Field v PM Excavation and Construction Pty Ltd
[2011] VCC 861
•4 May 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY
Case No. CI-10-02623
| LYNDA PAULINE FIELD | Plaintiff |
| v | |
| PM EXCAVATION & CONSTRUCTION PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| ALLIANZ WORKER’S COMPENSATION (VIC) LTD | Third Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 2 May 2011 |
| DATE OF JUDGMENT: | 4 May 2011 (Revised) |
| CASE MAY BE CITED AS: | Field v PM Excavation & Construction Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 861 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric injury – whether the pain and suffering consequences and loss of earning capacity consequences meet the statutory test: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Nowicki Carbone |
| Mr A Macnab | ||
| For the Defendants | Mr S Myers with | Wisewould Mahony |
| Ms K Galpin | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 18 June 2010 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries suffered by her arising out of or in the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring a proceeding for pain and suffering and loss of earning capacity.
3 Mr C Harrison SC appeared with Mr A MacNab of Counsel for the plaintiff, and Mr S Smith appeared with Ms K Galpin of Counsel for the defendants.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered her Court Book (“PCB”) pages 14-25; 34-38; 40-71 and 72-92; and from the defendants’ Court Book (“DCB”) pages 1a-27: Exhibit A.
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37) (c) of the Act which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e)
Subsection (38)(I) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38) (j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners (supra), I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
7 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Injury
8 The plaintiff was born on 20 August 1947. She is now sixty-three years of age. She is a married woman with two children.
9 The majority of the plaintiff's working life was spent undertaking clerical work. In about 1999, she commenced casual employment with the first defendant. After about one year she became a full-time employee. She was employed as a receptionist/clerical assistant undertaking general office work.
10 The plaintiff made a statement to an investigator appointed by WorkCover. The statement contains the allegations which the plaintiff makes regarding the conduct of Phillip McGrane, who is the managing director of the first defendant. The allegations are extensive. I do not intend to even summarise the allegations, save to say that McGrane behaved very poorly in his conduct with clients and staff.
11 In an answering affidavit of 9 June 2010,[4] McGrane denied behaving as extremely as described by the plaintiff. However, he admitted that he nonetheless behaved poorly towards clients and staff.
[4] DCB 1a-1c
12 If a fair proportion of the allegations made by the plaintiff are true, then the conduct of McGrane can only be described as revolting, and it is understandable why the plaintiff suffered a dramatic and severe mental breakdown.
The Plaintiff's Medical Treatment
13 The plaintiff was unable to tolerate the conduct of McGrane. She was forced to cease work with the first defendant on 9 May 2008.
14 The plaintiff saw Dr Kar, general practitioner, on 9 May 2008. He referred the plaintiff to Dr Shum, psychiatrist. It would appear that Dr Shum first saw the plaintiff in May 2008.
15 On the first occasion, Dr Shum summarised the main problems which the plaintiff was experiencing as follows:
"- severely stressed, irritable, having crying spells, poor sleep;
- feeling alarmed by any reminder of workplace;
- feeling flat, loss of motivation;
- fear of leaving home or going shopping;- (all of these still ongoing)."[5][5] PCB 41
16 Dr Shum made a diagnosis of Post-Traumatic Stress Disorder. He prescribed the plaintiff Oxazepam, 15 milligrams at night. He suggested interventions comprising psycho-education; psychotherapy involving cognitive behavioural therapy and behaviour therapy; calmness training; and emotional de- stressing.
17 There seems a note of optimism in the initial opinion of Dr Shum regarding the likely outcome of the treatment which he suggested the plaintiff undergo. However, the subsequent reports provided by Dr Shum reveal that the plaintiff developed severe symptoms of Post-Traumatic Stress Disorder. Indeed, in his report dated May 2010, he described the symptoms experienced by the plaintiff which comprise the following:
"Anxiety and fear;
Stomach churning;
Feeling nauseated inside and outside of work;
Depression;
Poor sleep; waking up between 3-4 am worrying and thinking incessantly; waking at the slightest noise and not able to get back to sleep;
Feeling so tired during the day that she felt like nodding off;
Loss of energy, initiative and drive;
Being irritable, intolerant and critical of her own family, and no apparent reason, then feeling guilty for doing so;
Feeling very angry and tenths when she had to do with deadlines, having to fit in with people, or being rushed;
Cannot handle doing shopping; feeling the need to rush back home;
Finding herself putting her head down to no apparent reason;
Finding herself suddenly crying, fearful, angry when reminded of her past work situation;
Fear of going out;
Fear of running into his [her] employer when driving;
Hair loss;
Loss of interest in meeting people;
Loss of interest in making herself presentable to other people;
Loss of interest in activity she used to enjoy, such as reading and doing puzzles;
Loss of appetite;
Loss of weight of approximately 5 kilograms;
Frequent recollection of stressful events at work;
Recurrent stressful dreams of the events at work;
Feelings like being at work again;
Poor concentration and short-term memory;
Inability to feel happy or relaxed;
Experiencing anxiety, tension, irritability and fatigue when she goes out or when she is with people, even with her own family."[6]
[6] PCB 51-52
18 On the basis of those symptoms, and no doubt on the basis of Dr Shum's clinical examination, he diagnosed the plaintiff as suffering from a severe Post-Traumatic Stress Disorder. The treatment regimes which he implemented included counselling, medication and calmness training, initially twice a week, and then weekly. He continued to prescribe her Oxazepam, and also Lexapro, 10 milligrams daily and Temazepam, 10 milligrams at night every three nights.
19 Dr Shum was of the opinion that the plaintiff was totally incapacitated at that time for any work. He was also of the opinion that she would remain psychiatrically unwell for two to three years from the date he wrote the relevant report.
20 Dr Shum provided subsequent reports dated 21 August 2010;[7] 21 September 2010[8] and 16 December 2010.[9] What is abundantly clear from each of those reports is that the plaintiff's psychiatric condition did not change in any marked way. At the time when Dr Shum wrote the last report, he was seeing the plaintiff weekly. By that time he had been seeing the plaintiff for nearly two- and-a-half years.
[7] PCB 58-60
[8] PCB 61-63
[9] PCB 64-65
21 The plaintiff was examined by number of psychiatrists on a medico-legal basis. She was examined by Dr Weissman, psychiatrist, on 12 November 2010;[10] Dr Wahr, psychiatrist, on 25 February 2011;[11] Dr Entwistle, psychiatrist, on 10 June 2008; 28 August 2009 and 24 January 2011[12] and Dr Daniels, psychiatrist, on 26 March 2010 and 23 August 2010.[13]
[10] PCB 72-85
[11] PCB 86-92
[12] DCB 1-15
[13] DCB 16-27
22 The diagnoses which each of the psychiatrists arrived at are described differently, but it appears to me that they are based upon the same history and symptoms. It was only Dr Daniels who considered that the plaintiff had a work capacity. He considered that within six months of the last occasion on which he saw her that she would be fit for suitable employment, and that consideration should be given to either curtailing or reducing her psychiatric treatment also within a six-month period.
Serious Injury
23 The only issue raised for my consideration was whether the consequences to the plaintiff meet the statutory test for pain and suffering and loss of earning capacity.
24 In her affidavit sworn 12 January 2010, the plaintiff described being anxious; suffering panic attacks; lacking confidence and suffering from depression. She described lacking motivation and having a churning feeling in her stomach; suffering from headaches; and constantly experiencing tiredness; and feeling physically and emotionally spent.
25 She described being unable the tolerate using a computer. She described lacking the concentration to a read a book; follow the Geelong Football Club by attending games, which previously, on occasion, took her interstate; an inability to go shopping with her family, because of the incidence of panic attacks which require her to go straight home. She now spends most of her time at home or paying visits to her daughter.
26 The plaintiff was cross-examined by Mr Smith, who directed his cross- examination to whether the plaintiff was able to function in a reasonable level inconsistent with being able to meet the statutory test.
27 The answers the plaintiff gave during cross-examination serve to confirm the gravity of the symptoms of her psychiatric condition. It was abundantly clear to me that her sleep is seriously impaired;[14] she suffers nightmares;[15] she uses music to relax with the aid of an iPod at night;[16] she helps to care for her grandson who describes her as “grumpy granny”;[17] she no longer knits or does the gardening;[18] and her shopping is limited to buying milk, and when she goes out shopping with her daughter she argues with her daughter and needs to go home.[19]
[14] Transcript 8
[15] Transcript 8
[16] Transcript 9
[17] Transcript 10-11
[18] Transcript 11-12
[19] Transcript 12
28 The plaintiff is using a battery of medication. She takes Seroquel, 50 milligrams, to help her relax so that she can sleep. She takes Oxazepam, 30 milligrams, half a tablet in the morning and the other half in the afternoon. She takes Lexapro, 10 milligrams at lunchtime. The plaintiff said that the medication is helpful, but it does not always achieve its purpose in relieving her symptoms. The impression I obtained from the way in which the plaintiff gave answers during cross-examination relevant to the effect of her medication is that the medication does not significantly reduce her symptoms.[20]
[20] Transcript 8
29 What is also clear from the plaintiff's answers that she gave during cross- examination was that she is employing the techniques which she has been taught by Dr Shum. Nonetheless, the impression I obtained was that they do not significantly reduce her symptoms or assist her in coping with her symptoms.[21]
[21] Transcript 8
30 Mr Smith submitted that the plaintiff is able to engage in levels of activity on a daily basis which militate against a finding of serious injury. I disagree. In Dwyer v Calco Timbers Pty Ltd,[22] Ashley JA observed that in an application such as this, the Court is concerned with what has been lost, and that the Court can be informed of what has been lost, to an extent, by what has been retained.[23]
[22] [2008] VSCA 260
[23] at paragraph 27
31 The plaintiff's affidavits and the histories taken by Dr Shum and the other psychiatrists contain a veritable catalogue of major symptoms from which the plaintiff has suffered since she stopped working with the first defendant. Literally, every aspect of her life from her work through to her enjoyment of social, domestic, recreational and family pursuits have been affected.
32 The plaintiff is now under a dramatic and extensive regime of medical treatment. She sees a psychiatrist once a week and is on a cocktail of medication in an attempt to reduce her symptoms, but with limited success.
33 It occurs to me that the plaintiff is a shadow of her former self. Previously, she was able to lead a life as an independent woman capable of working and undertaking all of her own domestic tasks. She had a social, recreational and family life which was no doubt very enjoyable, the loss of which is not to be underestimated.
34 It also occurs to me that the losses to the plaintiff are extraordinarily large and have left a deep hole in the plaintiff's life. For the defendants to suggest that the consequences to the plaintiff did not meet the statutory test is wrong, and is not supported by the evidence.
35 I consider this to be a very strong case for serious injury. I have little hesitation in describing the pain and suffering consequences to the plaintiff as being severe. Apart from Dr Daniels, the preponderant view of the other psychiatrists, and especially Dr Shum, is that the plaintiff has no real prospect of being able to return to any suitable employment.
Conclusion
36 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for the injury giving rise to the pain and suffering consequences and loss of earning capacity which have arisen out of her employment with the first defendant.
37 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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