Forssell v Commercial and Industrial Property Pty Ltd
[2020] VCC 627
•19 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-00547
| JUSTIN FORSSELL | Plaintiff |
| v | |
| COMMERCIAL & INDUSTRIAL PROPERTY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2020 | |
DATE OF JUDGMENT: | 19 May 2020 | |
CASE MAY BE CITED AS: | Forssell v Commercial & Industrial Property Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 627 | |
REASONS FOR JUDGMENT
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Subject: WORKPLACE ACCIDENT
Catchwords: Serious injury application – mental disturbance – diagnosis of secondary psychiatric type injury – Medical Panel determination – plaintiff restricted to pursuit of ground (c) of definition of Serious Injury – adverse credit – not satisfied plaintiff suffering from a severe long term mental disturbance or disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic);
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Meadows v Lichmore [2013] VSCA 201; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Application for Serious Injury Certificate refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr C Miles | Russell Kennedy |
HIS HONOUR:
Introduction and decision
1. Due to the findings of a Medical Panel dated 27 June 2019[1] the plaintiff is limited to pursuing the grant of a serious injury certificate by establishing that he suffers from a permanent severe mental or behavioural disturbance or disorder under paragraph (c) of the definition of “serious injury” consequent upon a resolved physical injury suffered in the course of his employment for which the consequences to him are, and when judged according to range, severe.
[1]Exhibit P7, Plaintiff’s Court Book (“PCB”) 83-96.
2. The defendant opposed the grant to the plaintiff of a serious injury certificate because, it argued, the plaintiff 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 plaintiff’s evidence was in important respects untruthful and also that such of the consequences claimed by the plaintiff, 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 defendant’s submissions and, therefore, the plaintiff’s Originating Motion dated 12 February 2019 is dismissed.
3. The particulars of injury relied on by the plaintiff comprise:
(a)Psychological/psychiatric injury;
(b)Anxiety and depression;
(c)An adjustment disorder with depressed mood.
4. At the hearing of his application, the plaintiff was represented by Mr Czarnota of Counsel and the defendant was represented by Mr Miles of Counsel.
The plaintiff
5. The plaintiff was raised in Australia but moved to New Jersey as a teenager where he completed year 12 (equivalent). He returned to Australia in about 1991. He lives alone and has done so for a considerable number of years, including prior to his work injury. He has two children, aged approximately 18 and 13 years old from a previous marriage.
The Medical Panel
6. The plaintiff’s dispute was referred to a Medical Panel by his Honour Judge Wischusen lodged on 27 June 2019.[2] The questions sent to the Panel for a medical opinion were:
[2]Exhibit P7, PCB 83.
“1. What is the nature of the plaintiffs current medical condition(s), if any, of:
a) the lumbar spine?
b) the mind?
2. Does 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 Plaintiff on 15 June 2016?
3. Are 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)?
4. Does the plaintiff have:
a)A 'current work capacity'?
b)'No current work capacity'?
5. If yes to Question 4(a):
a)For how many hours per week does the plaintiff have a capacity to work in any such role?
b)If the plaintiff is incapable of working in full-time employment, is this incapacity permanent (i.e. likely to persist for the foreseeable future)?
c)Would employment as a:
(i)Administration Officer;
(i)Facilities Officer;
(ii)Trade Sales Assistant; and/or
(iii)Despatch Clerk;
currently constitute suitable employment?
6. Does any incapacity for work result from, or is it materially contributed to by any, and if so which, medical condition(s) enquired of in Question 2?
7. If 'yes' to Question 6, is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?”[3]
[3]Exhibit P7, PCB 83-85.
7. The Medical Panel opinion was dated 25 October 2019.[4] It answered each question thus:
[4]Ibid, PCB 87 and 93.
“1. In the Panel's opinion
a)Mr Forssell 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.
2. In the Panel's opinion the soft tissue injury of Mr Forssell'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 Mr Forssell's psychiatric condition was, and currently is materially contributed to by the accepted back injury of 15 June 2016.
3. In the Panel's opinion the soft tissue injury of Mr Forssell'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. In the Panel's opinion Mr Forssell has a capacity for his pre-injury and other suitable employment.
5. In the Panel's opinion
a)Mr Forssell has a capacity for full-time employment;
b)Not applicable;
c)Employment as an administration Officer, Facilities Officer, Trade Sales Assistant; and/or Despatch Clerk do currently constitute suitable employment.
6. Not applicable.
7. Not applicable.”[5]
[5]Exhibit P7, PCB 83-85.
8. The Court and the parties are bound by the opinion of a Medical Panel determination.[6] However, the reasons of a Medical Panel have no binding force on a judge. The reasons of a Medical Panel may be admitted as relevant and admissible opinion evidence for the purpose of determining the extent of the plaintiff’s injuries. Although the parties included the decision and the reasons of the Medical Panel in their respective court books and agreed to their receipt into evidence, the use made of the reasons was limited to the plaintiff being cross-examined by the defendant on some matters of evidence given by the plaintiff to the Medical Panel and attributed to him by it in its reasons. In the course of cross-examination, counsel for the defendant questioned the plaintiff about matters of his daily life that the panel had attributed to him and which the plaintiff adopted in his evidence. Of course, it is my findings on matters of evidence, taken together with the medical evidence that is determinative of the extent of the plaintiff’s impairment injury under a paragraph (c) [7] claim.
[6]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 313(4).
[7]Ibid, s 325. Definition of ‘serious injury’.
The background to the physical injury and consequent treatment
9. The plaintiff commenced work with his employer on or about 17 March 2016 as an Occupational Health & Safety representative. He suffered injury on 15 June 2016 whilst he was working on a building site when opening a gate made of approximately two "eight-foot" lengths of chain mesh and steel tubing. He said the gate had to be pushed and lifted, and when he was engaged in just that type of action, he developed pain across the upper back. He attended his General Practitioner, Dr Kohli, and underwent radiological investigation. He was referred for an opinion to Mr Nair (Neurosurgeon). He did not undergo surgery. By about October 2018 he had been referred to Dr McCullum (Pain Medicine consultant) and physiotherapy, psychology and group hydrotherapy treatment followed.
10. Prior to the back injury the plaintiff lived alone. That remains the case.
11. The Medical Panel noted that the plaintiff had been a very keen gardener before his injury and that he had looked after a large vegetable patch and mowed his lawn. He also rode a mountain bike, fished, swam and surfed. The plaintiff told the Panel those activities were forsaken because of his back injury. He told the Panel that he does very little during the day, spending his time doing crosswords and watching television.
The evidence
12. The plaintiff relied on the following evidence:
·Affidavit of Justin Forssell sworn 9 October 2018[8]
[8]Exhibit P1, PCB 30-36.
·Affidavit of Justin Forssell sworn 20 March 2020[9]
·Reports of Dr Chalam Kolli dated 17 February 2017 and 12 November 2018[10]
·Report of Dr Robyn Horsley dated 13 December 2018[11]
·Reports of Dr Akinsola Akinbiyi dated 20 December 2018, 18 March 2020 and 7 March 2020[12]
·Reports of Dr Justin Lewis dated 29 May 2019 and 17 February 2020[13]
·Medical Panel Opinion dated 27 June 2019[14]
·Report of Dr Nicholas Ingram dated 18 June 2018[15]
·Letter from Dr Chalam Kolli to Dr Akinsola Akinbiyi dated 25 July 2018[16]
·Clinical note extracts of Dr Chalam Kolli.[17]
[9]Exhibit P2, PCB 37-39.
[10]Exhibit P3, PCB 40-41.
[11]Exhibit P4, PCB 42-52.
[12]Exhibit P5, PCB 53-60.
[13]Exhibit P6, PCB 61-82.
[14]Exhibit P7, PCB 83-96.
[15]Exhibit P8, PCB 97-105.
[16]Exhibit P9, PCB 106.
[17]Exhibit P10, PCB 107-128.
13. The defendant relied on the following evidence:
·
Progress notes from Dr Akinsola Akinbiyi from 28 July 2018 to
23 September 2019[18]
·Tax invoices from Dr Akinsola Akinbiyi dated 1 July 2019 to 25 February 2020.[19]
[18]Exhibit D1, Defendant’s Court Book (“DCB”) 156-166.
[19]Exhibit D2, DCB 150-155.
14. In arriving at my decision, I have read all the evidence relied on by the parties together with having regard to the oral evidence of the plaintiff.
Psychiatric state
15. There is nothing to indicate that the plaintiff suffered any pre-existing mental vulnerability. It was noted, however, that historically he had been prescribed Zoloft antidepressant medication to treat anxiety when his ex-wife was pregnant with their first child, but apparently his anxiety resolved after a couple of weeks.
The plaintiff’s affidavit material
16. The plaintiff’s first affidavit was sworn on 9 October 2018,[20] prior to the Medical Panel referral but well after when the plaintiff claims he commenced to suffer from and experience consequences from a mental type injury or condition or disorder. However, the plaintiff made no reference in the first affidavit to complaints of a mental type affecting him. The contents of his first affidavit were instead limited to physical complaints from his physical injury. The plaintiff could not explain this omission in his first affidavit when cross-examined by Mr Miles other than to say that he had left matters in the hands of his solicitors.[21] I find that an unpersuasive explanation if in fact the plaintiff was experiencing psychological effects from his physical injury as early as he claims in his second affidavit.
[20]Exhibit P1.
[21]Transcript (“T”) 27.
17. The plaintiff’s second affidavit sworn on 20 March 2020,[22] did however, specifically address his mental condition. The plaintiff said that it was a short time after his injury in June 2016, when he commenced to feel depressed, anxious, stressed and irritable. He said that in about October 2016, he talked to Dr Kolli about his mental state. A clinical entry by Dr Kolli dated 12 October 2016 records: “Chronic back pain – work related feels depressed/anxious wants to see the psychologist”.[23] Under Psychiatric History the clinical note reads: “Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Anxious. Stress at work. Irritability. No suicidal thoughts.”[24] A mental health care plan was discussed along with a specialist referral.
[22]Exhibit P2.
[23]Exhibit P10, PCB 115.
[24]Ibid, PCB 115-116.
18. The plaintiff deposed that due to ongoing depression and anxiety, about six months later on 3 April 2017, he consulted Dr Kolli whose note records the plaintiff continuing to experience pain and “feeling anxious on and off - the other day could not sleep - felt shaky and sweaty/[hart] palpitations - wants some thing – psychotherapy - long discussion”[25] and he was prescribed Avanza 15mg, 1 daily.[26]
[25]Ibid, PCB 121.
[26]Ibid, PCB 121.
19.
A few months later on 9 June 2017, the clinical note of the plaintiff’s attendance on Dr Kolli is one of continued feelings of anxiety but with a notation that Avanza was proving helpful but that the plaintiff was continuing to experience “ups and downs”.[27] His dosage of Avanza was increased to
30 mg 1 daily on 18 September 2017.[28]
[27]Ibid, PCB 122.
[28]Exhibit P10, PCB 123.
20. The plaintiff said that he continued taking Avanza until early 2018 but he felt it was not helping him much. In February 2018, Dr Kolli ceased Avanza, and instead prescribed Pristiq 50 mg, 1 daily. The plaintiff also said this did not help him much.
21. Although the plaintiff had been referred to counselling by Dr Kolli in October 2016, he did not pursue it. He said he had hoped he would get better. He disputed the suggestion put to him by Mr Miles that he did not have counselling because he had no need for it.[29]
[29]T35.
22. The plaintiff deposed that it was not until about August 2019, when he eventually did see a psychologist. The plaintiff agreed with Mr Miles that the attendance was not arranged at the plaintiff’s initiative but instead came about as a part of a pain management program through Brunswick Private Hospital. In any event, the plaintiff was by then under the care of Dr Akinbyi, psychiatrist.
The plaintiff comes under psychiatric care
23. The plaintiff deposed in his second affidavit that it in or about July 2018, he first saw Dr Akinbiyi, on referral from Dr Kolli. He said he continues to regularly see Dr Akinbiyi for psychiatric treatments. [30] Accordingly, in the three years after the injury the plaintiff’s treatment consisted of two different anti-depressants, the first of which, Avanza, commenced to be prescribed in April 2017, a little less than two years after the injury of June 2015.
[30]Exhibit P2, paragraph 26, PCB 39.
24. A point of contention arose in cross-examination concerning the plaintiff’s account of attendances on Dr Akinbiyi after September 2019 and specifically his evidence of recent attendances.[31] The plaintiff’s oral evidence of his post September 2019 attendances is inconsistent with the tax invoices produced by the defendant, each of which correlate with his appointments and none of which postdate September 2019.[32] In the course of his final address Mr Miles submitted that the plaintiff had given false evidence when he claimed he had continued to see Dr Akinbiyi on a consistent four week basis.[33] Mr Czarnota sought to counter the defendant’s submission by arguing that if the plaintiff was wrong, then it was inadvertent and was not intentional. It is possible that the plaintiff was inadvertently mistaken in his recollection of his attendances on Dr Akinbyi, 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 plaintiff knew he had not attended on Dr Akinbyi since September 2019 and his evidence of attendances since then was false.
[31]T29-30. In XXN, the plaintiff insisted it was incorrect that his last attendance with the psychiatrist was September 2019.
[32]Exhibit D2.
[33]T30.
25. I 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.[34] In addition, this was not the only evidence given by the plaintiff that I am satisfied was false.
[34]See TAC v Zepic [2013] VSCA 232.
Pain and Suffering Consequences
26. In his second affidavit, the plaintiff described himself prior to his injury as a happy, friendly fellow and full of energy,[35] whereas he regards himself now as a completely different person. He described experiencing good days and bad days, but most days generally speaking, he said, he feels down, depressed and anxious. He said he also feels angry, impatient and irritable most days and is short-tempered and becomes irritated at little things, which is markedly different from the character of the person he described himself as having been. He said he worries and stresses constantly about what his future holds. He said his confidence and self-esteem are now significantly lower and he generally feels worthless.
[35]Exhibit P2, paragraph 13-25, PCB 38-39.
27. He said he lacks motivation and energy for life and has become socially withdrawn spending most days at home although he accepted that he will sometimes go shopping to get out of the house for his own wellbeing.
28. He deposed also to feeling depressed and stressed about his financial situation caused by his injuries.
29. He said that his appetite is generally very poor, a matter he attributed to his depressed mood and although he endeavours to cook some lighter meals to busy himself, he finds this to be a mental struggle.
30. He described having no interest in pursuing a romantic relationship because he feels he has nothing to offer and his libido is virtually non-existent.
31. He said he experiences sleep disturbances, partly due to physical pain and partly due to his mental state of feeling down and worrying about his life.
32. He described the experience of night terrors that developed after his injury and would cause him to wake up sweaty, anxious and short of breath. He said he can experience these multiple times a week while there are other times, he may go a week or more without one. He deposed how that with a change that had been made to his medicine these night terrors have been less frequent, but that he still experiences them.
33. He said he is often tearful.
34. He said that he has had suicidal thoughts, but he can rationalise his thoughts sufficiently to not act on them because of the bond he has for his two children.
35. He currently takes Lexapro 30mg daily and Seroquel 10mg nightly.[36] He said that sometimes he takes 20mg Seroquel at night if 10mg proves ineffective. He said the medications help him manage his moods and sleep but have not resolved them.
[36]Exhibit P2, paragraph 29, PCB 39.
36. He said that he has experienced significant side-effects when taking antidepressant medications in the past including weight gain and night terrors.[37] He said that although his weight had fluctuated since the injury overall it had increased; he weighs around 110 kg presently.
[37]Ibid, paragraph 23 and 29, PCB 39.
37. He described an appetite that is variable but is also affected by the side effects of his medication and that some days he eats very little.
38. He agreed in cross-examination that he is independent with his personal activities of daily living and maintains good hygiene and self-care. He said he does not mow his lawn. He said he does his own grocery shopping and prepares his meals.
39. He said he reads the newspaper of a day and goes for a walk. He said he does not see so much of his friends as he did, but he has a couple of mates who visit him once or twice a month. He said he uses buses, but the inconvenience of their use, was soon to be remedied with the expiration of the period of the loss of his licence.
The Medical Opinions
40. Dr Akinbiyi’s report dated 20 December 2018[38] diagnosed the plaintiff with a Major Depressive Disorder and a Generalised Anxiety Disorder relevant to the lower back workplace injury. Contrary to the plaintiff’s evidence in his second affidavit, Dr Akinbyi noted that the plaintiff had not presented with suicidal ideation.
[38]Exhibit P5.
41. Dr Akinbiyi’s subsequent report dated 18 March 2020 was of a guarded prognosis for the plaintiff although he noted that “there has been some improvements in his psychological symptoms, but he continues to suffer from moderate symptoms of anxiety and depressive illness.”[39]
[39]Exhibit P5, PCB 59.
42. Dr Justin Lewis, psychiatrist, undertook an independent medical examination of the plaintiff at the request of the plaintiff’s solicitors. In his report dated 29 May 2019,[40] he assessed the plaintiff as suffering from an Adjustment Disorder with Depressive features with a differential diagnosis of a Major Depressive Disorder of moderate severity and a Chronic Pain Disorder associated with a General Medical Condition.
[40]Exhibit P6.
43. Dr Lewis reported a history given to him by the plaintiff in which he “described intermittent suicidal ideation, with no current intent or plan.”[41]
[41]Ibid, PCB 71.
44. Dr Lewis furnished a more recent report to which I will have occasion to refer later in these reasons.
45.
Dr Ingram is a consultant psychiatrist to whom the plaintiff was directed to attend at the request of the defendant for the purpose of a mental examination that was conducted on 18 June 2018 with Dr Ingram having provided a report of the same date.[42] Mr Czarnota placed some emphasis on the report by
Dr Ingram. Counsel recounted that the referral was made by the defendant and, moreover, prior to the referral to the Medical Panel; that the plaintiff had related to Dr Ingram that had it not been for his children “he would not have been able to see much point in living”;[43] that Dr Ingram described the plaintiff as “tearful” and identified a range of other symptoms commensurate with an adverse mental state.[44] Thus, counsel argued, the report ought to be sufficient to put paid to the defendant’s suggestion that such complaints had only come into prominence following the opinion of the Medical Panel that excluded the ability of the plaintiff to pursue a claim under paragraph (a).
[42]Exhibit P8.
[43]Ibid, PCB 99.
[44]Exhibit P8, PCB 99.
46. Dr Ingram said of the plaintiff that:
“I feel that Mr Forssell is suffering from a major depressive disorder. This is a secondary consequence of his chronic pain and inability to work or engage in other activities. If it is accepted that his pain is related to his work then his depression is also related to his work.”[45]
[45]Ibid, PCB 101.
47.However, Dr Ingram wrote that:
“Psychologically he had become significantly depressed because of his pain and the associated limitations and if it is accepted that his pain is related to his work then his depression is related to his work. At this stage I do not feel he has exhausted treatment options for his depression and I think you should have trials of at least two other antidepressants to see if he can find one that he can tolerate. I also think it would be appropriate for him to be referred to a psychologist, for ongoing supportive psychotherapy. Until he has had further treatment I do not feel one could say that his psychological condition is stable.”[46]
[46]Ibid.
48.Mr Miles submitted, and I agree, that Dr Ingram’s opinion that the plaintiff’s condition was not then stable and further treatment was warranted was apposite. A little over a month later the plaintiff commenced his treatment with Dr Akinbyi, who in his report of December 2018 said that the plaintiff was making progress in his psychiatric treatment.[47] Furthermore, as will be seen, the plaintiff has made further progress since then.
[47]For example, his night terrors had “gotten better with current antidepressants” as had his anxiety and his “mental state has improved”. Exhibit P5, PCB 55.
Current Treatment
49. The plaintiff said that his current treatment consists of regular attendances on Dr Akinbiyi, approximately every four weeks, and that he remains under the care of his treating general practitioner, Dr Kolli, whom he consults once or twice a month for medication and reviews.[48] I have already mentioned the unreliability of the plaintiff’s account of the frequency of attendances on Dr Akinbiyi since September 2019.
[48]Exhibit P7, PCB 93.
Discussion of evidence
50. I asked counsel for the plaintiff in the course of his final address to identify the plaintiff’s injury and he said: “Well, the psychiatric conditions are what the Panel has said they are. It is a partially remitted chronic major depressive disorder.”[49] I am required to apply the Medical Panel decision which is that the plaintiff has a psychiatric condition that is still materially contributed to by the accepted work back injury of 15 June 2016.
[49]T68.
51. When he was asked to address the pain and suffering consequences of the plaintiff’s mental disorder, the plaintiff’s counsel submitted that they are clear-cut and are evident by reason of his requirement for treatment, the use of psychotropic medication to assist and help alleviate to some extent his condition and, as well, his suffering from depressed mood, anxiety, and night terrors and loss of libido.
52.
Some of the account given of the plaintiff’s consequences suffered as a result of his mental condition are contrary to the Supplementary Report dated
17 February 2020[50] obtained by the plaintiff’s solicitors from Dr Lewis. Because part of Dr Lewis’ report was at odds with the plaintiff’s evidence, he sought to contest the accuracy of parts of it, notably, that he “no longer wakes with ‘night terrors’.”[51] The account from Dr Lewis postdates the statement of reasons of the Medical Panel of October 2019 which included that the plaintiff’s “current antidepressant medication, Lexapro, had ceased his night terrors.”[52] In his second affidavit the plaintiff gave a different account, which was that since the change in medications “a few months ago, they have been less frequent, but I still have them.”[53] I prefer the more recent account of
Dr Lewis provided to the plaintiff’s solicitors in preference to the plaintiff’s evidence. I do not accept the truthfulness of the plaintiff’s testimony that he continues to experience night terrors.
[50]Exhibit P6.
[51]Ibid, PCB 77.
[52]Exhibit P7, PCB 93.
[53]Exhibit P2, PCB 39.
53. As to the plaintiff’s sleep, and otherwise than disturbance caused by night terrors, which I have already discounted as an ongoing current consequence, Dr Lewis said the plaintiff “described poor quality of sleep due to the plaintiff waking during the night secondary to pain symptoms.”[54]
[54]Exhibit P6, PCB 78.
54.
Dr Lewis in his first report dated 29 May 2019 included that the plaintiff described “intermittent suicidal ideation. He stated, I reckon one day I’ll just run in front of the road. He stated that his children do remain a strong protective factor against self-harm.”[55] In his Supplementary Report dated
17 February 2020, Dr Lewis wrote that the plaintiff “denied any suicidal ideation or psychotic features.”[56]
[55]Ibid, PCB 64.
[56]Ibid, PCB 79.
55. The account from Dr Lewis is inconsistent with the evidence given by the plaintiff in his second affidavit sworn on 20 March 2020, that he has “suicidal thoughts regularly but would not act on them.”[57] I see no reason to discount the accuracy of the account given by the plaintiff to a psychiatrist to whom he was sent for examination by his own solicitors and I find on balance that account to be an objectively more reliable one than contained in the plaintiff’s second affidavit. This is further evidence of improvement of the plaintiff’s mental condition.
[57]Exhibit P2, paragraph 25, PCB 39.
56. The plaintiff told Dr Lewis that the loss of his licence for drink driving had caused him to feel frustrated and despondent.[58] I think that is very probably a matter of some importance over the period of almost a year and a half of the inability to drive and has caused the plaintiff to experience a degree of isolation caused by the loss of his licence as opposed to psychological consequences by way of inhibition.
[58]Exhibit P6, PCB 78.
57. The plaintiff’s counsel referred to the plaintiff’s evidence in re-examination in which he spoke of his anger, impatience and irritability and short temper most days and of his constant stress and worry. These may be considered as symptoms as well as consequences from the plaintiff’s mental impairment. It is whether the consequences both to the plaintiff and when assessed by me according to range or the spectrum in comparable cases are “severe” by way of pain and suffering consequences. I am not satisfied they are.
58. Counsel for the plaintiff cited the decision of the Court of Appeal in Papamanos v Commonwealth Bank of Australia.[59] Although that decision in the main concerned an alleged error on the part of the trial judge on issues of the plaintiff’s credit (the appeal on all grounds being dismissed) it was relied on for the proposition that it is the cumulative effect from the totality of the evidence that is of signal importance in any assessment and determination of consequences. Such an approach is neither novel nor contentious and in addressing the plaintiff’s application, and in arriving at my decision, I have been considerate of that principle.
[59][2014] VSCA 167.
Severe
59. In relation to pain and suffering, I am not satisfied that the plaintiff has discharged the burden of proof in so far as reliance upon paragraph (c) of the definition of “serious injury” is concerned. For the purposes of paragraph (c), the mental disturbance or disorder must be “severe”, as opposed to “serious”. As was said by Brooking JA in Mobilio v Balliotis [1998] 3 VR 833:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[60]
[60][1998] 3 VR 833, [846] (Brooking JA).
60. On balance and having had regard to all the evidence and assessing the plaintiff and his oral evidence as it marries with, in particular, his second affidavit, I make the following findings.
61.
First, I accept and apply the opinion of the Medical Panel, that the plaintiff has a mental impairment secondary to his physical injury. I accept that it continues to visit upon the plaintiff 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 plaintiff’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.
62. The plaintiff agreed to having told Dr Lewis in February 2020 that he had reduced anxiety and improved mood.[61] Dr Akinbiyi in March this year thought that the plaintiff continues to suffer from “moderate symptoms of anxiety and depressive illness”[62] but had improved to an extent. He thought the plaintiff’s complaint of “ongoing lower back pain….will continue to act as a predisposing factor for his anxiety and depressive illness.”[63]
[61]T40.
[62]Exhibit P5, PCB 59.
[63]Ibid.
63. The plaintiff’s medication is not extensive. He said he takes Seroquel every night for sleep and that he said is prescribed by his psychiatrist. He said he takes a half 20mg tablet and sometimes the other half if necessary. However, when the plaintiff was asked by Mr Miles 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 plaintiff’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 plaintiff’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.
64. I also find the plaintiff’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.
65. The facts are that shortly before the back injury, and in April 2016, the plaintiff’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.
Range or spectrum
66. In Humphries v Poljak,[64] it was emphasised that no one spectrum by itself will answer the question of the appropriate assessment of the severity of a mental disorder or disturbance. Rather, an assessment of the severity should be made by comparison to the range or spectrum of comparable cases, and that a judge must identify and bring to account all of the factors which emerge on the evidence is relevant to the assessment. As appears from Humphries, the application of the narrative test entails a two-stage process:
[64][1992] 2 VR 129.
(i)an assessment of whether the nature and symptoms of the injury and consequences of the injury are, subjectively for the applicant, “serious” or, in the case of mental or behavioural disturbance or disorder, “severe”; and
(ii)a determination of whether the injury as thus assessed is objectively “serious” or, in the case of mental or behavioural disturbance or disorder, “severe” when compared with the range or spectrum of comparable cases.[65]
[65][1992] 2 VR 129, [40].
67.
The defendant submitted that the plaintiff had failed to disentangle the mental consequences from the consequences caused by his organic injury.
Mr Czarnota characterised the defendant’s argument about disentangling as a “red herring”.[66]
[66]T75.
68. The question of identifying consequences referable to the mental injury was refined by Mr Miles in the course of his final address when he said, “…when I used the word disentangle, I meant disentangled consequences.”[67] In other words, and, in my judgment, correctly identified by Mr Miles, the Court may only recognise for the purpose of its consideration of the grant of a serious injury certificate, the consequences from the justiciable injury that remains as a result of the decision of the Medical Panel; that is, the mental type injury under paragraph (c) of the definition. Mr Miles’ submission so understood was intended to do no more than focus attention to the question of causation.
[67]T77.
69. Mr Czarnota referred to Noori v Topaz Fine Foods Pty Ltd[68] in which the Court of Appeal said:
“… no question of ‘disentanglement’ arises under para (c) of the definition of serious injury. As the decisions of this Court makes clear, - ‘disentanglement’ is a task which arises – if at all- only in relation to para (a) of the definition. That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the court is obliged – by s 134AB (h) – to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury.’ Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences.”[69]
[68][2018] VSCA 323
[69]Ibid, [5] (Maxwell P, Hargrave & Forrest JA).
70. It is uncontroversial that the plaintiff suffered a low back injury for which an impairment benefit was paid. The lower back was accepted by the Medical Panel as having a work relationship, but the Medical Panel found that the lower back had resolved. The Medical Panel also found that the psychiatric condition is still materially contributed to by the work injury of 15 June 2016. Mr Czarnota therefore submitted, that there having been found to exist an organic basis when the psychiatric condition arose, there was a substantial organic basis for the injury and, thus, there was no requirement imposed on the plaintiff to disentangle.
71. The 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,[70] 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.[71] However, I do not agree with the plaintiff’s submission that the defendant’s concentration on the consequences the plaintiff experiences was a “red herring”[72] 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.” [73]
[70][2013] VSCA 201.
[71]Ibid, [29] (Maxwell ACJ).
[72]T75.
[73][2013] VSCA 201, [21] (Maxwell ACJ).
72. Thus there is the necessity for first step required to be undertaken by a plaintiff as explained in Meadows v Lichmore, but here, the plaintiff 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.”[74]
[74]Ibid, [22] (Maxwell ACJ).
74. Therefore, the plaintiff was required to delineate the physical contribution to the pain and suffering from the psychological. The plaintiff was unable to do so.
75. I have considered the root and branch examination Mr Miles undertook in cross-examination of the plaintiff concerning the claimed consequences he attributed to his physical pain and detailed in his first affidavit, as well the consequences the plaintiff 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 plaintiff has are due to his resolved work-related injury.
76. In reaching my conclusion, I have borne in mind, that in assessing whether a psychological injury is serious, the consequences for the plaintiff 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.
77. In 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 plaintiff has proved his claim under paragraph (c) in accordance with the test expounded in Humphries, because I am not satisfied that the current consequences have been proved to be severe to the plaintiff 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 plaintiff’s credibility on a number of matters and sufficient to have adversely impacted the requisite degree of satisfaction required of me about the plaintiff’s veracity of the physiological consequences he relies on and their effect on him.
78. The plaintiff’s claim for relief pursuant to his Originating Motion is dismissed.
79. I will hear the parties on the form of final orders including costs.
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