Hulland v Jefferson Ford Pty Ltd
[2022] VCC 1777
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-05513
| GRAEME HULLAND | Plaintiff |
| v | |
| JEFFERSON FORD PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2022 | |
DATE OF JUDGMENT: | 25 October 2022 | |
CASE MAY BE CITED AS: | Hulland v Jefferson Ford Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1777 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission v Katanas [2017] HCA 32; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries and Anor v Poljak [1992] 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889; Bendzius v Victorian WorkCover Authority [2019] VCC 915; Madaroskiv Colonial Meat Export Pty Ltd [2021] VCC 113
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden KC with Mr M Clarke | Maurice Blackburn |
| For the Defendant | Ms D Manova | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an injury suffered by the plaintiff while working for the defendant from September 2017 to 8 February 2018 (“the said period”).
2The application was brought pursuant to clause (c) of the definition of “serious injury”, claiming a severe psychiatric impairment.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.
5Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.
6The word “severe” in clause (c) is a word of stronger force than the word “serious”.[1]
[1] Mobilio v Balliotis [1998] 3 VR 833 at 846. Winneke P agreed, at 833
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection (2)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and the High Court in Transport Accident Commission vKatanas[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] [2017] HCA 32 (“Katanas”)
12The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
13In issue were questions of range, credit and capacity.[4]
[4]Transcript (“T”) 43
The Plaintiff’s evidence
14The plaintiff was born in July 1953 and is currently aged sixty-nine. He is divorced and lives with his adult son.
15He commenced employment with the defendant as a courtesy driver in January 2010, moving to the Mentone site in about 2013 or 2014. His duties included moving loan cars, making sure those cars had fuel, cleaning cars and picking up and dropping off clients at Hyundai and Ford car dealerships. He was nothing more than a driver.[5]
[5]T41
16Physically, while working for the defendant, the plaintiff was in good health. The suicide of his son in February 2014 had affected him psychologically, but he suffered what he considered a normal grief reaction, having about five weeks off work at the time.
Compensable injury
17The plaintiff suffered psychological injuries after being bullied and harassed in the workplace during the said period.
18The exact bullying which was perpetrated upon him was well known. A workplace investigation was undertaken after the allegations were made and witness statements taken. Eventually, following findings about the issue, the perpetrators were disciplined in May 2018, after a number of allegations that the plaintiff made were found to be substantiated.
19Broadly speaking, he was subjected to inappropriate comments concerning matters of a sexual and racial nature, sworn at, and mocked by his colleagues in a sustained campaign over months (“the bullying and harassment”). In conjunction with that, his hours were unilaterally reduced for no reason, and start and finish times changed with little or no consultation.
20He reported the issues to his supervisors throughout the said period. He continued to be harassed by the defendant even after he went off work due to ill-health and lodging a WorkCover claim.
Treatment
21He first saw his general practitioner, Dr Farag on 8 February 2018, and she certified him as unfit for work. He commenced seeing psychologist, Karen Mansfield, on 22 March 2018, and psychiatrist, Dr Lewis, on 18 September that year.
22As at July 2021,[6] he was taking Epilim and Paroxetine. He continued to suffer from psychological injuries. Some days he did not want to leave home, but he tried to avoid people. He had suicidal thoughts. On bad days, he would break down crying and wonder why it had happened to him. On a good day, he could hop in the car and go and visit a local farm.
[6]First affidavit of the plaintiff sworn 7 July 2021
23The RSL used to be his second home, where he went on Friday, Saturday and Sunday to assist in caring for elderly people. He no longer went there because one of the people from the defendant attended there, and many who went to the RSL believed her side of the story.
24The plaintiff was previously formerly heavily involved with several sporting clubs: Chelsea WYC, Long Beach Football Club and Chelsea Heights Club. He did volunteering or boundary umpiring, and it was a social outlet for him. He no longer attended those clubs as frequently. His main other social outlet was fishing every weekend in a friend’s boat in Port Phillip Bay.
25He tried to keep things clean at home but napped a lot during the day and let things go around the house, like the lawnmowing. Overall, he was up and down and sometimes he was good and sometimes not.
26He was depressed, cried a lot, and had thoughts about the people who did this to him. He shook a lot and sometimes soiled himself. He had panic attacks where he became frantic, and nightmares about what had happened to him. He got migraine headaches when he became stressed. He took over-the-counter medication for these headaches.
27He had memory loss and had to write himself notes and be reminded by his friends to do certain tasks. He has not had any testing for his memory problems.[7]
[7]T35
28He had very low motivation and was almost scared to do things now in case anything triggered memories or panic attacks.
29He was grumpy and moody and would boil over easily or yell at people. Overall, he was not as happy as he used to be when, in the past, nothing used to faze him before he became unwell.
30He woke during the night sweating and with nightmares and was not refreshed in the morning, thus needing to nap during the day.
31He was sexually frustrated but had no partner and had no urge to have one.
32He had a healthy relationship with his son. He felt like he had aged since he was injured and he felt and looked old. He felt as if his life was in a state of limbo. He held back a lot and was constantly struggling emotionally and also financially.
WorkCover payments
33His WorkCover claim was accepted in April 2018, and he was initially paid benefits including impairment benefits. He has never returned to work with the defendant.
34He continued to work to assist his recovery at Long Beach RSL (“the RSL”), as he had done on and off for over forty-five years, doing weekend work like gardening, maintenance, lawns and rubbish clean-up.
35His weekly payments were terminated on 11 May 2018 on the basis he did not disclose his RSL work to WorkCover.
36He was criminally charged for not declaring his RSL work to WorkCover while receiving benefits. After a protracted legal process, he ultimately represented himself before the Magistrates’ Court in September 2021.
37He explained to the Magistrate that he was working to assist his mental health and recovery with his doctor’s knowledge, and was ignorant that he was misrepresenting the situation to WorkCover by way of his certificates.
38He was placed on a diversion plan that has now been fulfilled, the charges having been dealt with, without conviction or a plea of guilty.
39Cross-examination was largely focussed on this issue and the plaintiff’s gardening work for his own business Top Hat Services (“Top Hat”), associated with the RSL work.
40About thirty-five years ago, quite a while before he started with the defendant, the plaintiff had worked for Mordialloc Council in garden maintenance for about ten years. He also ran his own business – Top Hat – doing lawnmowing and maintenance. It was a part-time business in which he would work after he finished work with the council and later, the defendant.[8]
[8]T6
41While Leonie Schneider, vocational assessor, mentioned in her report that the plaintiff was doing home maintenance, he confirmed his Top Hat work was just gardening maintenance.[9]
[9]T33
42The plaintiff last did any work for Top Hat four years ago. The business involved mowing lawns and looking after veterans. He had his own equipment. He was earning “very minimal money” in that role.[10]
[10]T7
43He would attend the RSL, and the president would give him the address of a veteran who needed help, and he would go and do garden maintenance for them. He would then give the RSL an invoice. He had a mate helping him who would get half of the amount invoiced.[11]
[11]T8
44There was no real change in how the plaintiff went about getting this RSL work after he left the defendant’s employ in February 2018. The rates charged depended on the particular veteran and the area to be mown or tidied up. He would also do rubbish removal and then be reimbursed by the RSL for the tip fees – such amounts being included in the RSL payment printout on 8 February 2018 of $1,500, and $1,100 a couple of weeks later.[12]
[12]T11-12
45The plaintiff started getting the Age Pension when WorkCover payments stopped. When he told Xchanging he was working, they told him it was all right to keep working as long as they knew. Then WorkCover sent him a letter saying it had ceased his payments.[13]
[13]T13
46He did not go back to work at the RSL because WorkCover instructed him he was not allowed to do any work.[14] If he had been allowed, he would still be working at the RSL as many hours as he was offered.[15]
[14] T13
[15]T14
47Post injury, he had to get another person, Brad Crooks, to help most of the time with Top Hat work, whereas before he was doing most of it.[16] He also used to get help from his son. He is still friends with Brad now. Brad no longer does any Top Hat work.
[16]T14
48The plaintiff did not declare his Top Hat earnings in his tax returns because “anything you do for Veteran Affairs or through the RSL” is tax exempt.[17]
[17]T16
Certificates of capacity
49He agreed he signed certificates in which he stated he was not working.[18] He did not look to check the information was correct when he signed it. He was not then in the right frame of mind. He just trusted the doctor.[19] The doctor gave him certificates all the time and all the plaintiff did was sign them; the certificates were all filled in.[20]
[18]T13
[19]T18
[20]T17
Claim for compensation
50The plaintiff signed the Claim Form which was completed by his father.[21] He agreed there was the answer “no” on the form to whether he had any other employment. He had not filled the form in.[22] He did not put in the RSL work because he only signed the “piece of paper”. He had not checked it when he signed it.[23]
[21]T16
[22]T17
[23] T17
51His father, whom he trusted, filled in his Claim Form. At the time, the plaintiff was not in the right state of mind. His father knew he had been doing the RSL work for over forty years. His father might not have asked about it and he just filled it in.[24]
[24]T18
52The Top Hat invoices were in the plaintiff’s handwriting.[25]
[25]T17
53The plaintiff was taken to Associate Professor Doherty’s history that the plaintiff then told him in April 2018 that he was not working; he ceased working in February 2018; he undertook no voluntary work and had no other employment, and his only source of income was sick leave. Professor Doherty did not ask him if he was doing work for the RSL.[26]
[26]T20
54The plaintiff explained – “I didn’t understand a lot of things. I was under a lot of duress and my mental state wasn’t where it should’ve been.” He then said he was not working at that time, although shown the printout of payments including in April 2018.[27] He then agreed he knew full well he was working at the RSL and getting paid for lawn maintenance at that time.[28]
[27]T21
[28]T22
55Except for Professor Doherty, the plaintiff agreed he was always telling doctors, such as Dr Farnbach in November 2019, that he was doing volunteer work.[29] He enjoyed work through the RSL, and it was helping to improve his mood. He has not sought to return to that sort of work.[30]
[29]T23
[30]T23
56It was correct, as Dr Ingram recorded, that the plaintiff had an improvement in symptoms when he stopped work with the defendant, but there was a deterioration with the WorkCover proceedings and stopping payments, and it got worse. However, he “was not worried” a bit about what might happen in Court.[31]
[31] T25
57He did agree, when he got away from work, “there was no more harassment, no more nothing”. When it was suggested he got worse after the WorkCover proceedings and his payments stopping, he said he was “the same all the way through” – “and work, this RSL work was improving me dramatically and then it ceased”.[32]
[32]T26
58The plaintiff agreed, as Dr Ingram reported, he got a bit better after the Court case was finalised in November last year. He felt a bit better because he had “nothing else to do with WorkCare or [the defendant]”.[33]
[33]T26
59The plaintiff confirmed his general practitioner, Dr Farag, encouraged him to do volunteer work and to keep active.[34] He explained he did not speak to Dr Farag about working at the RSL “or anything like that” when shown Dr Farag’s letter to WorkSafe dated 9 May 2019 advising the plaintiff had never mentioned any return to work plans with him while he was the treating doctor.[35]
[34]T28 – history to Dr Hayman September 2020
[35]T31
Current condition
60As of September 2022,[36] the plaintiff’s psychological condition had not changed much. He continues to see Dr Lewis once every one or two months as required, and Karen Mansfield once every week or few weeks. He also talks to Dr Duffy about his mental problems.[37]
[36]Second affidavit of the plaintiff sworn 20 September 2022
[37]T35
61He continues to be prescribed Paroxetine and Epilim by Dr Duffy, and has just been commenced on a new medication for his nightmares by Dr Lewis. His current psychiatric medication and the nightmare medication is starting to help.[38]
[38]T34
62The plaintiff’s medical and like expenses are still being paid for by WorkCover.[39]
[39]T42
Consequences
63The consequences previously deposed to are pretty much the same, although suicidal thoughts are now less frequent.
64The plaintiff visits a farm at Bangholme owned by his friend, John Tanner. He can walk there from his home. No one lives there. A woman lives in “a sort of a caravan on the farm”. She is not his girlfriend. He goes there and feeds the animals, cows and chooks.[40]
[40]T35
65He might walk five or six kilometres three or four times a week. He walks along the Patterson River as part of his exercise program. His psychologist suggested he remain more active.[41]
[41]T28
66The plaintiff denied he had a girlfriend, as Dr Duffy recorded in his notes.[42] He has a female friend who lives in Narre Warren whom he visits, but he is not in a relationship with her, and they do not go out together.[43]
[42] 2 February 2022 – “37 year old girlfriend – lives at Narre Warren”; T40
[43]T41
67He is able to do most domestic duties at home now and mows the lawns as required.
68Largely, his symptoms are the same. Some have improved and some have worsened.
69He does not soil himself as much. This has improved over time. It is now not as much and happens “time and time again,” about once a month. It had never happened before working for the defendant. He has not seen a specialist for this problem.[44]
[44]T30
70He thinks he now better recognises the trigger for his panic attacks. It usually involves meeting someone who wants to discuss his claim and the circumstances in which it arose.
71One matter that did not improve over time was nightmares, so much so that he has recently started a new medication. After a few weeks, it has helped a lot with the nightmares.[45]
[45] T39
72Now that he is undertaking some domestic duties and gardening, he has noticed that he is more lethargic and tires easily after about ten minutes of gardening. This was not the case before he became unwell. He used to work during the week with the defendant and then also be busy on weekends.
73He no longer goes to the RSL because one of the people from the defendant involved in his case slurred his name. He denied she tried to apologise to him. She asked him to drop the case against her because it was bad for her, and she could not handle things.[46]
[46]T36
74He has a boarder with whom he is on friendly terms and chats with on occasion. His son also lives at home. He has a good relationship with him. They see each other and have a meal during the week, but do not really socialise on the weekends.[47]
[47]T37
75The plaintiff does his own chores at his two-storey home, and he looks after himself. He can do his laundry, his shopping, and has no problem with day-to-day activities – making a cup of coffee, having a shower, et cetera.[48]
[48]T38
76He goes fishing in the bay occasionally, but does not go away on fishing trips.[49]
[49]T38
77He agreed that at one stage after he finished work with the defendant, he was very upset and drinking very regularly, but he had managed to reduce his drinking to about eight stubbies a week and he does not feel that is a problem anymore.[50]
[50]T39
78He still attends St Chad’s Church in Chelsea, not for the church services but to help people with disabilities or aged people, and put out the furniture.[51] He still counsels young men at the football about their mental health and suicide.[52]
[51]T39
[52]T40
79He intended to work until about seventy, all things otherwise being equal with his health and fitness. He feels isolated not working and misses work. He has lost friends due to being isolated and unwell. He confirmed he meant he intended to work to “seven zero”. He told the manager at work before he went off about this.[53]
[53]T33
Medical evidence
Treaters
Seaford Beach Family Clinic
80In March 2021, Dr Mosetlhi reported that the plaintiff had been a patient during most of his WorkCover claim under the care of psychologist, Karen Mansfield.
81Dr Mosetlhi advised that, unfortunately, the plaintiff continued to struggle with trauma-related depression, with symptoms of anxiety, poor sleep, suicidal ideation, despair and sometimes hopelessness. He had, however, showed a lot of strength and continued to engage in mental wellness practices and will try to improve his mental health.
82Dr Duffy has provided care for the plaintiff since October 2021.
83In his report of August 2022, he diagnosed an Adjustment Disorder with anxiety and depression in the aftermath of an acute stress reaction in relation to workplace difficulties some years ago.
84Psychotropic medications consist of Paroxetine (30 milligrams daily) and Epilim (200 milligrams twice daily), for which the plaintiff attends a psychiatrist for monitoring.
85Dr Duffy provides the plaintiff with holistic care around his physical and emotional health. The plaintiff also sees Karen Mansfield for psychotherapy and counselling.
86Dr Duffy thought the psychological injuries appeared consistent with the stated cause. The plaintiff has lost his confidence and self-esteem on account of his work related psychological injury to the point of perhaps never being able to fully recover to the point of his premorbid functioning.
87Dr Duffy noted that the plaintiff is well-engaged with the health professionals and maintains regular contact with everyone in his care. He has medication adherence and engages in a therapeutic lifestyle approach with exercise and mindfulness.
Karen Mansfield, psychologist
88The first session following referral by Dr Farag was in March 2018.
89Ms Mansfield wrote to the Frankston Magistrates’ Court in February 2021.
90She noted the plaintiff had been involved in assisting his community in various forms over the past forty years and had undertaken to assist the RSL with gardening over many years. He had assisted in maintaining the property and removing rubbish, which he paid for and was then reimbursed.[54] His efforts and generosity were well-regarded in the community, and it was very much a part of his personality to assist wherever he could with kindness and generosity to others.
[54] T32
91She explained the circumstances under which the plaintiff signed the certificates of capacity and how he was shocked when the issue was brought to his attention.
92In her October 2022 report, Ms Mansfield diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation.
93She thought the plaintiff remained incapacitated for a return to pre-injury duties in any form of employment. He required ongoing psychological treatment, as he had suffered significant symptoms of an Adjustment Disorder. He had goals of remaining in the workplace until he was seventy at the very least, and would have continued working for as long as his health would allow.
Dr Justin Lewis, psychiatrist
94Dr Lewis first reported in October 2019. He thought the plaintiff continued to meet the criteria for an Adjustment Disorder with Mixed Anxiety, depressive and traumatisation features. Symptoms then included lower mood, high levels of emotionality, reduced stress tolerance, cognitive difficulties and generalised anxiety symptoms.
95He advised that he was not aware the plaintiff was engaged in voluntary work, although the plaintiff was quite adamant he told him. That was not in the notes, notwithstanding he had been very supportive of the plaintiff continuing to undertake voluntary work.
96He was not at all confident the plaintiff had the capacity to manage his personal, financial and legal affairs from February 2018 until May 2019, during which time the plaintiff indicated he was not engaged in any paid or voluntary work and in fact stated, that he was heavily reliant on his father to manage his personal and legal affairs.
97The plaintiff had told him it was simply a matter of signing where it was marked “X” on the certificates of capacity.
98As at October 2019, he did not view the plaintiff as being able to engage in any work on a consistent, reliable or permanent basis, given his fragile mental state, poor stress tolerance and lowered motivation.
99He did not regard the plaintiff as having engaged in premeditated deceitful practice by providing misinformation on the WorkCover form. The plaintiff’s actions were informed by a lack of education, opportunity and an inability to fully appreciate and comprehend what he was signing at the time. He would be highly supportive of the payments being reinstated.
100Dr Lewis provided a further report in February 2021. He then thought the plaintiff continued to present with a Chronic Adjustment Disorder with significant depression and traumatisation features.
101The plaintiff was significantly traumatised in the course of his employment with the defendant and in the context of severe workplace bullying and harassment.
102The plaintiff continued to present as an individual struggling with depressed mood, markedly reduced stress tolerance, intermittent suicidal ideation, high levels of emotionality and a fear of authority figures. His symptoms continued to impact his general functioning and quality of life. He has no capacity to undertake pre-injury duties.
103The plaintiff then described very heightened levels of anxiety, simply reflecting on his workplace harassment. He would simply not be able to engage with customers or management due to markedly reduced stress tolerance.
104The plaintiff did not believe the defendant was able to provide him with a safe workplace environment. He emphasised this point as, according to him, he complained about his workplace difficulties in the months leading up to the work cessation without any alleged improvement in his work situation.
105The major barrier to employment included a constellation of mood and traumatisation symptoms which, unfortunately, had become particularly chronic.
106He thought the plaintiff was permanently incapable of returning to his pre-injury duties, and all alternative duties for that matter, for the defendant.
107In his August 2022 report, Dr Lewis confirmed his earlier diagnosis. He thought the plaintiff continues to remain significantly impacted as a consequence of his workplace bullying and harassment. His mood remains low, and he described an overall reduced stress tolerance. He often wakes feeling teary. He remains quite agitated. His sleep remains disrupted, and he continues to experience nightmares two to three times a week, centring around the workplace harassment. He remains socially quite avoidant and remains sensitive to judgement by others.
108The plaintiff is particularly upset that he finds himself continuing to psychologically struggle for a number of years following the harassment, which he states was through no fault of his own. He continues to harbour strong feelings of anger and resentment to the perpetrators, including fantasies of vengeance.
109He continues to review the plaintiff for supportive psychotherapy, and he is also under the care of Ms Mansfield, which was particularly supportive. The plaintiff continues on the antidepressant Paroxetine (30 milligrams) and sodium valproate to manage mood instability. He has commenced the plaintiff on Prazosin to help manage work-related nightmares.
110He thought the plaintiff’s psychological injuries were entirely consistent with the stated cause. The psychiatric prognosis is unfortunately quite poor and unfavourable.
Medico-legal evidence
Dr Nick Ingram, psychiatrist
111Dr Ingram saw the plaintiff in July 2022.
112The plaintiff had become significantly depressed and anxious when employed by the defendant and that had been associated with frequent panic attacks and hopelessness.
113There had been an improvement in those symptoms when the plaintiff stopped work, but when WorkCover had stopped his payments and taken legal proceedings, there had been a deterioration in both the depression and anxiety, and he had relapsed to a level similar to that which he had felt when he had been working.
114There had been some improvement since the Court case had been dismissed in November last year, although the plaintiff still had not felt anywhere close to his previous psychological level of functioning.
115He thought the plaintiff was suffering from a Major Depressive Disorder and there had only been a partial response to treatment with antidepressants and supportive psychotherapy.
116He felt the depression was a direct consequence of the way the plaintiff was treated at work, but had also been contributed to by the way he was treated by WorkCover.
117The plaintiff remains severely depressed and still had not been able to put what he experienced as abuse behind him. It was important he continue to see a psychiatrist and, if he was tolerating it, it may be worth trying a higher dose of Paroxetine or other antidepressant.
118Dr Ingram did not comment on the plaintiff’s work capacity.
Vocational assessment
119Leonie Schneider, vocational assessor, conducted a three-hour interview with the plaintiff in his home in July 2022.
120Having made no reference to the Top Hat business, she thought the plaintiff had ceased work permanently on 8 February 2018, and had not engaged in any voluntary casual full-time, part-time or self-employment since then.
121She thought the plaintiff had sustained a severe psychiatric/psychological injury stemming from workplace bullying and sexual harassment. He was not medically or psychiatrically or psychologically fit to perform any suitable voluntary or remunerated full time, part time or self-employment and, because of the severity of his symptoms, she doubted he would substantially benefit physically, mentally and/or emotionally were he to return to some form of suitable employment outside the car industry. He would not be a suitable candidate for occupational rehabilitation assistance.
122The plaintiff has no current work capacity for his pre-injury occupation. Moreover, due to the nature and symptoms of his psychiatric/psychological illness, he could not be employed in a similar occupation with a different employer.
Defendant’s evidence
123Notes available from Seaford Beach Family Clinic detailed the plaintiff’s treatment from 12 October 2021 to 7 July 2022.
124There were a number of certificates of capacity – spanning the period March 2018 to April 2019, signed initially by Dr Farag and later, Dr Hanna, and at all times by the plaintiff, in which the plaintiff ticked a box setting out that he had not engaged in any voluntary work or any form of employment or in self-employment for which he had received or had been entitled to receive payment in money or otherwise at any time since the last certificate of capacity.
125The plaintiff completed a Claim for Compensation on 22 October 2018. The answer “No” was written in the box – “Did you have any other employment at the time you were injured? Please provide or attach the names of any other employers and their contact details and any relevant wage or payment records.”
Medico-legal evidence
Associate Professor Peter Doherty, psychiatrist
126Professor Doherty examined the plaintiff in April 2018.
127The plaintiff told him he was not working and had ceased working on 8 February 2018. He told him he undertakes no voluntary work and has no other employment. He told him his only income currently was sick leave entitlements.
128Following mental state examination, Professor Doherty thought the usual clinical criteria for a diagnosis of an Adjustment Disorder with Depressed Mood and Anxious Mood was met, based on self-reported symptoms.
129He thought the plaintiff probably had a current work capacity for pre-injury duties on alternative worksites.
130Caution needed to be exercised regarding the causation of the reported symptoms and level of intensity.
Dr Timothy Entwisle, psychiatrist
131Dr Entwisle examined the plaintiff in October 2018.
132The plaintiff’s symptoms were those of depressed and anxious mood, sleep disturbance, social avoidance, wariness and hypervigilance.
133He thought the plaintiff had a Chronic Adjustment Disorder with Depressed and Anxious Mood with some features of traumatisation.
134The plaintiff did not have a capacity for pre-injury duties and hours at his usual workplace or a different one due to the nature of his psychiatric condition and symptoms.
Dr Peter Farnbach, psychiatrist
135Dr Farnbach examined the plaintiff in November 2019.
136He thought the plaintiff suffered from an Adjustment Disorder with Depressed and Anxious Mood with his symptomatology greatly exacerbated by his continual angry and bitter ruminations. The symptomatology fell within the moderate range and there had been some improvement since work cessation.
137Dr Farnbach noted the plaintiff doing some voluntary gardening work for the RSL.
138In his opinion, the plaintiff should never be considered for a return to work at his previous workplace. He also did not have a current work capacity for his pre-injury duties and hours at a different workplace. However, he required workplace rehabilitation and a graduated return to work. He had a current capacity to be engaged in a program of rehabilitation with a view to an eventual return to pre-injury duties and hours for a different employer.
139When Dr Farnbach was later told that the plaintiff was engaged in paid employment at the RSL, that raised the possibility he was an unreliable historian and, in that event, findings expressed in his report could not be relied upon. However, taking the plaintiff’s account of his symptomatology at face value, he remained of the view that this was materially contributed to by the workplace issues.
Dr Brendan Hayman, psychiatrist
140Dr Hayman examined the plaintiff on Zoom in September 2020.
141The plaintiff had depressive anxiety and panic symptoms. In the initial period, he had some flashbacks and nightmares, the former having now abated, and the latter being occasional.
142He thought the plaintiff had developed features of a Chronic Adjustment Disorder with Depressed and Anxious Mood and some features of traumatisation. There was also evidence of an Alcohol Use Disorder.
143He did not comment on work capacity, as this was an AMA assessment.
Medical Panel
144The Medical Panel, on 1 March 2021, found there was a 16 per cent psychiatric impairment resulting from the accepted psychiatric/psychological injury. The Panel concluded the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood and some features of traumatisation relevant to the accepted injury.
Dr Natalie Krapivensky, psychiatrist
145Dr Krapivensky examined the plaintiff in July 2022.
146She was told about the circumstances of the criminal prosecution for work carried out under the name of Top Hat.
147With respect to his current psychiatric symptoms, the plaintiff reported a range of symptoms, but she thought it was very difficult to know what to believe or what these symptoms may actually be related to.
148Further, the plaintiff is happily socially engaged with his friends, which is somewhat contradictory to the rest of his reported history.
149Therefore, given all the factors regarding his previous untruthfulness, she was not able to make any diagnosis based on the plaintiff’s reported history of symptoms, other than possible personality disorder with antisocial and borderline personality traits.
150She considered the plaintiff has full capacity for employment from a psychiatric perspective on a fulltime or part time basis.
Financial documents
151The plaintiff’s individual tax returns from 2014-2015 to 2018-2019 financial year made no mention of any earnings from Top Hat, noting only the plaintiff’s earnings with the defendant.
152A General Appeals Patriotic Fund B86 printout set out payments on an almost weekly basis to the plaintiff from 11 October 2018 to 9 March 2019. These payments were as low as $120 and as high as $1,500 and $1,110 on separate occasions.
153The plaintiff completed a number of tax invoice statements to Chelsea RSL for gardening work carried out by him. The invoices contained a detailed description of the gardening work for the amount claimed. Two invoices seemed to be dated 1 January 2019, one of $225 and the other of $210, and two dated 12 January 2019, with amounts of $185, and also one of $225.
Overview
154There is no issue that the bullying and harassment occurred, and that as a result, the plaintiff suffered a compensable psychiatric injury.
155The consensus of psychiatric opinion is that he continues to suffer from an Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation. Dr Ingram, however, diagnosed a Major Depressive Disorder.
156Dr Krapivensky, who recently saw the plaintiff on the defendant’s behalf, is an outlier. Without any real analysis or consideration of other psychiatric opinion, she simply stated she was not able to make any diagnosis based on the plaintiff’s reported history of symptoms, other than possible personality disorder with antisocial and borderline personality traits.
157Given my findings as to the plaintiff’s credit, I reject her conclusion and prefer the considered diagnosis of all the psychiatric examiners, both treaters and medico-legal.
Credit
158As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[55]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[55](2010) 31 VR 1 at paragraph [12]
159Counsel for the defendant submitted there were some credit matters that impact on the assessment of the plaintiff’s capacity, in particular, he had not been forthright with all the doctors all the time in terms of what he was earlier doing with the RSL, and he had made false declarations in both his certificates of capacity and his claim for compensation.[56]
[56]T43
160It was submitted these matters impacted on the plaintiff’s credit in terms of the nature and extent of his psychiatric symptoms, a psychiatric condition being something for which there is no objective testing as such.[57]
[57]T43
161It was not said by the defendant there was not a psychiatric condition, just that the extent of the symptoms was perhaps not anything that could be completely relied on given the plaintiff’s credit.[58] It was simply said any psychiatric impairment was not severe, it had now improved, although it may have been more serious in the past.[59]
[58]T43
[59]T44
162However, I accept, as counsel for the plaintiff submitted, the plaintiff was “a fairly simple man who came across as really a pretty straightforward fellow who had done a lot for many people over the journey,” whose issue with WorkCover payments may have had a different outcome if he had had legal representation.[60]
[60] T56
163I found the plaintiff to be an honest and reliable witness. I accept his explanation for his nondisclosure of his RSL work, particularly in circumstances where his evidence was that the Top Hat payments for work done for the RSL were tax exempt.
164Further, both his treaters, Dr Lewis and Karen Mansfield, devoted significant time to the WorkCover payments issue and this did not affect their opinion as to the diagnosis and the plaintiff’s genuineness in any way.
165Taking into account all the evidence, I am satisfied the plaintiff suffers a severe and permanent psychiatric impairment.
Consequences
166As the High Court held in Katanas,[61] while the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classified as severe, it is only one of a range of considerations that needs to be taken into account. In each case, the Court must take into account all the relevant circumstances personal to the plaintiff and then apply the narrative test making a value judgment as described in Humphries and Anor vPoljak.[62]
[61]Supra
[62](1992) 2 VR 129
167The plaintiff continues to require ongoing psychological and psychiatric counselling, together with the antidepressant, Paroxetine, and mood stabiliser, sodium valproate, and will do so for the foreseeable future. Dr Lewis has also recently commenced him on Prazosin to help manage his work-related nightmares. That medication has led to some improvement, but nightmares continue. This treatment continues to be funded by WorkCover.
168I do not accept the submission on the defendant’s behalf that although the plaintiff has symptoms, they are well controlled with medication and provide minimal interference with his daily life.[63]
[63]T51
169Treating psychiatrist, Dr Lewis, recently reported in some detail that the plaintiff continues to remain significantly impacted as a consequence of the bullying and harassment. He is upset he continues to suffer psychologically from these events at work that were not his fault, and he continues to harbour strong feelings of anger, resentment and fantasies of vengeance to the perpetrators.
170The plaintiff’s mood remains low, with an overall reduced stress tolerance. He often wakes feeling teary. He remains quite agitated. His sleep remains disrupted, and he continues to experience nightmares two to three times a week, centring around the workplace harassment. He remains socially quite avoidant and remains sensitive to judgement by others.
171The plaintiff confirmed nightmares continue, although there has been some recent improvement with the prescription of medication in this regard. Panic attacks continue, although they are more manageable, as he now better recognises their trigger.
172Soiling has improved but continues on a monthly basis.
173While he has retained some level of activity in his home and garden, the plaintiff feels lethargic after about ten minutes of activity. This was not the situation before he became unwell when he worked full time and was active on the weekends.
174He is still able to go fishing and walk, but he has lost his much loved contact with the RSL veterans and socialisation. He had lost the day-to-day contact with people.[64]
[64]T54
175The plaintiff has lost four-and-a-half years of work already. He will be unable to work until seventy, when he intended to retire.[65] He feels isolated and misses working. His inability to work can be also taken into account as a pain and suffering consequence.[66]
[65]T55
[66]T45; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
176There is no suggestion the plaintiff’s mental state is likely to improve to any significant extent in the future. Treatment will continue to be required. His psychiatric impairment is permanent.
177Taking into account all the evidence, I am satisfied the plaintiff has a permanent severe psychiatric impairment.
178Accordingly, I grant lave to bring proceedings for damages for pain and suffering.
Loss of earning capacity
179Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
180The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
181The former must be calculated by reference to the six-year period specified in s325(2)(f).
182“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
183It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
184The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure See Barwon Spinners Pty Ltd & Ors v Podolak.[67]
[67] (2005) 14 VR 622 at paragraph [70]
185While no figures were put, the plaintiff’s case was that he is permanently totally incapacitated for any employment as a result of his psychiatric condition. He would therefore establish the requisite loss of earning capacity of 40 per cent.
186The plaintiff’s income tax returns indicate working for the defendant, his taxable income was as follows:
· 2014-2015 - $57,802
· 2015-2016 - $56,388
· 2016-2017 - $59,294
· 2017-2018 - $49,722.
187The defendant did not rely on the plaintiff’s earnings with Top Hat after February 2018 as any indication of the plaintiff’s earning capacity. It was conceded the RSL payments do not meet the threshold and the Court was not going to be asked to make a comparison, although the plaintiff himself said there was nothing about his health that prevented him from doing that work. The RSL work was relevant to his demonstrated capacity to do that work.[68]
[68]T45
188In any event, the plaintiff’s 2016-2017 earnings of nearly $60,000, in my view, is the figure which most fairly reflects his earning capacity but for injury. To suffer the requite loss, he must establish that he does not have the capacity to earn in excess of $36,000 per annum, or nearly $700 per week. His RSL payments, of which half were paid to Brad Crowe, and from which tip fees also formed part, fell far short of this figure.
Capacity
189Counsel for the defendant submitted the plaintiff has a capacity for work, relying on Professor Doherty’s view, nearly four years ago, that the plaintiff had the capacity to resume employment with another employer. On that basis, the plaintiff could not establish the requisite loss.[69]
[69]T3
190Dr Krapivensky, whose opinion I do not accept, thought the plaintiff had a full capacity for employment.
191All other psychiatrists who examined him on the defendant’s behalf had a different view. Dr Entwistle, who saw the plaintiff in late 2018, thought he had no capacity for any employment. Dr Farnbach, in November 2019, shared this view.
192While treating psychiatrist, Dr Lewis, in 2021, reported that the plaintiff was unfit for work with the defendant, not employment generally at that time, he thought the major barrier to employment included a constellation of mood and traumatisation symptoms which had become chronic. In his more recent report, there was no indication this situation had changed.
193Psychologist, Ms Mansfield, in October this year, thought the plaintiff remained incapacitated for any form of employment. Vocational assessor, Leonie Schneider, thought the plaintiff had no work capacity, although unaware of his Top Hat work from February 2018.
194While not commenting on work capacity, Dr Ingram thought the plaintiff was severely depressed when seen in July this year.
195Given the severity of the plaintiff’s symptoms and his need for ongoing medication and psychiatric treatment, I accept that he is totally incapacitated for his pre-injury duties with the defendant and is not capable of a return to any work in the future. I also accept that but for his injury, he would have continued to work until the age of seventy.
196As his loss is total, he has established the requisite loss of 40 per cent.
197While counsel for the defendant submitted any future loss was not long term, that is not the test under the Act. The requirement is for the requisite loss as at the date of hearing and that such loss will continue permanently – likely to continue into the foreseeable future – after the hearing.
198The plaintiff intended to work until he was seventy and will be unable to do so because of his psychiatric condition.
199The facts of the three cases relied on by the defendant where the plaintiff was unsuccessful in obtaining leave in relation to economic loss differed from the present case.
200In those cases, leave was refused, because there was no finding of any financial loss as at the date of hearing – the plaintiff had retired in two cases and in the third, there was no evidence that boning work was carried out by workers over sixty-five.[70]
[70] T46-47
201In Cuturic v Spotless Facility Services Pty Ltd[71] and Bendzius v Victorian Workcover Authority,[72] both involved older plaintiffs who were unsuccessful, as the Court found that they had retired as at the date of hearing, and that there was therefore no permanent loss of earning capacity in the future.
[71] [2018] VCC 889
[72] [2019] VCC 915
202In Madaroski v Colonial Meat Export Pty Ltd,[73] the Court was not satisfied that, for the sixty-seven-year-old plaintiff, any incapacity at the time he ceased work operated as at the present time or in the future, so as to be productive of any financial loss to him.
[73] [2021] VCC 113
203It is a different situation in the present case, where I accept the plaintiff, although aged sixty‑nine, would have worked until seventy but for his psychiatric injury.
204Therefore, as at the date of hearing, he has a 40 per cent loss and will so permanently, albeit permanently is only until July next year.
205I am also satisfied that since there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more, he has satisfied the requirements of sub clause (g).
206Accordingly, leave is also granted to bring proceedings for damages for loss of earning capacity.
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