and the plaintiff was wary about what he or his receptionist might say about him to others.
28 After the incident and in August 2001 when he was more open and discussed matters in detail with Dr Dimitroff, the plaintiff had “been ready to explode.” After he stopped seeing Dr Adey he “tried to shut the whole thing out.” However, he was still having problems, as shown by his trip to Paris 2007 when his companion at one stage threatened to call security to have the plaintiff removed. The plaintiff explained he had not obtained evidence from this companion because he did not want to involve her.
29 The plaintiff’s continuing problems were also brought home by his inability to follow through with an interview for a job at Kingswood College job involving one day a week library work and at that time he thought because of his difficulties he should see a professional. At that stage the plaintiff had tried to take care of himself and he was still hoping that he would get a job.
30 The plaintiff agreed that when he attended Dr Dimitroff in September 2007, he sought a referral to Dr Cole for psychiatric treatment on the advice of his Union.
31 When he attended on this occasion the plaintiff did not think he could get revenge against the government but he might have told Dr Dimitroff that he wanted to get revenge. When asked if he was very angry, the plaintiff explained: “When you see senior people undermining teachers who are trying to teach children it makes you angry for a number of reasons.”
32 The plaintiff has been unable to return to any sustained employment since the end of 2001.
33 In the financial year 1999-2000 the plaintiff earned $52,238 gross. The following year he earned $52,326 and in 2001-2002 he earned $42,692 inclusive of leave and weekly payments of compensation.
34 After leaving work in December 2001, the plaintiff initially took long service leave and then sick leave. In September 2002 he submitted a claim for compensation and received weekly payments until 25 August 2003 when his payments were about to be reduced. He then simply stopped submitting certificates having been advised he would be better off using his accumulated sick leave He officially resigned from the Department in December 2004.
35 The plaintiff was cross examined about an email he had sent to Moira McMaster on 7 October 2003. The plaintiff advised her that he thought his WorkCover claim ceased when he resigned from the Department. At the time the email was written, he was still employed by the Department. He was not told expressly by anyone that if he resigned his entitlements to medical and like expenses would cease.
36 In cross examination, the plaintiff agreed that there was a benefit available to him if he retired before the age of fifty five as he would then be entitled to a refund of all contributions made to the fund. This benefit was known as “54- 11”. Accordingly, the plaintiff would receive $186,000 together with a pension. If he retired later he would receive a higher pension but not his contributions.
37 The plaintiff explained that the majority of teachers having received such a package return to the job they were doing before they resigned.
38 In June 2002, the plaintiff did a day’s work supervising exams at Eltham College. He returned to that school in June 2004 when he worked for approximately fifteen days. He deposed he could not cope due to his condition.
39 In cross examination however, the plaintiff agreed that he was asked to fill in for another teacher for fifteen days. This relief work involved reading classes for Grades 5 and 6 students. Whilst doing this work the plaintiff was upset by a student who threatened to sue him after he tried to discipline her.
40 The plaintiff was offered a job at Monash for maybe six hours a week. He assumed he could not do this job because of the type of problems he had when he was at Doveton, having to pull over to the side of the road driving to school. His anger, frustration and panic attacks relating to all this responsibility had caused that and he did not think it would be different at Monash. He would have to do the preparation for lectures which would almost be impossible as it was not the same as doing his bills on his personal account.
41 The plaintiff has done a couple of days’ work helping a friend delivering paintings to a gallery. The plaintiff was not paid for delivering paintings.
42 Over the past years the plaintiff has done some occasional work for a friend on a self employed basis designing web pages. He had not earned in excess of $1,000 in a financial year doing this work.
43 The plaintiff was cross examined at length about his website activities.
44 The plaintiff registered the business name ‘UHF Communications’ in the 1970s when he and a friend considered starting a business selling two way radios. The name is still registered but the business is not active.
45 The plaintiff also obtained an ABN when they were introduced, to enable him to do some website work. He was advised by his tax agent that if he made any money from that work he could deduct various home office expenses.
46 The plaintiff maintains a domain site in the name of UHF. He set it up because he wanted his own email address, not one from hotmail.
47 The last website job done by the plaintiff was fixing up the Blackburn High School library webpage for which he thought he was paid $250. He thought that this was the only income he earned in the last year or two.
48 The plaintiff was cross examined about an account held at MECU in the name of Harry Fatouros, trading as UHF Communications.
49 As at 30 June 2008 there was a balance of $414. The plaintiff explained he used this account for personal expenses particularly the Bpay facility.
50 There was a direct credit of $250 from Blackburn High School in January 2009. The friend from Blackburn High School who gave him this job has left the school so there will not be any further work from that source.
51 In the 2007-08 financial year the plaintiff’s taxable income was $46,636, of which $24,000 was interest. The plaintiff has not lodged his 2008-09 taxation return.
52 The plaintiff lives off a superannuation pension of about $20,000 a year plus interest. If not for his injury, he would be now earning over $60,000 as a teacher.
53 The plaintiff finds it very difficult to handle responsibility. He is lethargic and he has problems sleeping. He worries and feels hopeless. He has difficulty completing tasks and his ability to read for longer periods is now diminished.
54 The plaintiff believes he can no longer work as a teacher or librarian due to his injury. He would find a classroom situation far too stressful. He has lost his confidence and continues to suffer anxiety, poor concentration and lack of motivation. Some days he has difficulty getting out of the house due to anxiety. He continues to have anxiety attacks. He is tense, worried and panics about anything that requires organisation.
55 Because of poor memory the plaintiff often forgets appointments and he no longer reads textbooks and journals because of problems concentrating. The Zoloft prescribed by Dr Cole calms him down a bit however he still gets depressed.
56 In cross examination the plaintiff explained that his problem teaching was not with difficulty handling unruly children. He had problems with the administration, although not all of them, in certain circumstances. He did not know whether he had the qualifications to work in adult education. He agreed that he had educated people in matters of accounting and bookkeeping. He is not qualified to work as a bookkeeper because he is not an accountant but he agreed he was well aware of book keeping principles. He explained that to work as a book keeper you had to know a lot more than he does and he is out of touch with accounting principles.
57 If someone asks the plaintiff to do a job which involves responsibility the plaintiff basically falls apart. He did not have this type of reaction when asked to put some things into a trailer or do work at home. The problem would be actually sitting down and doing work tasks.
58 The plaintiff disagreed it was easier to teach adults who were motivated, rather than children who had to be at school. He described different misbehaviour by adults than by children.
59 The plaintiff taught TAFE in Preston in the 1970s and there were problems in that some of those students were there for socialising and they did not do their homework and “you cannot yell at adults.”
60 The plaintiff explained that when he got into teaching situations he had panic attacks, stopping him from functioning. He does not have anything against children in situations where he is responsible. The plaintiff agreed he had not thought about any Council of Adult Education work and he disagreed that he was perfectly happy being retired and a superannuate.
61 The plaintiff explained that in Adult Education the work was infrequent and depended upon the number of students actually turning up.
62 The plaintiff said for a fact he could not teach in TAFE because he had to have a Certificate IV and he cannot do it with a DipEd. He did not think he had the capacity to work twenty hours a week in Adult Education nor did he have the capacity to be a bookkeeper. He would have difficulty working in a business environment and he would not have a capacity to be an accounts clerk.
63 The plaintiff was cross examined at length about the level of disability and restriction he deposed to in his three affidavits.
64 The plaintiff initially deposed that prior to the incident he and his partner had a wide circle of friends. They regularly went out together and with friends to dinner at restaurants, movies, sporting matches and other outings. Since the incident the plaintiff no longer enjoys sporting matches and movies
65 In cross examination the plaintiff said that he never actually attended sporting matches before the incident and only attended Telstra Dome to see his son play the guitar.
66 Prior to the incident the plaintiff used to go to the movies three to four times a year but then said he became less interested in going to the movies and tended to stay home and watch DVDs.
67 The plaintiff deposed that since the incident he has lost a lot of friends and tends to socialise with people he has known for a long time. His social life has deteriorated and is nothing like it used to be. He goes out far less with his partner than he used to. Further he deposed that he spends much of his time at home and he has to push himself to get out of the house at least once a day. The bulk of his activity is to go to shops to get a couple of things. Friends who live nearby demand he go out for coffee and he does not generally go out of the local area except to see his parents.
68 In cross examination, the plaintiff agreed he was able to drive to various locations in Melbourne when his friends required help. He drove a female friend’s car when they went out together because she does not like driving. His car can tow a trailer and he has used it to help with his friend’s art exhibition and other activities.
69 The plaintiff confirmed that when his two close friends insist or urge him to do so he will go out for coffee with them three to four times a week to local coffee shops and he may do some shopping on the way home.
70 The plaintiff deposed that his partner now lives in Wangaratta because of work. She comes down to the city to visit him because he finds driving to Wangaratta a big chore and their relationship is strained due to his injury.
71 In cross examination, the plaintiff said that about once a month he drives to Wangaratta to see his partner and in more recent times he has driven to this area more frequently to visit a dying friend. Most of the time he drives there but he sometimes taken the train. He has no difficulty undertaking a drive of this nature. He does not experience emotional or physical pressure in driving when there is something to motivate him to drive.
72 The plaintiff deposed that prior to the incident he supported his son’s musical career and regularly attended gigs at various venues around Melbourne. The plaintiff now rarely goes to performances and when he does so it is usually during the day whereas before the incident he attended almost all his son’s gigs both at night and during day, often with friends.
73 In cross examination, the plaintiff explained that his son is a single guitarist who plays every Sunday night at a restaurant in Camberwell and he also plays on weekends at markets and wineries. The plaintiff’s evidence as to his present level of attendance at these gigs was somewhat unclear. He has been to Camberwell twice this year and had also driven his son to a day job when his car broke down. The plaintiff has also been to the Mornington market this year on one occasion with his son. The plaintiff does not attend more frequently because he now finds the performances boring and he gets restless.
74 The plaintiff deposed that he was often busy around the house renovating and landscaping before the incident. Since then he spends most of the time sitting around the house and spends a lot of time reading and working on the computer.
75 In cross examination, the plaintiff disagreed that he spent a lot of time reading but he still reads the newspaper. He opens the computer most days but he would not say he works on it. He has a face book and is interested in computers generally.
76 The plaintiff did not participate in the landscaping of his garden at home. This task was done by his partner. He would help if she asked him to dig a hole or carry a pot. The plaintiff agreed that his affidavit in this regard was possibly an exaggeration. Further he agreed he did not actually do any renovating in the past but did tasks that needed to be done like drilling a hole.
77 The plaintiff agreed that prior to the incident, teaching took up a lot of time and did not allow a lot of time for social life. He used to have a lot of barbecues at home and invite people over and he also went to restaurants perhaps half a dozen times a year.
78 In cross examination, the plaintiff agreed that he did his own shopping and cooking but said that he had lost interest in cooking more interesting meals although sometimes he has a local couple over for dinner. He is responsible for the maintenance of his household.
Lay Evidence
79 The plaintiff’s partner, Marie O’Brien, swore an affidavit on 4 March 2009. She has known the plaintiff for thirty three years through teaching and they have been together for about twenty years.
80 Prior to the incident the plaintiff was very sociable and interested in a lot of things. She enjoyed being around him. She was aware of pre incident stresses and also the problems the plaintiff had working at Doveton.
81 She does not think the plaintiff could return to teaching. In her view he is an intelligent man and that he now has real trouble dealing with people, he gets angry easily and has unpredictable outbursts. He also has problems with concentration.
82 Their social life has diminished. She still sees the plaintiff regularly, although she has moved to the country. His stress levels are high in a social context. Before he used to go to everything. He now tries to go to some things but his involvement socially is much less than it used to be.
83 She noted the plaintiff did not get help for a long time and more recently he has been taking anti-depressants which have helped.
84 In her view, the plaintiff’s treatment at Doveton and his subsequent depression have changed the way he lives his life. He is no longer a capable and passionate person involved in things.
The Plaintiff’s Medical Evidence
85 Dr Dimitroff, the plaintiff’s general practitioner, provided a number of reports and attended for cross examination.
86 Dr Dimitroff has treated the plaintiff since November 1997. Prior to the incident, he considered the plaintiff appeared very precise and a very driven person with a lot of interests. He thought there were no problems with his motivation.
87 There were a couple of instances of anxiety or depression before 2001. In 1997 the plaintiff had complained of chest and arm pain in 1997 and he also attended Dandenong Valley Hospital for stress tests.
88 The plaintiff had not complained of sexual problems before the incident, first discussing this issue with Dr Dimitroff on 23 August 2002 when the plaintiff enquired as to the use of Viagra. Dr Dimitroff thought it was quite reasonable that the plaintiff’s psychiatric condition was the cause of plaintiff’s sexual difficulties.
89 The plaintiff presented to Dr Dimitroff on 7 March 2001 complaining of the abuse and defiant actions by a student. He suggested by Dr Dimitroff that the plaintiff have a few days off to collect his thoughts.
90 The plaintiff re-attended on 24 May 2001, still at work but dissatisfied with matters there. On 6 August 2001 the plaintiff attended following an anxiety attack the previous week and he reported continuing problems at school.
91 The plaintiff next attended on 5 April 2002. He mentioned that he was on long service leave and was feeling well with no nausea, chest pain or headaches. At that time he was not happy at the thought of returning to work.
92 On 14 June 2002 the plaintiff specifically presented about his anxiety about going to work and frustration. He could not get anywhere near work without feelings of panic. On 17 June 2002 the plaintiff was started on Luvox, an anti- depressant.
93 As of July 2002 the plaintiff still wanted to go back to work and a psychiatric appointment was put off.
94 On 15 July 2002 the plaintiff could not go to work and he could not sleep. He was again offered psychiatric referral. On subsequent visits the plaintiff restated his anger at how he was treated and that he felt harassed by the school.
95 Dr Dimitroff noted that in September 2002 the plaintiff formally put in a WorkCover claim and agreed to attempt to try medication. There were further reviews in October 2002 and in mid January 2003 Cipramil was ceased and Efexor was commenced.
96 When the plaintiff attended on 25 January 2003, he advised Dr Dimitroff that he could not work and was fearful of “what would be there” and that he was still angry.
97 Dr Dimitroff noted through the advice of his Union the plaintiff made an appointment to see Dr Adey who took over his treatment.
98 Dr Dimitroff saw the plaintiff intermittently through the rest of 2003 and 2004 with other medical problems. He thought during that time the plaintiff was still deeply distrustful and limited in activity. The plaintiff told him in July 2004 that he was going to resign.
99 When seen in December 2004, the plaintiff had resigned wanting nothing more to do with the school system. At that time the plaintiff had stopped seeing the psychiatrist and stopped taking medication but he was still taking Cialis for sexual difficulties.
100 There were presentations in 2005 and 2006 with medical problems of a painful thumb and polyps.
101 The plaintiff attended Dr Dimitroff again on 7 September 2007 still angry at how he had been treated. He had been to lawyers and “wanted revenge” about his treatment. He told Dr Dimitroff that he still could not face work.
102 Dr Dimitroff noted on presentation the plaintiff was calm, talkative and logical with normal physical examination.
103 A referral was made to see Dr Cole on the recommendation of the Union.
104 In his report of November 2007 Dr Dimitroff set out that unfortunately the legal focus was the overwhelming factor with the wrongs and rights of the situation as the plaintiff saw it with strong features of personality clash at the workplace.
105 In Dr Dimitroff’s view, features of a major depression with anxiety were certainly present. He noted at that stage, in view of the legal dispute and confrontational nature of events behind it, he would happily abrogate the responsibility of treatment to the specialist.
106 Dr Dimitroff subsequently reported on 6 February 2009, referring to the two attendances in 2008 in July and in December.
107 Dr Dimitroff does not believe the plaintiff has fully recovered from his problems. When asked about the plaintiff’s condition between late 2003 and when he commenced seeing Dr Cole in 2007, Dr Dimitroff explained that the plaintiff himself felt that he had stopped work and resigned and had decided he could recover on his own after Dr Adey retired.
108 The plaintiff’s psychiatric treatment is basically under Dr Cole’s care and sometimes Dr Dimitroff gives him a prescription. Dr Dimitroff last saw the plaintiff on 5 October 2009 for a carpal tunnel syndrome condition.
109 In cross examination, Dr Dimitroff agreed that the plaintiff was quite open about telling him about an anxiety attack in November 1997, and in May 2000, when he complained about work. Dr Dimitroff thought the plaintiff would have talked about things if they were causing him issues; he was not “one of the sort of patients that you would have to tease problems out from.”
110 Dr Dimitroff agreed there were some years where the plaintiff did not talk about depression at all and the plaintiff then attended in September 2007 and told him he had been to the Union and they suggested he see a psychiatrist. Dr Dimitroff agreed that he had recorded on that attendance –
“Back to lawyers. Angry. Want revenge about how treated. Advised that still able to get WorkCover; not been on since late 2004? Motivation for work?
When saw psychiatrist last stopped treatment when quit work. Not able to face work. Unable to get work.”
111 On this examination the plaintiff was quite calm and logical, which Dr Dimitroff described as just almost like a mask, a resignation. The plaintiff was quite logical about what he wanted and what he expected. He was quite calm because he was looking for resolution.
112 Dr Dimitroff was taken through the notes of attendances in 2004 to August 2007 and agreed there was no mention of anxiety, depression or agitation or signs thereof during that time and that the plaintiff did not have the anxiety or the agitation he had initially, he noted however the disease can change and how it is affecting him can change.
113 In his note of December 2004,Dr Dimitroff recorded:
“Overall better. Resigned work. Not wanting anything more to do with them and felt a sense of relief that it was over as far as being at that workplace.”
114 Dr Dimitroff guessed at that stage the plaintiff was optimistic about the future, having left work, and that he felt relieved he was no longer associated with Doveton
115 The plaintiff was referred to psychologist, Sue Hosking, in early 2001 at the suggestion of the Australian Education Union. She saw him on three occasions after the incident. He reported symptoms of anxiety, including sleep problems, worrying and anger, as well as loss of energy and motivation.
116 Ms Hosking last saw the plaintiff for treatment in early May 2001 when he was still at work and continued to be disappointed by lack of appropriate action by the school administration.
117 Ms Hosking saw the plaintiff again on 13 November 2008 at the request of his solicitors.
118 She noted in a detailed history that in early 2004 the plaintiff sought financial advice and as a consequence resigned from the Education Department. He told her he ceased seeing his psychiatrist because he believed his treatment expenses would no longer be covered.
119 The plaintiff told Ms Hosking he tried to work at Eltham College but he could not handle it after fifteen days.
120 The plaintiff told Ms Hosking in 2007 that he realised he had been much more damaged by the events at Doveton than he had realised and he decided he needed to get further help to get better and enable him to apply for work.
121 Ms Hosking concluded the plaintiff suffered from an Adjustment Disorder with anxiety and depression – a condition if not caused, then at least significantly aggravated, by the events at Doveton.
122 Ms Hosking did not believe the plaintiff was fit for work. He told her that he had helped a friend who was a sculptor and he had also given minor help to friends with web pages. In her view, because of the plaintiff’s vulnerability to pressure, she did not believe he could do those activities on a paid basis because of the expectations and demands that came with being paid as opposed to helping a friend. She thought it highly unlikely the plaintiff would ever be able to return to paid employment.
123 The plaintiff was examined by Dr Wahr, psychiatrist, on 10 October 2002 at the request of NRMA Workers Compensation.
124 The plaintiff complained to Dr Wahr of tightness across the chest, shortness of breath, problems with sleeping, loss of motivation and irritability.
125 On mental status examination, the plaintiff’s affect was anxious and depressed. His intellectual functioning was normal, his concentration was reasonably good and his memory very good. There was no evidence of delusion, hallucinations or thought disorder.
126 At that time the plaintiff was taking one Cipramil a day and seeing his general practitioner but not seeing a psychiatrist. Dr Wahr thought it would be in the plaintiff’s interest to do so.
127 Dr Wahr considered the plaintiff was suffering from a significant, agitated, depressive reaction which was work related. Dr Wahr did not consider the plaintiff had a capacity to undertake his pre injury employment or to return to suitable employment.
128 He considered the plaintiff required treatment from a psychiatrist, consisting of supportive psychiatric psychotherapy and appropriate psychotropic medication.
129 The plaintiff was examined by psychiatrist, Dr Jager, at the request of NRMA Workers Compensation on 27 February 2003.
130 Dr Jager noted on mental state examination that the plaintiff’s emotional tone was initially prickly and was intense throughout the interview. The plaintiff was verbose and had a rapid stream of thought. He described no bizarre beliefs or abnormal sensory perception.
131 In Dr Jager’s view, the plaintiff had a mixed anxiety depressive disorder characterised by emotional and physical markers of anxiety, including fear, insomnia and in the past chest pains and shortness of breath, as well as feelings of worthlessness, lethargy and loss of interest.
132 Dr Jager considered employment was a significant contributing factor to the development of this condition. Dr Jager did not believe the plaintiff had capacity to undertake either his pre injury work or return to suitable employment due to his continuing irritability and agitation.
133 Dr Edward Cole first examined the plaintiff on 11 October 2007. He saw the plaintiff in October, twice in November, twice in December 2007 and twice in January 2008.
134 Dr Cole noted in the past the plaintiff had taken Cipramil and Efexor and he prescribed Zoloft, 100 milligrams a day.
135 Dr Cole noted the plaintiff presented on those visits in much the same way on each occasion. The plaintiff was anxious, voluble and showed considerable pressure of ideas accompanied by gesticulation. He noted at no stage the plaintiff had shown any obvious impairment of concentration or memory and appeared to have excellent recall for his experiences. There had been no evidence of thought disorder, delusional thinking or other evidence of psychosis.
136 As of February 2008 Dr Cole thought the plaintiff was suffering from Chronic Adjustment Disorder with mixed anxiety and depression and that that condition was still attributable to problems at school.
137 Dr Cole then saw the plaintiff in March, April, May, June and September 2008. Following these examinations Dr Cole thought there had been no significant change and medication continued at that level.
138 Dr Cole then saw the plaintiff in October, November and December 2008 and did not think there had been any significant change, although in his view there could be a modest improvement when all forms of litigation were concluded and the plaintiff’s attention was less directed towards his problems.
139 The plaintiff was referred by CGU Workers’ Compensation Insurance to Dr Adlard, psychiatrist, on 6 February 2008.
140 The plaintiff told Dr Adlard that he had seen a psychiatrist in 2003 and had by that time tried anti-depressants and was taking Efexor. Around the end of 2003 Dr Adey retired and the plaintiff took his superannuation. He ceased psychiatric treatment at that point because he did not think he could get WorkCover funding for it any longer.
141 Dr Adlard noted on interview the plaintiff presented as a somewhat obsessive, tense, middle aged man who appeared depressed but not to a major degree.
142 On examination, the plaintiff described depressed mood and inattention, sleeping difficulty, some interest in, but difficulty completing tasks, some interest in sex but difficulty getting an erection since 2001, reduced subjective concentration and memory and uncertainty about his future.
143 On mental state examination, the plaintiff’s mood appeared depressed but not to a more than moderate degree. He was not agitated. His thoughts focused on his treatment at school. There were no psychotic symptoms and his cognition was grossly normal.
144 The plaintiff told Dr Adlard that he did a large part of the housework and some cooking. Two to three days a month, he helped a friend who was a sculptor by cutting timber or giving her assistance. The plaintiff told Dr Adlard he watched television for two to three hours a day and was able to read novels which he enjoyed. He had completed five to six chapters of his own novel. He saw a couple who lived nearby but he had reduced contact with those friends who lived further away.
145 In Dr Adlard’s view, the most appropriate diagnosis was an Adjustment Disorder with depressed and anxious mood of moderate to severe severity. He thought the plaintiff also bordered on having an alcohol related diagnosis.
146 Dr Adlard considered the Adjustment Disorder with depressed mood had resulted in some impairment in the plaintiff’s day to day life, social functioning and occupational functioning. He did not believe the plaintiff had any current work capacity and it was certainly unlikely he would ever go back to teaching. He thought there was a possibility that in the future if his condition improved the plaintiff could return to some other type of work as it appeared he had transferrable skills in a number of areas.
147 Dr Adlard suspected when the WorkCover matters were settled somewhat then treatment would be able to focus more on symptoms rather than the WorkCover process. He recommended a reassessment of Zoloft and that there be consideration of the plaintiff taking a more sedating anti-depressant such as Avanza.
148 The plaintiff was examined by psychiatrist, Dr Weissman, on 17 April 2009.
149 The plaintiff told him that towards the end of 2003 he spoke to the Union and then resigned. He told Dr Weissman that it would be better for him to resign because of “54 -11.”
150 The plaintiff told Dr Weissman he had been helping his friend who is a sculptor doing some carpentry work on a voluntary basis. He told Dr Weissman he did not socialise much at present.
151 On mental status examination, the plaintiff came across as very distressed, tense, anxious and depressed. He spoke with some pressure of speech. The quality of his affect was very distressed, tense, anxious, depressed and irritable. His thought stream was increased but there was no formal thought disorder. The plaintiff was pre-occupied with thoughts and reminders of work related stress. In Dr Weissman’s view there were no psychotic features. There were no formal abnormalities of perception such as illusions or hallucinations. He noted the plaintiff’s insight and judgment were characterised by a lowering of self esteem and confidence.
152 Dr Weissman concluded the plaintiff was suffering from a moderately severe Chronic Adjustment Disorder with depressed and anxious mood and features of traumatisation relevant to work.
153 Due to the nature, severity and extent of his problems, as well as his inability to take on responsibility or pressure, Dr Weissman thought the plaintiff was totally and permanently incapacitated to perform his pre injury work indefinitely and that he was also totally incapacitated for even so called suitable or alternate duties on a part time basis.
154 On 10 March 2008, the Medical Panel comprising psychiatrists Dr Diane Neill and Dr Kirszenblat, concluded that the plaintiff was suffering from an Adjustment Disorder with anxious and depressed mood and alcohol abuse relevant to the accepted psychiatric condition injury with a designated date of injury of 27 February 2001.
Vocational Evidence
155 Ms Henderson of Evidex provided a vocational assessment of the plaintiff on 6 February 2009.
156 Ms Henderson concluded there was no occupation for which the plaintiff was likely to qualify that met the definition of suitable employment and that this situation would continue indefinitely.
Other evidence
157 By letter dated 22 October 2002, NRMA accepted the plaintiff’s claim for weekly payments of compensation in relation to an injury on 27 February 2001.
158 By letter dated 19 March 2008, CGU advised that the plaintiff had been determined as suffering a whole person psychiatric impairment of fifteen per cent.
159 The letter of advice and request for examination sent to Dr Grant was tendered.
160 From the defendant’s Court Book the plaintiff tendered:
ƒ the Worker’s Claim Form dated 11 September 2002 ƒ the statement given by the plaintiff on 17 December 2007 ƒ the letter from the plaintiff to J Harry dated 11 June 1992 ƒ the three documents the defendant tendered relating to the incident ƒ
the Doveton Secondary College ‘Notice of Suspension of a Student’ dated 1 March 2001 relating to the suspension of Morrison between 28 March 2001 and 2 March 2001.
ƒ the Incident Report dated 14 December 1999 regarding Mitchell Whatman
and the plaintiffƒ
The salaries for teacher class structure in Victorian Government schools setting out the salary payable to an expert teacher from 12 December 2004 was $62,652.
The Defendant’s Medical Evidence
161 The plaintiff has been examined by Dr Chris Grant, psychiatrist, on two occasions, initially on 12 December 2007 and more recently on 19 March 2009.
162 When first seen, the plaintiff told Dr Grant about the incident and that he had had enough by the end of 2001 and he went on long service leave during 2002. He went on WorkCover on the advice of his Union and saw Dr Wahr. At the end of 2004 the plaintiff resigned from the Department with what he described as a good package.
163 The plaintiff told Dr Grant about the return to work at Eltham College but that he could not take it and that he had not worked since.
164 The plaintiff told him his motivation was good and he would like to get work as a librarian but when what he described as the perfect job came up part time at Kingswood College he could not even bring himself to pick up the phone to make an enquiry.
165 The plaintiff told Dr Grant that anxiety always got in the way of applying for work.
166 On mental status examination, the plaintiff was a fluent and animated historian, affect was euthymic and of good range. There were no problems with self esteem or self opinion. Speed production, thought tempo, form and possession were normal. There were no hallucinations and intellect and cognition were intact.
167 On this examination, Dr Grant could not detect any psychiatric disorder or mental illness such as a mood problem.
168 He noted the plaintiff had enjoyed his retirement without any need for treatment and that his anxiety in the face of employment opportunities reflected the fact that he was at ease in retirement.
169 Dr Grant did not believe any treatment was indicated or likely to change the plaintiff’s health to any advantage. In his view, the plaintiff should be reassured that it was in his interest to remain retired and Dr Grant doubted any rehabilitation interventions would enable the plaintiff to re-enter workforce.
170 On re-examination, the plaintiff told Dr Grant that he wanted to work but he could not pick up the phone. The plaintiff told Dr Grant he felt more depressed because of a lack of a job and that his main emotional mood state was anger. The plaintiff told him that comments that had been in the circumstances report contained falsehoods.
171 On examination, the plaintiff’s intellect was normal and organisation of thinking was intact with spontaneous detail provided in a well organised way.
172 The plaintiff appeared more angry, irritable and agitated than at the earlier assessment. Affect was of restricted range and conveyed anger and irritability, otherwise speech production and thought tempo were normal and there were no hallucinations.
173 Dr Grant thought that the plaintiff appeared now to have developed an Adjustment Disorder with mixed emotional features, namely anger, depression and anxiety. The plaintiff described a deterioration in his health in the last eighteen months and his situation was now complicated by alcohol abuse.
174 Dr Grant believed the plaintiff required ongoing treatment and that it would be better if he changed from Zoloft to a different anti-depressant that was not likely to cause sexual side effects.
175 Dr Grant did not discern any non work factors contributing to the plaintiff’s current presentation, although he noted the history of the plaintiff’s difficulty over the years.
176 In Dr Grant’s view, the plaintiff appeared to have a permanent psychiatric impairment. The plaintiff appeared to have no capacity for work as a teacher but he believed the plaintiff had some work capacity.
177 Dr Grant considered the plaintiff had transferrable skills and his cognition, perception and thinking processes would allow him to work on a part time basis.
178 Specifically, in Dr Grant’s view, the plaintiff had a capacity to work as an exam supervisor, librarian or in clerical work and would be capable of working up to twenty hours weekly, i.e., four hours, five days a week.
179 Following this re-examination, Dr Grant was provided with copies of Dr Dimitroff’s clinical notes, the referral from Dr Dimitroff to Dr Cole and Dr Dimitroff’s report of 29 November 2007.
180 Dr Grant agreed with Dr Dimitroff’s comment that unfortunately the legal focus was the overwhelming factor in the plaintiff’s presentation with the wrongs and rights of the situation as the plaintiff sees it - there being strong features of personality clash at the workplace.
181 Dr Grant was struck by the fact that the plaintiff did not require psychiatric treatment or conveyed to his treating doctor any apparent symptoms of psychiatric ill health after his resignation until September 2007. He noted the plaintiff was seeking further psychiatric treatment related to the legal process. Dr Grant did not discern any other factors contributing to the plaintiff’s presentation for treatment or his subsequent course.
182 Dr Grant considered motivation for work was a significant contributing factor to the plaintiff’s current presentation and he confirmed his earlier views as to the plaintiff’s work capacity and concluded it was possible the plaintiff could increase these work hours over time if motivated.
183 Dr Dimitroff’s notes from November 1997 to April 2008 were tendered.
Other Evidence Relied Upon by the Defendant
184 The plaintiff’s taxation return for the 2007-08 financial year set out earnings from UHF of $450 and deductions of about $700. It also set out that the plaintiff’s taxable income in that year was $46,000, of which $26,000 was interest.
185 The plaintiff’s credit union account showed that in January 2008, the plaintiff received $300 from Blackburn High School for doing web page work.
186 An email was sent by the plaintiff to Moira McMaster on 4 September 2003, in which he advised her he had had a call from Mark Tolley a few days ago, who said he should write to her to tell her formally that as from the start of the last medical certificate (NOT WorkCover Certificate) he wished to claim sick leave. The plaintiff informed Ms McMaster that Mr Tolley had told him that the WorkCover claim would be active though and medical and like expenses would continue to be covered.
187 The defendant tendered a statement given by the plaintiff to an investigator DP Thomas on 17 December 2007.
188 The plaintiff wrote to J Harry on 11 June 1992 requesting to see the Government Medical Officer after the plaintiff’s application for long service leave and then his application for leave without pay was rejected.
189 The defendant tendered a note made by Chapple dated 27 February 2001 relating to the incident between the plaintiff and Morrison.
190 There was an incident report written by the plaintiff dated 28 February 2001 and a letter from Hutchinson to the plaintiff also of that date.
Vocational Evidence
191 Co Work Pty Ltd provided a Labour Market analysis of the plaintiff’s occupational potential on 20 April 2009. The plaintiff was not interviewed for the purposes of this report.
192 The report set out inter alia that fifty nine per cent of Victorian education teachers in adult education are permanent employees.
193 Whilst the author noted the consensus of medical opinion was that the plaintiff did not have the capacity to return to teaching, it was concluded that the plaintiff had a capacity to undertake work which was unrelated to a school and teaching environment.
194 Such jobs included bookkeeper, accounts clerk, hotel concierge or receptionist and adult teacher.
195 Gross weekly earnings of a full time book keeper and for a full time accounts clerk were noted to be $953 and $813 respectively, with an hourly rate of $25.76 and $21.97 respectively.
Video Evidence
196 In total there were one hundred and thirty eight hours and ten minutes of observation. Sixty five minutes and fourteen seconds of video shown.
197 On 31 July and 4 August 2003, the plaintiff was observed for in excess of thirteen hours, and twenty five minutes. Forty seconds of video which was taken was not shown.
198 On a number of dates in September 2008 the plaintiff was observed for a total of twenty five hours and no video was taken.
199 On 5 February 2009, the plaintiff was observed for twenty one hours, of which twenty six minutes and thirty five seconds of video was shown.
200 The plaintiff was shown getting out of the driver’s seat of the car owned by a friend. They then went to a coffee shop about ten minutes from the plaintiff’s home where he was seen to open a bill whilst sitting at the table. The plaintiff agreed he appeared quite animated.
201 The plaintiff agreed that he then may have attended a local skin clinic and went with his companion from the coffee shop to see his friend who operated the clinic.
202 On 24 and 25 March 2009, the plaintiff was observed for twenty four hours, of which seventeen minutes and nine seconds of video was shown.
203 On 24 March the plaintiff attended Milano’s café for a coffee. The plaintiff agreed the following day he went to Caribbean Gardens and then had a coffee at “Shine” where he stayed for about an hour.
204 The plaintiff agreed that from time to time he attended Caribbean Gardens to look at second hand computer equipment. He could not say whether he went there once every six weeks, it was not a regular thing.
205 On 14, 16, 29 and 30 April 2009, the plaintiff was observed for a total of thirty two hours, of which twenty one minutes and thirty seconds of video was shown.
206 The plaintiff was shown on these occasions in April 2009 engaging in various activities which he had admitted to in cross examination prior to being shown the film.
207 On the morning of 29 April the plaintiff was shown getting out of the driver’s side of a friend’s car in the driveway to his house. He was then shown attending Milano Café in Brooks Road, Vermont with another person not the artist and then driving to a factory in Northcote.
208 The plaintiff then backed his trailer up to take a load and then drove to Brunswick for an art show at the Brunswick Town Hall. There was a big frame and glass objects in the back of the trailer. The plaintiff was then in the company of the artist, the friend with whom he went to Paris. She had asked him at the last minute to help her move her art work. The plaintiff agreed it took him more than an hour because he had to pack it all up, stack it, tie it down and transport it and unpack it. The plaintiff agreed he had to be pretty organised to do that.
209 They then drove to Northcote and the plaintiff went somewhere else before arriving home at 6.15 pm.
210 On 30 April the plaintiff was shown taking his trailer loaded with furniture to the Emergency Services.
211 On 2 July 2009, the plaintiff was observed for twenty three hours, and there was five minutes and thirty nine seconds of video not shown.
Overview
212 In these proceedings it is not disputed the plaintiff suffered a compensable psychiatric injury on or about the said date that has been diagnosed as a chronic adjustment disorder with mixed anxiety and depression (“the psychiatric condition”).
213 The plaintiff’s claim for compensation lodged in September 2002 was accepted and weekly payments were paid until August 2003 when he decided to take other entitlements. On 10 March 2008 the Medical Panel found the plaintiff had a fifteen per cent psychiatric impairment.
214 In this case, where there is evidence of a pre existing psychiatric condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
215 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
216 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
217 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2001 materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
218 Whichever approach is followed, the plaintiff, to reach the threshold of severe injury, is required to establish the aggravation from the 2001 incident is permanent at the time of the hearing in its effects on the plaintiff’s psychiatric condition and the effects of the aggravation must be severe: Barwon Spinners Pty Ltd v Podolak (supra).
219 Whilst he had complained of some anxiety prior to the said date and he required time off school in 1995 following a panic attack at work, the plaintiff was working full time and not having ongoing treatment at the time of the incident.
220 Accordingly, I do not consider that he was suffering any ongoing psychiatric condition at that time.
221 The issue is whether the plaintiff’s psychiatric impairment is severe and permanent.
222 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
223 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA.
Loss of Earning Capacity
224 I accept that in this case because of his psychiatric condition, the plaintiff does not have the capacity to work as a school teacher, a view supported by all medical practitioners and vocational assessor, Evidex.
225 The plaintiff ceased work in this role with the Department of Education in December 2001 and resigned from the Department in late 2004.
226 Since that time, the plaintiff has on two occasions, attempted to return to work in the private school system but was unable to cope with his duties. Further on a couple of occasions he was unable to make the phone call necessary to apply for work he considered suitable because of his psychiatric condition.
227 Dr Grant is alone in the view that the plaintiff has any capacity for employment, considering the plaintiff could work twenty hours per week as an exam supervisor or a librarian.
228 I accept that the plaintiff’s incapacity for employment extends beyond teaching to other positions involving responsibility. Whilst the plaintiff has been able to help a friend move furniture and he has done the odd job on a webpage, he does not have the capacity to work for more than a couple of hours in alternative work such as book keeping.
229 Whilst presenting to medical examiners as depressed and anxious, the plaintiff has consistently presented as an intelligent man, a good historian with no problems as to memory and concentration. There has been no evidence of delusions or psychotic disorder on examination. From a lay perspective my observations of the plaintiff were to a similar effect.
230 Further the medical practitioners, who considered the plaintiff unable to teach due to his psychiatric condition, relied upon histories given by the plaintiff which were consistent with the plaintiff’s evidence of some restrictions in social and domestic life and not based on evidence that he was some sort of a recluse.
231 With these findings on mental state examination and having received accurate histories, all medical practitioners agreed the plaintiff is incapable of returning to teaching.
232 I accept that the plaintiff had not recovered from his psychiatric problems at the end of 2003 when he last saw Dr Adey. As Dr Dimitroff reported, throughout 2003 and 2004 the plaintiff was still deeply distrustful and limited in activity.
233 I accept that having resigned from the Department in December 2004 the plaintiff thought he could cope alone without medication or treatment. This did not prove to be the case and it is accepted by all medical practitioners that he continues to suffer from the psychiatric condition.
234 Having experienced psychiatric problems for over eight years, I accept that the psychiatric condition is permanent in the sense that it is likely to last into the foreseeable future.
235 Whilst the plaintiff may have had the immediate benefit of the refund of contributions of $186,000, his evidence that the majority of teachers who take such a package return to their old job after resigning, was not challenged.
236 I accept that had the plaintiff, a devoted teacher for many years, not been injured at work he would have taken a similar course and would now be earning in excess of $60,000 per annum.
237 In these circumstances in my view, the plaintiff has a permanent severe mental or permanent severe behavioural disturbance or disorder.
238 The plaintiff therefore satisfies the narrative test.
239 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 240 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 241 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
242 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
243 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
244 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
245 In the two full financial years before the incident, the plaintiff had gross earnings of $52,000. Gross earnings for an expert classroom teacher as at 12 December 2004, three years after the incident were $62,652.
246 I accept that the plaintiff’s without injury earnings are $62,000 or $1,201 gross per week. 60 per cent of that figure is $721 gross per week.
247 The plaintiff’s “after injury” earnings are zero.
248 Having found that at best the plaintiff has a capacity for alternative duties for only a couple of hours per week, I am satisfied that the plaintiff has a loss of earning capacity of forty per cent and that such loss is likely to last into the foreseeable future.
249 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
250 In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am not satisfied there is any retraining or rehabilitation that would be appropriate to be undertaken by him which would alter the situation that he has a loss of earning capacity of forty per cent or more.
251 As rehabilitation and retraining have nothing to offer him in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
252 As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, he is then at large to make a claim for damages for both pain and suffering and loss of earning capacity: see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, at paragraph 63.
253 Accordingly, I grant the plaintiff leave to bring damages for both pain and suffering and loss of earning capacity.
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