Galea v John Deere Limited
[2019] VCC 1505
•16 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05323
| ANGELA MARIE GALEA | Plaintiff |
| v | |
| JOHN DEERE LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 September 2019 | |
DATE OF JUDGMENT: | 16 October 2019 | |
CASE MAY BE CITED AS: | Galea v John Deere Limited | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1505 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left and right arms – pain and suffering – pecuniary loss – whether consequences are “very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanis v Transport Accident Commission [2016] VSCA 140; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore, [2013] VSCA 201; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Grace v Elmasri [2009] VSCA 111; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323.
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr M Fogarty | Slater and Gordon Ltd |
| For the Defendant | Ms A M Magee QC with Mr A Coote | Lander and Rogers |
HIS HONOUR:
1 In 2014, the plaintiff, Ms Angela Galea, was working for John Deere Limited as a stock picker. She alleged that she sustained injuries to her arms because of the duties she had to perform. She also alleged that, because of these arm injuries, she has developed a psychiatric injury.
2 In order to bring a claim for damages against John Deere, she must satisfy the Court that the consequences of this alleged psychiatric injury are severe in terms of pain and suffering consequences and also that it has caused a loss of 40 per cent or more of earning capacity.
3 The issues I must decide are:
(a) was a physical injury to Ms Galea’s arms caused by her work in 2014; and
(b)what, if any, psychiatric injury has Ms Galea suffered as a result of her alleged arm injuries.
4 Ms Galea seeks certification with respect to both pain and suffering and loss of earning capacity consequences for serious injury pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
5 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is:
“… can the injury, when judged by comparison with other cases in the range of possible impairments or losses, fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 In assessing whether a plaintiff gains certification for loss of earning capacity, Ms Galea must establish a loss of earning capacity of 40 per cent or more in accordance with s325(2)(e) of the WIRC Act.
7 The application was originally brought pursuant to both ss(a) and (c) of the definition of serious injury. However, during his opening address, Senior Counsel for Ms Galea, Mr Ingram QC, who appeared with Mr Fogarty, essentially abandoned the application in relation to paragraph (a) and confined Ms Galea’s case to paragraph (c). Thus, Ms Galea’s case, as put during the hearing of the application, is that by reason of the workplace injury, she has suffered a severe long-term mental disturbance or disorder with the onset of a Chronic Pain Syndrome, sometimes referred to as a Somatic Form Disorder with predominant pain, persistent (“SSD”).
8 The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of the term “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition as to paragraph (c) claims, is a stronger word than “serious”.[3] Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe” was a word of stronger force than the word “serious”.[4] Phillips JA and Charles JA made comments to similar effect.[5]
[2][1998] 3 VR 833
[3](Supra) at [846]
[4](Supra) at [834] – [835]
[5](Supra) at [858], [860] – [861]
9 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder are “severe”, I must conclude that those consequences are more than “very considerable” to Ms Galea.[6] In performing this analysis, it is necessary, first, to identify, and, next, to bring into account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgement in accordance with the principles enunciated in Humphries & Anor v Poljak,[7] giving to each identified relevant circumstance the weight which, to the Court, appears to be appropriate.[8] In addition to finding that the consequences of the severe mental disturbance are severe, I must also conclude that the relevant injury is permanent, that is, not changeable for the foreseeable future.
[6]Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833; Katanis v Transport Accident Commission [2016] VSCA 140
[7](supra) at [140], per Crockett and Southwell JJ
[8]Katanis v Transport Accident Commission (supra) at paragraph [19]
10 Ms Galea bears the burden of proof on the application. The standard of proof is on the balance of probabilities. The Court must assess whether the injury is “serious” as at the time the application is heard. In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the workplace incident.[9] The task of assessing the pain and suffering consequences of an injury has been held to be largely a question of impression and value judgement.
[9]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [628]; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
The legal contentions
11 It was put by the defendant that this case involved an element of disentanglement because Ms Galea had raised both paragraphs (a) and (c) in his opening.[10] Though Mr Ingram QC, for Ms Galea, disavowed much reliance on (a), he did not completely abandon it in opening. Ms Magee QC, who appeared for the defendant with Mr Coote, submitted that as both paragraphs (a) and (c) were formally in issue, then Ms Galea needed to properly disentangle the physical and psychiatric injuries as alleged. Ms McGee relied on the decision in Meadows v Lichmore,[11] where it was 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 psychological contributions.
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.”
[10]Transcript (“T”) 90, Lines (“L”) 17-20
[11][2013] VSCA 201 at paragraphs [21]-[22]
12 In the closing submissions, plaintiff’s counsel submitted that the present case was not a Meadows-type case, as Ms Galea does not rely upon any organic injury, save in the limited sense required to found the paragraph (c) case, being to have sustained a compensable workplace injury.
13 This took both parties to the decision of Veljanovska v Socobell Oem Pty Ltd.[12] At the time of opening, both counsel quoted from Ashley JA’s decision at paragraph 40. It appeared that Ms Galea and the defendant were at odds over the interpretation to be given to that paragraph. In part, it reads in the following way:
“In my opinion, in the state of the material thus described, the judge was obliged to be satisfied that the appellant had established a sufficient causal linkage between initial compensable physical injury and chronic pain disorder, the latter meeting the criteria of paragraph (c). A possible variant finding concerning chronic pain syndrome would have been no better for the respondent. Were it concluded that the syndrome had a physical explanation, the condition, no doubt serious, would fall within paragraph (a) rather than paragraph (c).”
[12][2005] VSCA 227
14 At the time of closing, however, both parties seem to have come to agreement as to the meaning of that holding. For example, Ms Galea referred me to the matter of Grace v Elmasri,[13] where it was stated:
“To succeed on this appeal, Mr Grace must also establish a sufficient causal link between his psychological condition and the physical injuries he suffered as a result of the second accident … .”
[13][2009] VSCA 111 at paragraph [137]
15 I accept that proposition and apply it to my findings.
16 Further, an issue arose as to whether any claim under paragraph (c) required a disentanglement of various psychiatric causes which contributed to the ultimate diagnosis of SSD. Both counsel seemed to accept that no such disentanglement was required. I am fortified in accepting that proposition by reason of the decision in Noori v Topaz Fine Foods Pty Ltd.[14]
[14][2018] VSCA 323 at paragraph [33]
17 In summary, then, the legal principles to be applied are the following:
(a) given the abandonment of the paragraph (a) case (to the extent that the physical consequences could be considered serious) whether Ms Galea has sustained a permanent behavioural disturbance or disorder as a result of the workplace incident;
(b)whether that behavioural disturbance has a sufficient causal link to the initial compensable physical injury;
(c) whether the behavioural disturbance could be considered severe when regard is had to the consequences.
18 After considering those matters set out above I now turn to consider the facts.
Relevant personal factual background
19 Ms Galea was born in January 1972. She swore two affidavits in this matter; the first sworn on 20 July 2018 and a further affidavit sworn on 29 August 2019. In her first affidavit, she set out her background history, which was relatively straightforward. She left school at about the age of fifteen. She had two children who, as of 2018, were aged twenty-nine and twenty-three, and she had separated from her partner. She had worked as a manager and supervisor at Toy World for about ten years, on and off, on a part-time basis, before joining the defendant company, John Deere Limited, in October 2005 as a full-time storeperson. She deposed, at paragraph 6 of her first affidavit, that her normal working hours were 7.6 hours per day, Monday to Friday, plus regular overtime.[15]
[15]Plaintiff’s Court Book (“PCB”) 5
20 Ms Galea had separated from her husband in about 2006 or 2007. She deposed, at paragraph 7 of her first affidavit, that she found this period stressful and upsetting. The stress associated with the breakup of her relationship with her husband seems to have continued for several years, and was particularly bad in the years immediately before, then after, the subject workplace incident. Ms Galea deposed that she had very little in the way of physical injury or psychiatric problems prior to about March 2014. At this time, it appears that Ms Galea began to experience some difficulties at work.[16]
[16](Supra)
(a) Was there a work-related physical injury in early 2014?
Ms Galea’s evidence: Ms Galea’s work duties were that she worked as a low-level picker with the defendant, operating a cherry-picker-type machine on the production line to pick stock orders. She described this work as fast and repetitive. In about March 2014, she deposed that her employer was unhappy as she was picking too slowly. She deposed that she was managed and watched by her employer more closely after this time. By about June 2014, she began to notice pain in both her arms and back. After seeking some assistance from her treating doctor, Dr Lai, she was given a certificate for light duties. She lodged a WorkCover claim in respect of her arm injuries in late June 2014. Her duties were then changed, such that she was doing low-level order packing, and working in the bulk area doing stock picking in a harness. She deposed that this made her arm pain worse and she began to experience muscle spasms in her upper back. Her employer referred her for treatment to its own doctor who, in turn, arranged for ultrasound scans. This doctor appears to be Dr Olivia Pegram.[17] Ultrasound of both elbows did not show anything significant;[18]
The defendant’s evidence: In a statement dated 30 October 2014, Mr Trevor Fowles, a former employer of the defendant, stated that in January 2014 he had spoken to Ms Galea in relation to drug taking. He also deposed to the fact that Ms Galea had difficulties with her ex-husband in 2014, and had become anxious and depressed about that. He made no mention in his statement of any problems that Ms Galea had with working, injuries to her hands, or any allegations as to bullying and harassment.[19]
[17]PCB 15
[18]PCB 15
[19]Defendant’s Court Book (“DCB”) 8-18
21 In a statement dated 30 October 2014, Mr Graeme Edwards, an employee of the defendant, stated that in 2014 and February 2015 he had been a supervisor for the defendant. He deposed that Ms Galea was a good worker and she had a job picking and packing orders, as well as receiving installing parts. He confirmed that she would bend and twist when moving parts in and out of boxes. In 2014, he deposed that she started to exhibit signs of greater moodiness and was seen crying. He also stated that she had told him of difficulties with her ex-husband. He confirmed that on 19 June 2014, Ms Galea had reported injury to her arms. She was advised to lodge a WorkCover claim.[20] Relevantly, he noted that Ms Galea was a person who would always exceed her capacity and that her employers had to tell her not to overexert herself. He recalls that in September 2014, Ms Galea advised that she was struggling with the overrun work, by reason of her physical injuries. He makes no mention of any bullying or harassment to do with her work on light duties, but then said that she left abruptly.[21]
[20]DCB 17 at paragraph [6]
[21]DCB 14-15
22 The defendant also provided an affidavit of Daniel Corby, sworn 25 March 2019.[22] He was the warehouse supervisor at the defendant factory from February 2013 to October 2016. He exhibited a statement he made dated 30 October 2014.[23] He stated that Ms Galea was a hard-working person who wanted to get things done right. He deposed that she had mood swings throughout the day, which progressively worsened since she physically injured both her arms. He stated that Ms Galea was frustrated she could not perform all tasks because of her injuries. He confirmed that Ms Galea worked on the overrun and then detailed how Ms Galea perceived the lack of help given to her in this task had meant she could not do all the work.[24] His evidence was that shortly afterward Ms Galea left, and at the time she left she did not complain of being harassed at work.
[22]DCB 19
[23]DCB 22-23
[24]DCB 22
23 The defendant also provided an affidavit of Sally O’Connor, sworn 5 April 2019.[25] She was the human resources operations manager for the defendant in 2014. On 4 November 2014, she signed a statement in this matter.[26] In her statement, she stated that in January 2014 she was made aware of allegations of illegal substance abuse by some staff members at the John Deere factory in Derrimut. She stated that Ms Galea was one of a number of persons named in those allegations.[27] She concluded that the investigation was inconclusive. The only other relevant evidence she gave was that she had no incident report and no specific details of any event that may have led to Ms Galea lodging a claim for work-related stress.
[25]DCB 24-25
[26]DCB 26-27
[27]DCB 27
Findings as to the occurrence of physical arm injury on the lay evidence
24 I accept the plaintiff’s evidence and the contemporaneous evidence of Mr Corby and Mr Edwards that Ms Galea did sustain injury to her arms throughout the early part of 2014. After that, she was moved to the overrun duties, which she struggled with, according to the evidence of Mr Corby. This caused some degree of physical and psychological reaction, which resulted in Ms Galea ceasing work. I make this finding as it is the preponderant evidence and is made by the plaintiff and supported by a contemporaneous statement from the defendant.
Medical evidence as to a physical injury arising from the work duties
25 The Worker’s Claim Form, dated 26 June 2014,[28] identifies the relevant injuries as to the back and arms.
[28]PCB 101
26 Ms Galea first saw Dr Lai on 12 June 2014, complaining of pain in the back and elbow due to her work duties,[29] and was prescribed Celebrex. Her claim form was then lodged on 26 June 2014.[30] Ms Galea then saw Dr Pegram, as noted above, and was referred for ultrasound.
[29]PCB 5, 23 149
[30]PCB 100
27 It appears that Ms Galea saw Dr Zalina Ali at the Manor Lakes Medical Centre on 15 September 2014.[31] She ceased attendance around February 2016, at which time she transferred to the Burpengary Clinic in Queensland. In the time that she was seen at the Manor Lakes Medical Centre, she had a total of twenty-nine visits. A medical report of that clinic is dated 17 February 2016. It notes that Ms Galea presented with pain when gripping, and pain with repetitive forearm movement, and the lifting of any weight. It recorded that Ms Galea had pain and difficulty with activities of daily living.[32] Clinical examination revealed that she was tender at the common extensor origins of the elbow bilaterally, on the right side more than the left. Physiotherapy was being utilised and, in combination, Panadeine Forte and Celebrex were being prescribed.[33] In addition, there were mental-health issues brought on by alleged “intimidation and bullying at her workplace”. It was recorded by Dr Ali that she:
“… presented to the clinic with tearfulness feeling sad, poor energy level, anhedonia and feeling worthless with guilt feelings. She also had poor appetite and sleep. She also worried a lot, felt overwhelmed and had frequent palpitations and sweating … .” [34]
[31]PCB 102-103. She had seen Dr Lai and Dr Pegram previously in July 2014, but she was not Ms Galea’s treating doctor.
[32]PCB 102
[33]PCB 137
[34]PCB 102
28 The doctor noted a prescription of antidepressant medication, Pristiq, and Ms Galea was referred to a psychologist.
29 On 12 August 2014, Ms Galea commenced seeing a physiotherapist, Mr Amar Sran. He has provided a report dated 24 September 2014.[35] At the time of presentation, he recorded a history of bilateral elbow pain, right worse than left, related to the work injury. Examination revealed tenderness in the wrist, noting the right was worse than the left. The history then recorded that Ms Galea’s physical function decreased after difficulties at work.
[35]PCB 104-105
30 In early October 2014, Ms Galea began seeing a psychologist, Ms Cindy Hart. Ms Hart has provided a report, dated 26 November 2014,[36] which is addressed to Ms Galea’s treating doctor. Ms Hart noted that at the time of the first presentation, Ms Galea presented with depressed mood, stress, increased tearfulness and feelings of hopelessness. She provided a provisional diagnosis of an Adjustment Disorder with Depressed Mood, with the identifiable stressor being occupational stress. By mid-2015, Ms Hart had trialled Cognitive Behaviour Therapy, which had some positive impact.
[36]PCB 106
31 Ms Galea was examined by Dr Chris Grant, medico-legal psychiatrist for the defendant’s insurer, on 6 November 2014.[37] He took a history that she began experiencing pain in the upper back and arm since about May 2014, due to her picking work. The history she gave was of feeling harassed over the course of her modified work duties. He took a history of her ongoing medication use of Serepax and Pristiq. On mental-state examination, he recorded that she was tearful and distraught during the interview.[38] He diagnosed an Adjustment Disorder with Depressed and Anxious Mood. He considered it to be work-related and specifically to have arisen from her sense of being mistreated during a period of modified duties at work because of pain, difficulties in her upper back, and in both arms. He did not make a comment about whether she had been treated reasonably by management, as he did not have sufficient information. He thought the prescription of Pristiq was apt.
[37]DCB 45-50
[38]DCB 49
32 Dr Grant provided a further report, dated 28 November 2014, which appears simply to have been one on the papers. Once again, he confirmed that she had an Adjustment Disorder with Depressed and Anxious Mood, which appeared to be work related. However, he noted that it arose by reason of her feelings of being mistreated at work, rather than because of the previous physical injury, which caused pain in her upper back and arms.
33 Ms Galea had been referred to a psychiatrist, Dr Akinbiyi, in early 2015. He saw her for three sessions. No report of his has been tendered. I was invited to draw an inference that his evidence would not have assisted Ms Galea’s case. I accept that proposition.
34 On 2 July 2015, Ms Galea was examined by Dr Philip Mutton, medico-legal occupational physician, on behalf of the defendant.[39] He recorded that she was, at this stage, taking antidepressants and anti-inflammatories, had been seeing a psychiatrist monthly, and a psychologist since September 2014, fortnightly to monthly. He took a history that she was not taking any medication related to her musculoskeletal injuries. He reviewed the ultrasound of both elbows, taken 16 July 2014, and concluded that it showed evidence of pathology in the right elbow and calcific opacity in the left common extensor origin. He considered that, while there was some pathology, there was a significant functional overlay in relation to her upper limb symptoms at this time. He considered that treatment should be ongoing.[40] He was of the view that the worker’s employment with John Deere in the incident of 6 June 2014 remained a materially contributing factor to her ongoing physical condition. He did notice that there were other issues relating to her psychological status.[41] He remained firmly of the view that there was an overuse-type injury which, it was hoped, would improve.
[39]DCB 91-96
[40]DCB 95
[41]DCB 96
35 Within eight months, Dr Grant provided a further report, dated 22 July 2015.[42] In that report, he took a history that Ms Galea had attempted suicide six weeks previously, because her son was not with her. She was also upset by the suicide of a twenty-six-year-old friend. She took a history of annoying pain in both arms and elbows. He confirmed the diagnosis of Adjustment Disorder with Depressed and Anxious Mood. However, he stated that her Depression arose out of her reaction to physical injury/pain symptoms and partly due to alleged mistreatment at work.
[42]DCB 52-56
36 On 22 October 2015, Ms Galea saw Dr Stephen Stern, a medico-legal psychiatrist, on behalf of the defendant. He provided a report that same date.[43] He took a history of her having constant pain in both elbows and arms, and recurrent pain in the lower back. His history was that she had been depressed since the initial physical injury, but that her Depression had worsened with the harassment.[44] He diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that her psychiatric state was initially related to the work injury on 6 June 2014, but was then aggravated by feelings of harassment from management. When posed the question, whether or not her injuries arose out of the course of employment and whether her employment had been a significant contributing factor to these injuries, he stated simply that her psychiatric state is related to the work injuries to both arms on 6 June 2014.[45]
[43]DCB 68-75
[44]DCB 70
[45]DCB 73
37 I interpolate in the history to record my finding that the most contemporaneous medical reporting clearly supports Ms Galea’s case that she had sustained an injury to her arm, her right worse than the left, by reason of her work duties. In addition, in my opinion, it supports my finding that, by reason of those physical injuries she began to experience, or had aggravated, a psychiatric condition.[46] To the extent there are alternate opinions, I consider them isolated and not representative of the views of the contemporaneous treating doctors, whose opinions I prefer.
[46]I will deal with the argument that work aggravated any psychiatric condition later in these reasons.
38 Ms Galea saw Dr Ash Takyar, a medico-legal psychiatrist for the defendant’s insurer, on 28 January 2016. Of note, Dr Takyar was only provided with the report of Dr Grant, dated 6 November 2014, and not the further report of Dr Grant, dated 22 July 2015. It was not explained why this was so. It is to be remembered that in that report of 22 July 2015 Dr Grant had opined that Ms Galea’s psychiatric injuries had arisen from her work injuries and treatment at work subsequently. Dr Takyar, in his report, dated 28 January 2016,[47] took a history, which he admitted was difficult to obtain, of numerous falls and bullying and harassment.[48] He took a history of quite altered mood disturbance and depression. During the course of the mental-state examination, Dr Takyar noted that Ms Galea wept for much of the interview, her mood was low, and her affect was teary and highly anxious. He also took a history that her initial mental-state changes did not occur in response to the initial physical injury, but rather in the context of what she believed to be bullying and harassment. He also took a history of her ex-husband repeatedly beating her, leading to an intervention order, and then the suicide of her son’s friend. Dr Takyar took into account the report of Dr Grant (but not his report of 22 July 2015), which noted that her work-related condition arose during the period of modified duties at work because of pain difficulties in her upper back and both arms. He diagnosed her with a Chronic Adjustment Disorder with Depressed Mood and Anxiety, as well as panic attacks. He considered that she had no psychiatric capacity for work. He opined that it was the bullying and harassment after commencing light duties that led to changes in her mental state.[49] When asked, specifically, whether there was anything else affecting Ms Galea’s medical condition, and affecting her recovery and return to work, he said nothing other than her unwillingness to take antidepressant treatment.[50]
[47]DCB 57-66
[48]DCB 58
[49]DCB 65
[50]DDB 66
39 On 4 July 2016, Ms Galea was examined by a medico-legal occupational physician, Dr Nicholas Burke in Queensland.[51] He took a history of ongoing pain in Ms Galea’s elbows, arm, shoulders and upper and mid back. He considered her lower back condition to be one which was unsupported. He considered that she had bilateral epicondylalgia and a chronic pain condition. He noted that the principal work-related pain related to her elbows and upper back region. He then made the finding that it was most probable that her ongoing pain symptoms were related to other factors besides underlying biomechanical injuries. I infer that this is a reference to her chronic pain condition.[52] He confirmed that Ms Galea had some pathology affecting the left elbow, but did not believe that she was experiencing any significant symptoms associated with biomechanical pathology affecting the elbows at this time. He considered it possible that work factors contributed to the development of the pain in her elbows, neck and upper back region, but he believed that any work injury contribution was now likely to have resolved.[53]
[51]DCB 36-44
[52]DCB 40
[53]PCB 41
40 Ms Galea was examined by Dr Timothy Entwisle, psychiatrist, on 29 August 2016.[54] He has provided a written report, dated 5 September 2016, as to that consultation. At that time, she was residing in a unit with her son on the Gold Coast. He took a history of past problems with her ex-partner, and also the suicide of her son’s friend. He took a history that her husband had introduced drugs into her home and the police had raided the house. The history he took was of ongoing reports of pain around both elbows and into her arms, and across the back of her shoulders into the base of her neck. It was said the pain was there most of the time. He concluded that Ms Galea had an Adjustment Disorder with Depressed and Anxious Mood. He considered that there were a plethora of non-work-related factors involved which have contributed to her psychiatric injury. Dr Entwisle’s report was closely followed by a supplementary report, dated 22 September 2016.[55] In answer to the question as to whether Ms Galea’s current condition or incapacity was still materially contributed to by the claimed injury, he answered that her current condition was still materially contributed to by the claimed injury.[56]
[54]DCB 68-75
[55]DCB 82-83
[56]DCB 82
41 On 29 September 2016, Ms Galea consulted with Mr Mark Newman, a psychologist in Nerang, Queensland. He saw her for only two sessions and diagnosed her with Depression and Anxiety.[57]
[57]PCB 115
42 In March 2017, Ms Galea’s treating doctor from Queensland, Dr Maria Coliat, provided a report.[58] In that report, she confirmed the diagnosis of chronic elbow pain bilaterally, and commented that recent scans confirmed this was due to minimal insertional enthesopathy of the common extensor origins. The scans she referred to were an x-ray and ultrasound of both elbows, dated 2 February 2017,[59] and an x-ray of the cervical, thoracic and lumbar spine, dated 23 March 2017.[60] She also confirmed that Ms Galea suffered from Anxiety and Depression. To underline this, she noted that whenever Ms Galea would come to see her, she was distressed and crying.
[58]PCB 34-36
[59]PCB 16
[60]PCB 17
43 On 9 May 2017, Ms Galea saw Mr Mitchell Killick, a physiotherapist, who took a history that she had bilateral arm weakness, constant neck pain, and constant lower back pain.[61]
[61]PCB 113
44 On 9 August 2017, Ms Galea saw a physiologist, Ms Lucy Ashby, in Queensland. She confirmed that Ms Galea had a compromised cervical thoracic and lumbar spine, and on a depression scale, was considered to be likely suffering from a severe mental disorder.[62] I find this of limited value, given that Ms Ashby only saw Ms Galea on one occasion.
[62]PCB 112
45 Ms Galea was sent by her lawyers to see Mr John O’Brien on 10 January 2018. His report is dated 15 January 2018.[63] He took a history that on 6 June 2014, Ms Galea experienced the fairly sudden onset of bilateral arm pain, especially about the elbows. On the basis of current history, he recorded that she experienced constant neck pain from the base of her neck down her thoracic spine, with pain radiating specifically to the right shoulder blade. She told him that the pain is often severe, and some days can reach a severity of 10/10. She said that she experienced bilateral arm pain, which had improved somewhat, but she still experienced significant weakness around the shoulders and both arms. He recorded her taking Panadol Osteo, six tablets a day, and Panadeine Forte at night, in combination with Valium. She also took anti-inflammatory medication and antidepressant medication. He considered that she had vague and non-anatomical distribution of altered sensation in the right hand. He considered the physical signs were now very mild and subjective. No evidence of neurological compromise was found. In summary, he thought that she had developed a Chronic Pain Syndrome.[64] I interpolate in the medical history to record my findings that the vast majority of the medical evidence supports the plaintiff in her assertion that she has sustained a permanent bilateral arm injury. I accept that preponderance of evidence. I turn now to look more closely at the psychiatric evidence.
[63]PCB 37-41
[64]PCB 40
46 Ms Galea was examined by Dr David Weissman on 26 July 2018.[65] He took a history that she was seeing her treating doctor on a fortnightly basis, had medications, being Diazepam, Lyrica, Nexium, Panadol Osteo and Pristiq, at least daily, and was seeing a psychologist until recently. He noted that she classified herself as currently homeless. In his report, he stated that Ms Galea had a complex case, and the history was somewhat confusing. He noted that, while he was uncertain as to what extent the physical injuries were affecting her, she certainly was suffering from a significant psychological and emotional response. He noted that she most probably had some premorbid psychological and emotional vulnerability factors.[66] He diagnosed her with a Chronic Adjustment Disorder with Anxious and Depressed Mood, associated with some traumatisation features, the latter being due to bullying and harassment, as well as a Somatic Symptom Disorder with Predominant Pain.
[65]PCB 58-71
[66]PCB 69
47 As Dr Weissman has provided numerous reports, I have set them out together. In his examination of 5 August 2019.[67] Dr Weissman confirmed the history he had taken from her and the medications which she had been taking, which has now been modified somewhat to also include Mirtazapine, Diazepam and Meloxicam. The history he took from her was that in around late May 2019, she had taken an overdose of pills and cut her left arm with a screwdriver. As a result, she had been contacted by the CAT Team and admitted to the Mercy Health Prevention and Recovery Centre (“PARC”) mental health clinic for about three weeks. He noted that he needed to see the Discharge Summary in order to properly assess her condition. He noted that her appearance and behaviour gave the impression of her being very emotionally distressed and disturbed, difficult to follow in history, and difficult to interpret. She was a chaotic, jumbled, disorganised and discursive historian, he noted.[68] He diagnosed her with a Chronic Adjustment Disorder with Anxious and Depressed Mood associated with Traumatisation Features – Moderately Severe, and a Somatic Symptom Disorder with Predominant Pain. He considered her totally incapacitated for work.
[67]PCB 72-84
[68]PCB 78
48 At the trial, Ms Galea sought to tender a further report of Dr Weissman and this was tendered without objection from the defendant. That report is dated 4 September 2019. It was submitted, after Ms Galea had sent the Mental Health Discharge Summary from the PARC to Dr Weissman for opinion, he noted that the Discharge Summary indicated a diagnosis of Chronic Pain Syndrome, as well as diagnosing a Borderline Personality Disorder. He considered this Borderline Personality Disorder was alluded to in his previous report.
49 The defendant submitted that Dr Weissman’s opinion, in his last report, was at odds with his earlier reports. I do not consider that submission to be made out. That is for two reasons: First, it is accepted there is some interchangeability between the terms “Chronic Pain Disorder” and “Somatic Symptom Disorder with Predominant Pain”. That is understood by reference to the terminology as used in DSM-5. Secondly, in Dr Weissman’s second report, he did note that she probably had some premorbid psychological and emotional vulnerability factors. I consider this to be what Dr Weissman was alluding to in his last report. He makes the point that this premorbid condition explains why Ms Galea had had such a strong psychological response to her work injury.[69]
[69]This supports the argument that Ms Galea had sustained an aggravation of a underlying condition.
50 Ms Galea saw Dr Alan Jager, a medico-legal specialist for the defendant, on 17 April 2019.[70] This was immediately prior to her admission to the inpatient unit at the PARC. He considered that she had a Chronic Major Depressive Disorder with Anxiety and Agitation. At that time, she was feeling very depressed, had reduced enjoyment and energy, and ongoing suicidal thoughts. His recounting of her symptoms at the time he saw her, reveals a person who has very significant problems. He considered her unfit for full-time work but that she was fit, at best, for casual employment for up to twenty hours per week.[71]
[70]DCB 97-102
[71]DCB 102
51 As set out above, Ms Galea had an inpatient stay from 1 May 2019 to 22 May 2019 at the PARC located in Deer Park. That inpatient stay is summarised by the Discharge Summary, which has been tendered.[72] The principal diagnosis of Ms Galea was recorded as Major Depression with Anxiety and Chronic Pain Syndrome, as well as Borderline Personality Disorder.
[72]PCB 119
52 This Discharge Summary was the result of assessment of Ms Galea over the course of an intensive three-week inpatient stay. It is the most recent and comprehensive of all the treating psychological material. For this reason, it is of great importance. It was certainly considered to be important by Dr Weissman in making his determinations. When regard is had to the Discharge Summary, it can be seen that there is very heavy concentration on Ms Galea’s work injury, which led to her chronic pain.
53 Mention should also be made of Dr Maroulis. She is a neurosurgeon Ms Galea consulted on one occasion on 20 January 2019.[73] Dr Maroulis found Ms Galea to have a normal clinical examination and that the MRI scan of the spine revealed only minor degenerative change, which could not account for Ms Galea’s ongoing complaints.
[73]PCB 117
54 Dr Robyn Horsley, an occupational physician, provided a report dated 18 February 2019. In essence, she opined that Ms Galea has no work capacity.
55 Mr O’Brien provided a supplementary report, dated 6 August 2019. At that time, he noted that she was on Lyrica twice a day for pain and, in addition, either Mersyndol Forte or Panadeine Forte up to six times per day.[74] She took Valium at night, as well as antidepressant medication. In summary, he considered her physical examination revealed little by way of organic signs and that her condition was predominantly psychosocial.[75]
[74]PCB 195
[75]PCB 196
56 On 26 August 2019, Ms Galea saw Dr Entwisle, again, on behalf of the defendant. He noted that Ms Galea had difficulty with her children, who did not wish to see her, that she was homeless, and that she also had episodes of self-harming earlier in the year, and had come to be admitted to the PARC unit. He diagnosed Adjustment Disorder with Depressed and Anxious Mood. In summary, he considered that there were a plethora of non-work-related factors which have overwhelmed her original work-related condition. He considered that these additional factors explain Ms Galea’s Chronic Pain Syndrome (I assume he meant to the exclusion of work factors), which he seems to implicitly accept.[76]
[76]DCB 90
Credit and reliability
57 It was put by the defendant that the Court ought to exercise caution in accepting Ms Galea’s claim as formulated. This was particularly so with the claim having commenced as both a paragraph (a) and (c) claim, but then essentially being put as a paragraph (c) claim, where much depended on Ms Galea reporting symptoms and consequences of a mental disorder.
58 The defendant pointed to a number of inconsistencies with Ms Galea’s evidence, particularly that given on affidavit, to highlight Ms Galea’s lack of credit and reliability. In essence, the defendant submitted that Ms Galea lacked credit and reliability, so the Court could not be satisfied that she did suffer from the symptoms and consequences of a mental disorder related to work. Rather, these were:
(a) exaggerated so as to link them to work; and
(b) more related to non-work factors.
59 In consideration of these matters, a primary consideration is the veracity of Ms Galea’s affidavit evidence and the way that Ms Galea appeared in Court and gave her evidence. In making these observations, I note that Ms Galea has certainly been diagnosed with long-standing psychiatric disorders which have, in recent months, led to her being admitted for a three-week inpatient psychiatric stay. Further, Ms Galea was on psychiatric medication at the time of her giving of evidence. Account must be had of these factors when assessing the way that she did give her evidence. I found Ms Galea’s evidence to be direct, and given to the best of her ability. At no stage did I form the opinion that she sought to evade answering questions. At no stage did I form the opinion that she gave a deliberately untruthful answer. There were certainly times when she appeared confused as to dates, and the way questions were put to her, however, overall, I formed the impression, over nearly two days, that she did give a proper, truthful and direct account when answering questions.
60 Specifically, the defendant submitted four matters which, it was said, revealed that Ms Galea was not reliable. These were:
(a)no mention of the Apprehended Violence Orders (“AVO”) with her husband in June/July 2014 in her affidavit material.[77] When looked at fairly, Ms Galea’s response to this allegation during the course of cross-examination, was that she believed she had actually referred to these events in her affidavit. Specifically, she noted that her husband had breached intervention orders in her affidavit. The submission by the defendant was that she had made no mention of very specific events, or the timeframe of those events, in her affidavit. When answering these questions, Ms Galea left me with the distinct impression that she had thought the issue was covered in her affidavit. Given her answer, and the way the affidavit has been drafted, I accept that Ms Galea sought to deal with the difficulties posed by her relationship with her ex-husband and had not concealed them from the Court as a factor which contributed to her psychological state;
(b)it was next put by the defendant that there was no mention of the AVO’s with family members in 2019.[78] There is certainly no mention of this matter in Ms Galea’s most recent affidavit of 29 August 2019. When regard is had to the treating doctor’s record, there is, similarly, no record of this in her report. The closest one gets to it, are comments attributed to Ms Galea in the report of Dr Weissman dated 5 August 2019,[79] where he noted that her sons do not visit her because they are ashamed of her, and that she does not get to see her two grandchildren. However, in cross-examination,[80] it was put to Ms Galea that there was an AVO against her which prevented her seeing her grandchildren and her son.[81] She clarified that there was no existing AVO against her,[82] but, rather, the mother of her grandchildren had taken out an AVO against her son and, consequently, as her son had no contact with the grandchildren, it appears that she could not gain access to them either. In my opinion, that clarifies why there was no particular mention of the AVO in the medical notes of the treating doctor, or Dr Weissman. However, it does not fully explain why there was no mention that the circumstances were distressing to Ms Galea, in any event, in her affidavit of 29 August 2019. I find that there was no deliberate attempt to mislead the Court, however, rather, this goes to the weight to be placed on opinions, such as those of Dr Entwisle, which suggest that there were other factors at work on Ms Galea’s psychiatric condition other than work;
(c)the defendant then put that there was no mention of Ms Galea seeing Ms Jo Thorburn in April 2018.[83] It is to be recalled that Ms Galea saw Ms Thorburn for some six sessions on referral from Dr Ali. There is a letter from Ms Thorburn to Dr Ali, dated 4 April 2018.[84] As noted above, that letter recounts only one consultation (at that point), noting that Ms Galea’s testing revealed that she was in the extremely severe range across all domains of Depression, Anxiety and stress, and had an element of suicidal ideation, with no current intent or planning. The only other reference to Ms Thorburn occurs in the report of Ms Horsley, dated 18 February 2019.[85] Certainly, then, Ms Galea’s lawyers were attempting to provide material relevant to Ms Thorburn’s treatment to relevant medical practitioners, however this material did not find its way into Ms Galea’s affidavit. If anything, this omission in respect of Ms Thorburn’s treatment from the affidavit, is an omission which Ms Galea is simply likely to have overlooked, given that she undoubtedly relied on the notion that long-standing psychiatric treatment supports her case. However, in the absence of such reference, I accept the defendant’s point, and consider that this omission goes to the weight I should put on the reliability of Ms Galea’s account;
(d)next, the defendant stated that there was no mention of family disharmony in Ms Galea’s most recent affidavit,[86] and of being laughed at by her sisters. I accept the defendant’s submission on this point, and consider that this omission tells against the reliability of Ms Galea’s account, and supports the opinion of Dr Entwisle, that there were other factors at work in Ms Galea’s psychological make-up other than workplace injury. I do note, however, that Ms Galea revealed these matters to Dr Entwisle, and he recorded them in his last report.[87] This ameliorates the defendant’s attack somewhat, as Ms Galea had been forthcoming in giving a history to this medico-legal doctor shortly prior to the trial;
(e)next, the defendant put that the surveillance video showed Ms Galea in a manner which was relatively unrestricted, and yet she had not fully disclosed her true physical status to a number of doctors, such that their opinions were unreliable. Ms Galea’s case was that the video showed her moving in a manner which was consistent with what she had reported to doctors. Secondly, it showed her wearing a right-arm brace, which she was wearing in Court, and which was entirely consistent with an ongoing physical injury. Further, Ms Galea put that there was a total of 85.7 surveillance hours, and what was shown to the Court was less than one hour of video surveillance. Ms Galea’s counsel submitted that this small sliver of video did not truly represent Ms Galea’s condition. When taken together, I consider that there is merit in Ms Galea’s submissions. Further, it is my view that there was nothing in the video which damages the credibility or the reliability of the evidence which she gave.[88] The video shows her as not restricted, and yet she has not told doctors she cannot do the things shown.
[77]T30 and T91, L5
[78]T91, L12-19
[79]PCB 74
[80]T68
[81]T67, L26-29
[82]T67, L22
[83]T91, L21
[84]PCB 114
[85]PCB 85-96
[86]PCB 129
[87]DCB 86
[88]T93
61 When looked at as a whole, I find Ms Galea’s evidence persuading, and I do not find that her credit has been very significantly undermined, or the reliability of her evidence is such that I do not accept it.
Findings on the medical evidence as to the physical injury
62 The defendant’s case was that Ms Galea’s physical injury has resolved. In assessing all the evidence in the case, particularly that relevant evidence set out above, I am unable to accept this submission. This is for a number of reasons. First, Ms Galea has consistently reported problems with her arms, particularly the right arm, since June 2014. She has been diagnosed by various medical practitioners, consistently, with ongoing problems on radiological examination, being epicondyle enthesopathy; she has consistently had, and continues, to take medication in respect of physical pain symptoms, and continues to wear support about her right arm. I am not persuaded by the medical evidence, which suggests that there is no ongoing organic injury, though I accept that the injury is of a mild or minor nature.
63 Given my findings above, I find that the physical injury which has now existed for some five years and persists, to be one which is permanent, in the sense that it is unlikely to change for the foreseeable future. It does not seem that there is much contradictory material to this finding.
(b) Is there a work related psychiatric injury?
64 As to the psychiatric injury, the battle lines between the parties were firmly drawn. Ms Galea argued that she had an ongoing psychiatric illness, best defined as a Somatic Symptom Disorder with Persistent Pain, and a Chronic Adjustment Disorder with Anxious and Depressed Mood, associated with traumatisation features which were moderately severe and causally linked to her employment. The defendant, in contrast, argued that whatever psychiatric diagnosis chosen, it was not a psychiatric condition which was work related.
65 Having set out the relevant medical opinions in some detail above, I find that Ms Galea has a work-related ongoing psychiatric condition, which is best defined as a Chronic Adjustment Disorder with Anxious and Depressed Mood associated with traumatisation features which are moderately severe, and a Somatic Symptom Disorder with Predominant Pain, which is persistent. In making this finding, I prefer the evidence of the treating practitioners at the PARC, and the opinions of Dr Weissman, expressed in his three reports and set out above. I prefer those opinions to that of Dr Entwisle and Dr Takyar, who the defendant predominately relied upon. I do so for the following reasons: First, Dr Weissman has provided his reports over a significant period of time. This allows for some continuity in terms of his investigation of Ms Galea and aids his ultimate diagnosis. Further to that, Dr Weissman has been provided with the Discharge Summary of the PARC. I consider this to be important, as Ms Galea was seen and examined regularly during the course of her three-week inpatient stay. This afforded those clinicians a significant chance to assess Ms Galea. This opportunity was not afforded to Dr Entwisle, or for that matter, any other medico-legal practitioner. The benefit of such a detailed and prolonged period of observation and assessment, in my opinion, cannot be underestimated. Having considered Ms Galea over that period, it is my opinion that the Discharge Summary provides a solid basis on which to link Ms Galea’s current psychiatric symptoms with her work. This is in keeping with Dr Weissman’s opinion. Second, I find no inconsistency in the fact that the Discharge Summary notes Ms Galea has a premorbid Borderline Personality Disorder. I find that, in fact, Dr Weissman, as set out above, had alluded to that possibility. Thirdly, I consider there to be a real consistency between the Discharge Summary and Dr Weissman’s report. Fourthly, it does not appear that Dr Entwisle had access to the Discharge Summary in formulating his opinion. As I have set out above, the Discharge Summary is an important document in terms of the diagnosis of Ms Galea’s condition. It was also argued by the defendant that Dr Weissman was not given a correct history and, consequently, joined the physical and psychiatric consequences together in coming to his opinion. Given the detailed manner in which Dr Weissman has provided his three reports, I would not accept that submission. In my opinion, he has delineated between both the physical and psychiatric consequences in order to come to his ultimate conclusions and diagnosis.
66 The defendant submitted that great weight should be placed on the opinion of Dr Entwisle. The defendant submitted that Dr Entwisle had provided numerous reports over some three years.[89] His first report commenced on 5 September 2016 and his final report was on 26 August 2019. I note that he had, in fact, examined Ms Galea on two occasions in 2016 and in 2019. Ms Galea submitted that there was a contrasting opinion expressed by Dr Entwisle. When regard is given to his report of 5 September 2016[90] he expressed the opinion that,[91] on the basis of Dr Burke’s report, he would conclude that “Ms Galea’s condition … would not be deemed as materially contributed to by the claimed injury” due to the fact that there are a plethora of non-related work factors which have contributed to her physical injury.[92] He then concluded that she suffered from an Adjustment Disorder with Depressed Mood.
[89]DCB 76
[90]DCB 76
[91]DCB 80
[92]DCB 80 in answer to question 2.
67 In contrast, it was said[93] Dr Entwisle had provided an alternative opinion in his report of 22 September 2016, where he stated that her current condition of Adjustment Disorder with Depressed and Anxious Mood and panic attacks was “[t]he current condition is still materially contributed to by the claimed injury”.[94]
[93]DCB 82
[94](Supra)
68 In Dr Entwisle’s final report, dated 26 August 2019,[95] he referred to his assessment in 5 September 2016,[96] his diagnosis of Adjustment Disorder with Depressed and Anxious Mood. In this latest report, he made no mention of the supplementary report of 22 September 2016 and the opinion that he expressed that Ms Galea’s (then) current psychiatric condition was materially related to work. Attack was made by Mr Ingram QC on behalf of Ms Galea as to this apparent contradictory opinion by Dr Entwisle. I consider there is some force in this. Dr Entwisle has failed to explain why, in his 5 September 2016 report, he did not, in fact, state that Ms Galea’s psychiatric injury was not related to work, rather he relied on Dr Burke’s opinion that her physical condition was related to a plethora of non-work related factors. He was then specifically asked as to the relationship of the psychiatric injury to work and provided the report of 22 September 2016 set out above. He has not, then, explained why this opinion changed by the time of his August 2019 report. Further, he has misquoted his findings in his first report in that he made no reference to whether her psychiatric condition was work related, rather confined it to physical injury, on the basis of Dr Burke’s opinion. I also have difficulty accepting Dr Entwisle’s opinion, in that he has not had regard to the Discharge Summary which, as I have set out above, is particularly useful in diagnosing Ms Galea’s condition. Further, I consider the weight of evidence comprised by the reports of Dr Grant and Dr Weissman, really leave Dr Entwisle’s opinion as an isolated one.
[95]DCB 84
[96]DCB 76
69 Given the above matters, I prefer the opinion of Dr Weissman, and accept that Ms Galea’s work has been a significant contributing factor to Ms Galea’s diagnosed psychiatric condition. I find this is a Somatic Symptom Disorder with Predominant Pain, which is persistent.
(c)Are the consequences of Ms Galea’s psychiatric condition a serious injury?
70 Having considered the issue of Ms Galea’s psychiatric condition and its causes, I now turn to consider the consequences of her diagnosable psychiatric injury. I note that Ms Galea makes claim that she has sustained consequences which are both serious by way of pain and suffering consequences, as well as by reason of the fact that she has lost 40 per cent of her earning capacity. Having regard to whether or not Ms Galea has sustained a 40 per cent or more loss of earning capacity, it appears to me almost incontrovertible that Ms Galea has sustained a loss of earning capacity to the required degree.
71 There was almost no attention focused on Ms Galea’s loss of earnings’ claim during the hearing of this matter. The summary of taxation records[97] was not contested. I accept it as accurate. In fixing Ms Galea’s loss of earnings, I must look at the three years prior to injury and three years post injury to determine a figure which most fairly reflects Ms Galea’s earning capacity, had the injury not occurred. For the sake of this exercise, I fix the date of 9 September 2014 as the date of Ms Galea’s injury, being the date that she ceased work. The relevant six-year window opens on 9 September 2011 and closes on 9 September 2017. In the year ending 30 June 2014, Ms Galea earned $56,259. When regard is had to the summary of taxation records contained in the materials, it is my finding that this represents the gross income that Ms Galea was capable of earning from personal exertion that most fairly reflects her capacity for the relevant period.
[97]Which appears at PCB 97
72 The vast majority of the medical material notes that Ms Galea now has almost no capacity for pre-injury duties and hours. For example, Dr Entwisle[98] noted that Ms Galea was not fit for pre-injury duties and hours, and requires more active psychiatric treatment and psychological treatment. Dr Takyar stated that Ms Galea had no capacity for employment given her psychiatric injuries.[99] Dr Horsley is an occupational physician who provided opinion for Ms Galea. She opined that Ms Galea had no capacity for work as at February 2019.[100] At its highest, Dr Jager opined that Ms Galea could only work for, at best, casual employment up to twenty hours a week.[101] Even if that was accepted, it would mean that Ms Galea has lost more than 40 per cent of any work capacity. For the above reasons, I find that Ms Galea has sustained a loss of earning capacity in excess of 40 per cent.
[98]DCB 80
[99]DCB 65
[100]PCB 85-96
[101]DCB 102
73 Such a finding obviates the need to consider, further, whether the pain and suffering consequences associated with Ms Galea’s psychiatric injury constitute a serious injury. I note that, for completeness, if I had to consider the issue of the pain and suffering consequences, I would consider that they do reach the necessary test of being a severe mental, or permanent severe behavioural disturbance. I find that for the following reasons: First, Ms Galea has had long-standing psychiatric problems dating from almost the time of her injuries in June 2014. This is over five years, which I consider a substantial time to bear such a condition. Second, she has required ongoing psychiatric and psychological treatment, being medication, counselling and inpatient stays. She has obtained such treatment both in Victoria and again in Queensland. She has had difficulties accessing such treatment due to her financial situation, but it is well recognised, for example, by Dr Entwisle, that she requires ongoing treatment. Third, she has had very serious episodes associated with suicidal ideation and self-harm, demonstrating the severity of her psychiatric injuries. Fourth, she has had a very significant interaction with the CAT Team, which has led to a three-week inpatient stay most recently this year. This attests to the severity of her condition. For all those reasons, I consider that she would meet the tests for having a severe mental or permanent severe behavioural disturbance or disorder.
74 I grant the plaintiff leave under both heads claimed.
75 I will hear the parties on the question of costs.
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