Javni v Canteri Bros. Constructions Pty Ltd
[2011] VCC 858
•3 May 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
SERIOUS INJURY
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05737
| MICHAEL JAVNI | Plaintiff |
| v | |
| CANTERI BROS. CONSTRUCTIONS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 28 April 2011 |
| DATE OF JUDGMENT: | 3 May 2011 (Revised) |
| CASE MAY BE CITED AS: | Javni v Canteri Bros. Constructions Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 858 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right shoulder – development of a Chronic Pain Syndrome - Chronic Pain Syndrome predominantly psychologically-based – development of a psychiatric condition – whether disentangling required – application based upon paragraph (a) and (c) of the definition of serious injury: section 134AB (38) (c) and (d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Slater & Gordon |
| Mr A Macnab | ||
| For the Defendant | Mr S Smith | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 2 December 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring a proceeding for pain and suffering and loss of earning capacity.
3 Mr C Harrison SC appeared with Mr A Macnab of Counsel for the plaintiff, and Mr S Smith of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
Dr J Henderson, general practitioner, gave evidence and was cross- examined.
•
Dr A Muir, consultant in pain management, gave evidence and was cross-examined.
• The plaintiff tendered:
ƒ Letter of QBE dated 16 February 2011 to the plaintiff: Exhibit A ƒ His Court Book (“PCB”), pages 19-41b and 50-85, and from the
defendant’s Court Book (“DCB”), pages 143-146: Exhibit Bƒ A schedule of his income: Exhibit C.
ƒ
The defendant tendered its Court Book, pages 3-4; 6; 13-14; 32-34; 68- 101; 118; 126 to 142 and from the plaintiff's Court Book, pages 42-49: Exhibit 1.
The Statutory Scheme
5 The relevant considerations which apply to such an application based upon subsection (37)(a) are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (supra)
(f)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[4] (1994) 1 VR 436
6 The relevant considerations which apply to such an application based upon subsection (37)(c) not referred to above, are as follows:
(a) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious” to the extent of being “severe". (e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise. (j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application. 7 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born on 17 April 1974. He is now thirty-six years of age. He is a single man. He lives alone on a 1.8 hectare property at Bannockburn.
9 The plaintiff attended the Sunshine Technical College to the Year 12 level. He did not sit his end of year exams.
10 Subsequently, the plaintiff engaged in work as a labourer. He was unemployed for significant periods of time. The employment the plaintiff obtained with the defendant was the most significant period of employment he had engaged upon over his working life.
The Plaintiff's Injuries
11 The plaintiff commenced his employment with the defendant on 19 August 2003. He was employed as a labourer.
12 The work undertaken by the defendant appears to have been heavy construction work. It involved the plaintiff performing manual work on road construction and on building construction.
13 In his first affidavit sworn 2 April 2009, he described in some detail the nature of the work that he was required to undertake and the extent to which it threw significant stress and strain on his body, and in particular, on his right shoulder.
14 It was during the course of work he was performing on an electrical sub- station at Camberwell that he began to experience pain in his right shoulder. The pain increased. His symptoms worsened to such an extent that he was forced to stop working by 29 June 2004.[5]
[5] PCB 27-28
15 The plaintiff was initially treated for an injury to his right shoulder. His mental state deteriorated over time to the extent that he suffered a major secondary psychiatric condition.
The Plaintiff's Medical Treatment
16 The plaintiff's medical treatment is adequately summarised in the plaintiff's first affidavit, and explained in detail in the medical reports which both the plaintiff and the defendant tendered.
17 The application advanced by the plaintiff is based upon the injury to his right shoulder; that is, under paragraph (a), and also upon the psychiatric condition; that is, under paragraph (c).
18 The plaintiff does not need to satisfy me that both injuries are serious or severe, as the case may be, in order to be entitled to bring a common law claim for all the injuries which he suffered as a consequence of his employment with the defendant. If he succeeds in proving that one or the other injury is serious or severe, then that is sufficient for me to grant him leave to bring a proceeding at common law.
19 It is for that reason that I intend to concentrate on the plaintiff’s psychiatric condition because it occurs to me that the plaintiff's evidence and the relevant medical evidence, and in particular, the opinions of a number of examining psychiatrists, demonstrate that the plaintiff has suffered a serious injury in terms of pain and suffering and loss of earning capacity.
20 In summary, the plaintiff first attended Dr Nolan, general practitioner, for treatment for his right shoulder.[6]
[6] PCB 31c-36
21 Dr Nolan referred the plaintiff to Mr Wood, orthopaedic surgeon.[7] Dr Nolan later referred the plaintiff to Mr Salmon, orthopaedic surgeon.[8] Both Mr Wood and Mr Salmon considered that surgery might ameliorate the symptoms which the plaintiff was experiencing in his right shoulder. The plaintiff declined to have surgery for fear of suffering an adverse result from the surgery.
[7] PCB 52-59
[8] PCB 50-51
22 A major part of the plaintiff’s reason for declining surgery was his mother's experience with surgery. She had undergone surgery without a successful outcome.[9]
[9] Transcript 8-9
23 In preference to surgery, the plaintiff pursued general medical treatment and other treatment to which he was referred. In summary, these include physiotherapy, massage, acupuncture and similar para-medical treatment. He also attended the Geelong Pain Clinic to undergo a spinal functional restoration program.
24 The plaintiff’s psychiatric problems emerged floridly early on in his treatment. Mr Wood referred to the plaintiff bursting into tears halfway through the first occasion he saw the plaintiff on 22 July 2004.[10] In a letter to Dr Nolan dated 21 February 2007, he referred to the plaintiff having adopted a sick role.[11] When Mr Salmon first saw the plaintiff on 31 January 2005 he was informed by the plaintiff that he was anxious and had received some treatment for depression.[12]
[10] PCB 55
[11] PCB 52
[12] PCB 50
25 Dr Nolan observed, at a review of the plaintiff probably some time in late 2004 or early 2005, that the plaintiff was agitated, upset, angry, teary and confused concerning what treatment he should obtain. Dr Nolan also observed that the plaintiff was unwilling to see a psychologist or a psychiatrist and was unwilling to take anti-depressant medication. On 16 September 2005, Dr Nolan eventually advised the plaintiff to seek an opinion from a different general practitioner because he felt he could not offer the plaintiff any treatment ideas.[13] However, that he continued treating the plaintiff is apparent from Dr Nolan’s report dated 5 June 2007.[14]
[13] PCB 31d
[14] PCB 34-36
26 Dr Nolan referred the plaintiff to Dr Singh, psychiatrist. In his letter to Dr Nolan dated 31 May 2007,[15] he did not say when he first saw the plaintiff, but it would appear that it was probably a short time prior to the date of his letter. I will refer to Dr Singh's opinion in more detail later in these reasons.
[15] DCB 143-146
27 The plaintiff subsequently saw Dr Henderson who practises at the same surgery as Dr Nolan. It is not clear from Dr Henderson's reports when he commenced treating the plaintiff.
28 Dr Henderson was provided with copies of some of the reports of Dr Muir. Dr Muir was asked to examine the plaintiff on a medico-legal basis. He did so on 5 November 2009 and again on 31 March 2011. On the first occasion on which Dr Muir examined the plaintiff he was of the opinion that the plaintiff had suffered a traumatic injury to his right shoulder. He was also of the opinion that the plaintiff had developed a Chronic Pain Syndrome which in turn resulted in the plaintiff suffering mood alteration, social isolation and increased pain.
29 Dr Muir described the Pain Disorder as the development of a fear avoidance which he described as the plaintiff experiencing pain which in turn provoked a fear of pain on activity and a fear of the fear itself, and that it was a self reinforcing cycle leading to avoidance of activity.[16]
[16] PCB 67-68
30 In the course of his cross-examination, Dr Muir said that a dominant part of the plaintiff's ongoing pain problem and disability were psychologically- based.[17]
[17] Transcript 62-63
31 Dr Henderson essentially adopted the opinion of Dr Muir, that the plaintiff had developed a Chronic Pain Syndrome. Dr Henderson was cross-examined regarding the constellation of other symptoms which the plaintiff complained about; namely, pain down his right arm; pain in his neck; pain down his spine through his mid-back into his lower back, and from headaches. He was of the opinion that those were largely psychologically-based.[18]
[18] Transcript 40-45. Dr Muir’s evidence was to the same effect.
The Psychiatric Evidence
32 Dr Singh was of the opinion that the plaintiff would not experience a full response to any medication prescribed to treat his depressive symptoms while he continued to suffer from chronic pain. He postulated that the plaintiff was, therefore, unlikely to recover from his psychiatric symptoms. He recommended the use of medication.
33 Dr Singh was unable to provide a prognosis at that time, but proposed that it depended upon the plaintiff's capacity to regain function in his right shoulder and obtain a reduction in his levels of pain.[19] He gave a differential diagnosis of a Major Depressive Disorder, but considered that a diagnosis of an Adjustment Disorder was more appropriate, which had symptoms which were akin to a Major Depressive Disorder.
[19] DCB 145
34 Dr Strauss, psychiatrist, examined the plaintiff for the defendant on 24 November 2010. It seems to me, by comparison with the plaintiff's affidavit and the other medical reports which were tendered, that Dr Strauss obtained a reasonable history of the occurrence of the plaintiff's right shoulder injury, the treatment he obtained and the development of his psychiatric condition.
35 Dr Strauss was of the opinion that the plaintiff had developed a Pain Disorder associated with a medical condition and psychological factors. I take that to mean that he was of the opinion that the medical condition was the injury to the plaintiff's right shoulder; the Pain Disorder is consistent with a Chronic Pain Syndrome referred to by Dr Muir, and the psychological factors are a reference to the development of the psychiatric condition.
36 Dr Strauss analysed whether the plaintiff had given a good account of himself in providing a history and when psychiatrically examined. He concluded that the plaintiff was suffering from “Genuine psychological pain”. He was of the opinion that the plaintiff was suffering from a Pain Disorder and Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He then offered the following opinion:
"This man is suffering from [a] work-related psychiatric range of symptoms as a consequence of an alleged work-related physical injury. In other words, if his initial physical condition was work-related his psychiatric problems are now work-related including his Adjustment Disorder and his Pain Disorder.
He has had very limited treatment but he should continue to take antidepressants indefinitely. I doubt whether a pain management program will assist him.
His prognosis is poor and his situation is stable.
On the basis that he is suffering from a work-related physical condition his psychiatric reaction is work-related.
I have described how personal factors are relevant.
Taking all factors into consideration I am extremely pessimistic about this man finding work in the future and I believe that he should be considered to be totally and permanently incapacitated."[20]
[20] DCB 142
37 The opinion expressed by Dr Strauss that the plaintiff should be considered to be totally and permanently incapacitated is clearly based upon what Dr Strauss referred to as the plaintiff’s psychiatric range of symptoms.
38 Before turning to a further analysis of the psychiatric evidence, it is necessary to turn to aspects of the law to deal with the submissions made by Mr Smith. He submitted that the consequences of the impairment of the plaintiff's right shoulder and the psychiatric consequences of that impairment have merged, making it impossible to determine which consequences are related to the impairment of the right shoulder or the psychiatric impairment.
Disentangling
39 Mr Smith submitted that the plaintiff has failed to disentangle or strip away the consequences of the impairment of the right shoulder injury from the consequences of the psychiatric condition, and therefore the plaintiff’s proceeding must be dismissed.
40 The approach which the trial judge must take was first dealt with in Shock Records Pty Ltd v Matthew James Jones[21] in which Bell AJA made the following observations:
"… we saw that s.134AB(38)(e) required the judge to determine whether Mr Jones’s loss of earning capacity was ‘40 per centum or more’. Taken together with the other elements of the test, this required her Honour to be satisfied that, among other things, Mr Jones’s back injury of itself caused a loss of earning capacity of this degree, which required her to exclude the contribution of the other medical conditions and, of course, the psychiatric or psychological consequences of the back injury.
A judge is quite capable of making such a determination once he or she has reached the point of being properly satisfied that the plaintiff’s injury is enough in itself to cause a loss of earnings capacity of 40 per centum or more. How much disentangling or stripping away is necessary to reach that point will depend upon the circumstances of the given case. If the submissions of counsel for Shock Records mean that, even after reaching that point, a judge still has to identify and quantify all of the other potential causes, I cannot agree with it."[22]
[21] [2006] VSCA 180
[22] at paragraphs 69-70
41 In Zivolic v Hella Australia Pty Ltd,[23] Redlich JA made very similar observations when he said:
"Although … [the judge at first instance] spoke, in the language of Barwon Spinners Pty Ltd & Ors v Podolak, of ‘disentangling’ the relevant injury, it was unnecessary for him to do so in the light of the accepted medical evidence concerning her physical injury which the plaintiff relied upon. Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s 134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.
The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff." [24]
[23] [2007] VSCA 142
[24] at paragraphs 19-20
42 In Jayatilake v Toyota Motor Corporation Australia Ltd,[25] Ashley JA said that both statements were correct in principle. He then gave two examples to demonstrate that consequences which are derived from the impairment resulting from the physical injury and from a secondary psychiatric condition do not necessarily call for disentangling:
"Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations – gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be “stripped away”, almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for the appellant to establish that the impairment in its physical consequences constituted serious injury.
Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences – although again it may be assumed that it would be possible to do so."[26]
[25] [2008] VSCA 167
[26] at paragraph 26-27
43 Ultimately, whether any steps are required to undertake the so-called disentangling will depend upon the facts of the particular case, and more particularly, with the evidence of the plaintiff and the evidence of examining medical practitioners. It is a mistake to conclude that just because the plaintiff has suffered an impairment of a body function resulting from a physical injury and has also suffered a secondary psychiatric condition, that it immediately calls for disentangling.
44 That fundamental error is clearly apparent in the approach taken by the defendant in this case. What is patently obvious to me is that from the time the plaintiff suffered the injury to his right shoulder and through the treatment provided by Dr Nolan, Mr Wood and Mr Salmon, there was an emerging psychiatric condition secondary to the injury to the plaintiff’s right shoulder.
45 That emerging psychiatric condition was diagnosed by a specialist in the field of pain medicine, Dr Muir. He was able to clearly define that the plaintiff had suffered a traumatic injury to his right shoulder, a Chronic Pain Syndrome which was predominantly driven by psychological factors, and a frank psychiatric condition.
46 The psychiatric condition was diagnosed early in the piece by Dr Singh, and then by Dr Strauss more recently. The diagnoses made by Dr Singh and Dr Strauss appear to me to be very similar, if not the same.
47 I think this is a very clear case where no disentangling is called for. It is unclear to me why the defendant ever thought it was, and furthermore, it is abundantly clear to me that Dr Nolan, Mr Wood and Mr Salmon were able to clearly define that the plaintiff had suffered an injury to the acromioclavicular joint which could be treated surgically.
48 Moreover, Dr Henderson;27 Dr Muir;28 Dr Capes, occupational physician,29 and Mr Westh, orthopaedic surgeon,30 appear to have had no difficulty in defining the impairment resulting from the injury to the plaintiff's right shoulder and the consequences resulting from it in the presence of the Chronic Pain Syndrome and the secondary psychiatric condition.
49 In relation to the psychiatric condition, Dr Nolan, Dr Singh, Mr Wood, Dr Muir Dr Henderson, Mr Westh and Dr Strauss had no difficulty defining the emerging secondary psychiatric condition. While Dr Singh found a clear psychiatric condition which was capable of the differential diagnosis, Dr Strauss made a clear and unequivocal diagnosis.
Serious Injury
50 I have no difficulty in concluding that the plaintiff suffered a secondary psychiatric condition. There is no question that the secondary psychiatric condition amounts to a mental disturbance or disorder or behavioural disturbance or disorder. There is also no question that the latter is permanent.
51 The evidence of the plaintiff referred to in his affidavits is that he has consequences which affect him in almost every aspect of his social, domestic and recreational life as he knew it prior to suffering the injury to his right shoulder.
52 Whilst the matters deposed to by the plaintiff in his affidavits appear, on the face of the way his affidavits were drawn, to be the result of the impairment of the function of his right shoulder, that is not consistent with the evidence of Dr Muir relevant to the emergence of a Chronic Pain Syndrome and a psychiatric condition with the Chronic Pain Syndrome being predominantly psychologically-based.
PCB 37-39
PCB 68b-68c
PCB 80-81
PCB 62-63
53
Without repeating my analysis of all of the other relevant medical evidence, it is patently obvious that the Chronic Pain Syndrome explains the extent to which the plaintiff says he is disabled. Further, it explains many of the other symptoms of pain in his arm, neck and in his spine which are less likely to be anatomically related to the injury to his right shoulder; except the extent that Dr Muir considered that, for example, a change in the plaintiff's posture due to protecting his right shoulder could result in symptoms elsewhere in the plaintiff’s upper body and spine.
54
The opinion of Dr Muir, when looked at in the light of the opinions of Dr Singh and Dr Strauss, has persuaded me that the plaintiff has a demonstrably severe psychiatric condition which easily meets the statutory test.
55
I should add that I closely observed the plaintiff while he was giving his evidence. He had a morose demeanour through the hearing. He sat with his right arm held closely against his body with his right shoulder dropped markedly when compared with the way he held his left shoulder; that is, he was dramatically tilted to the right-hand-side.
56
Although I think a judge at trial must be cautious in attempting to interpret witness box behaviour in any particular way, it seemed to me that the plaintiff's behaviour and the way in which he gave his evidence was consistent with someone who is severely psychiatrically troubled and consistent with the opinions of Dr Singh and Dr Strauss.
57
The opinion of Dr Strauss that the plaintiff should be considered to be totally and permanently incapacitated is a very strongly worded opinion. I think it is entirely consistent with the plaintiff not only meeting the statutory test for pain and suffering consequences, but also for loss of earning capacity consequences.
58
I should add that whilst I consider the case based upon paragraph (c) to be clear and well demonstrated, I also consider that the case based upon paragraph (a) to be similarly clear and well demonstrated and also consistent with the plaintiff meeting the statutory test for pain and suffering consequences and loss of earning capacity consequences, but it is unnecessary to consider both injuries when one meets the statutory tests, and is sufficient for leave to be granted.
Conclusion
59
On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for the injury giving rise to the pain and suffering consequences and loss of earning capacity which have arisen out of his employment with the defendant.
60
After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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