Kaos v ISS Security
[2017] VCC 379
•5 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-03176
| Michael KAOS | Plaintiff |
| V | |
| ISS Security Pty Ltd | Defendant |
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JUDGE: | His Honour Judge Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2017 | |
DATE OF JUDGMENT: | 5 April 2017 | |
CASE MAY BE CITED AS: | Kaos v ISS Security | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 379 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – pain and suffering conceded - impairment of earning capacity to be determined in respect of– traumatic brain injury resulting in organic and psychiatric impairments
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr WR Middleton QC with Mr C Sidebottom | Zaparas Lawyers |
| For the Defendant | Ms R Annesley QC with Ms R Boyce | Minter Ellison |
HIS HONOUR:
1 In this application the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him in the course of his employment on 26 March 2013.
2 There is no issue that on the above date whilst the plaintiff was employed by the defendant as a loss prevention officer at a supermarket he sustained a significant head injury as the result of a confrontation which occurred between he and a client of the supermarket.
3 Neither is it in issue that the head injury was categorised as being severe or very severe by those managing the plaintiffs initial post injury presentation, and that the plaintiff now presents with the aftermath of a traumatic brain injury.
4 Given the plethora of consequences both physical and psychiatric the defendant has conceded, quite appropriately in my view, that the plaintiff presents with a serious injury as defined by the provisions of the Accident Compensation Act insofar as that definition pertains to the pain and suffering consequences associated with his impairment.
5 In this instance I am called upon to determine whether or not the effect upon the plaintiff of either the compensable:
· organic brain injury: or
· non-organic psychiatric injury:
with which he now presents are such that they gives rise to a loss of a capacity to earn income which meets the statutory threshold fixed by the Act.
6 In the application:
· the plaintiff relies upon two affidavits sworn by him and further affidavits sworn by both his wife and mother;
· the plaintiff gave viva voce evidence consisting mainly of cross examination;
· the plaintiff and the defendant have tendered the content of their respective Court Books which comprise numerous medical reports and correspondence from the plaintiff’s raft of treating doctors; some consulting reports and other tendered documents.
7 The plaintiff was cross-examined efficiently and effectively by Ms Annesley QC who appeared on behalf of the defendant with Ms Boyce for the purpose of testing the evidence relevant to the two issues raised by the defendant namely:
(i) whether the plaintiff has suffered a 40% loss of earning capacity; and
(ii) whether that loss is permanent;
8 I formed the very positive impression of the plaintiff as he gave evidence.
9 There is no issue that the plaintiff has suffered a significant organic brain injury and that in addition he presents with a significant psychiatric injury.
10 Notwithstanding the combined effect of those two conditions which operate upon him in the real world (as distinct from the artificial environment of the analysis which I am required to undertake, which compartmentalises the separate effects of each of those conditions) the plaintiff has returned to work, gradually increased his hours of work and has persisted in work which gives him little satisfaction.
11 I am satisfied in these circumstances that the plaintiff has demonstrated a commendable attitude towards minimising the economic loss associated with his accident, that I should approach my analysis in this instance with that position as a starting point, and that I should be satisfied unless the evidence demonstrates otherwise that the plaintiff is doing his best to work all the hours he is capable of undertaking.
12 Equally, is clear that my finding as to the level of earning capacity lost by reason of each of the plaintiff’s compensable injuries when considered independently of each other, must be based upon both the viva voce evidence and the medical evidence which I find to be persuasive.
13 The affidavit evidence and viva voce evidence are a matters of record and I do not propose to refer to that evidence specifically unless it is necessary to do so to give context to my findings.
14 In cross examination a number of issues were raised as to:
· the accuracy of the plaintiff’s resume;
· the plaintiff’s numerous applications for work as a driver both in part-time and full-time capacity;
· the plaintiff’s selective attitude in identifying suitable fields of employment;
· plaintiff’s failure to challenge the refusal of the taxi directorate to provide him with a license or his failure to reapply for such a license;
15 I am not satisfied that any of the evidence as to these issues has any real relevance to the plaintiffs capacity for employment for the reasons I will develop in the course of this judgement and particularly given my satisfaction that the plaintiff presents with significant organic and psychiatric injuries.
16 In these circumstances I am satisfied that the medical evidence in the case is largely determinative upon the issue as to the plaintiffs retained capacity to generate income.
17 I make that statement in the context of:
· the concession made on behalf of the defendant enclosing submissions that no issue arises as to the plaintiff’s credit; and
· the fact that I am satisfied that the plaintiff’s self-assessment as to his retained ability to be employed in any occupation (for example that of a bus driver) or any rigidity in his thought processes upon the issue as to what might be considered suitable employment for him, must be considered in the context of the thought process of a man presenting with a significant organic and psychiatric impairment.
18 In closing submissions on behalf of the defendant it was put that the plaintiff’s lifestyle which presently involves him in:
· undertaking restricted employment with the defendant on the basis that following a graduated return to work he has demonstrated an ability to increase his weekly working hours to 24 hours per week on the basis of a four-day week;
· providing supervision and care to his young son for three days a week whilst his wife works;
· exercising on a regular basis in gym sessions of between 45 and 60 minutes three or four times a week; and
· engaging in recreational fishing;
demonstrated a capacity in the plaintiff to perform additional hours to those which he currently undertakes in paid employment with the defendant.
19 I am not satisfied that the plaintiff’s capacity:
(i) to exercise in circumstances in which he chooses the activities in which he engages in and the pace at which he performs those activities; or
(ii) to care for his child in the familiar environment of his home where he is able to self-pace given the support available to him by his mother; or
(iii) to engage in his pastime of the fishing:
is determinative in any way upon the issue as to the impact which the plaintiffs working environment has upon his
· organic brain injury: or
· psychiatric injury:
so as to affect his capacity for full-time employment.
20 In my opinion there is a total disconnect between unstructured activities undertaken within a casual and familiar environment and the underlying pressures associated with the performance of activities within a workplace.
21 I am satisfied for the reasons set out below, that the combined effect of the affidavit and viva voce evidence together with the medical evidence establishes that the consequences of the non-organic psychiatric injury suffered by the plaintiff, when considered in the absence of any impact of the organic brain injury with which he presents, is such that;
(i) Firstly, the plaintiffs psychiatric injury is stabilised in so far as it impacts upon his ability to engage in paid employment; and
(ii) Secondly, the effect of the plaintiffs psychiatric injury is such as to largely preclude him from most of the work which has been identified by the defendant as involving suitable employment for him;
(iii) Thirdly, in so far as the plaintiff maintains any potential to work within the fields which have been identified as involving suitable employment for him, that potential is such that it would not generate an income which exceeds the statutory threshold fixed by the Accident Compensation Act:
and accordingly that the plaintiff is entitled to the leave which is sought in this instance.
22 In assessing the evidence as to the effect of the plaintiffs psychiatric injury upon his capacity for employment I am satisfied that the plaintiffs treating doctors who have had the opportunity to assess the plaintiffs presentation on numerous occasions as it evolved through the years are in a far better position to opine upon the issue than the consultants employed to assess the plaintiff either by his solicitors or the defendant solicitors. For this reason I am satisfied that unless there is a good reason not to do so I should give primacy to the opinions expressed by the plaintiffs treating doctors.
23 The medico legal consultants, with the exception of Prof Crowe, have for the most part have the opportunity of assessing the plaintiff only on one occasion. Given the complexity of the plaintiff’s presentation with both organic and non-organic symptoms and the continuing evolution of his recovery, it is beyond argument that the plaintiffs treating medical practitioners are best placed in the circumstances of this case to opine as to the issues which arise for my determination.
24 Notwithstanding that comment I do not ignore the consulting evidence in the case and give it appropriate weight where I am satisfied the opinion expressed is persuasive.
25 As to Prof Crowe the defendant urges me to adopt a selective approach to his evidence namely that I should:
(i) rely upon his earlier reports:
(ii) largely ignore his most recent report which was undertaken in circumstances in which the defendant chose to brief Prof Crowe to provide an opinion on the basis of material selected for his consideration by the defendant but not to require the plaintiff to attend for a further examination by Prof Crowe.
26 It is put that in these circumstances that the most recent report of Prof Crowe lacks persuasion. I find this position taken by the defendant to lack any substance.
27 In my opinion the simple question namely, why did the defendant choose to employ the briefing process which it did in commissioning the most recent report from Prof Crowe if it considered that the circumstances in which it briefed him were such that he would not be able to opine with any authority on the plaintiffs presentation, reveals the total fragility of the defendant’s position.
28 It is clear that many of the conclusions of Prof Crowe in his most recent report largely support the plaintiff’s position as to the severity of the impact of his psychiatric injury upon his inability to work and are of no assistance to the defendant’s case.
29 Whilst I accept that it might be said that some reduced weight should be given to those conclusions in circumstances in which they were expressed in the absence of an up-to-date examination, I am equally satisfied that it was open to Prof Crowe to express any disquiet which he had about opining in the absence of an up-to-date report and he had a duty to do so given his obligation to the court as an expert witness. I presume he chose not to do so because he was satisfied that the material with which he was provided was sufficient to enable him to opine without qualification in this instance.
30 It smacks of the presence of an attitude of inappropriate selectivity on behalf of the defendant to urge me to to ignore a report commissioned by it, which was generated in circumstances dictated by it which, as it turns out, assists the plaintiff.
31 I propose to structure my analysis of the plaintiffs retained capacity for employment and ability to generate income by undertaking an analysis of the five occupations identified by the author of the Co-Work report commissioned by the defendant at DCB 43 namely:
· Truck driver;
· Gatehouse security officer;
· Uber driver;
· Personal trainer\fitness instructor; and
· Aquaculture worker;
32 In undertaking that analysis I propose to do so firstly by considering the effect of the plaintiff’s non-organic psychiatric injury upon his capacity for work and accordingly his capacity to generate income.
Finding as to extent of stabilised capacity for work associated with the plaintiff’s non-organic psychiatric injury.
33 For the reasons which will become apparent in my discussion below when I refer to the medical evidence specifically, I am satisfied given;
(i) the period which has elapsed since his injury; and
(ii) the medical opinions expressed by those practitioners who have commented upon the plaintiff’s capacity for employment based upon the effect of his psychiatric injury alone;
that the plaintiffs capacity for suitable employment has stabilised at 25 hours per week.
Finding as to figure which most fairly reflects the plaintiffs earning capacity but for his injury
34 There is no issue that but for the intervention of the plaintiffs injury on 26 March 2013 his gross income during that financial year would have been $66,779 gross or $1294 gross per week.
35 Equally it is not in issue that the plaintiff was prepared to work overtime, that he was working on a full-time basis with the defendant and was supplementing his income is a truck driver.
36 Whilst the latter activity provided him with marginally less than $2000 in income during the financial year in which he was injured, the plaintiff’s part-time work as a truck driver never-the-less attests to his hard-working nature and his attitude to maximise his income. That attitude is further attested to by the significant earnings made by the plaintiff as a truck driver in the year before his accident when the nexus between his security work and his driving were balanced differently which clearly caused him to focus more significantly on the latter work.
37 I am satisfied in the circumstances that, in the absence of the intervention of his injury, the plaintiff would have continued to seek to maximise his income and that it is likely that his income would have continued to increase in the relevant years following his accident.
38 The plaintiff was at the time of his injury employed as a Certificate III in security. The report of Ms Bryant at DCB 43 attests to the fact that as at August 2015 the average weekly earnings gross of a person holding a Certificate III in security was $1491 per week.
39 Given the plaintiff’s evidence that he intended to continue in his employment as a security officer and to further its qualifications I am satisfied that I should employ the wage available to a person holding the Certificate III in Security as at August 2015 as identified by Miss Bryant as the wage which should be applied in accordance with the provisions of the Act in fixing the plaintiff’s without injury earnings in this instance.
40 It follows that the threshold figure in this instance is $894.60.
Analysis as to fields of suitable employment for the plaintiff on the basis of the effect of the plaintiff’s psychiatric injury alone
41 Associate Prof Mark Walterfang is a consultant psychiatrist and neuropsychiatrist who has provided numerous reports as to the plaintiff’s presentation and progress.
42 In my opinion he is in a position to definitively speak as to the effect which the accident has had upon the plaintiffs retained capacity for employment, taking into account the effect of his psychiatric injury alone.
Gatehouse Security Officer
43 Upon first assessing the plaintiff in September 2014 associate Prof Walterfang described the plaintiff as presenting with significant post-traumatic symptoms which met the diagnostic criteria of post-dramatic stress disorder.
44 In a report dated September 2015 he opined that the plaintiffs realistic employment opportunities were necessarily curtailed in the open market commenting that any role which placed him in a situation of perceived threat was likely to re-sensitise his anxiety and further that his ongoing anxiety symptoms resulted in reductions in his attention, concentration and management of divided attention and working memory.
45 In that report (PCB 140) Associate Prof Walterfang opined that it was unlikely that the plaintiff would be fit to tolerate a security role given the inherent threat detection and deterrence-based nature of that work. In his subsequent reports he did not in any way move away from that position.
46 In his report dated 28 March 2017 Prof Walterfang opined that the plaintiff was not fit to undertake work as a Gatehouse security officer commenting that the type of role was an absolute contraindication for the rest of the plaintiffs working career having regard to his psychiatric situation.
47 The position of Associate Prof Walterfang was supported by Prof Simon Crowe a consultant neuropsychologist in his report dated 3 July 2016 who commented:
”on the basis of Mr Kaos’ significant psychological overlay, I think would be difficult for him to be able to take up the work of a security guard again given his significant psychological sensitisation to threat associated with post-dramatic-stress-disorder.”
“I think it would be difficult for him to return to the role of a Gatehouse security officer due to the problems associated with the significant effect of his post-traumatic stress disorder.”
“ …. I do note … that interaction with the public would continue to be a significant difficulty for him and roles that did not involve extensive interaction with the public, on the basis of his significant emotional response to the injury, may be more appropriate and prudent in the context of those constraints.”
48 In my view these two opinions are supported by that expressed by Prof Dougherty a consulting psychiatrist, who in his report questioned on psychiatric grounds the plaintiff’s fitness to undertake the role of Gatehouse Security and commented that such employment would only be suitable in selected workplaces where threat and confrontation was unlikely.
49 In my view, notwithstanding the fortunate position in which the plaintiff found himself in which he was able to cope with the duties of a Gatehouse Security operator in a quiet environment following his accident, such a rider is that impose by Prof Doherty to employment as a Gatehouse Security keeper in the open workplace would operate to make the plaintiff such a poor employment prospect as to render him unemployable in such a capacity.
50 I am satisfied that the combination of the above medical assessments provide comprehensive support for the position that the proposed occupation of Gatehouse security officer is permanently precluded to the plaintiff by reason of his psychiatric injury.
Personal trainer/ fitness advisor
51 When the statement to which I have referred to above by Prof Crowe as to the difficulty of the plaintiff being involved in roles which involve his interaction with the public is considered in the context of the opinion of associate Prof Walterfang of 29 March 2017 namely that:
“cognitive fatigue as the result of his psychiatric syndrome”
would impact upon his ability to work as a personal trainer.
in the same report Associate Prof Walterfang commented
“from a pure psychiatric point of view, if he has an appropriate role, then Mr Kaos would be able to manage a maximum of 25 hours per week. The key limitations to him working more hours than this are the ongoing fatigue and cognitive low secondary to persistent hypervigilance as part of his post-traumatic syndrome. These limitations will be ongoing”.
52 I accept these statements by associate Prof Walterfang and I am satisfied that the plaintiffs psychiatric injury operates such as to probably preclude the plaintiff from employment as a personal trainer but at best that it may allow him to undertake such employment on a part-time basis for a maximum of some 25 hours a week, for the reasons I will further elaborate upon in due course.
53 Is clear that employment as a personal trainer for 25 hours a week, would not generate an income which exceeds the statutory threshold in respect of post injury earning capacity fixed by the Act.
Uber driver
54 A recurring feature in each of the medical reports relevant to the psychiatric injury with which the plaintiff presents details the problems faced by the plaintiff in dealing with members of the public:
· Dr Baglar March 2017 commented:
“Michael is not suitable to deal with the public directly his impatience and suspiciousness can leave him and his employer in embarrassing situations”
and further
“Michael to drive in a commercial capacity is an invitation for a disaster. If this fact is not taken into consideration, one day he may unwillingly cause an irreversible harm to somebody or some people”
· Associate Prof Walterfang in his report in March 2017 commented:
“The Co-Work report also requires a significant degree of concentration and attention, both of which are compromised by his ongoing fatigue and psychiatric syndrome. Additionally, Mr Kaos’ anxiety is likely to be significantly sensitised and/or triggered by public facing roles as outlined in my previous report. He is likely to struggle significantly with continuous regular daily contact with strangers and is likely to suffer from significant hypervigilance, anxiety impaired concentration and avoidance as a result”
· Prof Crowe in his report dated 3 July 2016 opined:
“interaction with the public would continue to be a significant difficulty for him and roles that did not involve extensive interaction with the public on the basis of his significant emotional response to the injury may be more appropriate and prudent in the context of those constraints”
I am satisfied that this evidence precludes the plaintiffs employment as an Uber driver on a permanent or part-time basis on the grounds of the impact upon him of his psychiatric injury alone particularly when the medical evidence is considered in circumstances of the plaintiff’s well-documented heightened concern as to his own safety.
Truck driver
55 It is clear that as at March 2017 Associate Prof Walterfang has opined that:
· the effect which the plaintiffs ongoing anxiety and hypervigilance has upon his attention; when combined with
· the effect of the psychotropic medication which the plaintiff takes
operate so as to preclude the plaintiff from working as a truck driver on a consistent and reliable basis.
56 Whilst the defendant points to the position taken by Associate Prof Walterfang in February 2016 when reporting to Dr Sandra Farquharson that employment within the transport industry was not contraindicated on psychiatric grounds, I am satisfied that Associate Prof Walterfang’s current and considered position upon that issue is that set out in his most recent report.
57 In his report of March 2017 the plaintiff’s treating general practitioner Dr Baglar commented that the plaintiff was not fit for any vocational activity requiring constant attention, concentration and vigilance. In my opinion it goes without saying that the driving of a truck falls into that category.
58 Whilst in expressing that opinion Dr Baglar did not differentiate between the organic or psychiatric injury with which the plaintiff presents it is clear from the evidence of the plaintiff’s treating psychiatrist to which I have earlier referred that his psychiatric injury impacts upon the plaintiff’s “attention capacity” and I am satisfied that I should interpret the statement to a job referred by Dr Baglar to apply equally to both the organic injury and the psychiatric injury with which the plaintiff presents.
59 Whilst the defendant seizes upon the persistence of the plaintiff in identifying the work of a driver as being suitable for him and his attempt to persuade the licensing authorities to provide him with a licence restricted or otherwise for that work as indicating a capacity for that type of work. Whilst I find the plaintiffs perseverance to be admirable and to attest to his genuine wish to minimise the impact of his injuries upon his earning capacity, I attach no weight to the plaintiffs subjective assessment of his psychiatric injury upon his capacity for work in so far as that assessment is contradicted by the expert medical opinions of those managing him.
60 For these reasons, I am satisfied that the plaintiff is precluded from engaging in the occupation of the truck driver either on a part-time or full-time basis solely by reason of the effect of his psychiatric injury.
Aquaculture worker
61 The defendant no longer persists with the position that this employment gives rise to suitable employment for the plaintiff. Even if it did so, in regard to my findings which I will now go to, as to the stabilised capacity for weekly employment, it would not generate an income which exceeded the statutory threshold.
Finding as to the plaintiffs stabilised capacity for weekly employment
62 In his report dated 14 October 2016 associate Prof Walterfang commented with regards to his psychiatric injury alone:
“as with regards to his psychiatric injury. … I believe he has the capacity for part-time work only at this stage, and I expect that he would be unlikely to be able to tolerate more than 25 hours of work per week”
in the course of that report associate Prof Walterfang when description that the restriction imposed upon the plaintiff by his psychiatric condition employed words such as “long-term” and “likely to be enduring” in describing that restriction, each of which describe the presence of permanence.
63 In his report of 28 March 2017 Associate Prof Walterfang opined:
“with regards to his work capacity from a purely psychiatric point of view, if he has an appropriate role, then Mr Kaos would be able to manage a maximum of 25 hours per week. The key limitations to him working more hours than this are ongoing fatigue, and a cognitive low secondary to persistent hypervigilance as part of his post traumatic syndrome. These limitations will be ongoing.”
“I do not believe that occupational rehabilitation nor retraining would significantly improve his fatigue or concentration as these are enduring sequale of his acquired brain injury and his ongoing post traumatic syndrome. I do not believe that he will ever be able to return to full-time work, as a result of the sequale of his traumatic brain injury and psychiatric syndrome”
I interpret this latter comment by Associate Prof Walterfang as being a recognition that the plaintiff’s organic injuries and psychiatric injuries when considered independently of each other, each result in a limitation of the plaintiff’s capacity for work of 25 hours per week. In doing so I rely upon the consistency of that finding and the statement made by Associate Prof Walterfang in paragraph 6 of his report at PCB 143.
64 Further, I am satisfied that the opinion expressed by Associate Prof Walterfang as to the plaintiffs current capacity for employment related activity is expressed on the basis that that capacity is stabilised insofar as the plaintiffs psychiatric syndrome impacts upon the plaintiff’s capacity for employment generally.
65 My finding as to this position is further supported by the comments made by Dr Adlard a psychiatrist who in his report dated January 2016 to Alliance Australia Workers Compensation Limited, opined that the plaintiff presented with a post-traumatic stress disorder which prevented him from undertaking his pre- injury duties, gave rise to a capacity of 24 hours per week in alternative duties and that his impairment had stabilised.
66 I do not accept the position put on behalf of the defendant that the nebulous comment by Associate Prof Walterfang to Dr Farquharson in his report to her of 20 February 2017 to the effect:
“For the time being I feel it is appropriate to continue his medication as current, and will continue with 20mg Lexapro. I will review him again in April when hopefully his legal issues will have drawn to a close, and my sense is that this will be a significant relief to Michael and allow him to start to move forward beyond his capacity to do so currently”
can be taken necessarily to refer to the prospect of any alteration in the plaintiffs capacity or tolerance for work related activity or that this statement either:
(i) casts doubt upon; or
(ii) should be of preferred to
the specific opinion expressed by Associate Prof Walterfang on that issue in his report of 28 March 2017.
67 The latter opinion was clearly generated in response to a request that Associate Prof Walterfang specifically turn his mind to the capacity of the plaintiff to engage in the fields of employment identified by Co-Work and provide his considered opinion as to those activities.
68 There can be no doubt that a in those circumstances Associate Prof Walterfang was unequivocal in expressing his opinion that from a pure psychiatric analysis the plaintiffs limitations would be ongoing and would restrict him to working a maximum of 25 hours per week and I am satisfied that he is appropriately placed to express an opinion on that issue given his long-standing relationship with the plaintiff. For this reason I prefer the opinion expressed by Associate Prof Walterfang on this issue to that expressed by Associate Prof Doherty who has examined the plaintiff on only one occasion
Conclusion
69 Being satisfied that the effect of the plaintiff’s psychiatric injury is such as occasion upon the plaintiff a loss of earning capacity which meets the statutory threshold there is no reason for me to undertake an analysis as to the effect of the plaintiff’s organic brain injury upon that issue.
70 If for some reason the parties consider it appropriate that I do so I will reserve to them liberty to be heard upon that issue. That liberty is to be exercised within 14 days.
71 For the reasons set out above I am satisfied that the plaintiff is entitled to the leave which he seeks in this instance and I will hear the parties as to the form of the order which should be made in this instance and also upon the issue of costs.
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