Ferguson v Strautman Australia Pty Ltd and VWA
[2009] VCC 184
•13 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-06-04324
| JOHN FERGUSON | Plaintiff |
| v | |
| STRAUTMAN AUSTRALIA PTY LTD | Firstnamed Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Secondnamed Defendant |
---
| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 5 December 2008 |
| DATE OF JUDGMENT: | 13 March 2009 |
| CASE MAY BE CITED AS: | Ferguson v Strautman Australia Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0184 |
REASONS FOR JUDGMENT
---
Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – psychiatric injury - s.134AB(38)(d) Accident Compensation Act 1985 – permanent severe mental or behavioural disturbance or disorder
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC | Nowicki Carbone |
| Mr T Ryan | ||
| For the Defendant | Ms K McMillan | Wisewoulds |
| HER HONOUR: |
The application
1 The plaintiff seeks leave under s.134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury arising out of, or in the course of, or due to the nature of his employment with the firstnamed defendant whose business involves, amongst other things, working in steel machinery assembly. The plaintiff seeks leave to recover damages both for pain and suffering and loss of earnings in respect to work-related permanent severe mental or permanent severe behavioural disturbance or disorder described by Senior Counsel as a major depressive illness characterised by suicidal and homicidal ideation.
2 In opening his client’s case, Senior Counsel for the plaintiff acknowledged the presence of earlier mental health problems (from time to time) apparently aggravated by bullying and harassment in the plaintiff’s workplace.
The areas of dispute
3 Without elaboration the defendants’ statement of issues summarised the contest in the following areas –
“(a) Causation.
(b) Seriousness of the consequences of the injuries claimed. (c) Permanency of the injuries claimed. (d) Aggravation of pre-existing mental condition. (e) Economic loss consequences.”
4 Relevantly, in their final submissions, the defendants conceded that most of the medical material supports a finding that the plaintiff currently suffers from a permanent severe mental condition. Nevertheless, the defendants submitted that –
(a)
workplace factors did not cause or contribute to any mental condition;
(b)
the plaintiff’s mental condition was caused by external stressors and circumstances;
(c)
based on at least one medico-legal psychiatric report, absent his employment the plaintiff’s mental condition would have deteriorated to its current status;
(d)
conduct and instructions given in the workplace did not constitute bullying and harassment; and
(e)
there was no evidence of complaint of workplace bullying and harassment until after the plaintiff left his employment.
5 The plaintiff’s credit was challenged particularly with regard to –
(a) his allegation that there was conduct amounting to workplace bullying and harassment which triggered his departure from his employment on 27 May 2004 and a mental breakdown; and (b) the reliability and consistency of the histories upon which the medical practitioners relied.
6 The plaintiff presented as a man seriously challenged by his mental health issues not to mention a history of heart disease for both of which he takes a range of medications. Inasmuch as treatment of his mental health problems involves medication, the plaintiff said at hearing that currently he takes Epilim/Valpro 500 (mood stabilizer), Kalma (anti-anxiety) and Alprazolam (antidepressant).
7 At times during the hearing, the plaintiff appeared confused and he had difficulty placing events and responding to some of the questions asked. There were inconsistencies in his evidence and discrepancies in the histories recorded by various doctors, to some of which cross-examination was directed, although not in a manner which satisfied me that the plaintiff generally recalled or accepted that in each case the doctor’s record accurately summarised matters reported by him.
8 In any event, allowing for these concerns I have paid particular regard to the supporting affidavit material and the failure to directly cross-examine the plaintiff about many of the specific episodes of conflict, bullying and harassment in the workplace up to and including 27 May 2004 to which he deposed in his affidavits.
The evidence called and tendered
9 The plaintiff deposed to the accuracy of his two affidavits, sworn on 26 July 2006 and 22 July 2008. He gave evidence and was cross examined.
10 The material tendered by him also consisted of: (a) medical reports from treating doctors, Drs Allen, Cunningham, Mazani and psychiatrists, Drs Deb and Hyland, Primary Mental Health Early Intervention Clinician, Ms DeAraugo, Psychiatric Registrar Cody and Clinical Therapist Ms Moodie; (b) extracts from the clinical records of Royal Melbourne Hospital, Oliver House Community Health Service and Romsey Medical Centre; (c) a copy “Workcover Worker’s Claim Form” and “Employer Claim Report”; (d) reports from the plaintiff’s medico-legal experts psychiatrists Drs Cole and Nathar, Prof. Paoletti and Clinical Psychologist Ms Killoran; (e) a vocational assessment by Evidex; (f) reports from the defendants’ medico-legal experts Drs Stern, Goble and Strauss and Mr Senadipathy.
11 The plaintiff also tendered an affidavit of Mr Robert Caulfield (since deceased), paragraph 9 of the affidavit of Mr Peter Mallett and two pages of the statement made by Mr Ronald Richard Hall (an exhibit to an affidavit sworn by him on 18 November 2008). That part of the Defendant’s Court Book relating to surveillance was also tendered for the plaintiff.
12 Consultant psychiatrist Dr Nathar gave evidence and was cross-examined, specifically with regard to the medical opinions obtained.
13 The defendant called no evidence. However, it tendered material consisting of: (a) the report of psychiatrist Dr Botvinik dated 15 June 2006; (b) the affidavit of Mr Ronald Richard Hall sworn 18 November 2008; (c) 2 pages of extracts of Orders made against the plaintiff by the Magistrate’s Court at Kyneton; (d) extracts from the clinical file of Northern Hospital and Romsey Medical Centre. The defendants also relied on: (a) two pages extracted from the clinical records of Royal Melbourne Hospital; and (b) one page extracted from the clinical record of Oliver House Community Health Service.
14 I infer from the defendants’ failure to rely on their surveillance film, that this film, if shown, would not have assisted the defendant in either damaging the plaintiff’s credit or contradicting his evidence about his physical activities and limitations.
15 In her closing address, Senior Counsel for the defendants handed to the court a lengthy document ’DEFENDANT’S SUBMISSIONS AS TO THE LAW”. The content of the written submissions was not the subject of any discussion in court. In these circumstances, in determining this application, I have not engaged in any analysis of the accuracy or indeed applicability of these written submissions to this case.
The plaintiff’s background
16 The plaintiff is 40 years of age having been born in Australia on 10 May 1968. He is single, having lost his fiancée who died in a motor vehicle accident in early 2002. By his account (including his responses in cross examination) the plaintiff had a difficult and disrupted youth which included leaving home at a very early age, living in a boys’ home, trouble with the law in his teens and a history of substance abuse.
17 Nevertheless, as his evidence otherwise establishes, the plaintiff completed his formal education to Year 10 and over a period of some five years successfully completed an apprenticeship as a fitter and turner. He said that subject to various periods in the late 1980s and the early 1990s, over which he was self-employed selling pumps and firewood, he worked as a fitter and turner until commencing employment with the firstnamed defendant in about January 2002.
18 There was some conflict about the plaintiff’s job description. For instance, in his first affidavit the plaintiff described his work with the firstnamed defendant as a welder, working on a permanent casual basis for approximately 40 hours per week. This, of course, is consistent with his claim to be a qualified fitter and turner and, as the copy WorkCover Worker's Claim Form dated 3 June 2004 and apparently signed by the plaintiff shows, he described himself as a fitter and turner, whereas the copy Employer Claim Report of the same date nominates his occupation as “LABOURER/PAINTER/ASSEMBLY” .
19 In any event, notwithstanding the various descriptions of the tasks performed by the plaintiff, I was satisfied that the plaintiff has a work history as a skilled tradesman and qualified fitter and turner.
20 As far as I can tell from the evidence, 2002 represented a turning point in the plaintiff’s life. In part, this was because shortly after the plaintiff commenced employment with the first defendant his fiancée died in tragic circumstances and he failed to obtain custody of two of her children.
21 However, in addition to these challenging circumstances, on 5 March 2002, whilst at home and at the young age of 33, the plaintiff suffered a heart attack which led to a period of treatment in both the Northern Hospital and Austin Hospital and an absence from his employment. Subsequently, both in September 2003 and August 2006 the plaintiff suffered further heart attacks.
22 I note that other significant stressors in the plaintiff’s life, prior to the cessation of his employment on 27 May 2004, included the death of his goddaughter in July 2003, convictions on 31 August 2003 for driving offences, one consequence of which was that the plaintiff was disqualified from driving for a period of 20 months effective from 19 January 2004, and in early 2004 the death of his late fiancée’s father.
23 As it turns out, none of these factors precluded the plaintiff’s return to employment with which he persisted until 27 May 2004.
The circumstances of injury
24 In his two affidavits the plaintiff describes in some detail the circumstances he said gave rise to work-related psychiatric/psychological injury. Two supporting affidavits were included in the plaintiff’s court book, the first of which was sworn by Peter Gordon Mallett on 13 August 2008. The plaintiff tendered and relied on paragraph 9 of this affidavit, although I expect that it was also intended that the first three paragraphs (in which Mr Mallett describes his relationship with the plaintiff as a neighbour and friend, over a period of approximately 10 years) be included in the tender of this document.
25 The second affidavit was sworn by another long-term neighbour and friend, Robert Edward Caulfield, on 14 August 2008. This affidavit was tendered in full.
26 As to the tender of the supporting material, the approach of the plaintiff’s Senior Counsel appears to have been based on his view that most of Mr Mallett’s affidavit evidence was inadmissible as hearsay evidence. Indeed, as was evident from both the supporting affidavits and the statement made on 1 July 2004 by the firstnamed defendant’s administration/spare parts assistant, Mr Hall, and adopted in his affidavit sworn on 18 November 2008 (Exhibits “P4” and “D1”), much of their evidence was based on hearsay. In addition to this, having been made well prior to the plaintiff swearing his two affidavits, Mr Hall’s statement (witnessed by “D H Lockwood”) was not responsive to many of the detailed episodes on which the plaintiff relied as examples of the bullying and harassment to which he said he was subjected from late 2002, mainly it seems by Mr Hall and Mr Lockwood (Junior).
27 In any event, based only on the material tendered by the plaintiff and insofar as any part of their affidavit constitutes hearsay evidence, I have not treated the evidence of both Mr Caulfield and Mr Mallett as proof of the truth of the allegations reported to them, rather I have treated the unchallenged lay evidence as evidence of complaints of bullying and harassment in the plaintiff’s workplace prior to 27 May 2004. This evidence tends to rebut the defendants’ assertion (based on earlier clinical records and Mr Hall’s statement) of reconstruction or recent invention of these events after 27 May 2004.
28 The only other material tendered, by the plaintiff as it turns out, in which the employer seeks to contest the primary allegation of bullying and harassment, is the copy of the Employer’s Claim Report, to which I have already referred, apparently signed by D H Lockwood and witnessed by Mr Hall on 4 June 2004 (Exhibit “P2”).
29 In his affidavit evidence the plaintiff describes the circumstances giving rise to injury in the following way.
30 As to paragraphs 10-14 inclusive of his first affidavit the plaintiff said:
“10. I was employed at Strautman Australia Pty Ltd working approximately 40 hours per week in the capacity of a welder. My duties involved welding, however I was also required to do spray painting, detailing, fitting and turning together with forklift driving.
11. The commencement of my psychological injuries began in or about 2002. I was the target of inappropriate insults and remarks by Dennis Lockwood, head welder. Despite these insults and remarks, I continued on with my employment.
12. In or about August 2002 in the process of taking a break from my employment, Ron Hall, part owner of Strautman Australia Pty Ltd, insulted me with rude and inappropriate remarks about my deceased fiancé. Due to my anger at the inappropriate remarks, I threw the dregs of my coffee at his feet. After further remarks with regard to the security of my job, he threw his full cup of hot black tea at me. It burned me on my left arm and left shoulder.
13. In the ensuing months my workplace stress and anxiety continued as I was constantly taunted and insulted with rude and inappropriate remarks. I was called a terrorist on numerous occasions because I had dark hair and eyes and a long dark beard. I felt that I was being singled out because of my dark features. I am Australian by background however I had racist taunts made. I endeavoured to keep working as well as I could. It was very difficult as my work was constantly questioned for not being up to standard. I was sometimes required to re-do my work outside my normal hours.
14. My workplace stress and anxiety remained as my requests for protective gear were always rejected. Subsequently I wore my own clothes which I was often criticized for. I was not even supplied a beanie or a pair of gloves despite the extremely cold temperatures which sometimes were as low as minus 3 degrees. This led me to develop flues on a more constant basis.” (sic)
31 In his second affidavit the plaintiff expanded on these matters by saying in paragraphs 8-11 inclusive:
“8. I refer to paragraphs 10-14 of my prior affidavit and state as follows: from in or about 2002 until in or about September 2003, I was subject to occasional instances of verbal bullying at work as deposed to in my prior affidavit. In the main, the bullying consisted of taunts about my deceased fiancée, as well as remarks about my appearance, including the implication that I was a terrorist.
9. I generally found the taunts and accusations thrown at me offensive. However I was able to cope with the bullying such that it did not generally have a significant impact upon my life and the stresses that I was already facing in other areas of my life, nor did the abuse have a marked impact on my ability to perform my duties at work. On occasion I would react to these taunts, generally in a verbal manner, although there were a few minor physical altercations. However, my reactions where (sic) generally not particularly intense.
10. Indeed, prior to my second heart attack in September 2003, such were the difficulties that I had to confront in other aspects of my life, I found work to be an (sic) vital escape for me. Work provided structure and purpose to what I sometimes felt was a hopeless existence and allowed me to block from my mind the tragedies that had beset me in the recent past.
11. The incidents [of] bullying the (sic) I encountered at Strautman up until September 2003 remained largely peripheral to my working experiences and did not impact significantly on my working life or compound the difficulties I faced in other aspects of my life.”
32 In paragraphs 15-23 inclusive of his first affidavit the plaintiff describes the events following his second heart attack by saying:
“15. In or about 15 September 2003 I had a second heart attack. I was admitted to the Royal Melbourne Hospital for approximately four days and was discharged on or about 19 September 2003. I was off work for approximately a week, however I was advised to take more time to rest. I felt that due to the precarious nature of my employment and Ron Hall’s constant assertions that casuals were replaceable, I returned to work earlier than advised.
16. My problems with my workplace stresses continued in or about September 2003 as there was an increase in my duties. Several employees left the company, thus I was required to work harder and longer hours to fill the bridge. Some days I would work approximately 9 or 10 hour days six to seven days a week. I requested assistance numerous times, however I was ignored on each occasion.
17. In or about March 2004 my workplace stress continued. In this particular month, there was a large back log of work and subsequently problems arose. It was discovered that I had been given the wrong machine to assemble and paint. I was blamed for painting the wrong machine and Dennis Lockwood implied that I was responsible for the mix up. At times, I also had hammers and other objects thrown at me, particularly by Dennis Lockwood.
18. In or about April 2004 I had another incident with Ron Hall which further increased my psychological injuries. This particular day several work colleagues were attempting to lift Ron Hall as he was referring to his recent weight loss. I lifted him, together with some other workers, and he didn’t seem perturbed or disturbed in anyway (sic). As I walked away, he threw a plastic table and chair at me. He ran at me, grabbed me by the shirt and attempted to push me. The scuffle was broken up and we went in our own directions.
19. Since the incidents in or about April 2004 my stress and anxiety levels worsened rapidly. I was being blamed for problems that would arise at work and my hours of pay were publicly announced. One particular day, a clipping from the local newspaper that outlined the circumstances of which I had my license (sic) suspended was spread throughout the workplace. The newspaper clipping contained information about my personal circumstances and financial circumstances. Ron Hall used it to humiliate and degrade me in front of staff members.
20. On or about 27 May 2004 I reached a point where I could not cope with work anymore. On this particular day I was harassed from early on in the morning where Dennis would not allow me to use the heater in the shed, despite my attendance to work an hour earlier. This particular morning, I was working on a die grinder. I am a fitter and tuner (sic) and I have had experience in this kind of work. Dennis came over and accused me of not knowing how to use the machinery. He pulled it out of my hands and smashed it onto the floor. I could not handle it anymore and I started to cry.
21. Following lunch I resumed my work duties. Dennis Lockwood approached me and started to dispute my methods of completing my job. I was insulted and accused of not following procedure. Dennis Lockwood yelled at me and the argument became abusive. We tussled for a short amount of time. I walked off to the paints shed where in a stressed and depressed state, I punched the wall. I collected my belongings and advised Ron Hall of my inability to handle the constant insults, taunts and accusations. I walked down the road crying profusely.
22. On my arrival home, such was my psychological state that I attempted to commit suicide. I placed my head in the oven and attempted to gas myself.
23. I have not returned to work since that date.”
33 These were also matters on which the plaintiff expanded in paragraphs 12-21 inclusive of his second affidavit where he relevantly said:
“12. I refer to paragraphs 15-23 of my prior affidavit and state as follows: I returned to work in or about the end of September 2003, after having had about a week off due to my second heart attack. As I was technically a casual, I did not feel entirely secure in my position at Strautman and therefore returned to work as soon as I could – Ronald Hall, a superior of mine at Strautman, was fond of saying ‘casuals are replaceable’.
13. In spite of the fact that I was returning to work after a serious threat to my health, my workload in fact increased at this time. This was accompanied by a concomitant increase in the intensity and frequency of the bullying I was subjected to, as deposed to in paragraphs 15-23 of my prior affidavit.
14. Throughout the period after my second heart attack until I finally ceased my employment with Strautman on 27 May 2004, I was continually harassed and bullied with respect to my deceased fiancée and my appearance. I am Australian by background, but my dark hair and eyes meant I was often the target of racial insults such as ‘terrorist’ and ‘Bin Laden’. These taunts caused me significant upset.
15. The increased workload I faced at this time was due to a number of resignations from Strautman. I had to contend with spray painting, assembly and hydraulics work. The pressure was such that I would sometimes make mistakes, and then I would be made to re-do my work, which would further increase my workload. My repeated requests for assistance were denied or ignored altogether.
16. Further, I was consistently blamed for mistakes made at work that I had nothing to do with and I was also chided for following instructions from my superiors that turned out to be incorrect. For instance, in early 2004 there had been a delay in getting the latest shipment to the factory. The container came in around March and there was immediately a large backlog of orders to fill. I was given the wrong machine to paint and assemble, and I was blamed for the mistake when it was eventually discovered.
17. I was also made to feel incompetent and my methods of completing my work, as well as the quality of my work, were questioned and scrutinised, despite my many years of experience. Ronald Hall would make me re-do my work on the weekend if he could see a flaw in the paint, which I believe had more to do with the low quality paint Strautman insisted on using.
18. In January 2004 there was an article published in the local paper that contained information about my personal circumstances and my financial situation. Someone at work had enlarged the article and posted it on the wall at work. I found this extremely embarrassing.
19. After my return to work in or about late September 2003, I struggled to cope with the bullying at work, in contrast to my ability to cope prior to the second heart attack. Over the period commencing in or about September 2003, my reactions to the bullying and harassment as described above, became increasingly intense and I struggled to contain my anger as I had before. Further, I struggled to block the abuse and taunts from my mind such that it became a part of my overall psychological state and exacerbated my existing stress, anxiety and depression.
20. It was during this period that work stopped becoming a release for me and became an additional burden for me to bear. Further, it was around this time that thoughts of suicide invaded my mind; I felt as though I no longer had the one beacon of hope in my life – work – to keep me going.
21. My ongoing inability to cope with the bullying at work culminated in me leaving work on or about 27 May 2004. On this day in particular, I was subjected to a day of almost non-stop harassment and abuse and I left work in tears. Such was the severity of the bullying I had faced that day that I attempted to commit suicide when I returned home; I placed my head in the oven and attempted to gas myself.”
34 Inasmuch as the plaintiff’s friends and former neighbours commented on these matters in their respective affidavits (that is paragraph 9 of Mr Mallett’s affidavit and the relevant parts of Mr Caulfield’s affidavit), they each confirm that having suffered a second heart attack when the plaintiff returned to work, from about September 2003, he was distressed by and complained about the manner in which he was treated at work.
35 For instance, Mr Mallett swore that:
“… I began to notice that John was becoming more and more depressed. He struggled to cope with the way he was treated at work and the abusive environment he was subjected to. He would come home from work visibly upset and often in tears. He talked to me about quitting his job or just not going to work in the morning, but this was not a realistic option in light of his financial situation.”
36 In Mr Caulfield’s affidavit, he recalled the plaintiff as “a happy-go-lucky man”. Importantly, Mr Caulfield also swore that, during the period following the plaintiff’s second heart attack, he received reports from the plaintiff about his treatment at work and, coinciding with these reports, he observed a deterioration in his friend’s well-being. For instance, at paragraphs 3-6 inclusive Mr Caulfield swore:
“3. I recall that John had a heart attack in or about March 2002. He then had a second heart attack in or about September 2003. When he returned to work at (sic) after his second heart attack, he told me that he was put under more pressure at work and required to work harder. He also said he began to be bullied and harassed far more than he had been previously.
4. After John lost his driver’s licence in or about 2003 I often gave him a lift home after he finished work. John would meet me out the front after work in a very depressed state, often crying. When I spent time with John he would often break down in tears, or I would walk past his caravan and see or hear him sobbing inside.
5. John would tell me that he was getting increasingly upset about the rude remarks and inappropriate insults made about his deceased fiancée and that he was called a terrorist on numerous occasions because of his dark hair and long dark beard. He told me that he was also scrutinised for the manner in which he completed his work and blamed for any mistakes that occurred at work.
6. On or about 27 May 2004, which was the last day that John worked at Strautman, I found John attempting to commit suicide by placed his head inside a gas oven. I immediately grabbed him and tried to talk to him, but he was in an uncontrollable state for hours. He blamed his employment for his unstable psychiatric state. I do not believe John has worked since that date.
37 As I have already mentioned, the defendants contested the plaintiff’s allegation of workplace bullying and harassment, relying specifically on the denials contained in the Employer Claim Report and Mr Hall’s statement, documents prepared and/or witnessed by the two men to whom the primary allegations of harassment and bullying were directed.
38 Notably the WorkCover Worker’s Claim Form contains the allegation that “Dennis Lockwood ‘Junior’ started harrassing & Bulling myself Resulting in a arguement” (sic). This I took to be a reference to the conflict that occurred on the plaintiff’s last day at work. However, the Claim Form also nominates as causing or contributing to the injury (that is “Depression, Anxiety”) and “a period of months of harrassment and Bulling (By 2 staff members” (sic).
39 Amongst other things, the Employer Claim Report document described the injury as “ EMOTIONAL-UPSET AT BEING INSTRUCTED TO ADHERE TO WORK PROCEDURES”. This circumstance was attributed to “IN PART. ONE
OF THE ALLEGED BULLIES INSISTED ON EMPLOYEE WEARING
PROTECTION WHEN PERFORMING DUTIES”, and was accompanied by a statement that the employer did “… NOT BELIEVE IT TO BE WORK
INDUCED BUT A RESULT OF NUMEROUS PERSONAL PROBLEM
INCLUDING LOSS ETC. FINANCE ETC” (sic).
40 In other words, the employer attributed the plaintiff’s psychiatric/psychological disturbance entirely to problems in his personal life, and, insofar as the plaintiff’s complaints related to work-related instruction or disciplinary issues, the employer characterised these as lawful and reasonable instruction on work procedures and occupational, health and safety issues.
41 To the extent that Mr Hall’s affidavit and statement appears to seek to clarify the employer’s position on the plaintiff’s performance and his breach of health and safety issues, it conflicts with the plaintiff’s allegations of, for example, further workplace stressors involving an increased workload, a failure to heed his request for assistance and rejection of his request for protective gear. Therefore, apart from general denials, the defendants’ tendered material failed to directly contest the plaintiff’s evidence (or to the extent that the supportive affidavit material corroborates this evidence) about bullying and harassment arising from particular events at work prior to and on 27 May 2004.
42 To summarise Mr Hall’s evidence, it appears that apart from his administrative work he was also the person responsible for occupational health and safety matters. This, of course, probably presented the plaintiff with a problem in complaining about workplace bullying and harassment. In cross-examination at first the plaintiff appeared to suggest that he had complained to Mr Hall about his conduct (“…but it went on deaf ears”). However, allowing for his affidavit evidence and his relevant responses during cross-examination, I was satisfied that when the plaintiff gave this evidence he was referring to complaints about the conduct of other employees, whilst also emphasising the impossibility of him complaining directly to either Mr Hall or Mr Lockwood Junior about their behaviour. This is because, as he quite plausibly explained at hearing:
“How can you say something to a person saying that I feel bullied when he was the bloke giving me the – the bullying and throwing stuff at me and all that sort of stuff, so how – you don’t win o what’s the use of saying that, you’ve just got to wear it and keep going”.
43 In amongst the matters on which Mr Hall did comment –
(a)
without placing this in any particular context he stated that “we all called him Jack”. Nevertheless, in cross-examination the plaintiff said that at work over a period of time he was called by the nickname “Black Jack” and added that “several times” he was called “Bin Laden”. From his responses it appears that the plaintiff was unhappy with the nickname and preferred to be known as “Jack”. Moreover, he denied being called “Bin Laden” in town and also claimed that he was also called “the Freedom Fighter, Taliban Freedom Fighter” in the workplace;
(b)
he referred to what he called “funny posters stuck up around the shed and in the toilets at times” and a poster he said he had above his desk which in point form noted the qualities required from a welder. In this regard it was clear that Mr Hall considered that the posters contained humorous material, not directed to the plaintiff personally. Otherwise, Mr Hall’s statement does not directly challenge specific allegations made by the plaintiff in, for instance, paragraph 12 of his affidavit where he accused Mr Hall of making rude and inappropriate remarks about his deceased fiancée leading to an altercation which ended with Mr Hall throwing hot black tea at the plaintiff. Moreover, in cross- examination the plaintiff rejected a suggestion, apparently based on Mr Hall’s statement (and an affidavit made by Mr Lockwood which was not tendered), that both Mr Hall and Mr Lockwood had not made inappropriate comments about his fiancée. Plainly, Mr Hall’s statement is silent on this allegation and, as explained by the plaintiff in re- examination, his further allegation that other employees harassed the plaintiff, as for example the employee, Vinnie, who the plaintiff said used to go out with his deceased fiancée and made sexual remarks about her which the plaintiff considered disrespectful;
(c)
he discussed his and the employer’s concern about the standard and quality of the plaintiff’s work from time to time, his ability to take instructions, his compliance with health and safety issues (citing specific examples of alleged non-compliance), and his presentation and punctuality. That these matters necessitated repeated instruction was, in Mr Hall’s opinion, the basis for the plaintiff believing that “we are picking on him”. However, in my view, this evidence avoids the context and the manner in which the employer is alleged to have approached the resolution of issues to do with performance and health and safety compliance. For instance, it does not address the specific complaint of harassment on 27 May 2004 levelled at Dennis Lockwood in paragraphs 20 and 21 of the plaintiff’s affidavit. Essentially, the complaint rests on the plaintiff’s evidence that, in amongst a number of issues that day and in the context of a performance issue, Dennis Lockwood physically removed a grinder from his hands and “smashed it onto the floor…”. This was one of a number of workplace incidents described that day which the plaintiff claimed triggered the conflict and, as the plaintiff said, this was the “straw that broke the camel’s back”. Accordingly, whilst there is conflict in the evidence about performance and occupational health and safety issues, there is unanswered evidence from the plaintiff of conflict and mistreatment in the workplace (that is conduct not witnessed by Mr Hall because, as he reported, the plaintiff was “upset and emotional” and whilst he mentioned a “… ‘run
in’ with junior and that he had had enough and was going home and
would see me tomorrow” the plaintiff refused to discuss what hadhappened);
(d) he described the plaintiff as “in the main, a likeable employee, he is a bit of a joker…”, a description that is compatible with Mr Caulfield’s recollection of the plaintiff as “happy-go-lucky”. Indeed, this evidence tends to undermine the defendants’ submission (based particularly on the findings of medico-legal psychiatrist, Dr Botvinik, who examined the plaintiff once in 2006) that the plaintiff was suffering from a longstanding anti-social personality disorder rather than clinical depression; (e) he stated that “Basically there has been occasion of a bit of ‘bitchiness’ between workers, but I have never seen anything I could attribute to
bullying” (sic). Obviously this comment ignores any role Mr Hall may have had in bullying or harassment of the plaintiff as alleged and at the same time (and without explaining what these were) asks that his benign view of the episodes of “bitchiness” between the plaintiff and other employees be treated as evidence of the reasonableness of this conduct in the workplace.
The absence of any record or complaint of conflict, bullying and harassment in the workplace prior to 27 May 2004
44 As is apparent from paragraph 10 of the plaintiff’s second affidavit (already set out above), prior to suffering a further heart attack in September 2003 he felt, and is on record as having reported to a social worker at the Royal Melbourne Hospital, that his work provided an escape from the difficulties he confronted in his personal life and going to work gave him purpose.
45 In these circumstances, it is unremarkable that until he returned to work having suffered a further heart attack in September 2003, the extracts from the clinical records of the Romsey Medical Centre, where the plaintiff was treated during the currency of his employment, do not record complaints about stressors in the plaintiff’s workplace.
46 Nevertheless, the clinical records tendered indicate that on 26 March 2004, when confronted by further tragedy in his personal life (that is the death of his deceased fiancée’s father), Dr Cunningham placed the plaintiff on anti- depressant medication (Zoloft 50 mg) for a three week period having apparently been told by the plaintiff: “[d]epressed insomnia, stressed flies off
the handle, little work, partner dies 3 years ago, faht (sic) in law dies and
stepchildren he is not allowed to see”.
47 The next entry in the clinical record, on 25 May 2004, indicates that medication reportedly led to some improvement, although Dr Cunningham saw fit to increase the dose of the plaintiff’s Zoloft medication to 100 mg per day.
48 Accordingly, in the weeks and days proceeding the crisis, precipitated by the incidents described in the plaintiff’s workplace on 27 May 2004, the plaintiff was in a vulnerable emotional state for which he was being treated, but he nevertheless persisted with his employment. Therefore these are matters relevant to causation and as the Court of Appeal said in Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2008] VSCA 85 (at paragraph 80 and citing its earlier decision):
“In determining whether the act or omission of the employer was a cause of the injury, the employer must take the worker as it finds him/her. Any special susceptibility on the part of the worker may explain why the particular act or omission is of causal significance. The fact that the act or omission would not have caused injury to a worker who did not have the susceptibility or vulnerability of the injured worker does not alter the causal character of the act or omission.”
49 I note that when next seen at the Romsey Medical Centre, on 29 May 2004, amongst other things the clinical records and the medical certificate show that Dr Allen certified the plaintiff as unfit to work for one week, recording at that time complaints of problems and stress at work (that is “on Thursday (2d ago)
had problem ++ at work – lost his temper adn (sic) threw a punch at his boss
does not watnt (sic) to go back there – too stressful”). On this date the doctor also appears to have recorded that “[n]o longer feeling violent, settled down with his mates, does not watnt (sic) to see counsellor, not suicidal”.
50 In cross-examination the plaintiff claimed that he punched the wall and denied punching his boss with whom he said “he had a scuffle”. The plaintiff was also questioned about any report that he was “not suicidal”. However, I was not satisfied from the questions asked and the responses given by the plaintiff during cross-examination that he was able to recall whether or not he told Dr Allen that he was “not suicidal”.
51 Nevertheless, if this was a state of mind reported by the plaintiff two days after the crisis, triggered by events in his workplace on 27 May 2004, it did not detract from the plaintiff’s evidence (supported by Mr Caulfield) that as recently as two days before the medical examination the plaintiff had attempted suicide.
52 By June 2004, the Romsey Medical Centre clinical records, the extracts from the clinical records of Oliver House, Community Mental Health Centre, the correspondence from Dr Cunningham and the report from consultant psychiatrist, Dr Hyland, all record complaints of workplace problems (as, for example, bullying, racial vilification and aggression) as causes of what Dr Hyland described in July 2004 as “an episode of major depression”.
53 In the circumstances I have described, I was invited by the defendant to view with some scepticism the reports by the plaintiff of bullying and harassment and workplace stressors made to treating and examining doctors subsequent to 27 May 2004 and, it follows from this, give less weight to diagnoses relying on workplace stressors as having caused or contributed to the plaintiff’s breakdown, on 27 May 2004, and as continuing to make a material contribution to the consequences of which he complains.
54 However, based on the evidence I have summarised, I was not satisfied that the plaintiff should be treated as an unreliable witness in recounting significant stressors and problems in his workplace prior to suffering a breakdown on 27 May 2004, and it follows that I have accepted that workplace stressors and conflicts properly form part of the history considered by both treating and examining doctors in making their diagnoses and submitting their reports.
The medical evidence
55 As a result of having moved from Lancefield to Portland in late 2006, the plaintiff changed doctors and attended a different public health service. As I have already noted, Dr Cunningham treated the plaintiff at the Romsey Medical Centre from about March 2002, that is during the period over which the plaintiff worked with the first defendant until February 2007. His report
dated 25 July 2008, in a summary fashion─
(a) noted that the plaintiff “learned a trade, made a steady living … and established a successful relationship … This suggests to me that it is unlikely that John suffered any significant personality disorder as a result of his childhood
experiences”. This was a view shared by Dr Nathar and one which I have preferred to the isolated and poorly substantiated opinion of Dr Botnivik; and
(b)
explained that, following his fiancée’s untimely death, apart from treatment for symptoms of anxiety and grief in May and July 2002, and a period of stress associated with a further cardiac episode in September 2003, the plaintiff’s next attendance for treatment for mental health problems occurred in late March 2004 in the circumstances I have described above. Again this evidence tends to counter any later opinion from medico-legal specialists that the plaintiff had suffered from ongoing pre-existing psychiatric condition or conditions for which he was receiving treatment.
56 It is clear from his recent report, and the clinical notes made during May, June and July 2004, that over a period of months, after the conflict in the workplace on 27 May 2004, the plaintiff articulated to this doctor (and to others) circumstances of workplace abuse and bullying which Dr Cunningham (and others) accepted as being a cause of the plaintiff’s psychiatric condition; that is to say what Dr Cunningham described as “depression, generalised anxiety and substance abuse particularly alcohol and smoking cigarettes” (a diagnosis with which Dr Nathar said he agreed). Indeed, in Dr Cunningham’s opinion, “if
the workplace bulling (sic) that took place had not occurred is unlikely that his
current psychiatric, social and employment problems would have occurred”.
57 I note that from early June 2004 the plaintiff was assessed and treated at Oliver House, that is at a public mental health service, where psychiatrist Dr Hyland treated him until early 2005.
58 Relevantly, on 28 July 2004 Dr Hyland informed the general practitioner that “after a number of losses and problems at work” the plaintiff was suffering from an episode of major depression. However, I think that this psychiatrist’s report to the plaintiff’s solicitors, dated 29 May 2007, (based as it was on his treatment of the plaintiff up to early 2005 and the Bendigo Psychiatric Health Services files) provides a more detailed explanation of his understanding of the plaintiff’s mental health issues before and after May 2004. In this report, Dr Hyland –
(a)
noted “a past history of depression and anxiety” for which the plaintiff took Zoloft. This observation is consistent with the Romsey Medical Centre clinical notes and Dr Cunningham’s report of intermittent treatment for periods of anxiety and grief in association with particular and challenging events in the plaintiff’s personal life;
(b) diagnosed: “Major Depressive Disorder with recurrent Major Depressive Episodes. The current episode was characterised by typical depressive features, as previously described. He was vulnerable to depression as a result of his early life experiences, which left him with personality difficulties, by his previous experience of depression, and by the other losses and physical health issues previously reported. His alcohol use also increased his vulnerability to depression. ”
Notably, Dr Nathar also accepted that this diagnosis was applicable and at hearing explained that “… it becomes a semantic question if one looks at, for example, the diagnostic category DSM4 (sic), than any one of the diagnoses such as major depressive illness or adjustment disorder can be validated, so I agree with that diagnosis as well”;
(c) reported a significant improvement in the plaintiff’s mood by late October 2004, although by late November 2004 the plaintiff’s “mood once again became depressed”; (d) noted: “a history of clinical depression, alcohol and marijuana related problems of use and abuse, ischemic heart disease. Relevant contributing factors to this include social- developmental difficulties in early life, multiple deaths causing grief reactions, substance abuse, alleged work- related harassment and bullying”.
59 In summary therefore, this treating psychiatrist felt that work and non-work- related factors contributed to the plaintiff’s clinical depression in circumstances where there was a history of him having been treated for depressive symptoms on earlier occasions.
60 After moving to Portland, the plaintiff was treated by general practitioner, Dr Mazani, and he obtained psychiatric and therapeutic care from South West Healthcare which includes Portland Community Psychiatric Services.
61 As is evident from the multiple reports from South West Healthcare, initially in February 2007 the plaintiff was assessed by Psychiatric Registrar, Dr Cody. Her short report to a general practitioner, Dr Singh, indicates to me that, after the plaintiff attempted to refer himself to psychiatric services at the community centre, Dr Cody assessed him, although she did not obtain a full history or complete a full assessment and, for this reason, I have given less weight to the obvious discrepancies in the history reported and the Psychiatric Registrar’s suggested diagnosis. I have taken a similar approach to the short letter, dated 17 April 2008, from Clinical Therapist, Ms Moodie, to Dr Mazani, the purpose of which was to update the general practitioner on the plaintiff’s mental condition and his treatment plan for the ensuing six months.
62 The most comprehensive report from South West Healthcare, which was in part based on the plaintiff’s clinical file, is that prepared by staff psychiatrist, Dr Deb and dated 24 July 2008. Dr Deb apparently treated the plaintiff from 21 May 2007, and whilst the multiple stressors to which this report initially referred did not directly mention bullying and harassment in the plaintiff’s workplace, there are nevertheless relevant references to, for instance, a
“documented history of punching trees and walls to relieve stress around
work” and to the plaintiff’s attempted suicide on 27 May 2004 when, as Mr Caulfield said in his affidavit, he found the plaintiff with his “head inside a gas oven”.
63 Dr Deb’s report also indicates that this psychiatrist eventually obtained a history of workplace bullying and harassment from some months after the plaintiff’s employment commenced. Based on this and the plaintiff’s personal history (which he thought made the plaintiff vulnerable to psychiatric problems), Dr Deb concluded (as did treating general practitioner, Dr Cunningham, before him) that until he “started perceiving workplace difficulties” the plaintiff had functioned reasonably well and coped, notwithstanding the losses in his personal life and his cardiac problems.
64 Dr Deb diagnosed “Chronic Adjustment Disorder with disturbances of emotions and Alcohol Abuse”, his employment conditions being the cause (or the most significant cause) for his psychiatric condition (an opinion with which Dr Nathar also agreed).
The medico-legal evidence
65 Between June 2004 and August 2008, a number of medico-legal consultant psychiatrists (and one clinical neuro psychologist/clinical psychologist) assessed the plaintiff. As I have already indicated, Dr Nathar was taken to these reports and he was cross-examined.
66 Within weeks of his breakdown, on 25 June 2004, Dr Stern assessed the plaintiff on behalf of the insurer. He appears to have obtained a general history of workplace problems and background factors, the latter of which Dr Stern felt pre-disposed the plaintiff to an Adjustment Disorder with mixed anxiety and depressed mood (a diagnosis Dr Nathar thought could be applicable).
67 Dr Stern determined that the plaintiff’s employment was a significant contributing factor to the plaintiff’s psychiatric condition and that he was psychiatrically incapable of all work (an opinion with which Dr Nathar also agreed). However, from reading his report I think it unlikely that Dr Stern also understood that the plaintiff had commenced taking antidepressant medication shortly before his breakdown. Nevertheless, when regard is had to the more recent treating and medico-legal opinion, this omission probably does not detract from the substantive opinion expressed by this examining psychiatrist at the time.
68 Dr Senadipathy assessed the plaintiff twice (in 2005 and 2006 respectively) on behalf of the insurer, his final diagnosis being “chronic adjustment disorder with depression, anger and persecutory thinking”.
69 Whilst at first he was equivocal about any contribution the plaintiff’s employment made to his mental health problems, I think it clear that by 2006, Dr Senadipathy believed that, along with other background factors, the plaintiff’s employment “could be considered to be materially contributing to his current mental condition”. Relevantly, Dr Senadipathy assessed the plaintiff as “indefinitely incapacitated for work”, although he felt that the plaintiff had the capacity to participate in an occupational rehabilitation program.
70 Notably, in his earliest report, Dr Senadipathy spoke of a possible work- related aggravation of pre-existing mental health problems. However, when
asked to comment on this, Dr Nathar −
(a) queried what was meant by this observation; (b) said, “If there was clearly established, clinically a significant pre-existing problem such as depression or anxiety or substance abuse requiring treatment and that had become worse, then one can argue for an aggravation of pre-existing conditions. On the other hand, my understanding is that this gentleman had pre-existing problems, personality, not diagnosis but difficulties, difficult childhood and all the affecters that I am sure that we will cover again if not already. Now that may not necessarily mean that he had an
illness that has been aggravated …” (sic). In my view, this evidence is consistent with Dr Cunningham’s reported history of intermittent treatment between 2002 and 2004, that is, no evidentiary basis exists for concluding that the plaintiff was suffering from any pre-existing psychiatric condition although he did have a history of being treated for mental health problems in association with episodes of grief, loss and physical illness; and
(c) added that, when he saw the plaintiff, he was satisfied that, notwithstanding the presence of other factors, the events in the plaintiff’s employment made, and continued to make, a material contribution to the plaintiff’s presentation.
71 In June 2006, Dr Botvinik assessed the plaintiff at the request of the insurer. As is evident from the comments I have already made, and allowing for other specialists’ reports, I accept as correct the plaintiff’s submission that
Dr Botvinik was alone in thinking that −
(a) the plaintiff was suffering from an anti-social personality disorder, and (b) with the passage of time, work-related problems were no longer affecting the plaintiff’s psychiatric, psychological or emotional condition.
72 Indeed, at hearing, Dr Nathar specifically rejected the diagnosis of anti-social
personality disorder, noting, amongst other things, that −
(a) anti-social personality disorder is a longitudinal diagnosis involving a clinical history, an interview and evidence from other sources such as family and friends; (b) the absence of features of this disorder as, for instance, in adolescence and in the plaintiff’s earlier behaviour; and (c) the plaintiff’s general work and relationship history was incompatible with this diagnosis.
73 For similar reasons, Dr Nathar rejected a further diagnosis of “Impulse Control Disorder”.
74 The impression I gained from both Dr Nathar’s evidence and having read his report is that whilst in this case a diagnosis of anti-social personality disorder required consideration, he could not identify the clinical and historical bases on which Dr Botnivik relied to substantiate a belief that the plaintiff suffered from longstanding anti-social personality and impulse control disorders and that, notwithstanding work-related problems and psychiatric treatment for depression, these disorders were responsible for his presentation, rather than clinical depression or any work-related problems. In my view, on the evidence, Dr Botnivik’s opinion should not stand against particularly Dr Nathar’s well-reasoned analysis.
75 At the request of the plaintiff’s solicitors, Dr Cole examined him once on 21 February 2007. From the history reported by him, Dr Cole appears to have understood that the plaintiff was subjected to workplace harassment following his first heart attack and return to work in early 2002.
76 In his opinion, a combination of workplace, illness and personality factors contributed to the development of a nervous disorder which, by the time the plaintiff ceased work, Dr Cole described as “an adjustment disorder with
mixed anxiety and depressed mood accompanied by undue dependence
upon alcohol”. Moreover, Dr Cole thought that this condition and his heart
disease deprived the plaintiff of any capacity for employment.77 As to any ongoing contribution by workplace factors to the plaintiff’s mental state, Dr Cole also said, “… but it is a truism to say that everyone reacts to
stress in accordance with his own personality and I believe that his current condition can still reasonably be attributed to the problems that he
encountered in the course of his work …”.
78 Relevantly, when called to comment on the last-mentioned statement, Dr Nathar explained that:
“I believe that personality structure, characters as we all know are formed by life, early life experiences and family experiences et cetera and when a person becomes ill and they compensate, then the personality factors and past experiences would be significant in determining how that breakdown and how that illness manifests itself. So it’s a colouring of the person’s problems and influences also the severity and longevity, chronicity of the person’s subsequent illness once a person breaks down. But if the precipitant or the cause of the breakdown remains significant in the person’s mental functioning influencing the symptoms, their thinking, behaviour, then it becomes really impossible to try and find the point where that stops being an influence but in clinical practice if a person becomes sick because of that factor, say in this case, work factor and it continues to trouble him, then it remains significant on a continuous long-term basis.”
79 In making this observation, based on both his clinical examination and his experience, Dr Nathar appears to have encapsulated the view expressed by a number of the specialists to the effect that the work factors that precipitated his breakdown in 2004 continued to make a material contribution to the plaintiff’s mental disturbance.
80 Within a month of Dr Cole’s examination, Associate Professor Paoletti also examined the plaintiff at the request of his solicitors. There are discrepancies in the history obtained by this specialist, although as his report demonstrates, having had access to materials and multiple reports from both treating and examining doctors, Professor Paoletti was alert to and allowed for these discrepancies in giving his expert opinion.
81 Following his examination, Associate Professor Paoletti diagnosed −
“1. A mixed anxious/depressive illness that I would code:
•
Anxiety Disorder Not Otherwise Specified … with social phobic elements.
•
Depressive Disorder Not Otherwise Specified … with anger as both substrate and product, thus resulting in a vicious cycle. A differential diagnosis (…presumed possible diagnoses when a single diagnosis is not yet possible) would be Mood Disorder Not Otherwise Specified … because of a possible bipolar component to explain the irritability and aggressive feelings.
2 Alcohol Abuse …”.
82 Relevantly (and this is an opinion with which Dr Nathar specifically agreed), Professor Paoletti felt that: “the repeated alleged taunting at work would have
been of such severity to not only precipitate the above problems to a clinical level, but caused perpetuation, because of the unresolved issues leading to anger. Thus I regard employment to have been and to remain a ‘significant
contributing factor’ to all of the above”.
83 Dr Strauss examined the plaintiff on behalf of the defendants’ solicitors on two occasions, in May 2007 and next in August 2008.
84 If allowance is made for the passage of time and the long-term use by the plaintiff of psychotropic medication, it is perhaps not surprising that when Dr Strauss first examined the plaintiff, he observed that he “was not a good historian”. In any event, as with most of the other specialists, Dr Strauss obtained a general history in which the plaintiff reported, amongst other things, problems in his workplace and, if accepted, these indicated that victimisation at work was, and remains, a significant contributing factor to the plaintiff’s major depressive illness. Dr Nathar agreed with this diagnosis as well as Dr Strauss’s opinion that it may be difficult to rehabilitate the plaintiff.
85 However, whilst also diagnosing a substance abuse disorder, Dr Strauss was not satisfied that this was related to the plaintiff’s employment.
86 When he next examined the plaintiff in August 2008, Dr Strauss appears to have had copies of reports written by Dr Hyland and extracts from records kept at Oliver House, the former of which caused Dr Strauss to question the accuracy of the plaintiff’s apparent report to him “that before his problems at work [he] had, never suffered from ongoing depression and had never been
on anti-depressants although he admitted to heavy drinking in the past and an
unhappy childhood”. From the evidence before me, I was not satisfied that the plaintiff suffered from, and was treated for “ongoing depression” prior to his breakdown, although he clearly had commenced treatment with anti- depressant medication shortly before he left his employment in May 2004.
87 However, as I have already mentioned, the fact that Dr Strauss entertained the possibility that other non work-related stressors during the plaintiff’s life could have led to significant anxiety and depression needs to be understood in a context where, with intermittent and limited medical interventions, the plaintiff had hitherto demonstrated a capacity to continue with his life and his work.
88 These matters notwithstanding, this report, coupled with his letter to the defendants’ solicitors dated 6 August 2008, indicates to me that, subject to it being accepted that bullying occurred at work, Dr Strauss felt that employment may have been a contributing factor to the plaintiff’s development of ongoing depression, the prognosis for which is poor.
89 Having in passing summarised Dr Nathar’s evidence at hearing, it is unnecessary to discuss in any detail his report dated 6 May 2008. Relevantly, when he reported to the plaintiff’s solicitors, Dr Nathar identified the plaintiff’s current problem as being “a Major Depressive Illness with symptoms of
anxiety, anger and irritability colouring his psychiatric state. His symptoms are
moderate to severe in degree” (PCB128).
90 Of the doctors who have provided reports, Dr Nathar evidently was the only specialist to have considered all of the medical and vocational material (and more) placed before the Court and he had the benefit of reading the reports made by other specialists retained both by the plaintiff and the defendants. Accordingly, in my view, this specialist’s carefully reasoned and detailed report (and oral evidence) should be preferred as to –
(a) a diagnosis of major depressive illness; (b)
an opinion that the contribution of the plaintiff’s employment to his psychiatric state is more than minimal and is significant and material; and
(c)
an opinion that the plaintiff has a total loss of capacity for all work on purely psychiatric grounds.
91 The diagnoses and opinions expressed by clinical psychologist, Ms Killoran, who assessed the plaintiff on 12 November 2007 at the request of his solicitors (that is, that the plaintiff suffers from a Major Depressive Disorder and a General Anxiety Disorder) broadly accord with the diagnoses expressed by the treating doctors and the treating consulting specialists and, for this reason, it is unnecessary to summarise her report. However, the additional diagnosis of Substance-Induced Anxiety Disorder appears to relate both to the plaintiff’s alcohol consumption and Ms Killoran’s belief that exposure to toxins in his workplace may have contributed to this disorder. In any event, her primary diagnoses and her view that the plaintiff is psychiatrically unfit to return to work in the foreseeable future, lends support to the plaintiff’s case which is directed to establishing work-related compensable injury in the nature of a major depressive disorder.
Compensable injury
92 In this application the plaintiff is required to establish that he suffered compensable injury to his psyche on or after 20 October 1999 and that such injury is, in its consequences, a serious injury. As Ashley JA said in Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 (at paragraph 58) a consequence may have a multiplicity of causes, that is personal and work- related stressors may both contribute to a consequence. Therefore there may exist other injury to the plaintiff’s psyche caused by earlier personal stressors which may also contribute to his psychiatric condition. However, these do not preclude a finding that, post 20 October 1999, the plaintiff suffered work- related compensable injury to his psyche which materially contributes to his present psychiatric impairment and its consequences and it will do so for the foreseeable future.
93 At hearing I was informed by Senior Counsel for the plaintiff that the plaintiff’s claim for compensation dated 3 June 2004 (documented by the copy claims form tendered at hearing), that is for depression and anxiety due to harassment and bullying at his workplace over “a period of months” had resulted in the plaintiff being paid 104 weeks of benefits from 28 May 2004 (see Exhibit “P1”).
94 Consequently, so the submission went – and in accordance with the dicta of Ashley JA in Ansett & Anor v Taylor [2006] VSCA 171 (at paragraphs 37-40 inclusive) – this stands as a significant but not conclusive admission that such an injury was sustained. In other words, it was open to the defendants to offer a satisfactory explanation of their conduct in this regard.
95 In her submissions, Senior Counsel for the defendants, without more, referred to “the material that has now been brought forward rebuts acceptance and that material is post-dating the acceptance…”.
96 Reflecting on the material tendered to the court it seems to me that to explain their conduct the defendants now seek to gainsay the earlier acceptance of compensable injury to the plaintiff’s psyche by relying on some of the later medical evidence and clinical records I have summarised above. I formed this view because Mr Hall’s statement made on 1 July 2004 and Dr Stern’s report dated 25 June 2004 were probably available when the decision to accept the claim for depression and anxiety was notified to the plaintiff by letter dated 9 July 2004 .
97 Nevertheless, the preponderance of the evidence, in part supported by the admission made by the insurer, has satisfied me that the plaintiff suffered compensable psychiatric injury, that is, a work-related major depressive disorder which continues to make a material contribution to his present impairment and it is likely to do so for the foreseeable future (that is, for the purposes of the Act it is probably “permanent”).
The consequences
98 The plaintiff’s affidavit evidence in which he sets out pain and suffering and loss of enjoyment of life consequences articulates the extensive impact on his social, domestic, recreational and work activities. This evidence was not challenged at hearing or the fact that the plaintiff requires ongoing long-term psychiatric treatment which includes the use of psychotropic medication.
99 As to what constitutes “severe” mental disturbance, the authorities (such as Humphries v Poljak [1992] 2 VR 129 and Mobilio v Balliotis [1998] 3 VR 833) clearly accept that “severe” connotes something more than “serious” under the Act.
100 In this case the pain and suffering consequences to this plaintiff (which includes a loss of earning capacity) when judged by comparison with other cases in the range of possible mental disorders is, in my view, fairly described as being more than serious to the extent of being severe.
Loss of earning capacity
101 Not a great deal was said about this aspect of the plaintiff’s application probably because the defendants accepted that most of the medical evidence acknowledged that the plaintiff’s psychiatric condition precludes a return to gainful employment.
102 Nevertheless, I am required to consider this matter separately.
103 In their respective Statements of Calculation of Loss of Earning Capacity handed to the Court at hearing on the one hand the plaintiff alleged a without injury earning capacity of $30,489.68 gross per annum (that is, $586.34 gross per week) whereas based on an average of alleged gross earnings in the 3 years prior to 24 May 2004 the defendants argued that $18,724.66 gross per annum (that is $360.08 gross per week) most fairly reflected the plaintiff’s earning capacity had the injury not occurred.
104 In my view, in accordance with the statutory formula, averaging the 3 years prior to work-related injury does not necessarily, and in this case certainly does not, provide a fair result.
105 From the material before me, which includes the plaintiff’s affidavit, the Workcover Worker’s Claim form and the Employer Claim Report, the plaintiff’s pre-injury ordinary hours or average ordinary hours were either 39 or 40 hours per week at $15 per hour, which amounts to $585 or $600 gross per week, in either case indicating that the plaintiff was earning or was capable of earning from personal exertion in the period prior to 27 May 2004, if expressed at an annual rate, a sum exceeding $30,000 gross. In these circumstances I find that the probable “without injury earnings” figure is $30,420.00.
106 On the evidence, I was satisfied that at hearing (and since he ceased his employment on 27 May 2004) the plaintiff had not earned income from personal exertion. Moreover, consistent with most of the recent medical evidence the plaintiff is probably psychiatrically incapacitated for employment or indeed for suitable employment, a view to which the opinion contained in the vocational assessment undertaken in June 2007 lends support.
107 Based on this evidence –
(a) I find that the plaintiff has a loss of earning capacity of 40 per cent or more and this is likely to be permanent (sub-s.134AB(38)(e)(i) and (ii)); (b) I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment (sub-s.134AB(38)(g)); and (c) the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible mental disorders the plaintiff’s loss of earning capacity is fairly described as being more than serious to the extent of being severe. Orders 108 Leave is granted to the plaintiff to bring a proceeding for damages in respect to pain and suffering consequences and loss of earning capacity consequences of the injury to his psyche suffered in the course of his employment with the first defendant post-20 October 1999.
1
3
0