Hall v Communicado Marketing Communications Pty Ltd
[2019] VCC 394
•3 April 2019
Will
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01303
| Glenn Hall | Plaintiff |
| v | |
| Communicado Marketing Communications Pty Ltd | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 March 2019 | |
DATE OF JUDGMENT: | 3 April 2019 | |
CASE MAY BE CITED AS: | Hall v Communicado Marketing Communications Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 394 | |
REASONS FOR JUDGMENT
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC and Mr A Saunders | Zaparas |
| For the Defendant | Mr W R Middleton QC and Mr M Clarke | Thompson Geer |
HIS HONOUR:
1 In this matter the plaintiff makes application for leave to commence a proceeding claiming damages for injuries sustained in the course of his employment with the defendant.
2 There is no issue that:
(i) The plaintiff was employed by the defendant in the capacity of an account director in marketing;
(ii) The plaintiff sustained a compensable injury by reason of the duties undertaken in the course of his employment with the defendant in the form of a chronic adjustment disorder with anxiety and depression, which condition has been managed since its onset by:
· ongoing treatment administered by his psychologist and psychiatrist; and
· the prescription of antidepressants in the form of Avanza and Lexapro together Valium as required;
(iii) The plaintiff has lost his capacity to work as an account director in marketing and has demonstrated limited capacity to undertake similar but less demanding and less remunerative work; and
(iv) The plaintiff’s without injury earning capacity pursuant to the provisions of the Accident Compensation Act (“the Act”) is agreed at $202,000 gross per annum.
3 In the application the parties rely upon the content of their respective Court Books which have been marked as exhibits, the documents they have tendered and the viva voce evidence given by the plaintiff in the course of cross examination and re-examination.
4 I do not propose to set out the details of any of the material referred to above, which is all a matter of record, other than to do so in order to explain the path of reasoning in this instance.
5 The plaintiff struck me as a very impressive young man who was both an honest and reliable witness. No issue is taken by the defendant as to that finding.
6 I am satisfied that the plaintiff has demonstrated a very positive attitude towards his rehabilitation from what I am satisfied is, for the reasons which I will set out below, a psychiatric condition which is appropriately described as being severe within the meaning of that term as employed by the Act, and that in doing so the plaintiff has:
(i) Complied with the directions and advice provided to him by those managing his illness;
(ii) Sought to minimise the consequences to him of his illness both in so far as it has affected his lifestyle but also his income by returning to work; and
(iii) Sought to maintain employment at a level which was beyond his emotional capacity to his own detriment such that he is currently presenting with a psychotic illness, the effect of which is to totally disable him from employment at the present time.
7 In my opinion, these three findings attest not only as to the severity of the plaintiff’s underlying illness and the plaintiff’s vulnerability to exacerbating that illness, but also as to the plaintiff’s attitude that he should attempt to minimise consequences to him of that illness.
8 The plaintiff gave evidence, which I accept on the basis of my findings above as to the plaintiff’s attitude generally and reliability as a witness:
(i) That he last worked for the defendant on any regular basis in about October 2015;
(ii) That he returned to part-time work in mid-2016 on a consulting basis, undertaking work which he described as being very different in terms of the demands involved in the work which he undertook in employment with the defendant. The plaintiff said that upon returning to work he initially fixed a charge out rate of $100 per hour for that work. He described that rate as operating for a minimal period of time and that his normal charge out rate was eventually fixed, by the market, at a rate in the vicinity of $70-$80 per hour;
(iii) That the plaintiff continued his consulting work until late February 2019 at which time he was diagnosed as having developed a psychotic condition which required management in the form of consultations with his treating psychotherapist Ms Catherine Jamieson and his psychiatrist Dr Cas Schruder and the prescription of antipsychotic medication; and
(iv) That at time of this hearing, although there has been some stabilisation in the plaintiff’s condition, he remains unfit for any form of work.
9 Essentially, it is the defendant’s contention that:
(i) The plaintiff’s condition is not stabilised; and
(ii) The medical evidence is such that it does not allow a determination at the present time as to the extent to which the plaintiff’s stabilised condition will impact upon his general capacity to function and specifically his capacity for work.
10 Contrary to the position taken by the defendant, for the reasons set out below I am satisfied that the evidence does establish each of the disputed positions with sufficient clarity to justify an order granting the plaintiff the leave which he seeks in this proceeding.
11 It is clear the plaintiff currently presents with an acute psychosis in respect of which the medical evidence supports the proposition that the plaintiff will achieve a recovery to a degree such as is likely to enable the plaintiff to return to some form of employment.
12 There is no issue that medical evidence recognises the fact that the timing and extent of the recovery by the plaintiff from the acute psychosis with which he now presents is likely to be influenced by a number of factors including:
· any stress to which the plaintiff is exposed in his general life or for that matter any employment which he takes up;
· whether the plaintiff will choose to retrain or re-educate himself so that he may be employed in a completely different career path;
· the outcome of the litigation which he faces being not only that involved in this application but also in the unrelated proceeding commenced against him by the defendant.
13 The defendant seizes upon the repeated statements by medical practitioners as to the positive influence which the conclusion of litigation may have upon the plaintiff’s recovery as a factor relevant to the stability of the plaintiff’s condition.
14 Whilst I am satisfied that the stress involved in the litigation to which I have referred above is appropriately identified as a factor relevant to the plaintiff’s recovery in respect of his current condition, I am not satisfied that this factor exerts anything other than a minor influence upon the plaintiff’s capacity to return to gainful employment.
15 I make that statement on the basis that this factor was well and truly alive during the period in which the plaintiff had returned to employment and that I am not satisfied that there is any probative evidence to suggest that pressure associated with the plaintiff’s involvement in litigation was a significant cause in the plaintiff developing the psychosis with which he currently presents.
16 I am satisfied that whilst the plaintiff is presenting with an acute exacerbation of his underlying condition, it is probable that the medical treatment which he is currently receiving is likely to enable him to recover from the psychosis with which he presents at the present time and he will, in the future, be able to engage in remunerative employment.
17 In my opinion however, it is likely that the effect of the chronic adjustment disorder with which the plaintiff presents gives rise to the potential for further incidents of deterioration in his mental health of the type with which he currently presents should he engage in work which exposes him to inappropriate levels of pressure and stress.
18 I make that statement being satisfied that the evidence establishes that the plaintiff presents with a compensable adjustment disorder with anxiety and depression which is stabilised and in that sense is permanent. In reality, there is no evidence to suggest any finding to the contrary.
19 I am further satisfied that it is that underlying disorder which gives rise to a vulnerability to the plaintiff suffering exacerbations of the type from which he is now suffering.
20 As to the way in which the plaintiff’s adjustment disorder, in its permanent and stabilised state, is likely to operate so as to affect the plaintiff’s capacity for both activity and employment, I am satisfied that position is demonstrated by the evidence as to the plaintiff’s medical stability and capacity for employment related activity during the period between late 2016 and late 2018.
21 I make that statement relying upon the following evidence:
(i) As at 21 August 2016, Dr Cas Schrueder described the plaintiff’s condition of improving during that year such that:
· By May 2016, the plaintiff was applying for work;
· By June 2016, the plaintiff was reporting improvements in his appetite and sleep; and
· By August 2016, the plaintiff was reporting that he had obtained a four week contract which was associated with some anxiety by reason of the fact that he had discovered that a co-worker was a cousin of the former company owner.
As at that time, Dr Schrueder opined that the plaintiff had a capacity to work and that his illness was operating so to prevent him from socialising normally “as his depression, anxiety and energy levels are still somewhat affected”.
In my opinion, the tenor of that report is such that it largely describes a condition which appeared to have stabilised.
(ii) As at December 2016, Dr Cherian, the plaintiff’s general practitioner, expressed the opinion that the plaintiff was fit for full-time work in suitable employment and commented upon a “risk of re-injury in unsuitable workplace”. I interpret use of the words “risk of re-injury” in that report to be consistent with the view that the plaintiff was in a stabilised state;
(iii) On 6 April 2017, Dr Stephen Stern, a consulting psychiatrist retained by the defendant, expressed the opinion that the plaintiff presented with an adjustment disorder with mixed anxiety and depressed mood which had stabilised at that time;
(iv) On 18 June 2017, a Medical Panel consisting of two independent psychiatrists, expressed the opinion that the plaintiff presented with a permanent psychiatric impairment and in doing so commented that the members of the panel did not consider there would be any significant change to the plaintiff’s level of impairment in the future. That finding in turn is consistent with a finding that the plaintiff’s condition had stabilised at the level at which he presented to the medical panel;
(v) It was the plaintiff’s evidence that for approximately six or so months during the first part of 2018 he did not receive treatment from his consulting psychiatrist;
(vi) Throughout 2017 and until approximately August 2018, the plaintiff was able to manage his consulting work, on the basis that he limited that work to 3 days per week unless it was absolutely necessary that those hours be extended, without any real change in his medical management or oral levels of medication.
(vii) As at 8 October 2018, Dr David Wiseman, a consulting psychiatrist opined that the plaintiff presented with a stabilised chronic adjustment disorder with features of anxiety and depressed mood, associated with traumatisation features and panic attacks of moderate intensity.
22 Taking into account all of these matters, I am satisfied:
· that it is probable that, had the plaintiff been able, by mid-2018, to find employment which did not expose him to stressors which he could not manage, the effect of his adjustment disorder would have allowed him to continue to operate at the level at which he was functioning at that time; and
· that the potential for any improvement in that level of functioning involves no more than unlikely speculation given the vulnerability with which the plaintiff’s stabilised adjustment disorder has upon his emotional state.
23 As to the plaintiff’s capacity in the future to continue to undertake consulting work of the type he performed whilst working during 2016 -2018, I am of the opinion that a real issue arises as to whether undertaking that type of work will expose the plaintiff to the likelihood of exacerbating his illness in the manner with which he currently presents.
24 I make that statement on the basis of the following evidence:
(i) Between 2016 and 2018 it was the plaintiff’s evidence, which I accept, that he was working limited hours involving a maximum of three days per week, unless the work he was undertaking absolutely required him to work extra hours;
(ii) That he felt that working more than three days a week was detrimental to his mental health but that on occasions he had no option but to do so;
(iii) By late 2018 there is a body of persuasive medical evidence that the work which the plaintiff was undertaking was exposing him to stressors with which he was unable to cope, namely:
· On 1 October 2018, the plaintiff reported to Dr Schrueder that he had not been feeling very well for about three months and that he was suffering from low mood, high anxiety and panic attacks;
At that time, Dr Schrueder opined that the plaintiff had the capacity to work in the jobs identified by Ms Hedges in her vocational assessment report namely:
a) Administrator;
b) Marketing Assistant;
c) Social media coordinator;
d) Public relations assistant;
on the basis that the maximum number of hours the plaintiff should work in those positions was 22 hours per week by reason of the fact that his energy and difficulty with concentration would prevent him from working on a full-time basis.
It is clear, in my opinion, that as at October 2018 Dr Schrueder had identified the difficulty which the plaintiff was having in his consulting work and the effect that work was having upon his emotional state and was recognising his capacity to work in other less remunerative activities on a part-time basis.
· As at 12 June 2018, Associate Prof Damodaran, a consulting psychiatrist who examined the plaintiff on behalf of the defendant, commented that the plaintiff retained the capacity for modified pre-injury duties for up to 3 days a week provided that he was in a supported recovery orientated environment. In my opinion, the precondition that the plaintiff be in a supportive environment in order to allow him to work for up to three days a week demonstrates the potential for an adverse impact upon the plaintiff’s mental health associated with his work;
· In September 2016, Catherine Johnson, the plaintiff’s treating psychotherapist, had opined that the plaintiff’s work in a temporary role in his profession at a lower level of responsibilities and duties was causing him stress but she expressed the opinion that the plaintiff would benefit from working in a permanent secure role in that line of work initially on a part-time basis.
On 6 March 2019, Ms Johnson had revised her opinion, commenting that the plaintiff’s mental state had deteriorated further and that his current symptoms were emotionally triggered. She opined that the plaintiff would benefit from a change in career and work environment which could reduce the external triggers “that can cause his paranoia and high anxiety”. She further opined:
“I believe that Glenn would need to re-educate himself in a different career path. I understand that he is considering study, but to my knowledge has not engaged in a different university degree, as he is too overwhelmed with his current legal situation and would need to study/work on a part-time basis and gradually build up his capacity and tolerance. His mental health would need to be monitored and assessed in the work study load adjusted accordingly.”
· On 28 February 2019, shortly before the plaintiff ceased work, he was re-examined by Associate Prof Damodaran.
On that occasion Associate Prof Damodaran opined:
(i) That from a psychiatric point of view he was of the opinion that the plaintiff was losing his current capacity for work due to worsening of his clinical state, commenting that the plaintiff was currently working three days per week, that his overall functioning and performance was “quite sub optimal and he is not coping well”; and
(ii) That the plaintiff did not have a current capacity for work.
25 In the course of his evidence, the plaintiff made it clear that he considered his maximum capacity for his consulting work to be three days a week. He conceded however:
· that there were occasions upon which he was required to work for longer periods than this; and
· that he was forced to do so given the demands placed upon him by the nature of the particular work he been engaged to undertake.
26 In my opinion, the evidence to which I have referred to above paints a persuasive picture:
(i) of the plaintiff undertaking work in the open marketplace which eventually exerted such a toll upon him as to cause him to develop the psychosis with which he currently presents and which operates to incapacitate him;
(ii) in support of the position that the plaintiff’s chronic adjustment disorder in its stabilised state operates so as to prevent the plaintiff from engaging in work activities of the type involved in his consulting business unless he can control that process so as to limit the activity involved to no more than three days a week and probably less. In that sense, the opinion expressed by Dr Wiseman in October 2018 was prescient namely:
“at the current time his absolute maximum psychiatric capacity is three days per week although this will depend upon how he copes in functions over the next 4 to 6 weeks with doing three days a week it is possible that his maximum work capacity could be two or two and half days per week.”
27 I am satisfied that the appropriate hourly rate to be applied to the work undertaken by the plaintiff as a consultant is a figure between $70 and $80 per hour.
28 It is conceded on behalf of the defendant that in order to earn an income which exceeds that which would entitle the plaintiff to commence a proceeding claiming damages for economic loss, the plaintiff would be required to work as a consultant for:
· 29.1 hours per week if his hourly rate is fixed at $80 per hour; and
· 33.3 hours per week if his hourly rate is fixed at $70 per hour.
I am satisfied for the reasons above that the plaintiff has permanently lost any such capacity.
29 I undertake the above analysis in a theoretical sense only.
30 In reality, I am satisfied that the plaintiff recognised his incapacity for his consulting work on grounds of ill health in August 2018 when he made enquiries of CGU as to whether it would fund his ability to “go back to school and retrain”, commenting:
“I’m keen to gain skills in a new field. What is the process for me to apply to have my request reviewed?”
31 I am further of the opinion that the plaintiff’s incapacity for his consulting work is demonstrated by the combination of:
(i) the plaintiff’s viva voce evidence that:
· he had only limited tolerance for his consulting work;
· he could cope with that for a maximum of three days a week but could not necessarily manage his obligations within that limitation the result being that impact upon his mental health;
(ii) the consistency between the plaintiff’s evidence as to his capacity for the work and the medical evidence to which I referred;
(iii) the serious deterioration in his mental health which he has been suffering since late 2018.
32 There is no issue that were the plaintiff to engage in full-time employment in any of the work processes identified in the report by Mr Janedis, or for that matter as a social worker, the plaintiff would earn an income which does not exceed the statutory threshold in this instance.
33 For the reasons set out above, I am satisfied that the plaintiff is entitled to the leave which is sought in this instance and I will hear the parties as to the precise order which should be made and also upon the issue as to costs.
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