Harbottle v Burnham Beeches

[2020] VMC 29

IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION

Case No. L10062564   

RUTH GOEBY AS LITIGATION GUARDIAN FOR ROHAN HARBOTTLE	Plaintiff
v
BURNHAM BEECHES PROPERTIES PTY LTD	Defendant

---

MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	30 NOVEMBER 2020
DATE OF DECISION:	9 DECEMBER 2020
CASE MAY BE CITED AS:	HARBOTTLE v BURNHAM BEECHES
MEDIUM NEUTRAL CITATION:	[2020] VMC 029

---

CATCHWORDS – Claim for compensation pursuant to S 98 & S 98(5) of the Accident Compensation Act 1985 for a loss of mental powers involving an inability to work arising from a motor vehicle accident in the course of employment on 17 February 1988 — Liability not in dispute.

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr Horner	John McCristal Injury Lawyers
For the Defendant	Ms Kusiak	Thomson Geer

HIS HONOUR:

1. Mr Harbottle sustained injuries in the course of his employment as a Chef with the defendant on 17 February 1988 as a consequence of a motor vehicle accident on his way to work. His Workcover claim was accepted and he has received weekly payments of compensation for all past periods of incapacity and from 2013 to date and continuing.

1. Mr Harbottle lodged a S 98 Claim Form dated 15 February 2018, claiming compensation pursuant to S 98 of the Accident Compensation Act 1985 for permanent disabilities including; “brain injury, right knee, right and left wrists and hands”. The issues to be determined by the court are; what is the percentage loss of mental powers involving an inability to work, and, is there an entitlement to compensation pursuant to S 98(5) notwithstanding Mr Harbottle did not ‘tick’ the pain and suffering section of the Claim Form and did not seek this form of compensation in the Statement of Claim.

1. Mr Harbottle is aged 54 years and gave his evidence at times, in an emotional, aggressive, and in a somewhat rambling and theatrical manner. He told the court that he completed his technical training as a chef at the Gordon Technical College in Geelong and completed his apprenticeship at the Base Hospital in Wangaratta. He told the court that he entered many cooking competitions and won numerous gold, silver and bronze medals[1]. He said that he was considered as a protégé for younger students. He gave evidence that he commenced employment with the defendant after he completed his apprenticeship and would on average work 60 to 80 hours per week. He said he loved his job and was highly regarded.

   [1] Photographs of the numerous Medals and Certificates were tendered as were Newspaper articles about him and photos of some of his cooking prowess.

1. Mr Harbottle gave evidence that he was involved in a motor vehicle accident on his way to work on 17 February 1988 and sustained a “knee, wrist and brain injury”. He told the court that he does not recall how the accident occurred but was in a coma for approximately seven weeks. He said he was able to return to work on 11 April 1988 but did not cope with the pressures of work and was constantly criticised and told that he was incompetent. He said that he then obtained employment at the Wangaratta Hospital but once again was unable to cope with the demands of work. He said that in late 1988 or early 1989, he consulted a psychologist, Mr Rudenberg, for treatment. He told the court that Mr Rudenberg encouraged him to do volunteer work which he then undertook in 1990 for a period of 2 years with an organisation known as ‘Operation Mobilisation’ which is a worldwide Christian mission. He told the court that approximately 400 volunteers would travel by ship to various locations and he would work in the galley for 5-6 hours each day, cooking and preparing basic meals for those on board. Mr Harbottle gave evidence that whilst engaged in his volunteer work he was injured in August 1991 as a result of a grenade incident in the Philippines. He said that notwithstanding this incident he continued to perform voluntary work until 1997 when he decided to re-enter the workforce and applied for a number of jobs including as a chef at the Moe Hospital, bakeries and cafés. He said that he managed to obtain employment at a takeaway food shop in Trafalgar a few years, a fish and chip shop and at the Latrobe Valley Village Hostel but struggled to perform all of the required tasks adequately.

1. Mr Harbottle told the court that he married in February 2007, moved to Queensland with his wife and obtained employment as a cook at the Earl Haven Retirement Village which had approximately 100 residents. He said that he was employed at the Retirement Village until September 2013 when he was terminated and that during the period of his employment, he received a number of written warnings and was criticised for “not competently doing his job”.[2] Mr Harbottle gave evidence that after being terminated, he separated from wife, lived in his car for a period and began gambling. He told the court that his sister brought him back from Queensland in 2014 or 2015 and he began living with his mother and father and was put on the disability support pension because of his medical condition.

   [2] A number of Written Warning letters were tendered which indicated that he had a tendency to stress, take his moods out on other staff, be aggressive and condescending to others, fail to work in a safe manner, overreact, failing to cook and prepare meals to a satisfactory standard and failing to comply with handwashing and food safety standards.

1. Mr Harbottle gave evidence that he has difficulty “getting on with people” and because of his behavioural issues he is banned from entering a number of stores in the Moe area. He said that he has difficulty concentrating and regularly loses or misplaces his keys and wallet. He said that he has mood swings and has a “unique laugh”. He also told the court that he suffers from short-term memory loss, but his long-term memory is “like a computer hard drive”. He said that he does not cope with pressure, his emotions vary, and he has had to “retrain my brain”. He also told the court that; “I do not want to live anymore, my brain injury has never been addressed, I cannot take it anymore and I have soggy brain syndrome and frontal lobe damage”.

Medical Evidence

1. Dr Aung, General Practitioner, provided a report dated 28 September 2020 and stated that Mr Harbottle has an acquired brain injury with infero-medial frontal lobe syndrome as a consequence of the motor vehicle accident on 17 February 1988. In his opinion, Mr Harbottle does not have a current work capacity or capacity for suitable employment and his prognosis is poor. Dr Aung stated that Mr Harbottle’s brain injury can predispose him to early onset dementia and that he can become easily agitated and show behavioural disinhibition.

1. Dr Briggs, General Practitioner, in a report dated 27 February 2018 stated that his acquired brain injury has caused emotional lability and that he finds it hard to manage and express his emotions and to process his feelings. She reported that he also has significant problems with his memory which impact his daily life and his ability to manage his affairs.

1. Dr Gill, Consultant Psychiatrist, assessed Mr Harbottle on 27 June 2017 and after reviewing numerous medical reports and records considered that Mr Harbottle has a psychiatric diagnosis of a major neurocognitive disorder due to traumatic brain injury and a personality change due to another medical condition. Dr Gill suggested that Mr Harbottle may have also suffered from a major depressive disorder and post-traumatic stress disorder but was unable to confirm these diagnoses. In his opinion, Mr Harbottle requires ongoing medical care and supervision and that his brain injury causes widespread restrictions in his day-to-day life. He noted that Mr Harbottle is impaired in his social functioning by his personality change with irritability, labile mood, impaired libido and disorganised day-to-day functioning. He noted that his cognitive impairment precludes him from being able to sustain regular employment due to his memory, tendency to confusion and disorganisation in addition to his emotional disturbances. He also stated that Mr Harbottle’s psychiatric condition severely limits his capacity for sustained close relationships and employability. In his opinion, he has no capacity for employment given his severe and pervasive emotional, behavioural and neurocognitive deficits and considers him to have a 100% loss of mental powers.

1. Dr Entwisle, Consultant Psychiatrist, assessed Mr Harbottle on behalf of the defendant on 19 August 2020 and provided reports dated 3 September 2020 and 30 October 2020. After reviewing the numerous reports with which he was provided, he diagnosed that Mr Harbottle suffers from; an acquired brain injury, frontal lobe syndrome, traumatising features (relating to the grenade incident) and a chronic adjustment disorder with depressed and anxious mood. After reviewing a job capacity assessment from Centrelink dated 25 November 2014 (which noted that Mr Harbottle had the capacity to work for 8 to 14 hours a week with an increased capacity for work within two years), an MRI Brain Scan which noted no abnormal restriction or diffusion, and, after taking into account the effects of the grenade incident resulting in the development of symptoms of trauma and anxiety which have overtime largely abated, he opined that Mr Harbottle is suffering from a loss of mental powers involving an inability to work in the order of 70%.

1. Dr Grant, Consultant Psychiatrist, assessed Mr Harbottle via video link on behalf of the Agent on 25 May 2020. Dr Grant was provided with various medical reports and diagnosed that Mr Harbottle has an acquired brain injury as a consequence of the motor vehicle accident with specific features of an infero-medial frontal lobe syndrome. He stated that part of Mr Harbottle’s acquired brain injury is an organic affective personality syndrome. He considered that Mr Harbottle has no capacity for employment.

1. Dr Gibbs, Clinical Neuropsychologist, assessed Mr Harbottle on behalf of the Transport Accident Commission on 7 July 2016. He was provided with numerous medical records, discharge summaries, a neuropsychological assessment performed by Dr Neath on 25 September 2015, investigation and imaging reports. Dr Gibbs administered numerous psychometric tests and diagnosed that Mr Harbottle suffers from an acquired brain injury with organic affective disorder, mood disorder, major depression and post-traumatic stress symptoms following the 1991 grenade attack. He reported that Mr Harbottle’s acquired brain injury is very severe coupled with an organic affective disorder and personality change and a chronic adjustment disorder with depressed mood. He administered various tests including; an assessment of his learning and memory function, mental arithmetic skills, auditory attention and concentration, spatial skills, vocabulary and general knowledge, verbal abstraction and executive skills. Dr Gibbs concluded that Mr Harbottle would be capable of work consisting of a more repetitive routine, structured and simple nature. He also noted that Mr Harbottle has been trying to cope without clear advice, supports and services.

1. Professor Crowe, Consultant Clinical Neuropsychologist, assessed Mr Harbottle on behalf of the defendant on 12 April 2019. He was provided with a voluminous number of historical medical reports, clinical notes, discharge summaries and radiological findings and also administered a significant number of psychological tests which included; intellectual functioning, estimates of pre-injury functioning, memory functioning, language functioning, visuoperceptual and visuomotor functions, executive function and personality assessment inventory (which was not concluded because Mr Harbottle became angry and difficult to control). Professor Crowe stated that Mr Harbottle was subject to an uncomplicated moderate to severe traumatic brain injury which has resulted in significant neuropsychological compromise which was difficult to characterise in a reliable way because Mr Harbottle was not performing in an appropriately motivated fashion. Prof Crowe also noted that his performance on intellectual functioning is in the borderline to mildly intellectually disabled range and his level of memory functioning is currently in the severely disabled range. Prof Crowe opined that Mr Harbottle’s condition is organic in nature but is confounded by a number of other aspects of his performance including his significantly compromised emotional state and his poor ability to be able to perform to the best of his ability, indicating significant compromise of his function on appropriately motivated performance and in association with this, perhaps some residual deficits associated with his alcohol abuse.

1. Prof Crowe opined that Mr Harbottle is neuropsychologically compromised, but the absolute level of that compromise is difficult to ascertain because of the significant functional overlay as well as his significant difficulty in controlling his emotions as well as his compromised motivation. He considered that Mr Harbottle’s prognosis to be poor and that his original head injury has contributed significantly to his current presentation as has him being subject to the grenade attack in the Philippines and his previous heavy drinking. Prof Crowe noted that Mr Harbottle was capable of working subsequent to the injury and that he undertook various employment roles over many years and therefore does not consider that he has a total and incurable loss of mental powers but that his trajectory of performance was compromised, perhaps by 35% as a consequence of the original injury. He therefore considered that Mr Harbottle has suffered a 35% total and incurable paralysis of mental powers and that the contribution from the original head injury contributes perhaps 70% of the psychological injury. Prof Crowe noted that Mr Harbottle will continue to require support with regard to his day to day functioning including supervision of his activities of daily living as well as oversight of his financial arrangements. He noted that he no longer lives independently, is subject to hoarding behaviour, has significant emotional outbursts, is alienated and as a consequence, the injury has had a significant and profound effect on most aspects of daily living. He also noted that the deterioration in Mr Harbottle’s performance from 2016 (when assessed by Dr Gibbs) and his assessment was contributed to by Mr Harbottle’s non-genuine attempt to perform to the best of his ability.

Conclusion

1. I am satisfied on the evidence presented that Mr Harbottle is unable to return to work in either his pre-injury employment as a chef or alternative employment. In Accident Compensation Commission v Hawkins (1991) VR 589, Murphy J with whom McGarvie J agreed, said; “In my opinion, the expression “involving an inability to work” qualifies the words “loss of mental powers” and means that the loss of mental powers must be of that quality and have that characteristic, namely of causing inability to work as before because of the loss of mental powers”. In that case, the court was of the view that the tribunal was correct to have regard to the inability of the respondent to continue his employment as a policeman, because of his incurable loss of mental powers consequent upon his injury. It held that the tribunal was also correct to consider that the respondent as a result of his injury, no longer had the ability, which he enjoyed before his loss of mental powers to do the sort of work that he was capable of doing before the injury. There have been numerous cases that have also held that injured workers are also entitled to compensation for a loss of mental powers despite being able to work after 1 December 1992 when the law changed.[3]

   [3] Jordon v Isuzu (Judge Strong) 27 August 1998, Isuzu v Jordon (2000) VSCA 63, Community Services v Bradbury (1999) VSC 32 and McMaster v Health and Community Services Judge GD Lewis 13 March 1997.

1. The evidence indicated that Mr Harbottle was able to return to work after the motor vehicle accident in his pre-injury employment for a short period but thereafter he has struggled to perform lesser roles due to his injury until he finally ceased work altogether in 2013. Mr Harbottle’s presentation whilst giving evidence was erratic and at times, he became quite emotional. I am satisfied on the basis of the medical evidence tendered together with the presentation and demeanour of Mr Harbottle when giving evidence that due to the work related injury he has an incurable loss of mental powers which will not only preclude him from returning to his pre-accident employment as a high functioning chef, but employment of any kind.

1. Accordingly, I assess Mr Harbottle as having a 100% loss of mental powers involving an inability to work which entitles him to a S 98 award of $70,620. On the basis that the court has determined that he is entitled to an award pursuant to S 98, it also has the power to determine his entitlement pursuant to S 98(5) notwithstanding his failure to claim this entitlement in either his claim form or in the Statement of Claim. I determine that an award of $25,000 is appropriate in the circumstances.