Hancock v Mallee Accommodation and Support Program Limited (ACN 606 779 873)
[2017] VCC 1460
•13 October 2017
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| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02789
| NOEL HANCOCK | Plaintiff |
| v | |
| MALLEE ACCOMMODATION AND SUPPORT PROGRAM LIMITED (ACN 606 779 873) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 28 September and 2 October 2017 | |
DATE OF JUDGMENT: | 13 October 2017 | |
CASE MAY BE CITED AS: | Hancock v Mallee Accommodation and Support Program Limited (ACN 606 779 873) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1460 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – where plaintiff assaulted on multiple occasions in the course of his employment – whether the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the course of that employment.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, Part 7
Cases Cited:Humphries & Anor v Poljak & Ors [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas [2017] HCA 32; (2017) 91 ALJR 865
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin QC with G Clark | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 Between 2006 and 2015, the plaintiff was employed by the defendant as a residential support worker. His duties involved working with troubled teenagers who were being housed by the defendant. His work involved supervising teenagers in a house in Mildura, working various shifts.
2 Some of the teenagers the plaintiff dealt with were violent, and over the period of his employment, he was subjected to a number of physical assaults and verbal abuse from children he was attempting to supervise. From time to time these assaults involved the use of fists and of knives.
3 On 8 February 2015, there was a particular assault involving one teenager who punched the plaintiff repeatedly to his face and arm. Police were called and attended (the “February 2015 incident”).
4 As a consequence of these events over the course of his employment and, in particular, the February 2015 incident, the plaintiff alleges that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. He seeks the leave of this Court to issue a proceeding claiming pain and suffering damages in respect of those injuries.
5 The plaintiff’s right to do so is governed by the provisions of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
6 In order for leave to be given to the plaintiff to commence a proceeding for damages, the Court must be satisfied that he has suffered a “serious injury” as defined by that Act.
7 The term “serious injury” is defined in s325(c) of the Act, insofar as is relevant to this application, as a:
“…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
8 Part (a) of the definition of “serious injury” refers to physical injuries. There, the threshold is whether the applicant has suffered a permanent “serious” impairment or loss of a body function.
9 The courts have, on a number of occasions, confirmed that the word “severe” is a stronger word than “serious”.[1]
[1]Humphries & Anor v Poljak & Ors [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833 at 846, 834-5, 854, 858, 860-61; Transport Accident Commission v Katanas [2017] HCA 32; (2017) 91 ALJR 865
10 The term “severe” is to be satisfied by reference to the consequences to the worker of the mental or behavioural disturbance or disorder.[2]
[2]Section 325(2)(b) of the Act
11 Section 325(2)(d) of the Act provides that a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of s335(2) unless the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
Past circumstances
12 The plaintiff is currently aged sixty.
13 The plaintiff was brought up in Mildura and attended school there until the end of Form 4 (or Year 10). He commenced a mechanics apprenticeship, which he did for about three years. It appears that he did not complete that apprenticeship.
14 The plaintiff then worked in a packing shed, and later, as a machine operator in a winery for eight or nine years.
15 In about 1987, the plaintiff purchased a vineyard near Mildura and operated that business until he commenced work with the defendant in 2006.
16 The plaintiff is married with four children. He and his wife separated about nine years ago. His wife died about three years ago. He lives alone.
17 The plaintiff’s duties with the defendant were to supervise young males (and in some cases, females) who were living in residences operated by the defendant.
18 The plaintiff found his job with the defendant to be stressful but rewarding. It was particularly stressful when he was required to sleep over at the residence. He was often in fear of being threatened or assaulted.
19 The plaintiff continued, however, to work in that position until the February 2015 incident. He made a WorkCover claim in relation to stress and anxiety. The WorkCover insurer accepted that claim in respect of weekly payments, and medical and like expenses.
20 In early 2016, about a year after the February 2015 incident, the plaintiff obtained employment with a local nursery, working about twenty-two hours per week. He had been, up to that time, in receipt of WorkCover payments, and continued to receive partial payments, along with his part-time wage. He continues to work in that capacity.
Treatment
21 The plaintiff’s treatment from February 2015 has been limited.
· Soon after going off work, he attended counselling arranged by Victoria Police for a short period.
· He saw his general practitioner, Dr Ravoori, who offered to prescribe antidepressant medication. The plaintiff declined the offer. Dr Ravoori has seen the plaintiff on a regular basis (generally monthly) to provide him with Certificates of Capacity.
· In about February 2015, Dr Ravoori referred him to a psychologist, Ms Rosalie Milner. He saw her on a monthly basis for about a year and, since, has continued to see her about once every quarter. He receives counselling and treatment known as Eye Movement Desensitisation and Reprocessing (“EMDR”).
22
Dr Ravoori diagnosed hthe plaintiff with Post-Traumatic
Stress Disorder (“PTSD”).
23 A treatment plan prepared by Dr Ravoori dated 22 February 2015 (about one week after the February 2015 incident) was tendered.[3] In that document, Dr Ravoori stated that the plaintiff was then experiencing symptoms consistent with Anxiety. He indicated that he had advised him that treatment for Depression usually involved a combination of medication and psychotherapy. Dr Ravoori considered that the prognosis for Anxiety in most cases is considered to be very good. At that time, his treatment plan involved a combination of medication and psychotherapy. As I understand it, the medication considered was to be antidepressant medication. As previously mentioned, the plaintiff declined to accept such medication. The only medication which he has taken since has been in respect of hypertension.
[3]Plaintiff’s Court Book (“PCB”) 40
24 A letter from Ms Marise Libchard of the Victims’ Assistance and Counselling Team, Sunraysia Community Health Services Ltd (undated) was tendered.[4] The letter is addressed to a doctor who was otherwise unidentified. It appears, however, to have been written at some stage in, or prior to, 2015. The report indicates that the plaintiff had reported marked alterations in arousal and reactivity since “the event” by hypervigilance, eating difficulties, sleep disturbance and withdrawing and avoiding people. He had reported being easily startled by noise, and had noticed changes in how he interacted with other people. She reported:
“[The plaintiff] stated he has felt shaken up by this assault and that it is the fourth assault in recent months in the workplace by a client.”[5]
[4]PCB 44
[5]PCB 44
25 With the exception of his referral to Ms Milner, the plaintiff has not been referred to any other treating professional. In particular, he has not been referred to any treating psychiatrist.
26 The plaintiff’s description of the EMDR treatment administered by Ms Milner was somewhat vague. It appears to be something similar to hypnotism.[6] Nevertheless, I accept that it is a recognised treatment for PTSD and is also recognised as being effective in many cases for treatment of Anxiety, stress, panic attacks, Depression, phobias, addictions, pain relief, performance anxiety, weight loss and disassociation. Up to 17 July 2017, the plaintiff had attended twenty-one such sessions of EMDR with Ms Milner. These sessions involved a total of thirty hours of psychological counselling and assessment.
[6]Transcript (“T”) 22
27 Reports dated 12 April 2015 and 17 July 2017 by Ms Milner were tendered.
28 Ms Milner did not consider that the plaintiff was suffering from PTSD.[7] She considered that he was suffering from “burnout” following years of working with particularly challenging, aggressive, and physically violent clients, including several assaults. She considered that the most appropriate diagnosis was that of Other Specified Trauma and Stressor related Disorder pursuant to the DSM diagnostic criteria.[8] She considered that he did have a work capacity, but that he should not return to his work with the defendant under the previous conditions.[9]
[7]PCB 46 and 54
[8]PCB 46
[9]PCB 47
29 In July 2017, Ms Milner noted that the plaintiff had attended a total of twenty-one sessions between February 2015 and July 2017, which included thirty hours of psychological counselling and assessment. He was taught anxiety/stress management techniques and encouraged to keep up a regular exercise regime. He had been treated with EMDR. Ms Milner reported that the plaintiff had told her that he felt he did not have the mental energy to increase his qualifications, and felt that his time in that industry had finished. He felt he had done good work with troubled youth, but felt he had completed that phase of his life and could no longer work in that field.
30 Ms Milner reported, in July 2017, that the plaintiff had told her that he had got back into good sleeping habits.[10]
[10]PCB 54
31 Ms Milner reported that she did not believe that the plaintiff would significantly deteriorate without her sessions with him.
32 Dr Ravoori apparently left his practice in Mildura in early 2017. Since that time, the plaintiff has generally seen another doctor from that practice, Dr Kelechi Ibegbulem. His report dated 28 August 2017 was tendered. It was largely based on Dr Ravoori’s clinical notes, to which he has had access. He notes that Dr Ravoori had certified the plaintiff as fit for alternate modified work duties as from 21 April 2015 (approximately two weeks after going off work) to the present time.
33 Dr Ibegbulem opined that the plaintiff was fit to work in some capacity, but not in his previous job role with the defendant, or any job of similar psychological demand. He noted that the plaintiff was currently working some fifteen hours per week at the nursery, which was less stressful for him, and noted that he was self-managing “well enough”.[11] He considered that the plaintiff was permanently impaired to do his previous job, but he was likely to engage with other less stressful jobs that had nothing to do with care and support services. He considered that his condition was permanent.
[11]PCB 58
34 In about 2014, Dr Ravoori diagnosed the plaintiff with hypertension (or high blood pressure), and prescribed him with medication for that condition. He has continued with that medication to the present time. He takes it daily. The parties are in dispute as to whether that hypertension is linked to his stress-related employment. I shall return to this issue later in these reasons.
Medico-legal examiners
35 The plaintiff was seen by a psychiatrist, Dr David Weissman, at the request of his solicitors. He was also examined by two psychiatrists, Dr Robert Athey and Dr Stephen Stern, at the request of the defendant’s solicitors.
36 Dr Weissman examined the plaintiff in July 2017. He took a history from him of:
·Occasional bad dreams about the work assaults, which have “slowed down a bit now”.[12]
[12]PCB 65
·He still thinks quite often about the assaults, both physical and verbal, to which he was exposed.
·He slept quite well until 5.00am or 5.30am, when he wakes up for no particular reason and is unable to fall asleep again.
·He had reasonable motivation and he still got things done at home.
·His self-esteem and confidence were reduced.
·He enjoyed walking his dog in the mornings and watching football with his children.
·He described his emotional state, morale and spirits as “reasonable but not wonderful”.[13]
·He said that he felt “a little bit depressed and anxious”.[14]
·He experienced mild frustration, but no agitation.
·When asked how he saw his future, he had replied “Day by Day … No Plans.”[15]
[13]PCB 66
[14]PCB 66
[15]PCB 66
37 Dr Weissman considered that the plaintiff came across as a “‘low-key” person, “a stoical, resilient, non-complaining person”.[16]
[16]PCB 66
38 Dr Weissman considered that the plaintiff was suffering from:
“… mild to moderate – but closer to mild – mixed anxiety and depressive symptoms and mild traumatisation features, directly due to the circumstances of his employment.[17]
(Emphasis added).
[17]PCB 69
39 Dr Weissman considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood and traumatisation features of mild intensity or severity. He considered that the plaintiff’s psychiatric symptoms, conditions and impairment are stabilised.[18] Notwithstanding, later in his report, he said:
“Mr Hancock’s psychiatric prognosis for the future is a little uncertain and guarded, but hopefully at least fair, if not reasonably/relatively good and favourable, in the medium to long-term.
…
He is now partially incapacitated for work and currently working at his maximum capacity … .”[19]
[18]PCB 69
[19]PCB 72
40 Dr Athey had seen the plaintiff in April 2015 (soon after the February 2015 incident), November 2015 and May 2017. On the last of those occasions, Dr Athey noted that the plaintiff was enjoying his work in the nursery, and found it to be much less stressful than his earlier employment. He thought the plaintiff had ongoing symptoms suggestive of a PTSD, but was “generally coping well”.[20] He noted that the plaintiff was then working three days per week and was willing to increase work if there was more work made available to him. He diagnosed the plaintiff as suffering from PTSD and he considered that he would probably have ongoing symptoms and, on the balance of probabilities, had reached maximum medical improvement.[21]
[20]Defendant’s Court Book (“DCB”) 37
[21]DCB 47
41 Dr Stern examined the plaintiff in July 2016 and March 2017.
42 On the latter occasion, the plaintiff told Dr Stern that his mood was “‘not bad’”[22] and also said “I’m pretty good”.[23] He told Dr Stern that he was impatient, but not short-tempered or aggressive. He was not panicky and not suicidal. His sleep had been reduced, but had improved. There were no nightmares. He had very little social life. He enjoyed gardening. When Dr Stern asked him about his work, the plaintiff told him he would continue in his present job, saying “it’s the least stressful job you could ever have”.[24] In relation to the future, the plaintiff told him that he could do a little extra work. Dr Stern noticed that his confidence appeared to have improved since his earlier examination.[25]
[22]DCB 58
[23]DCB 58
[24]DCB 59
[25]DCB 58-9
43 Dr Stern’s diagnosis was one of PTSD which had improved since his earlier examination in July 2016. He considered that the plaintiff’s psychiatric state was still related to the multiple traumatic incidents at work between 2006 and 2015, and there was no pre-existing or unrelated psychiatric disorder. Dr Stern considered that the plaintiff was psychiatrically incapacitated for his pre-injury duties and hours, and did not believe he would return to care or welfare work. He considered that he was fit, from a psychiatric aspect, for full-time alternative work, which included his present job.[26]
[26]DCB 59-61
44 Dr Stern noted that the plaintiff’s treatment consisted only of three-monthly visits to Ms Milner and considered that such treatment should continue in the long run. He thought he was psychiatrically fit to increase his hours of work.[27]
[27]DCB 62
Consequences
45 I am satisfied that the plaintiff has suffered from mild to moderate PTSD as a consequence of his employment between 2006 and February 2015.
46 I consider that the consequences to the plaintiff of that condition are:
(a)He is not able to return to his previous employment with the defendant, or anything similarly stressful.
However, he is fit to work full time in the sort of employment in which he is currently engaged. I consider that it is likely that he could, and would, work longer hours than those currently worked by him if such extra work was available. I accept that there are many other jobs that he could perform on a full-time basis.
I note that Dr Ravoori had provided a number of Certificates of Capacity in respect of the plaintiff, but the only restriction advised by him was that the plaintiff should not be returned to work with the defendant. He made no other restrictions.
I accept that he had been deeply committed to the type of supportive work that he performed with the defendant with regard to young persons with significant problems. I accept that he would have obtained a good deal of satisfaction from performing such duties. He is no longer able to perform them because of his PTSD. He has feelings of guilt about leaving his workplace. He feels that he has let the kids down. Although I and, no doubt, most people would consider such feelings to be unwarranted, nevertheless I accept that he experiences them;
(b)I accept that it is likely that he will continue his treatment with Ms Milner for some time, notwithstanding her view that his condition was unlikely to significantly change if he ceased his attendances upon her. In any event, I do not consider such treatment is distressing or unpleasant for him. The plaintiff seemed to regard the EMDR treatment with some amusement. He appeared unconvinced as to its benefit to him.[28]
(c)Although he enjoyed his current job, there are some aspects of it that he struggles with and on which he finds it difficult to concentrate. One example that he mentioned was struggling with the till, causing his boss to get frustrated with him;
(d)Although he complained of some difficulties sleeping, this was not consistent with the history provided by him to Dr Stern in July 2017 and, in my opinion, not consistent with his evidence under cross-examination;
(e)I accept that he is reminded of the various assaults at work when he hears some news items on the radio or when he runs into people with whom he worked. Those occasions tend to bring his memories back. I accept that he has suffered various dreams which might border on nightmares concerning various assaults, although these do not appear to occur often;
(f)He has a heightened sense of anxiety and vulnerability. However, I do note that he has not requested anti-anxiety medication. This does not appear to be associated with any general resistance to medication as such. He does take medication for hypertension. I conclude that his feelings of anxiety are not of enough concern to him that he would discuss appropriate medication with his doctor.
[28]T22
Hypertension
47 As previously noted, the plaintiff was diagnosed with hypertension in October 2014. He continues to suffer from hypertension, although it appears to be satisfactorily controlled with medication. The parties disagree as to whether that hypertension is a consequence of his PTSD.
48 The diagnosis in 2014 did not result from an attendance on a doctor because of any symptoms the plaintiff had experienced or observed. He had noted no symptoms. His evidence was that he had gone to donate blood, and that he had been advised that he had hypertension and that he could not donate blood. The plaintiff could not recall any other prior occasion when his blood pressure had been tested.
49 In 2014, the plaintiff was aged fifty-seven. There is no evidence as to whether he had suffered from any hypertension before then. His blood pressure at that time was 202/97 – a reading which the parties agree is evidence of hypertension.
50 The plaintiff submitted that a consequence of his stress and anxiety was the development, or worsening, of his hypertension.
51 In September 2017, the plaintiff was examined by two cardiologists, Professor Paul Nestel, at the request of the plaintiff’s solicitors, and Professor Michael Jelinek, at the request of the defendant’s solicitors.
52 The plaintiff’s blood pressure readings, presumably obtained from Dr Andoori’s file, were agreed by the two cardiologists to be as follows:
·October 2014 – 202/97
·11 November 2014 – 167/92 (after commencing on the medication for hypertension, Olmetec)
·3 December 2014 – 138/80 (after a change of medication to Sevikar)
·2 March 2015 – 164/78 (after a stressful court case)
·1 May 2015 – 190/94 (after he had omitted to take his blood pressure tablets for five days)
·1 September 2017 – 180/92.
53 The plaintiff had no knowledge of hypertension in his family.
54 Professor Nestel was unable to find any obvious primary cause of the hypertension. He noted the plaintiff’s diagnosis of PTSD by Dr Athey and Dr Stern.
55 Professor Nestel stated:
“The relevance of post-traumatic stress disorder to hypertension and to future risk of heart attack (coronary heart disease) has become accepted in recent years. It is a real risk for Noel Hancock.”[29]
[29]PCB 76
56 Professor Nestel considered that the plaintiff’s current cardiovascular impairment was that of a difficult-to-control hypertension that is severe at times, and moderate mostly.
57 Professor Nestel opined that, on the balance of probabilities, the plaintiff’s hypertension was accelerated and aggravated by his employment throughout much of the ten years during which he worked for the defendant. Assuming that the plaintiff had not been hypertensive prior to 2006, he considered that the plaintiff’s employment would have been a significant contributing factor to the development of hypertension. He considered that the plaintiff’s hypertension was in a chronic phase, although additional therapies might reduce current high blood pressure. He noted that hypertension was not uncommonly complicated by heart failure, coronary heart disease, stroke, and kidney failure. He stated that PTSD was now also a recognised cause of coronary heart disease and hypertension.[30]
[30]PCB 76-77
58 Professor Jelinek agreed that the plaintiff had hypertension. He stated that the hypertension may have existed for some years but that this was unknown. He made the following points:
·Any tendency for elevated blood pressure could be aggravated by work stress.
·In the absence of previous blood pressure records, this cannot be assessed.
·It is clear that the assault on the plaintiff in February 2015 did raise his blood pressure slightly.
·In summary, it is not possible to be conclusive whether or not work stress had aggravated the plaintiff’s blood pressure.
·The records indicate that the plaintiff’s blood pressure was now reasonably controlled by the use of Sevikar medication. There was no need to consider any change of medication or dosage in his case.
·The plaintiff’s current blood pressure control appears to be adequate. His personal risk of cardiovascular complications are not much above the population average for a person of his age.
59 I find that the plaintiff’s job with the defendant was a highly stressful one, performed by him for nearly ten years.
60 I note Professor Jelinek’s use of the word “conclusive” as to whether the plaintiff’s work contributed to his hypertension. The correct approach is to ask whether, on the balance of probabilities, the work contributed to the hypertension. The test is not one of conclusiveness. He does not appear to have considered the correct test.
61 Although one cannot say with any certainty, in those circumstances, I accept the evidence of Professor Nestel that, on the balance of probabilities, the plaintiff’s hypertension was accelerated or aggravated by his employment with the defendant.
62 However, I am not persuaded that the plaintiff’s hypertension has resulted in any significant change in his lifestyle or any symptoms of significance. He is required to take regular medication, but this does not seem to be of any real inconvenience for him. I do not consider that the plaintiff’s inability to work in his previous job with the defendant relates to his hypertension. Rather, it relates to his PTSD.
63 Professor Jelinek considers that the plaintiff’s “personal risks of cardiovascular complications are not much above the population average for his age.”[31] Professor Nestel considers that the future risk of coronary heart disease is a “real risk” for the plaintiff. Although it is not entirely clear what he means by this, it may be that he is opining that the risk of cardiovascular complications are considerably more than the population average for his age by reason of his hypertension. It is unclear.
[31]DCB 66
64 Neither of the cardiologists were asked to comment on the opinions of the other, notwithstanding that they may well be opposing opinions as to the likely future effects of the hypertension upon the plaintiff.
65 In such circumstances, there appears to me to be no basis upon which I can prefer the opinion of one cardiologist over the other. In circumstances where it is the plaintiff who carries the onus of establishing the consequences of his injury and the severity of those consequences, I consider that I should adopt the views of Professor Jelinek on this issue. That is, that the plaintiff’s risk of developing cardiovascular complications is not much more than the population average for a man of his age.
66 There was no evidence that the plaintiff has, to date, suffered any unpleasant or painful symptoms related to his hypertension.
67 I find that the development of hypertension has resulted in:
· The need for the plaintiff to take medication from 2014, and probably for life;
· A minor increase in the risk of him suffering cardiovascular complications in the future.
Conclusion
68 I am satisfied that the plaintiff has suffered mild to moderate PTSD as a consequence of his work with the defendant and that the consequences of that injury are as set out in paragraph 46 above. In addition, I am satisfied that a further consequence of the PTSD has been the development of hypertension since 2014. I am satisfied that those consequences are permanent.
69 The issue to be determined here is whether those pain and suffering consequences are, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
70 In Transport Accident Commission v Katanas,[32] the High Court said:
[32]Supra
“Contrary to the appellant’s final submission, the majority’s observation that a judge would be assisted by his or her personal experience of cases which have fallen ‘on one side of the line or the other’ did not introduce a new and unexplained concept. What their Honours said was:
‘We do not doubt that the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be accounted as severe. But in our view the spectrum which the judge described was only one amongst a number of ways in which the question of severity might be approached, each of them being incomplete in itself. For instance, one might frame a spectrum, in a particular case, by reference to the accepted frequency and severity of the claimant’s symptoms (or consequences) such as flashbacks or nightmares, or by reference to the extent of inhibitions upon the claimant’s daily activities, or by reference to the extent of inhibitions upon the claimant’s occupation or further education. In each instance, a spectrum could be set up, ranging from zero to very great. But whilst each spectrum would be relevant to determination whether the statutory test was satisfied in the particular case, no one of them, by itself, would answer the critical question. In our opinion, the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage [from Humphries v Poljak] cited … above. In making that value judgment, a judge must give to each identified relevant circumstance the weight which appears to be appropriate. He or she will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other.’
(emphasis added)
The point of the observation was evidently to emphasise, in previously sanctioned language, the long-recognised reality that the application of the narrative test is in the end likely to turn ‘on the opinion of a judge familiar with a range of conditions within which the instant condition occurs’ and thus upon the judge’s conclusion as to the “side of the line” on which the case may fall.”
(footnotes omitted).
71 Katanas was a case involving consideration of part (c) of the definition of “serious injury” in s93 of the Transport Accident Act 1986. It is similarly, but not identically, worded to the definition in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. The difference in definitions is the requirement in the latter Act for the disturbance or disorder to be “permanent” as opposed to “long term”. It follows that the threshold test in the latter Act is somewhat higher than in the former.
72 It is the plaintiff who carries the onus of establishing that those pain and suffering consequences are severe.
73 Taking all of the evidence into account, I am not satisfied that the plaintiff has discharged that onus. While I am satisfied that his injury has produced the consequences to which I have referred, I am not satisfied that the plaintiff has established that those consequences can fairly be described as “more than serious to the extent of being severe”.
74 Accordingly, the application is dismissed.
75 I shall hear the parties in relation to any costs or ancillary orders.
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