Forssell v CIP Constructions (Australia) Pty Ltd
[2020] VSCA 304
•27 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0052
| JUSTIN FORSSELL | Applicant |
| v | |
| CIP CONSTRUCTIONS (AUSTRALIA) PTY LTD (ACN 105 081 865) (formerly known as COMMERCIAL & INDUSTRIAL PROPERTY PTY LTD) | Respondent |
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| JUDGES: | BEACH, KYROU and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 November 2020 |
| DATE OF JUDGMENT: | 27 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 304 |
| JUDGMENT APPEALED FROM: | [2020] VCC 627 (Judge P Ginnane) |
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WORKPLACE ACCIDENT – Application for leave to commence proceedings for pain and suffering damages for serious injury – Whether applicant suffered permanent severe mental or permanent severe behavioural disturbance or disorder – Judge made adverse credit finding on erroneous factual basis – Judge found that applicant failed to ‘disentangle’ physical and psychological contributions to mental disorder – No legal requirement for disentanglement – Workplace Injury Rehabilitation and Compensation Act 2013 ss 325(1), (2), 335(2), (3), (5) – Appeal allowed – Proceeding remitted to County Court for rehearing by another judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC with Mr P A Czarnota | Slater and Gordon Ltd Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr M J Hooper | Russell Kennedy Lawyers |
BEACH JA
KYROU JA
OSBORN JA:
Introduction and summary
On 19 May 2020, a judge of the County Court dismissed the applicant’s application for leave to commence proceedings for the recovery of pain and suffering damages for a serious injury sustained in the course of his employment with the respondent.[1] The application was brought pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’).
[1]Forssell v Commercial & Industrial Property Pty Ltd [2020] VCC 627 (‘Reasons’). The respondent is now known as CIP Constructions (Australia) Pty Ltd.
Originally, the applicant relied on both paras (a) and (c) of the definition of ‘serious injury’ in s 325(1) of the Act, namely, ‘permanent serious impairment or loss of a body function’ (para (a)) and ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ (para (c)). Following a determination by a medical panel that the applicant’s physical injury to his lower back had resolved, he relied solely upon para (c).
The judge decided that the applicant had failed to establish the requirements of para (c). The judge’s reasons for his decision included the following findings:
(a)the applicant’s oral evidence that he had seen his treating psychiatrist after September 2019 was not supported by any documentary evidence and was false; and
(b)the applicant had failed to ‘disentangle’ the physical and psychological contributions to his mental disorder.
Contrary to these findings, there were two documents in evidence that showed that the applicant had seen his treating psychiatrist on 25 February 2020 and disentanglement was not legally required.
The applicant has sought leave to appeal against the judge’s decision on the grounds that he erred in making the above findings.
For the reasons that follow, the application for leave to appeal will be granted and the appeal allowed.
Relevant statutory provisions
We have already set out paras (a) and (c) of the definition of ‘serious injury’ in s 325(1) of the Act. That section defines ‘pain and suffering’ as including ‘loss of amenities of life or loss of enjoyment of life’.
Section 325(2) of the Act relevantly provides as follows:
For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
…
(b)the [term] severe [is] to be satisfied by reference to the consequences to the worker of any … mental or behavioural disturbance or disorder … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible … mental or behavioural disturbances or disorders …
…
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe …
…
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)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;
…
Section 335(2)(d) of the Act, read with s 327, relevantly provides that the County Court may give leave to a worker to bring proceedings for the recovery of damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury. Section 335(3) provides that, for the purposes of s 335(2), a worker who satisfies s 325(2)(b)(i), but not s 325(2)(b)(ii), is entitled to bring proceedings in accordance with s 335(2)(d) for the recovery of damages for pain and suffering only. Section 335(5)(a) relevantly provides that, for the purposes of s 335(2)(d), the County Court must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury.
Facts and procedural history
The applicant was born on 12 March 1971. He is divorced and has two children aged 18 and 13 from his former marriage. He lives alone and has done so since prior to his workplace injury. He has not suffered any pre-injury mental condition.
The applicant commenced employment with the respondent on 17 March 2016 as an occupational health and safety representative. On 15 June 2016, while working on a building site, he suffered a lower back injury when he opened a heavy gate made of chain mesh and steel tubing, by lifting and pushing it.
On 9 October 2018, the applicant lodged a ‘serious injury’ application with the Victorian WorkCover Authority (‘VWA’). The application relied on both paras (a) and (c) of the definition of ‘serious injury’. He sought leave to sue for both pain and suffering damages and pecuniary loss damages. The application was rejected.
On 12 February 2019, the applicant filed an originating motion in the County Court seeking leave pursuant to s 335(2)(d) of the Act to commence proceedings for the recovery of damages for physical and psychological injuries.
On 27 June 2019, Judge Wischusen referred certain questions to a medical panel pursuant to s 274(1)(b) of the Act. Those questions and the medical panel’s answers dated 25 October 2019 (in italics) are relevantly as follows:
1What is the nature of the [applicant’s] current medical condition(s), if any, of:
a) the lumbar spine?
b) the mind?
In the Panel’s opinion
a)[The applicant] sustained a soft tissue injury of his lower back which has now resolved, and currently has no physical condition of his lumbosacral spine relevant to the claimed injuries;
b)has a partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety and an Alcohol Use Disorder reportedly in remission.
2Does any, and if so, what medical condition enquired of in Question 1 result from, or is materially contributed to by the injury suffered by the [applicant] on 15 June 2016?
In the Panel’s opinion the soft tissue injury of [the applicant’s] lower back did result from the injury of 15 June 2016, but this has resolved, and he has no current condition of his lower back which is materially contributed to by the accepted injury of 15 June 2016.
In the Panel’s opinion [the applicant’s] psychiatric condition was, and currently is materially contributed to by the accepted back injury of 15 June 2016.
3Are any, and if so which, of the medical conditions identified in response to Question 2 permanent (i.e. likely to persist for the foreseeable future)?
In the Panel’s opinion the soft tissue injury of [the applicant’s] lower back has resolved and he has no permanent physical condition of his lower back, but his partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety and an Alcohol Use Disorder reportedly in remission is likely to persist for the foreseeable future.
4. Does the [applicant] have:
a) A ‘current work capacity’?
b) ‘No current work capacity’?
In the Panel’s opinion [the applicant] has a capacity for his pre-injury and other suitable employment.
5 If yes to Question 4(a):
a)For how many hours per week does the [applicant] have a capacity to work in any such role?
…
In the Panel’s opinion
a) [The applicant] has a capacity for full-time employment;
…
The originating motion then proceeded for hearing only under para (c) of the definition of ‘serious injury’ before Judge P Ginnane on 25 March 2020. The ‘Particulars of Injury’ upon which he relied were described as ‘(a) Psychological/psychiatric injury; (b) Anxiety and depression; and (c) Adjustment disorder with depressed mood’. Leave was sought for pain and suffering damages only.
County Court hearing
At the County Court hearing on 25 March 2020, the applicant relied on the following evidence:
(a)an affidavit sworn by the applicant on 9 October 2018 (‘first affidavit’) and a further affidavit sworn by him on 20 March 2020 (‘second affidavit’);
(b)reports of the applicant’s general practitioner, Dr Chalam Kolli, dated 17 February 2017 and 12 November 2018;
(c)report of an occupational physician, Dr Robyn Horsley, dated 13 December 2018;
(d)reports of the applicant’s treating psychiatrist, Dr Akinsola Akinbiyi, dated 20 December 2018 and 18 March 2020 and a referral letter dated 7 March 2020;
(e)reports of a consultant psychiatrist, Dr Justin Lewis, dated 29 May 2019 and 17 February 2020;
(f)report of a consultant psychiatrist, Dr Nicholas Ingram, dated 18 June 2018 (which was prepared at the request of the respondent);
(g)referral letter from Dr Kolli to Dr Akinbiyi dated 25 July 2018;
(h)extracts from the clinical notes of Dr Kolli; and
(i)the opinion of the medical panel dated 25 October 2019.
The respondent relied on the following evidence:
(a)progress notes from Dr Akinbiyi dated 28 July 2018, 25 August 2018, 20 October 2018, 13 November 2018, 15 December 2018, 30 January 2019, 1 July 2019, 29 July 2019, 26 August 2019 and 23 September 2019; and
(b)tax invoices from Dr Akinbiyi dated 30 January 2019, 1 July 2019, 29 July 2019, 26 August 2019, 23 September 2019 and 25 February 2020.
The applicant saw Dr Akinbiyi on 25 February 2020. He also had a consultation with Dr Akinbiyi on 23 March 2020, which was conducted by telephone due to the COVID-19 pandemic. Dr Akinbiyi’s progress notes for the February consultation were not tendered because the subpoena for the production of his progress notes was issued on 20 February 2020.
The applicant was the only witness who gave oral evidence. He was cross-examined.
In his first affidavit, the applicant described the physical consequences of his back injury. The only references he made to any psychological consequences were as follows:
I struggled with my ongoing symptoms and my inability to get back to work and a normal life. My general practitioner referred me to a psychologist under a mental health plan. … I had a great sense of pride and achievement performing my job, but I am now bored, restless, frustrated and miserable.
In his second affidavit, the applicant stated that, although he was ‘suffering mentally’ at the time he swore his first affidavit, he did not provide ‘much detail on [his] mental condition’. He stated that ‘[t]he only explanation [he had] for the failure to discuss those matters was that [he] was entirely reliant on [his] legal advisors to prepare [his] first affidavit, and to include matters of relevance’.
In his second affidavit, under the heading ‘Mental Condition — History and Treatments’, the applicant stated the following:
(a) Shortly after his injury in June 2016, he started to feel depressed, anxious, stressed and irritable.
(b) He discussed his mental state with Dr Kolli around October 2016. Although Dr Kolli referred him to counselling, he did not then pursue it because he believed that he would eventually feel better.
(c) He continued to suffer from depression and anxiety and consulted Dr Kolli again around April 2017. Dr Kolli prescribed Avanza, 15 mg once a day. A few months later, the dosage was increased to 30 mg once a day. He continued to take Avanza until early 2018, but felt that it was not helping much. Dr Kolli then prescribed Pristiq, 50 mg. He took this for a period, but it also did not help much.
(d) In about July 2018, he saw a psychiatrist, Dr Akinbiyi, upon referral from Dr Kolli. He has ‘been seeing Dr Akinbiyi regularly since’. Dr Akinbiyi trialled various medications, including Valdoxan, Lexapro, Seroquel and Temazepam. These made him feel better at times, but overall he continued to feel depressed, anxious and sad most of the time.
(e) He saw a psychologist around August 2019 as part of a pain management program conducted by Brunswick Private Hospital. This did not help much.
In his second affidavit, under the heading ‘Pain and Suffering Consequences’, the applicant stated the following:
(a)Prior to his injury, he felt happy, friendly and full of energy, whereas he now feels like a completely different person. He experiences good days and bad days but, generally speaking, on most days he feels down, depressed and anxious. He also feels angry, impatient and irritable most days, is short-tempered and becomes irritated at little things, whereas he never used to be like that.
(b)He worries and stresses constantly about what his future holds. His confidence and self-esteem are now significantly lower and he generally feels worthless.
(c)He generally lacks motivation and energy for life and has become socially withdrawn, spending most days at home. However, he sometimes goes shopping in order to get out of the house for his wellbeing.
(d)He feels depressed and stressed about his financial situation caused by his injuries.
(e)His appetite is generally very poor, which he attributes to his depressed mood. Although he endeavours to cook some lighter meals to busy himself, this is a mental struggle.
(f)He has no interest in pursuing a romantic relationship because he feels that he has nothing to offer and his libido is virtually non-existent.
(g)He experiences sleep problems, partly due to physical pain and partly due to his mental state. He often has trouble sleeping because he feels down and worries about his life.
(h)Since his injury, he has regularly had night terrors, which cause him to wake up sweaty, anxious and short of breath. He can experience these multiple times a week whilst, at other times, he may go a week or so without one. As a result of a change in his medication a few months previously, the night terrors have been less frequent, although he still experiences them.
(i) He is often tearful.
(j)He has had suicidal thoughts regularly, but would not act on them because he could not do that to his children.
(k)He currently takes Lexapro, 30 mg daily, and Seroquel, 10 mg nightly. Sometimes he takes 20 mg of Seroquel at night if 10 mg does not work. The medications help him manage his moods and help him sleep but have not resolved his mood or sleep problems.
(l)He has experienced significant side effects when taking antidepressant medications, including weight gain and night terrors.
Dr Kolli’s clinical notes contained the following relevant entries:
(a)An entry dated 12 October 2016 recorded: ‘chronic back pain-work related — feels depressed/anxious — wants to see the psychologist’. Under the heading ‘History: Psychiatric’, the entry reads: ‘Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Anxious. Stress at work. Irritability. No suicidal thoughts.’ A mental health care plan was discussed along with a specialist referral.
(b)An entry dated 3 April 2017 recorded the applicant ‘feeling anxious on and off — the other day could not sleep — felt shaky and sweaty/[heart] palpitations — wants some thing — psychotherapy’. Avanza, 15 mg once a day, was prescribed.
(c)An entry dated 9 June 2017 recorded that the applicant was feeling anxious, that Avanza was helping him but that he still felt ‘some ups and downs’.
(d)An entry dated 18 September 2017 recorded that the Avanza dosage was increased to 30 mg once a day.
(e)An entry dated 7 February 2018 recorded that the applicant wanted to wean off Avanza as he thought it was not helping him. Dr Kolli prescribed Pristiq, 50 mg once a day, and ceased prescribing Avanza.
(f)The applicant’s weight was noted to be 104.9 kg on 18 April 2016, 100 kg on 31 October 2016 and 115.1 kg on 13 November 2017.
In his referral letter to Dr Akinbiyi dated 25 July 2018, Dr Kolli stated that the applicant was ‘[h]aving depression followed by chronic work related pain’. Dr Kolli noted that Avanza and Pristiq did not improve the applicant’s condition and that he was currently trialling Valdoxan, 25 mg once a day, which was not helping.
In her report dated 13 December 2018, Dr Horsley stated that the applicant received a Beck Depression Inventory score of 33, suggestive of severe depression with mild suicidal ideation, and a Beck Anxiety Inventory score of 19, suggestive of mild to moderate anxiety. Dr Horsley reported that these results suggested the applicant had ‘ongoing and significant mental health issues’. Dr Horsley stated that the applicant weighed 105 kg and that, pre-accident, he weighed 93 kg.
In his report dated 20 December 2018, Dr Akinbiyi stated that the applicant suffered from a major depressive disorder and a generalised anxiety disorder. Dr Akinbiyi quoted the applicant as stating that he was not sleeping well and had night terrors ‘about 18 months ago’. Dr Akinbiyi reported that the applicant had commenced taking Lexapro, 30 mg in the morning, which had caused his anxiety symptoms to improve, and that his night terrors had ‘gotten better’ with his current antidepressant medication. Dr Akinbiyi noted that the applicant had denied having any suicidal plan or intent and that ‘thoughts of his children [kept] him safe’. Dr Akinbiyi reported that the applicant’s mental state had improved and stated that the applicant ‘is reviewed by the psychiatrist every 4 weeks’.
In his subsequent report dated 18 March 2020, Dr Akinbiyi noted that he reviewed the applicant on 25 February 2020 and that his prognosis was guarded. Dr Akinbiyi stated that ‘there has been some improvement in [the applicant’s] psychological symptoms, but he continues to suffer from moderate symptoms of anxiety and depressive illness’. Dr Akinbiyi recorded that the applicant was continuing to take Lexapro, 30 mg in the morning, in addition to Seroquel, 25 mg at night, and that he is ‘[t]o be reviewed by the psychiatrist every 4 weeks’. By his letter of 7 March 2020, Dr Akinbiyi referred the applicant to a clinical psychologist, Claire McCallum, for psychotherapy.
In his progress notes, Dr Akinbiyi recorded the applicant’s weight as 108.9 kg as at 25 August 2018, 107.7 kg as at 15 December 2018, 104.5 kg as at 30 January 2019, 105.6 kg as at 1 July 2019, 105.7 kg as at 29 July 2019 and 108.8 kg as at 26 August 2019.
In his report dated 29 May 2019, Dr Lewis assessed the applicant as suffering from a chronic adjustment disorder with depressive features, with a differential diagnosis of a major depressive disorder of moderate severity. Dr Lewis also assessed the applicant as suffering from a chronic pain disorder secondary to a general medical condition. The report noted that the applicant ‘described his sleep as “terrible”’ and ‘described intermittent suicidal ideation, with no current intent or plan’. The report quoted the applicant as stating: ‘I reckon one day I’ll just run in front of the road’, and stated that ‘his children do remain a strong protective factor against self-harm’. Dr Lewis stated that there had been some improvement in the applicant’s anxiety symptoms with a change in antidepressant medication from Avanza to Lexapro.
In his subsequent report dated 17 February 2020, Dr Lewis noted that the applicant had stated that there had been ‘some improvement’ in his psychological state and he described his psychiatric treatment as ‘particularly supportive’. However, the applicant stated that his pain and mood difficulties continue to impact his general functioning and quality of life and he has gained a significant amount of weight due to his medication. Dr Lewis reported that the applicant’s dosage of Lexapro had been increased from 20 mg to 30 mg and that there had subsequently been a reduction in his generalised anxiety symptoms. The report recorded that the applicant stated that, whilst overall he was ‘managing things a little better’, he continues to struggle with lowered mood and irritability, his sleep was ‘shithouse’ and he has lowered libido. The report also recorded that, since the dose increase, the applicant ‘now no longer wakes with “night terrors”’. The report noted that the applicant stated that he felt frustrated and despondent in the context of his ongoing driver’s licence suspension. The report stated that the applicant ‘denied any suicidal ideation or psychotic features’.
In his report dated 18 June 2018, Dr Ingram noted that the applicant stated that he had completely lost his sex drive, that his sleep was disturbed, that he suffered panic attacks about twice a week and that, had it not been for his children, ‘he would not have been able to see much point in living’. Dr Ingram described the applicant as occasionally tearful. Dr Ingram diagnosed the applicant as suffering from a major depressive disorder which was a secondary consequence of his chronic pain and inability to work or engage in other activities. Dr Ingram recorded that, psychologically, the applicant had become significantly depressed because of his pain and the associated limitations and, if it was accepted that his pain was related to his work, then his depression was related to his work. He opined that it would be appropriate for the applicant to be referred to a psychologist for ongoing supportive psychotherapy.
In its determination dated 25 October 2019, the medical panel attributed the following to the applicant: he weighed 109.4 kg; his sleep was disrupted; he suffered night terrors but these had ceased since he started taking Lexapro; he suffered panic attacks; he had intermittent suicidal thoughts but would never act on them due to his children; his mood had picked up a little recently and his concentration was better; his libido was low; he regularly consulted a psychiatrist every four weeks; and he took Seroquel as required to sleep, four to five times a month.
When the respondent’s counsel cross-examined the applicant, he had available Dr Akinbiyi’s progress notes as at the date the subpoena for their production was issued, namely, 20 February 2020. When counsel asked the applicant about his most recent consultations with Dr Akinbiyi, the applicant stated that he had had a telephone consultation with Dr Akinbiyi on 23 March 2020 and had seen him in person four weeks prior to that date. When counsel put to the applicant that he had not seen Dr Akinbiyi since 23 September 2019, the applicant denied this. In response to further questions about the applicant’s consultations with Dr Akinbiyi, the applicant stated that he had scheduled consultations on a consistent four week basis but missed some appointments. The applicant also stated that he could not remember when he last saw Dr Akinbiyi in 2019.
In cross-examination, the applicant gave the following additional evidence:
(a) His weight had fluctuated since the injury. He last recollected that his weight prior to the injury was around 93 kg, as he had advised Dr Horsley. The respondent’s counsel put to the applicant that he had lied to Dr Horsley about his pre-injury weight, which he denied. He acknowledged that, as he did not weigh himself on a regular basis, a month before his injury his weight might have been 105 kg, as recorded by Dr Kolli. Following his injury, his weight went up to 117 kg or 118 kg while he was taking Avanza. His current weight was a bit more than 105 kg.
(b) Having lost his driver’s licence for 15 months for drink driving in February 2019, he had to use buses to visit other people and relied on his parents for transportation to medical appointments. In re-examination, the applicant clarified that the loss of his licence had not much changed his socialising because, when he had his licence, he ‘didn’t really go out much anyway’.
(c) When asked why he did not see a psychologist when he was referred to one in October 2016 by Dr Kolli, he stated that he was hoping that his psychological state would improve.
At the conclusion of the applicant’s evidence, his counsel informed the judge that the insurance company was paying for the applicant’s psychiatric attendances. Shortly before the luncheon adjournment, the applicant’s counsel tendered various documents, including Dr Akinbiyi’s report dated 18 March 2020 which confirmed that the applicant had seen him on 25 February 2020. Immediately after the luncheon adjournment, the respondent’s counsel tendered the tax invoices referred to at [17(b)] above, which had been obtained from VWA’s agent.
In his closing address, the respondent’s counsel submitted that the applicant’s evidence that he saw Dr Akinbiyi monthly was ‘simply not true’ and that this ‘affects the [applicant’s] credit’.[2] Counsel also submitted that the applicant’s evidence that he saw Dr Akinbiyi in February 2020 was ‘[p]robably not true’.[3] Counsel stated that, according to the tendered progress notes and invoices of Dr Akinbiyi, the applicant had not seen him since September 2019. Counsel also submitted that the evidence the applicant gave about his weight went to his credit. In his closing address, the applicant’s counsel submitted that the applicant’s credit ‘remains intact’ and that any inaccuracy in his evidence regarding consultations with Dr Akinbiyi was mistaken rather than untruthful.[4]
[2]Transcript of Proceedings (25 March 2020) 53.2–53.4, 53.12.
[3]Transcript of Proceedings (25 March 2020) 53.4–53.6.
[4]Transcript of Proceedings (25 March 2020) 65.19–65.20, 66.16–66.17.
In his opening address, the respondent’s counsel submitted that the applicant ‘faces a disentangling problem between the physical and the psychological’.[5] In his closing address, the applicant’s counsel submitted that the issue of ‘disentanglement’ was a ‘red herring’ because it is not relevant to a claim under para (c) of the definition of ‘serious injury’.[6] In his closing address in reply, the respondent’s counsel stated that, when he used the word ‘disentangle’, he meant ‘disentangled consequences’.[7]
[5]Transcript of Proceedings (25 March 2020) 21.30–22.1.
[6]Transcript of Proceedings (25 March 2020) 75.16–75.17, 75.29–75.30.
[7]Transcript of Proceedings (25 March 2020) 77.13–77.14.
Judge’s decision
The judge provided the following overview of his reasons for dismissing the applicant’s originating motion seeking leave to commence proceedings for damages for a serious injury:
2The [respondent] opposed the grant to the [applicant] of a serious injury certificate because, it argued, the [applicant] had failed to identify consequences from his mental disturbance or disorder that are different from the consequences that followed from his resolved work back injury; that the [applicant’s] evidence was in important respects untruthful and also that such of the consequences claimed by the [applicant], even if accepted by me, are when assessed according to the range or spectrum of like disorders, not severe. For the reasons that follow I accept the [respondent’s] submissions and, therefore, the [applicant’s] Originating Motion dated 12 February 2019 is dismissed.[8]
[8]Reasons [2].
Notwithstanding Dr Akinbiyi’s report dated 18 March 2020 and invoice dated 25 February 2020, the judge found that the applicant gave deliberately false evidence that he had attended upon Dr Akinbiyi after September 2019. The judge stated that this finding undermined the extent to which the applicant’s evidence as a whole could be relied upon in the absence of corroboration. The judge gave the following reasons for the finding and his conclusion regarding the applicant’s credibility:
24A point of contention arose in cross-examination concerning the [applicant’s] account of attendances on Dr Akinbiyi after September 2019 and specifically his evidence of recent attendances. The [applicant’s] oral evidence of his post September 2019 attendances is inconsistent with the tax invoices produced by the [respondent], each of which correlate with his appointments and none of which postdate September 2019. In the course of his final address [counsel for the respondent] submitted that the [applicant] had given false evidence when he claimed he had continued to see Dr Akinbiyi on a consistent four week basis. [Counsel for the applicant] sought to counter the [respondent’s] submission by arguing that if the [applicant] was wrong, then it was inadvertent and was not intentional. It is possible that the [applicant] was inadvertently mistaken in his recollection of his attendances on Dr Akinbiyi, but his resoluteness about his attendances struck me as being at odds with mere inadvertence and furthermore, the cross-examination was directed at his history of recent attendances and not of long ago times. I am satisfied the [applicant] knew he had not attended on Dr Akinbiyi since September 2019 and his evidence of attendances since then was false.
25I accept that in regard to mental conditions, the extent and level of treatment will not always be determinative of the question whether a mental condition is severe. However, because the reliability of a plaintiff in such cases is very important in assessing his evidence about consequences he claims to suffer, a finding that a plaintiff gave deliberately false evidence on other matters puts into question the extent of reliance that can be placed on the plaintiff’s account in the absence of corroboration. In addition, this was not the only evidence given by the [applicant] that I am satisfied was false.[9]
[9]Reasons [24]–[25] (citations omitted).
When addressing the recent level of the applicant’s treatment, the judge incorrectly attributed to the applicant a statement that he was treated by Dr Akinbiyi ‘approximately every four weeks’ and then stated: ‘I have already mentioned the unreliability of the [applicant’s] account of the frequency of attendances on Dr Akinbiyi since September 2019.’[10]
[10]Reasons [49].
The judge stated that the applicant ‘made no reference in [his] first affidavit to complaints of a mental type affecting him’.[11] The judge referred to the applicant’s explanation that he relied upon his lawyers regarding the contents of the first affidavit and said the following: ‘I find that an unpersuasive explanation if in fact the [applicant] was experiencing psychological effects from his physical injury as early as he claims in his second affidavit.’[12]
[11]Reasons [16].
[12]Reasons [16].
The judge referred to the applicant’s evidence in his second affidavit that, although less frequent, he continued to have night terrors. The judge stated that this evidence was inconsistent with Dr Lewis’s report dated 17 February 2020 which recorded that the applicant had stated that he ‘no longer wakes with “night terrors”’. The judge stated that he preferred ‘the more recent account of Dr Lewis’ and did ‘not accept the truthfulness of the [applicant’s] testimony that he continues to experience night terrors’.[13]
[13]Reasons [52].
The judge stated that the applicant’s statement in his second affidavit that he has ‘suicidal thoughts regularly but would not act on them’ was inconsistent with a statement in Dr Lewis’s report dated 17 February 2020 that the applicant had ‘denied any suicidal ideation or psychotic features’. The judge preferred the account in Dr Lewis’s report because ‘on balance that account [is] an objectively more reliable one’ and stated that ‘[t]his is further evidence of improvement of the [applicant’s] mental condition’.[14]
[14]Reasons [55].
The judge concluded that the applicant had not satisfied the requirements of para (c) of the definition of ‘serious injury’ for the following reasons:
61I accept and apply the opinion of the Medical Panel, that the [applicant] has a mental impairment secondary to his physical injury. I accept that it continues to visit upon the [applicant] several adverse and unfavourable consequences. I accept that on the evidence, his mental condition would appear to interfere with his enjoyment of life, to some extent, including an apparent loss of libido and that is significant. However, I find that the [applicant’s] need for psychiatric treatment has been and remains minimal. I am satisfied that his mental condition has improved over time and not worsened. I am satisfied there is a basis to expect continuing and increased improvement in all areas and aided by the reinstatement of his ability to drive.
62The [applicant] agreed to having told Dr Lewis in February 2020 that he had reduced anxiety and improved mood. Dr Akinbiyi in March this year thought that the [applicant] continues to suffer from ‘moderate symptoms of anxiety and depressive illness’ but had improved to an extent. He thought the [applicant’s] complaint of ‘ongoing lower back pain … will continue to act as a predisposing factor for his anxiety and depressive illness.’
63The [applicant’s] medication is not extensive. He said he takes Seroquel every night for sleep and that … is prescribed by his psychiatrist. He said he takes a half 20mg tablet and sometimes the other half if necessary. However, when the [applicant] was asked by [counsel for the respondent] if he had told the Medical Panel that he took Seroquel four to five times a month, he agreed he did, because that was the case at the time. In other words, if I accept the [applicant’s] evidence of his present presentation, then his sleep must have become significantly more troubled since the date he testified before the Medical Panel. I do not accept the [applicant’s] account of the increased frequency of Seroquel for sleep or that his sleep has deteriorated. Assuming that the frequency of the need for sleep medication is … as he told the Medical Panel, I would not regard this as an indicium of seriousness.
64I also find the [applicant’s] account that he has suffered a weight gain caused by his mental disorder as no longer relevant. I accept that it was for a time, but that it is not any longer the case. I consider the evidence he gave about his weight gain was an attempt to elevate what has been a regular feature of his life to that of a consequence he is continuing to suffer because of his mental impairment.
65The facts are that shortly before the back injury, and in April 2016, the [applicant’s] weight was 104.9 kilograms. His current weight is 101.5 kilograms. When seen by Dr Akinbiyi in August 2018, his weight was 108 kilograms, and although it rose to approximately 117 or 118 kilograms whilst prescribed Avanza, it has reduced since he ceased that medication.
…
76In reaching my conclusion, I have borne in mind, that in assessing whether a psychological injury is serious, the consequences for the [applicant] are not confined to symptoms which the injury directly produces. The relevant consequences may also include not only the need that has arisen for treatment but, the need for medication and the side effects of the same. I have kept this in mind, but the medication is minimal and as a result of trialling of medications the side effects of weight gain was overcome. I have addressed the issues of sleep disturbance and of night terrors and of suicidal ideation. Other associated effects are in my assessment likely to continue to improve.[15]
[15]Reasons [61]–[65], [76] (citations omitted; emphasis in original).
The judge found that the applicant had failed to ‘disentangle’ the physical contribution and the mental contribution to his mental injury and relied upon this finding in support of his conclusion that the applicant had failed to satisfy the requirements of para (c) of the definition of ‘serious injury’. The judge’s reasoning was as follows:
71The necessity that arises on occasion to ‘disentangle’ the organic from the non-organic can be important but on other occasions it can be distracting. As the Court of Appeal said in Meadows v Lichmore, it is not always the case that the evidence in an application for leave to commence proceedings for serious injury at common law will demand it. However, I do not agree with the [applicant’s] submission that the [respondent’s] concentration on the consequences the [applicant] experiences was a ‘red herring’ and a reading of Meadows v Lichmore explains why I have reached that conclusion. Maxwell ACJ said:
The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any disentangling of the physical contributions to the pain and suffering from the psychological contributions.
72Thus there is the necessity for [the] first step required to be undertaken by a plaintiff as explained in Meadows v Lichmore, but here, the [applicant] cannot rely on its application because the pain and suffering consequences of the low back injury are incapable of satisfying the statutory criterion, because the Medical Panel determined that the low back injury had resolved.
73 The Court of Appeal went on to say:
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and disentangle. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
74Therefore, the [applicant] was required to delineate the physical contribution to the pain and suffering from the psychological. The [applicant] was unable to do so.
75I have considered the root and branch examination [counsel for the respondent] undertook in cross-examination of the [applicant] concerning the claimed consequences he attributed to his physical pain and detailed in his first affidavit, as well [as] the consequences the [applicant] has attributed to his mental injury, detailed in his second affidavit. I am satisfied that there is an alignment and commonality to the organic consequences and the claimed mental consequences. They have not been delineated sufficiently. I am satisfied that such consequences the [applicant] has are due to his resolved work-related injury.[16]
[16]Reasons [71]–[75] (citations omitted; emphasis in original).
The judge concluded that, even if he was wrong in relation to the ‘disentanglement’ issue, the applicant’s proceeding should be dismissed for the following reasons:
77In the event I am wrong in law by way of the meaning and application of Meadows v Lichmore, then I would not in any event have been satisfied that the [applicant] has proved his claim under paragraph (c) … because I am not satisfied that the current consequences have been proved to be severe to the [applicant] and that when judged objectively that they fall within the range such that they are more than very considerable and in fact are severe. I also have expressed my reservations about the [applicant’s] credibility on a number of matters and sufficient to have adversely impacted the requisite degree of satisfaction required of me about the [applicant’s] veracity of the physiological consequences he relies on and their effect on him.[17]
[17]Reasons [77].
Grounds of appeal
The applicant’s grounds of appeal are in the following terms:
1The learned trial judge erred in finding at [24] that there was no documentary evidence (to support the applicant’s oral evidence) that the applicant had seen his treating psychiatrist after September 2019.
2The learned trial judge was required to consider by reference to the consequences to the applicant whether the applicant had a mental or behaviour disturbance or disorder that was severe. His Honour erred at [74] by requiring the applicant to ‘disentangle’, in a sense that precluded reference to mental consequences that derived from the initial organic injury.
Ground 1: Evidence regarding attendances upon the treating psychiatrist
Parties’ submissions on ground 1
The applicant submitted that the judge erred in finding at para 24 of his reasons that the applicant’s oral evidence of his post-September 2019 attendances upon Dr Akinbiyi was inconsistent with the tendered tax invoices. This was said to be because Dr Akinbiyi’s tax invoice dated 25 February 2020 and his report dated 18 March 2020 confirmed that he had seen the applicant on 25 February 2020. The applicant argued that this erroneous finding was material to the judge’s conclusion at paras 24–5 of his reasons that the applicant’s evidence was unreliable and that this conclusion, in turn, materially contributed to the disposition of the proceeding.
The applicant contended that, if the judge had not rejected his evidence on the basis of the erroneous credit findings, it would have been open to the judge to have found that the requirements of para (c) of the definition of ‘serious injury’ were satisfied. Accordingly, the applicant contended that the judge’s ultimate decision that those requirements were not satisfied was unsafe and ought to be set aside. The applicant accepted that, as his credit is important to the resolution of the proceeding, this Court is not in a position to decide the matter and, accordingly, the proceeding should be remitted to the County Court to be reheard by another judge.
The respondent submitted that ground 1 is directed to an insignificant error that was not material to the judge’s decision. It argued that, whilst the judge wrongly stated that the tendered tax invoices did not postdate September 2019, there was only one such invoice, for 25 February 2020. The respondent contended that, although the applicant attended upon Dr Akinbiyi on 25 February 2020, he did not regularly attend monthly appointments between September 2019 and February 2020. Accordingly, the respondent argued that the applicant’s case was based upon false claims that he attended a psychiatrist ‘monthly’ and ‘regularly’.
The respondent submitted that the judge’s error was merely a ‘slip [which] was both explicable and of no moment’. It contended that, despite the slip, the judge appropriately answered the actual point being decided, namely, ‘the unreliability of the [applicant’s] account of the frequency of attendances on Dr Akinbiyi since September 2019’.[18]
[18]Reasons [49]. See [41] above.
The respondent argued that the slip does not show that the judge’s findings as to the applicant’s credibility were unsafe. According to the respondent, the judge found that the applicant’s evidence lacked credibility with respect to several other matters. It was said to be telling that the applicant did not seek to challenge any other adverse findings as to his credibility.
The respondent contended that, even if ground 1 is made out, the appeal must fail. This was said to be because the alleged error was not material and the applicant did not challenge the judge’s ultimate finding at para 77 of his reasons that he was not persuaded that the applicant’s claimed mental disorder was ‘severe’. It was said that the lack of persuasion was always a significant risk when the applicant sought to reorient his case in the way that he did following the determination of the medical panel.
The respondent submitted that the judge’s ultimate disposition of the proceeding on the issue of severity at para 77 of his reasons was ‘well open’ to him and is explained by his consideration of the evidence and findings earlier in the reasons. In particular, the respondent relied upon the following:
(a) the medical panel’s finding that the applicant’s depressive disorder was partially remitted;[19]
(b) the opinions of Dr Akinbiyi and Dr Lewis that the symptoms and severity of the applicant’s depression were moderate;[20]
(c) the medical panel’s finding that the applicant could still work in his pre-injury employment and a range of full-time roles;[21]
(d) the judge’s finding that the applicant no longer experienced night terrors;[22]
(e) the judge’s finding that the applicant no longer had suicidal thoughts;[23]
(f) the judge’s finding that the applicant’s need for psychiatric treatment had been and remained minimal;[24]
(g) the judge’s finding that the applicant’s condition had improved and was expected to continue to improve;[25]
(h) the judge’s finding that the applicant’s medication was not extensive, but was minimal;[26] and
(i) the judge’s finding that the applicant’s claimed weight gain due to medication was no longer relevant, as he had since lost the weight that he had gained.[27]
[19]See the medical panel’s answer to question 1(b) at [14] above.
[20]See [28], [30] above.
[21]See the medical panel’s answers to questions 4 and 5(a) at [14] above.
[22]Reasons [52]. See [43] above.
[23]Reasons [55]. See [44] above.
[24]Reasons [61]. See [45] above.
[25]Reasons [61]. See [45] above.
[26]Reasons [63], [76]. See [45] above.
[27]Reasons [64]–[65], [76]. See [45] above.
The respondent conceded that, if this Court upholds ground 1, it could not be said that the applicant’s claim was so unmeritorious that this Court could dismiss it summarily. Accordingly, the respondent accepted that, in that circumstance, the judge’s order should be set aside and the proceeding should be remitted to the County Court.
Decision on ground 1
Although the judge had the benefit of seeing and hearing the applicant, which we did not have, his finding that the applicant knew that he had not attended upon Dr Akinbiyi since September 2019 and that his evidence of attendances since that time was false, was contrary to incontrovertible facts.[28] Those facts were Dr Akinbiyi’s report dated 18 March 2020 and his tax invoice dated 25 February 2020, which clearly demonstrated that the applicant saw Dr Akinbiyi on 25 February 2020. In addition, the applicant gave unchallenged evidence that he had a telephone consultation with Dr Akinbiyi on 23 March 2020. Accordingly, the error alleged in ground 1 is established.
[28]See Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558–9 [43]; [2016] HCA 22; Lee v Lee (2019) 266 CLR 129, 148–9 [55]; [2019] HCA 28; Australia Kunqian International Energy Co Pty Ltd v Flash Lighting Company Ltd [2020] VSCA 239, [121]–[126].
The question that then arises is whether that error is sufficient to vitiate the judge’s decision. In our opinion, it is, for the following reasons.
First, para 25 of the judge’s reasons makes it clear that the judge considered that his finding that the applicant ‘gave deliberately false evidence’ about the extent of the treatment he received from Dr Akinbiyi (‘false evidence finding’) ‘puts into question the extent of reliance that can be placed on the [applicant’s] account in the absence of corroboration’.[29] It is thus evident that the false evidence finding was the foundation upon which the judge rejected other aspects of the applicant’s evidence. As the respondent did not challenge the medical evidence tendered by the applicant — and the report of its own medical expert, Dr Ingram, supported the applicant’s case — the outcome of the case clearly turned on whether the judge accepted the applicant’s evidence about the psychological consequences of his injury. It follows that the false evidence finding infected the entire judgment.
[29]See [40] above.
Secondly, the false evidence finding not only affected the judge’s assessment of the applicant’s credit, but also resulted in the judge rejecting a key indication of the severity of the psychological consequences of the applicant’s injury, namely, the extent and level of psychiatric treatment that he received for that injury. The judge found that the applicant’s need for psychiatric treatment ‘has been and remains minimal’.[30] The judge’s erroneous conclusion that the applicant had not received any psychiatric treatment for the six month period prior to the hearing resulted in the judge understating the severity of the applicant’s mental disorder.
[30]Reasons [61]. See [45] above.
The applicant’s evidence was that he had appointments scheduled every four weeks with Dr Akinbiyi, but was not able to attend all of the appointments. That evidence is consistent with Dr Akinbiyi’s progress notes and tax invoices, which are discussed at [17] above. They show that, although the applicant did not see Dr Akinbiyi in the months September 2018, February–June 2019 and October 2019–January 2020, he saw Dr Akinbiyi roughly every four weeks between July–August 2018, October 2018–January 2019, July–September 2019, and February–March 2020.[31] The applicant consulted with Dr Akinbiyi on 12 occasions in the 21 months between July 2018 and March 2020. Whilst this level of treatment could not be described as ‘intensive’, neither was it ‘minimal’, as found by the judge.
[31]The March 2020 consultation was conducted by telephone due to the COVID-19 pandemic.
At para 24 of his reasons, the judge attributed to counsel for the respondent a submission that the applicant ‘had given false evidence when he claimed he had continued to see Dr Akinbiyi on a consistent four week basis’.[32] The applicant did not say — either in his affidavits or in oral evidence — that he attended upon Dr Akinbiyi every four weeks.
[32]See [40] above.
Thirdly, in addition to the applicant’s evidence about the extent and level of psychiatric treatment received by him, the judge also rejected the applicant’s evidence on three other indicia of the severity of the psychological consequences of his injury. They were suicidal ideation, night terrors and sleep disturbance.[33] The respondent’s counsel had not put to the applicant that he had lied about these consequences.
[33]The judge also described the applicant’s evidence about his increase in weight following the injury as ‘an attempt to elevate what has been a regular feature of his life to that of a consequence he is continuing to suffer because of his mental impairment’. See Reasons [64] set out at [45] above.
In relation to sleep disturbance, the judge rejected the applicant’s evidence regarding the frequency with which he took Seroquel. The judge did not accept that the applicant took 10 mg — and sometimes 20 mg — every night. The judge referred to the applicant’s statement to the medical panel in October 2019 that he took Seroquel four to five times a month and stated that he would not regard this frequency ‘as an indicium of seriousness’.[34]
[34]Reasons [63]. See [45] above.
Whilst there were some inconsistencies in the history the applicant gave to various medical practitioners about the above indicia of severity and his evidence on them, we cannot be confident that the judge would have rejected the applicant’s evidence regarding these indicia if he had not made the false evidence finding.
Fourthly, as a result of the false evidence finding, the judge described as ‘unpersuasive’ the applicant’s explanation regarding the contents of his first affidavit and cast doubt on whether the applicant ‘was experiencing psychological effects … as early as he claims in his second affidavit’.[35] Both aspects of the judge’s observations are unfair. Contrary to the judge’s statement that the first affidavit did not refer to any ‘complaints of a mental type affecting him’,[36] the affidavit stated that Dr Kolli referred him to a psychologist under a mental health plan and that he was ‘bored, restless, frustrated and miserable’.[37] Further, the applicant’s explanation that he relied upon his lawyers regarding the contents of his first affidavit was entirely plausible. Additionally, Dr Kolli’s clinical notes and the medical report of the respondent’s own expert (Dr Ingram) — which predate the applicant’s first affidavit — support the applicant’s evidence about the early onset of his mental disorder.
[35]Reasons [16]. See [42] above.
[36]Reasons [16]. See [42] above.
[37]See [20] above.
Finally, the critical contribution of the judge’s adverse credit findings — which were strongly influenced by the false evidence finding — to the judge’s decision to dismiss the applicant’s proceeding is evident from introductory para 2 and concluding para 77 of his reasons. In para 2, the judge stated that he accepted a submission he attributed to the respondent that the applicant’s evidence ‘was in important respects untruthful’.[38] In para 77, the judge stated that he had ‘expressed [his] reservations about the [applicant’s] credibility on a number of matters and sufficient to have adversely impacted the requisite degree of satisfaction required of [him] about the [applicant’s] veracity of the physiological consequences [the applicant] relies on and their effect on [the applicant]’.[39]
[38]See [39] above.
[39]See [47] above.
Having regard to our conclusion that the false evidence finding is integral to the judge’s decision to dismiss the applicant’s proceeding, and the respondent’s concession set out at [56] above, the decision must be set aside. The respondent’s concession was properly made. If the judge had accepted all of the applicant’s evidence, it would have been open to him to find in favour of the applicant.
We agree with the applicant’s submission that we are not in a position to decide the issue of severity for ourselves. As the judge made strong credit findings against the applicant, the proceeding will be remitted to the County Court to be reheard by another judge.
Ground 2: Disentanglement of physical and psychological contributions
Our conclusions that ground 1 is made out, that the judge’s decision should be set aside and that the proceeding should be remitted to the County Court, mean that it is not necessary for us to decide ground 2. That is particularly so having regard to the fact that the applicant properly conceded that, in the light of the judge’s conclusion in para 77 of his reasons,[40] if we had rejected ground 1, success on ground 2 alone would not warrant setting aside the judge’s decision. However, as the judge’s analysis of the ‘disentanglement’ issue is erroneous, we will briefly explain why ground 2 is made out.
[40]See [47] above.
The obligation to disentangle the physical and psychological consequences of an injury is confined to a claim under para (a) of the definition of ‘serious injury’. This requirement is to be found in s 325(2)(h) of the Act,[41] which is the successor of s 134AB(38)(h) of the Accident Compensation Act 1985. By reason of that provision, a worker who seeks to claim damages for an organic injury in accordance with para (a) cannot rely on the psychological consequences of that injury to establish that it is a ‘serious injury’.[42] However, a worker who seeks to claim damages for a psychological injury in accordance with para (c) can rely upon all psychological consequences, including those arising from an organic injury, as well as the physical consequences of a mental disorder.[43] In Noori v Topaz Fine Foods Pty Ltd, this Court summarised the position succinctly when it stated that ‘no question of “disentanglement” arises under para (c) of the definition of serious injury’.[44]
[41]See [8] above.
[42]Meadows v Lichmore Pty Ltd [2013] VSCA 201, [2].
[43]See s 325(2)(i) of the Act set out at [8] above.
[44][2018] VSCA 323, [5]. See also at [33].
Conclusion
For the above reasons, the application for leave to appeal will be granted and the appeal allowed. The judge’s order dismissing the proceeding will be set aside and the proceeding will be remitted to the County Court to be reheard by another judge.
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