Halpenny v Victorian WorkCover Authority
[2020] VCC 1824
•30 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00342
| CLIVE PATRICK HALPENNY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 October 2020 | |
DATE OF JUDGMENT: | 30 November 2020 | |
CASE MAY BE CITED AS: | Halpenny v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1824 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Left hand injury – pain and suffering only – whether the consequences are “at least very considerable” – secondary psychiatric injury – pain and suffering only – past psychiatric history – subsequent alcohol and illicit drug abuse – whether the secondary psychiatric injury was a cause of the subsequent alcohol and illicit drug abuse – whether the consequences are “severe”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Transport Accident Commission v Katanas [2016] VSCA 140; Katanas v Transport Accident Commission [2017] HCA 32; O’Donnell v Reichard [1975] VR 916; Jones v Dunkel (1959) 101 CLR 298
Judgment: The plaintiff has leave to bring a proceeding at common law with respect to the left hand injury and the secondary psychiatric injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C A Sidebottom | Slater and Gordon Lawyers Ltd |
| For the Defendant | Ms S De Guio | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 In 2017, the plaintiff was employed by Imagebuild Group Pty Ltd (in liquidation) (“the employer”) as a carpenter. On 21 January 2017, he was working for the employer at a construction site in Spencer Street, West Melbourne. He was specifically employed as part of a “formwork stripping crew”. In the course of doing that work, a timber beam fell from overhead, landing on his left hand, which he had resting on a steel frame.
2 The plaintiff suffered injury, principally to his left index finger, but affecting the function of his left hand. He submitted that the impairment consequences of that injury has resulted in consequences which constitute a permanent serious impairment or loss of a body function. Subsequently, the plaintiff suffered a secondary psychiatric disorder which he submitted constitutes a permanent severe mental or permanent severe behavioural disturbance or disorder. The plaintiff limited his application for serious injury to pain and suffering only. The defendant submitted that neither injury constitutes a “serious injury” as defined.
Appearances
3 Mr C Sidebottom of counsel appeared for the plaintiff. Ms S De Guio of counsel appeared for the defendant.
Executive summary
4 After considering all of the evidence, I am satisfied that the plaintiff has suffered a permanent serious impairment of the function of his left hand, and that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
The left hand treatment
5 I will provide a short summary of the plaintiff’s treatment for the left hand injury because it was not controversial in any respect.
6 The plaintiff attended the Emergency Department of the Royal Melbourne Hospital on 21 January 2017. He was diagnosed with a comminuted fracture of the mid shaft of the left proximal phalanx of the second finger of his left hand, extending proximally. He was provided with a plaster cast, and advised that he would probably require an open reduction and internal fixation of the fracture.[1] That surgery was performed on 3 February 2017 by Mr Eugene Lim, surgeon. The handwritten operation report contains a simple diagram showing the insertion of a plate and eight screws to reduce the fracture.[2] Subsequently, the plaintiff had a number of sessions of hand therapy at the Royal Melbourne Hospital. He was provided with painkillers. It was at this point that he began drinking alcohol excessively as pain self-management .
[1]Plaintiff's Court Book (“PCB”) 40
[2]PCB 48
7 The plaintiff saw Dr Mohammed Eli, general practitioner, at the Gladstone Park Super Clinic on 3 March 2017 complaining of stress, pain and an inability to sleep. He was given a prescription for Panadeine Forte for pain relief and Valium to be taken at night, presumably to help him with his sleeping difficulty.[3] It would appear that the plaintiff’s prescription of Panadeine Forte, or any other pain-relieving medication requiring a prescription, ceased until early 2020, when he obtained further prescriptions for Panadeine Forte. He ceased using it because of what he describes as unpleasant side-effects. He now takes about four Panadol each day to obtain pain relief.[4]
[3]Defendant’s Court Book (“DCB”) 55
[4]PCB 23 and Transcript 129 and 166
8 The plaintiff then became gripped by a very significant deterioration in his mental health. The treatment which he subsequently obtained was almost exclusively for his mental health. I will return to that treatment when I deal with the secondary psychiatric disorder.
The left hand return to work and retraining
9 The plaintiff returned to work with the employer after a couple of weeks. He could not use his left hand when working with tools and he found it difficult to perform tasks involving heavy lifting, and when he did, he experienced aching and throbbing in his finger. He ceased work with the employer on 6 March 2017.[5]
[5]PCB 11
10 The plaintiff travelled to his Irish homeland in June 2017, where he and his then fiancée, now his wife, lived for fifteen months. He was out of work for the majority of the time that he was in Ireland. What work he did amounted to working at a local McDonald’s fast food outlet for one week and working at a local supermarket for one to two weeks. It would appear that it was mainly his mental health that interfered with his capacity for work, although, he struggled to use his left hand to perform tasks required of him in both forms of employment.[6]
[6]PCB 12
11 Shortly after returning to Australia in October 2018, the plaintiff obtained work as a labourer with Domain Concrete on 30 October 2018. He was unable to work beyond 27 November 2018 because he struggled performing heavy lifting and using tools with his left hand. He noted that his finger was weak.[7]
[7]PCB 12-13
12 In January 2019, the plaintiff made an attempt to return to work as a formwork stripper. He obtained work with Cardabuilt Labour Services. He described the work he performed as a formwork stripper as lifting props, frames and heavy beams, and engaging in a lot of heavy physical work. He quickly found that his left hand would not stand up to performing that kind of work.[8]
[8]PCB 13
13 The plaintiff then enrolled in a course with an institution known as ISTA to obtain a qualification in the security industry. He completed Certificate II and subsequently, Certificate III in Security Services. Under cross-examination, he said he engaged in the courses of study in mid 2019. The two courses consumed about two to three months of study. He estimated that 80 to 90 per cent of the course involved classroom components. He was occupied eight hours per day, five days per week over about two months when engaged in the courses. He was able to complete the courses without difficulty.[9]
[9]Transcript 134-135
14 The plaintiff’s application for serious injury was limited to pain and suffering only. That can only mean that the plaintiff concedes that he has some capacity for suitable employment which, when the loss of earning capacity test is applied, is unlikely to be successful. I infer that the fact that the plaintiff was able to complete the courses, that he is now suitably qualified in security work; however, the plaintiff has not yet lodged an application to obtain a license to work in the security industry. He has applied for work in that industry. He has been rejected because of his lack of experience. He referred to a number of reasons why he does not believe he could work in that industry. I was left with the strong impression that the main reason why he cannot work in that industry is because of his mental health.[10]
[10]Transcript 134-137
15 Under further cross-examination, the plaintiff was asked whether he had applied for other jobs. He said that it was a requirement of his receipt of Centrelink that he apply for jobs, and that he has met that requirement. He was asked whether he could work in a carpet cleaning business similar to the business conducted by his father-in-law. The plaintiff helped out his father-in-law in his is carpet cleaning business in December 2019 to January 2020 when his father-in-law suffered an injury and was apparently having difficulty working. He gave a number of reasons why he was not interested in engaging in carpet cleaning. One of them was the income, which was significantly less than he previously earned, and the other was consistent with why he believed he could not work in the security industry, that is, his mental health.[11]
[11]PCB 19-20 and Transcript 138-139
The left hand medical evidence
16 The plaintiff has seen Dr Tony Michaelson, general practitioner, since January 2019. He provided two reports, dated 23 October 2019[12] and 18 August 2020.[13] His reports are exquisitely short and barely edifying. In his first report, he said that there was no note of the finger injury in his clinical notes,[14] but in the second report, he referred to the plaintiff suffering frustration due to unemployment and an inability to engage in boxing “due to his finger injury”, which had been a major contributor to his anxiety.[15] Otherwise, there is little to be found in Dr Michaelson’s clinical notes relevant to the finger injury.
[12]PCB 55
[13]PCB 56. Part of this report was photocopied out. It was substituted by another version
[14]PCB 55
[15]PCB 56
17 The plaintiff was examined by Mr Damien Ireland, orthopaedic surgeon, on 18 March 2020 at the request of his solicitors. He provided a report dated 19 March 2020.[16] After examining the plaintiff, he diagnosed the plaintiff as suffering from a mild dysfunction of the left index finger following an open fracture of the proximal phalanx which had been treated surgically. He considered that the plaintiff would benefit from further surgical treatment to remove what he described as the redundant internal fixation device, which would free the overlying extensor tendon from adhesions. He described the surgical procedure as being relatively minor, performed under a regional anaesthetic as a day patient.
[16]PCB 69-74
18 Mr Ireland considered that the plaintiff was “currently” precluded from heavy manual work that required gripping or lifting of weights in excess of 10 kilograms, and was not able to engage in fine manipulative movements with his left index finger due to pain and restricted motion which impacted upon his manual dexterity. He considered that the restrictions just mentioned would continue indefinitely but “could be improved” by removal of the redundant internal fixation device. He added that the plaintiff was not able to engage in his pre-injury work because of its extremely arduous nature and because of the need for rapid repetitious movements of all digits of both hands. He did, however, consider that he retained a capacity for “appropriate suitable employment”.
19 Mr Ireland also considered that the plaintiff’s social and domestic activities had not been curtailed. He considered that the plaintiff was unable to engage in his pastime of boxing, but he believed that that inability could be improved by the removal of the redundant internal fixation device.
20 Mr Robbins, hand, plastic and reconstructive surgeon, examined the plaintiff on 11 December 2019. He provided a report dated 23 December 2019.[17] After examining the plaintiff, he diagnosed that the plaintiff suffered an un-displaced fracture of the proximal phalanx of his left index finger which had been treated surgically. He considered that the plaintiff had residual restrictions of flexion in his left index finger due to scarring around the internal fracture fixation plate. He considered that if it was removed, that it would promote complete recovery of flexion. He considered that the plaintiff’s capacity for work had not been significantly affected to the extent that he considered that he had a capacity for suitable employment, even for his pre-injury employment, even if he did not have the recommended removal of the fixation plate.
[17]DCB 21-30
21 Although, Mr Robbins did not directly address whether the plaintiff could return to boxing, the thrust of his assessment of the plaintiff is that he is of the opinion that the plaintiff’s injury and its consequences are modest and can be improved. He was specifically asked whether he considered there was any exaggeration present in the plaintiff’s symptoms or level of impairment. He said he believed there was an exaggeration in the plaintiff’s symptoms. It was something which was the subject of cross-examination of the plaintiff; however, Mr Robbins did not explain what symptoms he considered were exaggerated, and whether the exaggeration was conscious or unconscious.
22 Under cross-examination, the plaintiff was asked to demonstrate his inability to fully close his left hand in making a fist when compared with his right hand. What I observed is difficult to describe, and doing the best I can, what I observed was that the plaintiff’s right index finger sat neatly adjacent to his next finger, whereas his left index finger sat up above the line of his adjacent fingers.
The left hand impairment consequences
23 The plaintiff swore three affidavits in which he described the pain and suffering consequences of the impairment of function of his left index finger and its impact upon the function of his left hand. A summary of those consequences are as follows:[18]
[18]PCB 14-16, 19-20, 22-24, 26 and 28
· ongoing deep aching pain in the finger which fluctuates, depending on use of the left hand.
· increase in pain on repetitive use of the left hand with stiffness in the finger.
· worsening pain in cold weather.
· a weird feeling in the finger as if it is permanently twisted.
· a sensation of tingling and pins and needles through the finger.
· an inability to fully bend the finger to form a clenched fist.
· a lack of strength in the left hand, making it difficult to lift weights.
· difficulty pushing and pulling with the left hand.
· difficulty pulling ply sheets, carrying timber, spinning U-heads and using tools like nips and pliers.
· difficulty doing fiddly things, such as picking up small items, doing up buttons, doing up shoelaces, using tools and cutlery, changing his child’s nappy, dressing and undressing his child and picking him up from his cot.
· the need to take about four Panadol per day for pain relief, and previous use of Panadeine Forte.
· performing tasks like mowing the lawn, vacuuming, playing with his child, and some interference with driving when parking.[19]
[19]Transcript 129 and 138
24 Additionally, were two further impairment consequences on which the plaintiff placed a great deal of emphasis. The first being his incapacity for work in the construction industry, and the second, his inability to engage in all aspects of boxing.
25 The plaintiff entered the construction industry when he was nineteen years of age. Over a period of six or seven years, he worked as a carpenter and builder, working largely on the construction of new homes and also undertaking renovations of residential homes. He travelled to Australia on a working holiday. He subsequently worked for a builder known as Leinster Constructions for about three years, and then with the employer over the next five years leading up to the incident.[20]
[20]PCB 8
26 I was referred to the Worker’s Injury Claim Form signed by the plaintiff on 8 March 2017[21] in which the plaintiff described his usual working hours as being 55 hours per week. Furthermore, he described his hourly rate of $65 per hour, and usual pre-tax weekly earnings of $2,600. The foregoing demonstrates that the plaintiff was a very committed worker who worked significant hours in what I have no doubt is a physically demanding industry, earning a very handsome income.
[21]PCB 35-36
27 Under cross-examination, the plaintiff was challenged about the extent that the impairment of the function of his left hand has deprived him of the capacity to return to work in the construction industry. Essentially, the challenge was based upon the opinions of Mr Ireland and Mr Robbins that the residual consequences of the injury are at the modest end of the scale, and would be improved by the removal of the internal fixation device. I do not accept that the medical evidence goes that far.
28 The defendant’s submission necessitates a reminder that whilst injury is the starting point in order to identify the body function which has been impaired, the essence of a determination of serious injury is an analysis of the impairment consequences. An injury might be minor, but its impairment consequences might be significant. I think the point was made in Humphries & Anor v Poljak:[22]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant … .”
[22](1992] 2 VR 129 at 140
29 I do not think that the composition of the statutory test in s325(2)c) of the Workplace Injury Rehabilitation and Compensation Act excludes that approach, nor do I think it is to be found in any of the authorities that the expression of a medical opinion is in some way superior to the evidence of a plaintiff. The medical evidence is just that. It is part of the evidentiary matrix on which a judge is expected to make findings, reach conclusions and then apply the statutory test and the applicable legal principles.
30 Essentially, the plaintiff submitted that he can rely upon his incapacity to work in the construction industry as being relevant to the issue of pain and suffering consequences. He submitted that his attempts at returns to work were met with pain. The pain he experienced and the loss of function demonstrated when he attempted work are indicative of the nature and extent of the injury he has suffered. The incapacity to return to that sort of work has resulted in a significant loss of income and a consequence of that is the loss of enjoyment he obtained through undertaking that work, and a further loss of enjoyment in having the income to support his lifestyle and that of his family.[23]
[23]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraphs [44]-[49]
31 The plaintiff was introduced to the sport of boxing when he was quite young. He competed in a number of amateur boxing fights in Ireland. In 2005, he completed a Level I boxing coach course which was part of the National Coaching Development Programme in Ireland. He remained heavily involved in boxing over the period that he resided in Ireland.[24] It became a major social outlet for him, and a passion.[25]
[24]PCB 9
[25]PCB 15
32 Under cross-examination, the plaintiff elaborated on the importance of boxing to him. The number of occasions which he mentioned boxing and the impact of its loss on him was a constant theme through his oral evidence. When the cross-examination turned directly to his history in boxing and the extent to which he engaged in it before he was injured, he said:
Q:“Let’s talk about your boxing, Mr Halpenny. You did a bit of boxing in Ireland?---
A:For my entire life, yes.
Q:Yes; and after coming to Australia what sort of boxing did you do?---
A:Sparring, fighting, what do you want to know? Every day, every single day I would box.
Q:Did you belong to a club?---
A:Three clubs, the Brizzi Brothers on Plenty Road, Probox in Braybrook and Keilor Park Boxing Club and then we were in Doherty’s gym in Brunswick, we were - that’s where we sparred every Saturday, a good ten of us would go in and just punch the head of each other, we were all friends like we had a few---
Q:Yes; (indistinct) those clubs now?---[26]
A:No, no, I can’t - like I endeavoured when we came back from Ireland, you know, to - to keep - but I can’t, I can’t - the doctor just plainly said, the reason you’re getting medication for your hand is because you keep smashing a punch bag.
Q:Are you still members of any of those clubs now?---
A:No.”[27]
[26]My recollection is that the question was whether the plaintiff attended any of those clubs now
[27]Transcript 139-140
33 Under further cross-examination, re-examination and from questions which I asked to clarify the plaintiff’s evidence regarding his boxing activities, I gathered the following:
34 The plaintiff owned a number of types of boxing equipment which he kept at his home. He described it as being a heavy bag, floor-to-ceiling ball, speedball, weight benches, a teardrop bag, a squat rack, a sit-up bench, skipping ropes and different styles of boxing gloves. I understand that some of that is weight work equipment which I infer he used for bodybuilding as part of his boxing fitness. He no longer has any of that equipment. He has retained a punching bag which he no longer uses. He has retained some old boxing gloves which I understood are of sentimental value to him. He began ridding himself of the boxing and weight work equipment before he returned to Ireland. He gave it to a boxing club. My overall impression from the very large number of occasions that the plaintiff referred to his passion for boxing, is that he has not engaged in boxing in any significant way at all since suffering the left hand injury, and certainly in recent years has not engaged in it to any extent.[28]
[28]Transcript 148 and 150-152
35 I should say something about the manner in which the plaintiff gave his evidence before proceeding any further. The plaintiff had the tendency to give non-responsive answers, and to launch into what were almost monologues. I interrupted his evidence on a number of occasions, advising him to listen to the question and to give a fair answer to it, but to no avail. The manner in which he gave answers under cross-examination raised the question whether the plaintiff was consciously avoiding answering questions, preferring to give evidence which supported his case that his impairment consequences are “serious”. I think the plaintiff was endeavouring to give a good account of himself. I think the non-responsive answers and the monologues were more a feature of the plaintiff’s personality and tendency to run off at the mouth.
36 After considering the whole of the plaintiff’s evidence, and in particular, after having read the transcript of his evidence, I have concluded that he is a creditworthy witness, but not entirely reliable. The latter I think is evident from the fact that the plaintiff had a difficulty in recalling dates, the names of medical practitioners who examined him and like matters; however, I do not think his lack of reliability affects the conclusions I have reached about his evidence and what I should accept of it. I should add that I have not lost sight of the fact that the plaintiff has what appears to be a major psychiatric condition which I think has probably played a role in his presentation as a witness.
37 I prefer the evidence of Mr Ireland to that of Mr Robbins. Mr Robbins’ opinion is almost to the extent that the left hand injury is of little or no consequence to the plaintiff, and that he has little or no impediment to returning to his pre-injury activities. His reference to the plaintiff exaggerating may have coloured his opinion, but it is not possible to know to what extent, because he did not, as I have already observed, say what the plaintiff was exaggerating about and whether the exaggeration was conscious or unconscious. Mr Ireland would appear to have accepted the history the plaintiff gave him and to have based his opinion on that history. Although, it is a brief history when compared to the body of evidence which I heard, it is broadly consistent with the evidence of the plaintiff which I accept.
38 In making a comparison with like impairments, I have concluded that the impairment consequences suffered by the plaintiff are “serious”. He has pain. He needs to take medication to deal with the pain on a daily basis. He has interference with the functioning of his left hand. He cannot engage in construction work, but has the capacity to engage in suitable employment which does not involve placing stress and strain on his left hand which it is not capable of tolerating. He cannot engage in what I have no doubt was a great passion, his boxing. Boxing appears to me not only to have been a recreational pursuit, but a major part of the plaintiff’s lifestyle. Not only did he attend boxing gyms, but he had an elaborate set up at his home. All of that demonstrates the depth of his passion for boxing. Additionally, and no less importantly, it is clear that boxing was an activity in which he engaged with friends and fellow enthusiasts.
39 The defendant submitted, by reference to Dwyer v Calco Timbers Pty Ltd (No 2),[29] that in determining whether the impairment consequences are “serious”, I should be informed of the significance of what the plaintiff has lost by what he has retained. I am attracted to that reasoning, because it is a useful method to determine whether impairment consequences are “serious”. The plaintiff has retained a capacity to engage in activities which were part of his life before he suffered the left hand injury; however, I do not consider that what he has retained overwhelms what he has lost. I think what the plaintiff has lost, in the context of the comparison with like impairments, easily satisfies the statutory test of seriousness.
[29][2008] VSCA 260
The prior psychiatric history
40 The defendant emphasised the plaintiff’s prior psychiatric history raised the issue whether the plaintiff’s claimed psychiatric condition is an aggravation of a pre-existing psychiatric condition and needs to be considered consistently with authorities, such as Petkovski v Galletti.[30]
[30][1994] 1 VR 436
41 The defendant cross-examined the plaintiff on a number of issues relevant to whether the plaintiff suffered from a psychiatric condition going back to his youth and up to about 2016. It is not clear to me whether the defendant relied upon all of those issues, but I think I nonetheless need to set each of them out in the order on which they were cross-examined by the defendant.
Drinking
42 The plaintiff had his first taste of alcohol when he was eleven years of age. He denied drinking regularly from that age. He became a social drinker perhaps at about eighteen or twenty years of age. His drinking was infrequent, because he said it would not mix well with his pursuit of boxing. When he developed a drinking habit, he would drink four or five pints, presumably of beer, in a drinking session while playing pool with friends, after which they would get some Chinese food and go home. Drinking episodes of this kind would occur maybe twice a month.[31]
[31]Transcript 44-45
43 The plaintiff conceded that in 2015, he was drinking heavily. He said he was worried about the level of his drinking, however, he said that he recovered and “brought myself back on the straight and narrow”. After which he said things were fine in relation to his former excessive drinking habit.[32] He attended rehabilitation, which he described as “dayhab”.[33]
[32]Transcript 57-58
[33]Transcript 71
Upbringing
44 The plaintiff had what he described as a slightly unsettled upbringing due to the heavy handedness of his mother and his brother.[34] He denied that he suffered any “anxiety or mental issues” as a result of the unsettled upbringing. He said that the way he was treated and the setting of his upbringing was “just the way it was”.[35]
[34]PCB 9
[35]Transcript 45-46
The Donegal move
45 The plaintiff suffered “a little depression during my teenage years” which he described as being produced by the family moving to Donegal from County Louth, where all of his friends resided. He missed his friends and felt lost for a short period of time. Once he met friends, “Robert and Woodsy and Tucker and all the boys”, he said he had loads of friends and was happy. He denied that he was depressed or suicidal.[36]
[36]Transcript 46-47 and 50-51
Cannabis abuse and the Donegal move
46 The plaintiff saw Dr Padraic Mitchell, general practitioner at a clinic in Donegal, Ireland on 23 May 2003. Dr Mitchell reproduced a letter of referral to a Dr Corcoran, consultant psychiatrist, in his clinical notes. It is clear from the letter of referral that Dr Mitchell considered that the plaintiff was suffering from depression:
“Would you please arrange to see this twenty-one year old man who is suffering from a depressive illness. He has become somewhat over self-conscious, self-analytical and describes himself as being paranoid on occasion. He has a past history of cannabis abuse but has abstained for the past six months. He has qualifications in sales but lacks confidence in trying to acquire employment. He moved to Donegal as a teenager and found the transition difficult and is hoping to return to Ardee to live. He is a very pleasant, outgoing individual with depressive symptoms and previous significant suicidal ideation … I have started him on Lexapro 20mgs daily … .”[37]
[37]DCB 31-32
47 The next entry in Dr Mitchell’s clinical notes reproduces a letter from Dr Corcoran informing Dr Mitchell that the plaintiff had failed to attend two outpatient appointments, and asking Dr Mitchell to assess the plaintiff’s use of Lexapro and whether Dr Mitchell considered that the plaintiff needed to be referred back for assessment.[38]
[38]DCB 32
48 The plaintiff said that he tried cannabis, but he denied that he abused cannabis in his late teens, nor that he had ever purchased it nor that he used cannabis to self-medicate.[39] He agreed that he had suffered depression, which I understood to be related to his move to Donegal and his loss of connection with his friends. He said that he did not see a psychiatrist despite the referral to Dr Corcoran.[40]
[39]Transcript 47 and 49-50
[40]Transcript 48
The head injury
49 In 2004, the plaintiff was struck on the head by a steel beam at his place of work. He suffered an extradural haemorrhage which required surgical evacuation. He was hospitalised for about three weeks. He was off work for about four or five months. He made a full recovery after about six months.[41] He suffered depression, for which he was prescribed antidepressant medication.[42]
[41]PCB 9
[42]Transcript 53
Panicky/anger management
50 The plaintiff denied that he had a tendency towards feeling panicky in the past and before he migrated to Australia, nor that he had ever had any anger management issues.[43]
[43]Transcript 53
2015-2017 mental issues
51 The plaintiff suffered work-related stress. He denied otherwise having “mental issues or emotional issues” from 2015 leading up to the left hand injury.[44]
[44]Transcript 53
52 The plaintiff saw Dr Malini Puvanakumar, general practitioner, at the Mill Park Super Clinic on 27 October 2015. Her clinical note discloses the following:
“Having panic attacks for long time.
Feels figgety (sic).
Has difficulty calming down.
It is affecting his life.
Seen Psychologist a y[ea]r ago.
Had few sessions with psychologist before and it was not helpful.
A friend gave 5 mg tab of valium and it helped him.
Has social phobia also.
Couldn’t go for work.
Work in construction, not with machineries and does traffic control.Working in construction for long time.”[45]
[45]DCB 79-80
53 The balance of the clinical note discloses that Dr Puvanakumar prescribed the plaintiff diazepam (Valium),[46] 5 milligrams, and referred him to Dr Prasanna, psychiatrist.
[46]Diazepam and Valium are the same pharmaceutical preparation. I have referred to the pharmaceutical preparation by both names where witnesses have referred to it by one or other name
54 The next entry in the clinical notes is dated 4 November 2015. It refers to the plaintiff returning to work, and the diazepam calming the plaintiff. It also refers to an appointment being made for the plaintiff to see a psychiatrist.[47]
[47]DCB 80
55 The next entry in the clinical notes is dated 13 November 2015. It reproduces a courtesy letter written by Dr Prasanna to Dr Puvanakumar.[48] Dr Prasanna described the plaintiff’s presenting symptoms as:
“He presents with increasing difficulties in coping with stress; increased perception of stress; being hypersensitive to rej[e]ction and overanalytical; feeling anxious, nervous and restless, struggling to relax, feeling panicky; not wanting to work, being amotivated and anhedonic, withdrawn and reclusive, struggling to manage anger. … .”
[48]DCB 80-81
56 Dr Prasanna diagnosed that the plaintiff demonstrated strong features of paranoid, borderline, avoidant and obsessive-compulsive features. He diagnosed that the plaintiff was suffering from an Adjustment Disorder with Anxious Mood with those underlying features. He advised treatment, one part of which was Diazepam and referral to a psychologist under a mental health care plan. It would appear that the plaintiff was referred to a psychologist. He was asked whether he remembered seeing a Ms Marian Thompson, psychologist. He said that he could not remember.[49]
[49]Transcript 72
57 The next relevant entries in the clinical notes are 18 November 2015, 18 December 2015, 2 January 2016, 22 January 2016, 19 February 2016 and 6 July 2016. The defendant did not specifically take the plaintiff to each of these entries, but the substance of the content was put to the plaintiff. The entries relate to the continuation of the same or similar problems encountered by the plaintiff for which he initially sought treatment from Dr Puvanakumar, and referral to counselling.[50] I note that the clinical note dated 18 March 2016 records that the plaintiff cancelled his appointment with Dr Prasanna.
[50]DCB 81-87
58 The clinical notes also reveal that Dr Puvanakumar prepared a mental health care plan for the plaintiff at a consultation on 28 October 2016.[51] The plaintiff said that he could not remember it. He remembered seeing a counsellor named Rhonda in Eltham, but he said it was for couples’ counselling involving he and his wife, not for treatment for anxiety and depression.[52] The plan was for the plaintiff to be reviewed in early 2017. The plaintiff was reminded by letter dated 20 January 2017 from Dr Puvanakumar that he was to be followed up. The plaintiff gave a confused answer, either that he did not receive the letter or that he did and he ignored it, however, whatever the case may be, he did not attend a follow-up.[53]
[51]DCB 87
[52]Transcript 78-79
[53]Transcript 79-80
Mental state prior to the incident
59 The defendant undertook an exercise of leaving no stone unturned in its cross-examination of the plaintiff relevant to his background, and anything which it discovered which might reflect upon the plaintiff’s mental state. Whilst I am not overly critical of that exercise, it left me in an invidious position of trying to trace through the plaintiff’s affidavits, clinical notes and the transcript in order to assemble a picture of what it is that the defendant submitted I should conclude from the exercise upon which it engaged. The defendant submitted, in effect, that the plaintiff suffered from a significant psychiatric condition prior to suffering the left hand injury and the onset of the secondary psychiatric condition.
60 At this point what is clear to me is that the plaintiff had a tough upbringing. He engaged in the use of illicit drugs. He was given to significant consumption of alcohol to the point where it caused him a significant problem in 2015 and going into 2016. It is clear that his mental health was by no means sound, and that is very evident from the diagnosis made by Dr Prasanna. His condition was such that he was prescribed diazepam.
61 The plaintiff submitted, in essence, that to gather together the components of the defendant’s submission is to ignore the context in which these events occurred. He submitted that throughout 2015, 2016 and up to the occurrence of the left hand injury, he was working full time performing the hours and earning the income which I have already referred to. That, the plaintiff submitted, is a demonstration of how significant the plaintiff’s prior psychiatric condition was in terms of its impact upon him. I took all of that to mean that if the plaintiff was suffering a psychiatric condition of some significance, then he would not have been able to work, as it is plain that he was capable of doing, and indeed, did.
62 I prefer the plaintiff’s submission relevant to how I should analyse the substance of the defendant’s submission, because the evidence upon which the defendant’s submission was based was largely the plaintiff’s prior medical history. The relevant prior medical history was provided to Dr Kaplan, psychiatrist, and Dr Serry, psychiatrist, who I think put all of this into its proper context. I think that will become plain when I summarise their evidence.
The psychiatric injury
63 In the period between the left hand injury and when the plaintiff ceased working with the employer on 6 March 2017, he began to struggle emotionally. He saw Dr Eli, who prescribed him Panadeine Forte and Valium. It would appear that it was around the time when the plaintiff ceased work that his mental health deteriorated. He described his mental health as unravelling. He became heavily depressed and anxious. His drinking reached concerning levels, to the extent that he was drinking a slab of beer per day and was abusing diazepam, taking over 20 tablets per day. He contemplated taking his own life.[54]
[54]PCB 12
64 The plaintiff’s mental health hit a very low point in May 2017. It was at a point when his wife moved back to live with her parents, and the plaintiff moved to an address in Diamond Creek. The plaintiff and his wife intended migrating to Ireland. They moved in with his wife’s parents because his wife wanted to spend a few months with her parents before they migrated. The plaintiff found living with his wife’s parents not to his liking, so he moved out. Under cross-examination, the plaintiff denied that his wife left him. He repeated that it was an arrangement that preceded the migration to Ireland, and I understood that to be a mutual arrangement between the plaintiff and his wife.
65 The plaintiff’s drinking habit was very heavy. His wife’s mother found him on the floor of the premises where he was living. She took him to St Vincent’s Hospital. His wife had been living with her parents for about a month at that stage.[55] The St Vincent’s Hospital discharge summary demonstrates that the plaintiff was an inpatient between 12 to 15 May 2017.[56] He was admitted because of his desire to cease drinking. There is a history of what the attending medical practitioners no doubt considered to be relevant, covering the plaintiff’s past drinking habit, drug habit, injuries and use of medication. The plan, or so it would appear from the cryptic notations on the discharge summary, was to wean the plaintiff off drugs and diazepam.
[55]Transcript 93-94
[56]PCB 59-63
66 Dr Eli provided a report dated 16 June 2017[57] in which he considered that the plaintiff was suffering from depression and severe anxiety due to the hand injury. He also considered that the plaintiff’s excessive drinking and use of Valium were due to his reaction to his hand injury. He referred to the plaintiff’s efforts to manage both his drinking and use of diazepam. He referred the plaintiff to Dr Chau, psychiatrist.
[57]PCB 54
67 The plaintiff saw Dr Chau on 30 May 2017. He provided a report dated 31 May 2017.[58] He obtained a history from the plaintiff of the left hand injury, and also an issue which the plaintiff had with his receipt of compensation from the employer which was a cause of “much angst” for the plaintiff. Dr Chau considered that the plaintiff was suffering from “constant anxiety and is somewhat depressed over the whole matter”. I assume the reference to “the whole matter” was meant to incorporate the consequences of the left hand injury and the compensation issue. At that point, Dr Chau noted that the plaintiff had been prescribed Mirtazapine, 30 milligrams, to be taken at night and a small dose of Diazepam to alleviate his anxiety symptoms. He planned to review the plaintiff, but there is nothing in the evidence to suggest that the plaintiff was reviewed.
[58]PCB 64
68 The plaintiff and his wife, then his fiancée, planned to migrate to Ireland, where they intended to marry. They went through a ceremony of marriage and subsequently lived in Ireland for about fifteen months, before returning to Australia. The plaintiff brought his drinking habit under control before he left for Ireland.[59] His psychiatric condition fluctuated significantly while he was in Ireland. He saw Dr Mitchell, who treated him before he left Ireland for Australia. The plaintiff said that he was prescribed antidepressants and medication to treat his anxiety which helped to flatten his mood, however, he continued to struggle with anxiety and depression.[60]
[59]Transcript 100-101
[60]PCB 12
69 Dr Mitchell’s clinical notes disclose that he first saw the plaintiff on 11 September 2018.[61] He recorded a history of the plaintiff’s alcohol addiction, substance abuse, benzodiazepine dependency, and use of diazepam which he was buying over the internet. He noted that the plaintiff was anxious, tense, and was suffering from palpitations, tremor and restlessness. He also noted that the plaintiff was depressed, had suicidal ideation and had a depressed outlook because he was not able to work. He prescribed him Inderal,[62] olanzapine[63] and diazepam. Dr Mitchell saw the plaintiff subsequently on 12 and 17 September 2018 and 1 October 2018. He noted that the plaintiff’s problems were settling. On the last occasion he saw him, he noted that the plaintiff intended to return to Australia. He noted that the plaintiff continued to reduce his reliance on diazepam.
[61]DCB 32
[62]Prescribed to treat anxiety, among other conditions
[63]An antipsychotic that is also used to treat anxiety
70 The plaintiff and his wife returned to Australia in October 2018. The plaintiff had ceased drinking. He continued using olanzapine, propranolol[64] and diazepam.[65] The plaintiff then made attempts to return to work and then engaged in the security course to which I have made earlier reference.
[64]Also known as Inderal
[65]PCB 12
71 Since returning to Australia, the plaintiff has seen Dr Michaelson also for treatment for his psychiatric condition. In his reports, he referred to treating the plaintiff for anxiety and drug use. He cryptically referred to the drug use being alcohol, benzodiazepines and ice. He referred to the plaintiff obtaining counselling from an organisation known as Caraniche. The counselling benefited the plaintiff to the extent that his drug use was much less, but he was not totally abstinent.[66]
[66]PCB 56
72 It is unfortunate that Dr Michaelson did not provide more informative and conventionally drafted reports. In the absence of such reports, the plaintiff relied upon entries in Dr Michaelson’s clinical notes to demonstrate the nature and extent of the treatment which the plaintiff obtained for his psychiatric condition. His clinical notes commence at 4 January 2019[67] and run through to 8 October 2020.[68] The plaintiff referred me to the summary of prescriptions provided to the plaintiff from 8 January 2019. It is evident from that summary that the plaintiff has been prescribed Zyprexa,[69] predominantly diazepam, and Aropax,[70] Zypine[71] and Inderal.
[67]DCB 33
[68]DCB 66-75
[69]Also known as olanzapine
[70]Referred to elsewhere in the evidence as paroxetine
[71]as far as I can ascertain it is related to olanzapine and is prescribed to treat mood disorders
73 The clinical notes record a history of the plaintiff’s problems with drinking, use of ice, cannabis, psychosis, anxiety, depression and benzodiazepine dependence. The clinical notes are typical of the cryptic notes made by general practitioners. What is evident, despite the shortcomings of the clinical notes, is that the plaintiff was engaging in a wide range of substance abuse from alcohol to illicit drugs, and at the same time was in receipt of prescriptions for medication to treat the psychiatric condition.
74 In the plaintiff’s three affidavits, he described the impact upon him of the psychiatric condition in graphic terms. In his first affidavit, he described his mood as being horrendous, with severe mood swings and very deep periods of depression. He has suffered irritability, upset and frustration due to his inability to work. His depression has been so severe that he has contemplated suicide. He has suffered heightened levels of anxiety, particularly through his worry for his future, a career and being able to provide for his family.[72]
[72]PCB 14-15
75 In the plaintiff’s second affidavit, he described a significant deterioration in his mental health, with a deepening of his depression due to persisting pain, physical restrictions and his inability to return to work. He has suffered poor mood, a rocking of his self-confidence and self-esteem, experiencing feelings of feeling flat and low and being overwhelmed, hitting rock bottom and feeling as though he had reached very dark places, and difficulty containing thoughts of suicide. He has felt useless, hopeless and worthless because he is unable to work. He has felt restless, anxious and on edge most of the time, and is stressed and worried about his future. He derives little joy out of life. He has drifted away from friends. His sleep is poor, often lying awake at nights with negative thoughts racing through his mind, again through stress and worry about his physical and mental problems. In addition, the plaintiff described his battles with alcohol consumption, medication and the unhealthy levels of his resort to alcohol and Diazepam. He also referred to his use of methamphetamines.[73]
[73]PCB 19-20
76 At the time the plaintiff swore his second affidavit, he continued seeing Dr Michaelson. He has been prescribed diazepam, taking four per day at that stage. He has also been prescribed olanzapine, paroxetine and propranolol. He was having counselling sessions with a psychologist named Isabelle over the telephone due to his inability to have face-to-face contact with her because of the COVID-19 lockdown restrictions.[74]
[74]PCB 23
77 In the plaintiff’s third affidavit, he repeated that all of the consequences of his psychiatric condition referred to in his second affidavit continue to trouble him.[75]
[75]PCB 27-28
78 The plaintiff’s wife, Mrs Megan Halpenny, swore an affidavit on 15 October 2020[76] in which she described the plaintiff before he suffered the left hand injury. She described him as being a very decent, fun-loving guy to whom she was immediately drawn. She also described him as being bubbly, a larger-than-life personality, someone who enjoyed his work and had an active interest in boxing training most days. She then described the contrast after he suffered the left hand injury, and in particular, the loss of his job, the loss of his outlet through boxing and his resort to alcohol and illicit substances, and a point when he was directionless and rudderless and in a deteriorating psychological state.
[76]PCB 29-32
79 Mrs Halpenny acknowledged that there were ups and downs in their relationship in 2015 or 2016 for which they had counselling which brought them closer together. She referred to his feeling of homesickness and their migration to Ireland, and that while they were in Ireland, his physical problems with his left hand and his moodiness remained, and I infer she meant remained as it was before they moved to Ireland. She described the plaintiff’s attempts to try really hard to be a father to his young son, but she noticed that he struggled to use his left hand in many ways. She described that over the last three years, he has appeared to her to be depressed, anxious and miserable, looking like he is carrying the weight of the world on his shoulders, and that he has become withdrawn and introverted. She said that he struggles with his mental health and appears to her to be vulnerable, in a fragile state, a far cry from the confident outgoing person that she met before he suffered the left hand injury.
Issues raised in cross-examination
80 The defendant cross-examined the plaintiff on a number of issues which it submitted raised doubt about the cause of the plaintiff’s diagnosed psychiatric condition, and the causal link between his alcohol abuse and drug abuse with the left hand injury and the psychiatric condition that he developed after suffering that injury. I will deal with each of those issues in the order on which the plaintiff was cross-examined.
81 Under cross-examination, the plaintiff was asked about his abuse of alcohol and diazepam. He denied that his abuse of alcohol and diazepam was as a result of problems in his relationship with his wife. It became apparent that he was obtaining diazepam through prescriptions, and also over the internet. He said that he has not consumed alcohol over the last year, and he has reduced his use of diazepam from taking about 20 per day to the position now, where he is taking about three per day. He denied that his reduction in diazepam intake is a demonstration of improvement in his mental state.[77]
[77]Transcript 94-105 and 113-115
82 Next, the plaintiff admitted that his wife’s admission to hospital in about September 2019 for about two months with a postnatal psychiatric condition was a very sad time for him and was detrimental to his mental health. He described that time as being shocking. He admitted that it was around that time that he began using amphetamines. He said that he used amphetamines because he was in a really bad place mentally. He said that he used amphetamines once only. He admitted that he separated from his wife temporarily after she was discharged from hospital.[78]
[78]Transcript 116-118
83 Next, the plaintiff admitted that after his wife’s discharge from hospital, he used ice. The plaintiff estimated that he was using ice about once a week, then once a month as a substitute for alcohol. He said that he is trying to get that out of his life through counselling.[79] The plaintiff was asked why he did not refer to the problems he was having with his wife’s admission to hospital and his illicit drug use in his first affidavit. He said that he thought the affidavit was to be directed to his injuries only. He denied that Dr Michaelson prescribed him Naltrexone to treat his use of illicit drugs. He admitted that he is not one hundred per cent over his use of those illicit drugs.[80]
[79]Transcript 119-120
[80]Transcript 124-126
Cross-examination of the Plaintiff’s wife
84 Mrs Halpenny was cross-examined and re-examined briefly regarding the plaintiff’s attempts to return to work post injury; completing the security course; the development of his psychiatric condition post the left hand injury; assisting her father in his carpet cleaning business; the plaintiff’s pursuit of boxing and whether he returned to it to any degree, and her hospitalisation with a postnatal psychiatric condition.[81] It was not my impression that she departed from the substance of what she deposed to in her affidavit.
[81]Transcript 155-163
The psychiatric evidence
85 Dr Serry, psychiatrist, examined the plaintiff on 23 September 2019 for the plaintiff. He provided two reports, dated 23 September 2019[82] and 14 August 2020.[83] Subsequent to examining the plaintiff and providing his first report, he was provided with further documents on which he was asked to make further comment in the light of his opinion stated in his first report. The documents comprised the following:
[82]PCB 89-98
[83]PCB 99-102
· The plaintiff’s first two affidavits.
· The clinical records of the Mill Park Super Clinic (Dr Puvanakumar).
· The clinical records of Dr Michaelson.
· The clinical records of the Millbrae surgery (Dr Mitchell).
· A report of Dr Kaplan, presumably his first report, which I will refer to shortly.
· A report of Mr Ireland.
86 As far as I can ascertain, Dr Serry obtained a reasonable history of the plaintiff’s background, the left hand injury, the treatment he obtained for that injury, the onset of the secondary psychiatric condition, the treatment he obtained for it, and his abuse of alcohol, use of medication and abuse of illicit drugs. He obtained that history through his interview with the plaintiff, and also from documents he was provided when he first examined the plaintiff, and also from the subsequent documents he was provided.
87 In his first report, Dr Serry took account of the plaintiff’s past history, abuse of alcohol and diazepam in concluding that the plaintiff presented with very significant levels of both anxiety and depression complicated by secondary substance abuse. He considered that the most appropriate diagnosis of the plaintiff’s psychiatric condition, related to the consequences of the left hand injury, were: moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood, alcohol abuse and benzodiazepine abuse.
88 Dr Serry considered that the plaintiff did not have a capacity to perform his pre-injury work and he considered that such incapacity would be likely to last for the foreseeable future. He considered that the plaintiff would be restricted in engaging in certain social, domestic and recreational activities to a significant extent and for the foreseeable future. He considered that he needed to be under the regular care of a consultant psychiatrist.
89 Dr Serry did not examine the plaintiff again. He read the additional documents he was sent which contain, among other things, a reference to the plaintiff’s psychiatric condition in the past, and in particular, 2015 and 2016, and also his battle with controlling his consumption of alcohol and his recent use of methamphetamines. Despite what he subsequently understood regarding the plaintiff’s prior psychiatric history, he considered that there was no basis to alter his previous assessment; however, he noted that the plaintiff had a degree of premorbid vulnerability and had demonstrated suboptimal coping strategies. He repeated the same diagnoses that he had provided previously; however, he considered that the context of the plaintiff’s pre-existing psychiatric condition pointed to the majority of the plaintiff’s “current psychological difficulties” reflecting “the impact of the workplace injury sustained on 21 January 2017”.
90 Dr Kaplan examined the plaintiff on 10 June 2020 for the plaintiff, partly by telephone and partly by videoconferencing. He provided a report dated 12 June 2020.[84] He was provided with a number of documents, but importantly the following:
[84]PCB 75-88
· The clinical records of the Glenroy Road Clinic (Dr Eli)
· The clinical records of the Mill Park Super Clinic (Dr Puvanakumar)
· The medical report of Dr Serry dated 23 September 2019
· The clinical records of the Millbrae Surgery (Dr Mitchell).
91 I have made a comparison between the history recorded by Dr Kaplan with the history recorded by Dr Serry. They appear to have obtained a similar history, although, Dr Kaplan did not have the clinical records of Dr Michaelson which are of real importance, because they outline the more recent prescription of medication, the plaintiff’s methamphetamine abuse and treatment for it. Dr Kaplan provided a diagnosis consistent with the diagnosis made by Dr Serry. He considered that the plaintiff’s psychiatric condition was best characterised as a Severe Adjustment Disorder with Mixed Anxiety and Depressed Mood. Unlike Dr Serry, Dr Kaplan considered that the prognosis for that condition would be determined by the outcome of the plaintiff’s physical condition, that being, the plaintiff’s left hand. Additionally, he considered that the plaintiff was suffering from substance abuse relevant to his use of amphetamines, and from alcohol abuse . He considered both to be forms of self-medication to relieve the plaintiff’s underlying anxiety and depression.
92 Professor Jones, psychiatrist, examined the plaintiff for the defendant on 3 December 2019. He provided a report dated 11 December 2019.[85] He was provided with documents which he described as being in a schedule of attached reports and other materials which accompanied his report, but no such schedule was attached to his report. I think it is evident from my summary of the plaintiff’s prior psychiatric condition in 2015 and 2016, and his subsequent abuse of alcohol and illicit drugs, that they are of real importance. The defendant was critical of the plaintiff, demonstrated through cross-examination, that the plaintiff did not inform Professor Jones of these important matters. I think that criticism is a valid one.
[85]DCB 12-19
93 On the basis of the history obtained by Professor Jones and his examination of the plaintiff, he considered that the plaintiff was evidencing depressive symptoms which he did not consider to be profound. He considered that the plaintiff’s psychiatric symptoms were not sufficiently severe to preclude him from employment which was appropriate, having regard to what physical limitations were relevant to the plaintiff’s left hand injury. He diagnosed that the plaintiff was suffering from a Major Depressive Disorder, which he considered was in remission, and was complicated by alcohol and drug abuse.
Legal principles
94 The question of what is meant by “severe” when contrasted with what is meant by “serious” in the relevant definitions of “serious injury”, was dealt with in Mobilio v Balliotis & Ors[86] in which Brooking JA observed that “severe” is a stronger word than “serious”.[87] Later, in Noonan v State of Victoria,[88] Osborn JA referred to Mobilio and observed that because “severe” is a stronger word than “serious” the consequences of the relevant injury must be relatively more significant.[89]
[86][1998] 3 VR 833 (“Mobilio”)
[87]Mobilio at 846
[88][2013] VSCA 289 (“Noonan”)
[89]Noonan at paragraph [8]
95 The defendant submitted that I should firmly keep in mind the distinction between what are symptoms and what are consequences of the plaintiff’s psychiatric injury; however, the distinction is not always clear, as was observed by the High Court in Katanas v Transport Accident Commission.[90] Additionally, in Transport Accident Commission v Katanas,[91] the Court of Appeal referred to the framing of a spectrum of symptoms and/or consequences which would become relevant in determining whether the statutory test has been satisfied. The Court of Appeal observed that the correct approach is to identify and bring into account all the relevant circumstances personal to the plaintiff, then apply the statutory test making a value judgement, and in making that value judgement, give to each identified relevant circumstances the weight which appears to be appropriate. The Court of Appeal acknowledged that the experience of the judge in hearing such cases and seeing cases which fall on either side of the line will be of assistance to the judge in making the value judgement.[92]
[90][2017] HCA 32 at paragraph [29]
[91][2016] VSCA 140 (“Katanas”)
[92]Katanas at paragraph [19]. These observations were endorsed by the High Court at paragraph [21]
96 I do not think it is necessary to traverse any of the relevant authorities any further than I have because all of these principles have been long applied and are well understood. Indeed, neither of the parties chose to address me on the application of the legal principles extensively.
Serious injury or not
97 The defendant has raised a number of issues directly, and by implication, which go to the conclusion which the plaintiff submits is open, and that is, that the secondary psychiatric condition has produced all of the consequences which can be drawn from the evidence adduced by the plaintiff. I will go through as many of them as I think are relevant to the defendant’s response to the plaintiff’s evidence.
98 I think it is less probable that the plaintiff was labouring under a significant psychiatric condition in 2015 and 2016. The clinical notes I have referred to can be both seductive and beguiling. The mere reference to psychiatric problems in them can create an impression perhaps larger than reality.
99 The plaintiff submitted that the context in which I must see his prior psychiatric condition is twofold: Firstly, the plaintiff was working full time, working hours and earning the income which I have referred to earlier, and according to what I have been able to deduce from those clinical records, he appears to have been working without incident in the face of evident psychiatric problems. Secondly, the real testing ground whether the prior psychiatric condition was of any real moment is its assessment by Dr Serry.
100 I think I have made it clear that Dr Serry is probably the only psychiatrist who had close to a full history of the plaintiff’s prior psychiatric problems, the onset and progress of the secondary psychiatric condition, and the plaintiff’s resort to abuse of prescription medication and illicit drugs. Clearly, he analysed all of the evidence on which he was asked to comment, and concluded that the plaintiff probably had a vulnerability, and that the larger part of the plaintiff’s secondary psychiatric condition is due to the left hand injury and its consequences.
101 There is a substrata to my acceptance of Dr Serry’s opinion which I must deal with next. Firstly, I accept the plaintiff as a witness of truth. I have dealt with the manner in which he gave his evidence earlier in these reasons. Although, there are absences of important evidence in his affidavits, the whole of the evidence adduced by both the plaintiff and the defendant appears to me to be full, in the sense that it captures what the plaintiff’s pre-injury circumstances were and his post-injury circumstances. I did not hear the defendant to submit that there was some serious failure on the part of the plaintiff to ultimately be full in his account of evidence going to issues material to my consideration except in one instance which I will turn to later in these reasons.
102 Secondly, there are a series of causation questions raised by the defendant. Was the plaintiff’s abuse of alcohol, medication and then illicit drugs due to the left hand injury and the onset of the secondary psychiatric condition? It is clear that the plaintiff was abusing alcohol and fell into serious drug abuse. Dr Serry knew of that, and spent some time considering what he was asked to comment on in his second report. There is nothing which alerted him to any causation issue. Although, it is a matter for me as the trial judge to determine issues of causation, it is difficult to go beyond expert medical evidence of a consultant psychiatrist who by expertise is in a far better position to make that judgement. I accept his evidence in whole on the issues of causation.
103 The plaintiff’s relationship with his wife appeared to have been challenged as if it were a contributor to the secondary psychiatric condition as it presents now. The plaintiff and his wife gave frank evidence that there were difficulties in their relationship, and a very difficult period when the plaintiff’s wife suffered a serious level of post-natal depression. However, there is insufficient evidence to elevate either of those relationship problems to being intervening events. The plaintiff’s evidence was that they were incidents that occurred from which he and his wife recovered, and that was the gist of her evidence as well.
104 There are other aspects of the evidence which I consider to be confirmatory of the plaintiff’s evidence. Firstly, I think the medical evidence fairly demonstrates the plaintiff’s prior psychiatric history, and what occurred following the left hand injury. Secondly, if there were real issues with the plaintiff’s creditworthiness and reliability, then I would have expected that to have emerged during the lengthy and detailed examinations by the three psychiatrists and for there to have been some comment in that respect. Thirdly, I found the plaintiff’s wife’s evidence to be very compelling. Her affidavit evidence was stated fairly, as was her oral evidence, and indeed, she was not challenged to any significant degree relevant to the plaintiff’s reaction to the left hand injury and the onset of the secondary psychiatric condition and its progress.
105 The defendant submitted that the plaintiff has succeeded in reducing his reliance on medication, alcohol and illicit drugs which should lead me to conclude that the consequences on which he relies are somewhat less than the plaintiff says they are. I do not accept that submission. There are essentially two reasons why: Firstly, the plaintiff continues to obtain medical treatment from Dr Michaelson, and continues to have counselling. Both Dr Serry and Dr Kaplan recommend that he has psychiatric treatment, which he has not yet had, but that is a matter for Dr Michaelson and the plaintiff to determine whether he should be referred for that level of treatment. The fact that he needs it is of itself very significant. Secondly, the fact that the plaintiff needs diazepam is of itself significant, because it demonstrates that there is a psychiatric condition requiring treatment with medication.
106 My synthesis of the whole of the evidence is as follows: Firstly, I accept the plaintiff’s evidence, and that of his wife, of the consequences of the left hand injury, the onset of the secondary psychiatric condition and its progress to the present. Secondly, I accept that Dr Serry is in a reasonably good position to assess all of the relevant evidence, and I accept his diagnosis and prognosis. Thirdly, I accept the descriptions given by the plaintiff, and his wife, of the dire circumstances in which he finds himself plagued by symptoms of the secondary psychiatric condition summarised above. I am mindful of the defendant’s submission that there is a need to bring clarity to what are symptoms and what are consequences, which I think I have undertaken to the extent that it is possible to distinguish symptoms from consequences.
107 Furthermore, my synthesis of the evidence has led me to conclude that the plaintiff is in a very parlous psychiatric state. I think his impairment consequences are certainly more than “serious” and equate with the statutory test of severity for the reasons I have outlined thus far.
Failure to adduce evidence
108 The defendant submitted that I should draw an adverse inference based upon the failure of the plaintiff to adduce evidence from the psychologist who is currently providing him with counselling through an establishment known as Caraniche. The submission was based upon well-known authorities.[93] The defendant submitted that each of the considerations referred to in O’Donnell[94] are established. The plaintiff conceded that all of those considerations have been potentially established, except that the plaintiff has given an explanation why he has not adduced evidence from Caraniche. The plaintiff referred to an email exchange between his solicitors and Caraniche. Ms Isabelle Jamieson, psychologist, responded by an email dated 16 June 2020 in which she said that a report would not be provided because “… Caraniche is not a medical practice and we do not provide medical or psychiatric reports”.[95]
[93]O'Donnell v Reichard [1975] VR 916 (“O’Donnell”) and Jones v Dunkel (1959) 101 CLR 298
[94]at 929
[95]PCB 57
109 I must not lose sight of the fact that this is a serious injury application. It is commenced by an originating motion, which means that the evidence must be adduced by affidavit with the allowances made in the hearing of serious injury applications that medical reports and other relevant evidence does not need to be adduced by affidavit for the purpose of the efficient and cost-effective method of preparation and hearing of such applications. The failure to adduce literally everything may well attract a submission such as the one made by the defendant. Ultimately, it is a matter of determining how central and how important the absent evidence is. I consider in this instance that the evidence is important, but there is a wealth of other medical evidence which demonstrates with clarity the condition for which the plaintiff is being treated and how he is being treated.
110 I think the plaintiff has provided a sufficient explanation that he has taken the appropriate and relevant steps to acquire the evidence, and has explained why it has not been adduced. I think for that reason and the fact that there is other explanatory evidence of the issues raised in this application, that I am not prepared to draw any adverse inference against the plaintiff in the circumstances.
Conclusion
111 For the reasons which I have set out above, I will grant the plaintiff leave to bring a proceeding at common law, both for the impairment consequences of the left hand injury and the mental or permanent severe behavioural disturbance or disorder.
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