Kere v Nancarrow
[2013] VCC 2045
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00046
| PATRICK DAVID KERE | Plaintiff |
| v | |
| GREGORY N NANCARROW | First Defendant |
| and | |
| DEBORAH C NANCARROW | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 October 2013 | |
DATE OF JUDGMENT: | 19 December 2013 | |
CASE MAY BE CITED AS: | Kere v Nancarrow & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2045 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraphs (a) and (c) of definition of “serious injury” – concession that plaintiff is entitled to bring common-law proceedings for “pain and suffering” damages in relation to paragraph (c) injury, dispute as to whether the plaintiff is entitled to have leave to bring common-law proceedings “pecuniary loss damages” for paragraph (c) injury – whether plaintiff is entitled to have leave to bring common-law proceedings for “pain and suffering damages” and “pecuniary loss damages” in relation to paragraph (a) injury. Plaintiff suffered compensable injury with defendants but such “injury” aggravated in subsequent employment with different employer.
Legislation Cited: Accident Compensation Act 1985; Transport Accident Act 1986
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Kelso v Tatiara Meat Co Pty Ltd (2007) VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Altona Bus Lines v Lococo [2002] VSCA 159; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Alcoa of Australia Ltd v McKenna (2003) 8 VR 452
Judgment: Leave to the plaintiff to bring common-law proceedings for “pain and suffering damages” in respect of the psychiatric injury arising out of or in the course of his employment with the defendants. Application in relation to “pecuniary loss damages” is dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC with Mr S Carson | Maurice Blackburn |
| For the Defendants | Mr A Middleton | Hall & Wilcox |
HIS HONOUR:
Introduction
1 By way of Originating Motion filed on 9 January 2012, Mr Patrick Kere (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common-law proceedings to recover damages for personal injury arising out of or in the course of his employment with Gregory N and Deborah C Nancarrow (“the defendants”).
2 It is alleged by the plaintiff that, during the course of his employment with the defendants, in or about mid-2003, he commenced to experience pain in his hip and groin areas when lifting and manoeuvring large steel 44-gallon drums. In particular, such pain became “significant” after he tried to catch a drum that was falling on him. At that time, he also felt a sharp pain in the neck and left shoulder area and also in his lower abdomen, groin and inner hip area.
3 After various types of treatment, he was eventually diagnosed in November 2003 with a right inguinal hernia, for which he underwent surgery on 23 February 2005. The plaintiff alleges that the anaesthetic which was administered to him physically paralysed him but he remained awake and was fully aware of what was happening to him. As a result of this incident, he suffered a psychiatric reaction, which I shall refer to as the “surgery incident”.
4 As a result of the surgery incident, the plaintiff developed what has been variously referred to as anxiety and depression and/or Post-Traumatic Stress Disorder (“the psychiatric injury”).
5 It is also alleged by the plaintiff that as a result of his employment, he has suffered a variety of other organic injuries, but in particular the “spine” (“the organic injury”).
6 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of the psychiatric injury and/or the organic injury.
7 The plaintiff, his current treating psychiatrist, Dr Robert Kruk, and the treating general practitioner, Dr Frank Imeneo, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the psychiatric injury” and/or “the organic injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
9 The plaintiff relies on paragraph (a) and paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act.
Those paragraphs read:
“… serious injury means –
(a) permanent serious impairment or loss of a body function
(b) …
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
10 The part of the body said to be impaired for the purposes of paragraph (a) is the spine. The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is said to be anxiety and depression and/or Post-Traumatic Stress Disorder.
11 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)“the organic injury” and “the psychiatric injury” were each suffered arising our of or in the course of, or due to the nature of his employment with the defendants on or after 20 October 1999;[3]
(b)“the organic injury” and “the psychiatric injury” with their respective impairments, must be “permanent” – that is, permanent in the sense that they are “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of the “organic injury” in relation to “pain and suffering” and “pecuniary loss” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked and as being at least “very considerable”;[5]
(d)“the consequences” to the plaintiff of “the psychiatric injury” in relation to “pain and suffering” or “pecuniary loss” must be “severe” – that is, when judged by comparison with other cases in the range of possible mental or behavioural disorders as the case may be, be fairly described as being more than “serious” to the extent of being “severe”;
(e)notes that s134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who suffers the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[6]
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) of the Act
[6]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454
12 The tests for “serious” and “severe” are sometimes referred to as the “narrative test”.
13 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:
(a)that as at the date of hearing, a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[8] and
(b)that after the date of hearing, the plaintiff will continue permanently to have a loss of earning capacity which will productive of a financial loss of 40 per cent or more.[9]
[7]See s134AB(19)(b) and (38)(e) of the Act
[8]See s134AB(38)(e)(i) of the Act
[9]See s134AB(38)(e)(ii) of the Act
14 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the organic injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of the “psychiatric injury” within the meaning of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of a “serious injury” at the time that the application is heard;[11]
(c)must give reasons that disclose the pathway of reasoning dealing with the evidence and the issues raised by the application;
(d)noted that it has been observed that the question of whether “the injury” satisfies the relevant narrative test is largely a question of impression and value judgment.[12]
[10]See s134AB(38)(h) of the Act
[11]See s134AB(38)(j) of the Act
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) VR 592 at 628 and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
15 When queried as to what were the issues in dispute, counsel for the defendants stated:
(a)There was no issue that the plaintiff suffered a “psychiatric injury” during the course of his employment which was a “serious injury” within the meaning of paragraph (c) of the definition of “serious injury”. The defendants conceded that the plaintiff was entitled to leave to bring common-law proceedings for “pain and suffering damages” in relation to the psychiatric injury. However, and importantly, the defendants asserted that on the material before the Court, the plaintiff could not discharge his onus in establishing the additional requirements to entitle him to be given leave to bring proceedings for “pecuniary loss damages” in relation to the psychiatric injury.
(b)Furthermore, to the extent that the plaintiff relied on the “organic injury”, the defendants emphatically denied that such an injury was a “serious injury” within the meaning of paragraph of (a) of the definition of “serious injury”.[13]
[13]See generally Transcript (“T”) 16, L11 – T 17, L31
The evidence of the Plaintiff
16 The plaintiff adopted his affidavits sworn 8 July 2011[14] (“the first affidavit”) and on 6 May 2013[15] (“the second affidavit”) to be “true and correct”.[16]
[14]See Exhibit A at pages 8 – 14, Plaintiff’s Court Book (“PCB”)
[15]See Exhibit A at pages 14A – 14E, PCB
[16]T23, L19-20
17 By way of the first affidavit, the plaintiff gave the following pertinent evidence:
·He is fifty-three years old, having been born in November 1960.
·He was born in New Zealand and after completing his schooling, worked as a storeman and a driver before migrating to Australia in 1984 when aged twenty-three years.
·When in Australia, he worked in various jobs including truck driving, forklift driving, steel fixing, horse training and work as a personal care assistant with the intellectually disabled.
·He commenced employment with the defendants[17] on 11 December 2002 and was also holding down concurrent employment as a personal care assistant.
[17]The defendants traded as Drum Masta
·He describes his work at Drum Masta involving him:
“In recycling, handling, cleaning and stacking approximately 200 drums per day. These were large steel 44-gallon drums. It was heavy and hard work. I was initially able to cope with the work but by mid-2003 I was experiencing difficulties at work with pain associated with my duties.”[18]
[18]See Exhibit A at page 10 PCB
·He commenced to experience hip and groin pain when lifting drums at work and in particular, recalls this commencing as a “significant problem” after he “tried to catch a drum that was falling on me”.
·He describes that the drums were stacked three high, and one drum had started to fall and he recalls feeling sharp pain in the neck and left shoulder area and also in his lower abdomen, groin and inner hip area.
·He kept working but the pain became an increasing problem over time and he commenced to take over-the-counter painkillers and/or anti-inflammatory tablets. Although these tablets gave some relief, the pain still seemed to be “getting worse”.
·He consulted Dr Cuthbertson on 11 August 2003 and on or about 14 August 2003, he ceased work with Drum Masta because of his pain and restrictions. He underwent various scans and commenced physiotherapy with no improvement. He remained off work and in November 2003, was diagnosed as suffering a right inguinal hernia.
·He had considerable pain and restriction due to the hernia, and on 22 February 2005, he attended Dr Cuthbertson in “severe pain” and at that time, there was a bulge in the right groin area.
·Dr Cuthbertson referred him to the Emergency Department at the Frankston Hospital and he underwent surgery at that hospital on 23 February 2005.
·In particular, he states:
“The surgery went horribly wrong. I was physically paralysed by the anaesthetic but remained awake and fully aware of what was happening to me. I felt that I was unable to breathe. Things became very confusing and I was overcome by a sense of panic. I also felt a sense of falling into a deep pit or hole. I felt sure I was going to die. I can only describe the experience as horrifying and still find it very hard to fully express or explain what the experience was like. I let the anaesthetist know with every bit of strength. I said ‘I can’t breathe’ twice. I said this to him then he push (sic) me into the main theatre then I black out.”[19]
[19]Exhibit A, paragraph 12 of the first affidavit, PCB 11
·After the surgery, he was treated with trauma counselling at the hospital and later treated at Pine Lodge, all of which did not help him much. He was aware that he was not dealing with things “at all well” and that he became angry and abusive, leading up to him being homeless and later found by the Salvation Army wondering around Frankston asking for food and help.
·In June 2005, he commenced to have treatment with a “psychiatrist”, Dr Imeneo.[20]
[20]Later evidence establishes that Dr Imeneo is a general practitioner with an interest in psychiatric injuries
·In July 2004, he took up “crisis accommodation” as he was having trouble dealing with the most day-to-day matters, and also commenced counselling with Mr Richard Hall around July 2005.
·In January 2006, he “tried to get back to work” and commenced as a personal care assistant support worker at a rooming house.
·He was able to cope with the work “but only just” and was “struggling with my own mental wellbeing while trying to be a support to others”.[21]
[21]See Exhibit A, the first paragraph at PCB 12
·In January 2009, he was assaulted at this work and later ceased that employment in or about March 2009, and has not worked since March 2009.
·In June 2009, he commenced consulting a psychologist, Ms Elin Schwab, who he continues to see, together with Dr Imeneo.
·Beyond his treating medical professionals, he has a support worker from an organisation known as “Mind Australia”, who helps him pay his bills and dealing with various day-to-day matters.
·He takes a number of medications, including Zyprexa, Topamax, Valium, Celebrex, Cymbalta, Deralin, Pariet and Crestor.
·He also continues to experience quite sharp pain in the neck and in the left shoulder area. In particular, he states:
“I do not have a full range of movement of the neck. Sometimes this pain flares to the extent I can’t do much at all for anything from a few hours to sometimes a day or so. The pain is always present at least at a base level and can flare up with activity or movement but also flare up for no obvious reason at all. I also continue to have lower abdominal pain but do not feel that I will have any swelling in the area of the hernia.”[22]
·He describes his most significant problem to be his “mental state” and has assistance with hygiene, domestic chores, shopping and help with things such as attending scheduled medical appointments or appointments with his legal representatives. He states that he feels “helpless, unable to cope much of the time”.
·He no longer feels a confident person and always feels under pressure and difficulty explaining what happened to him. He often feels a sense of panic in such situations and sometimes will sit alone and not get up for hours at a time. He feels that he drifts out of or away from reality when he is like this.
·His sleep is not good and he sometimes wakes up in a sweat with a feeling of panic and has nightmares which usually involve him falling. He sometimes wakes up screaming. Because he rarely gets a good night’s sleep, he feels tired much of the time.
·He worried about his future and cannot think of what sort of job he could now cope with.
[22]Exhibit A, first affidavit at page PCB 13
18 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
·He has not worked since swearing his previous affidavit.
·His physical and mental states have remained “very much as it was” when he swore his first affidavit.
·His general health has not been good either, having two episodes in 2011 when his right knee gave way and, on one occasion, he fractured his ribs. Furthermore, he contracted pneumonia during 2011 and required treatment twice at the Frankston Hospital.
·He has ongoing pain in his upper back and neck and this “flares up frequently”. Lifting, bending and twisting movements are the “worst” and when the pain builds up he finds the best thing to do is lie down flat which causes the pain to reduce gradually. He also continues to have lower abdominal pain.
·His sleep is not good and pain keeps him from going to sleep and wakes him up.
·His “most significant problem” is his mental state and he continues to be assisted with things such as hygiene, domestic chores, payment of bills and shopping. He consults with a social worker, Ms Andrea Atkinson, every week and sometimes more often when he is going through a particularly “bad patch”.
·He took his father’s remains to New Zealand in October 2012 and after flying to New Zealand he became confused and lost.
·He can and does sometimes still drive but tends to get himself worked up to a state of anxiety then he feels that he is incapable of driving.
·He feels depressed all the time and at least a couple of days a week, the depression really “gets to me”. He also frequently feels a “great degree of anxiety” and does not like meeting or dealing with others and does not like being in a crowd. In those circumstances he becomes “agitated and nervous”.
·Through the Mental Illness Fellowship of Victoria, he attended some short courses in areas such as nutrition, personal wellbeing and lifestyle.
·He continues to be treated by a psychologist, Ms Elin Schwab, on a fortnightly basis, a psychiatrist, Dr Kruk, every couple of months and also his general practitioner, Dr Imeneo, on a fortnightly basis. He also attends Dr Marngalika Menuidasa, who focuses on his physical health and pain management on a needs basis.
·He continues to take the following medication: Zyprexa, 10 milligrams daily; Xanax, 0.25 milligrams twice each day; Valium, 5-milligram tablet daily; Celebrex, 200 milligrams daily; Cymbalta, 60 milligrams of a morning; Deralin, 40 milligrams three times each day; Pariet, 20 milligrams daily; Crestor, 10 milligrams daily; and Norspan patches, only occasionally.
·He also asserts that he had a previous period of counselling dating back to about 1996 and 1997, at which time he had been stabbed in the chest as the victim of a home invasion and suffered damage to his aorta. In particular, he states:
“This was obviously quite traumatic for me and I had some counselling for nightmares and flash backs that I was experiencing over the incident. I had about 14 months off work at that time before coming back to work as a steel fixer and then later in finding employment with Drum Masta in later 2002.”[23]
[23]See Exhibit A, second affidavit at PCB 14E
19 The plaintiff also relies on an affidavit from Andrea Atkinson sworn 1 October 2013.[24] Ms Atkinson is employed by the Mental Illness Fellowship of Victoria and describes herself as the plaintiff’s mental health worker, a position that she has been in for approximately two years.
[24]See Exhibit A at PCB 14F-14H
20 In particular, she describes that the plaintiff lives alone and she assists him with paying his rent, bills, attending medical appointments and coordinating his medication needs. Furthermore, she describes her work as being as a “form of advocate” for the plaintiff and speaking to people that he has to deal with in order to explain the plaintiff’s mental and cognitive issues. In particular she states:
“I do not believe that the plaintiff would be able to adequately or safely monitor and administer his medication without my assistance. I also assist the plaintiff with dealing with his social isolation … .”[25]
[25]See Exhibit A at PCB 14G
The cross-examination of the Plaintiff
21 Under cross-examination, the plaintiff gave evidence that he had worked as a personal care attendant for approximately two years prior to commencing employment with the defendants in 2002. Furthermore, when then working as a carer, he had completed part of a qualification to be a carer. When working as a carer after his employment with the defendants, he completed the qualification.
22 The plaintiff confirmed that in 1996, he was living with a partner at that time when an intruder broke into his house and the plaintiff received stab wounds, one of which severed part of his aorta. He was treated at the Frankston Hospital, at which time he received some type of counselling, which he thinks was form a psychologist, which extended for probably “weeks” rather than months. I shall refer to these events as “the stabbing incident”.
23 When queried as to whether he had continued to “suffer from time to time” as a result of the stabbing incident, the plaintiff responded that he had no flashbacks at all and did not have any post-traumatic stress because of that incident.
24 He could not recall whether or not he had been referred to a psychiatrist, nor could he recall having a general practitioner who he regularly attended at that time.
25 Prior to his employment with the defendants, he was a personal carer at Woollahra, Dandenong, but felt he needed a change in job to earn more money so he could complete his caring qualification at the Frankston TAFE.
26 When he commenced with the defendants in 2002, he was taking no medication in relation to the stabbing incident. Furthermore, he recalled that he only attended the doctor on two follow-up occasions in relation to his damaged aorta in 1996.
27 Under cross-examination, the plaintiff accepted that prior to February 2005, he had been able to push back the lump in his groin, but as at February 2005, he was unable to reduce the swelling and that led to the operation at the Frankston Hospital. The plaintiff also confirmed that after hurting himself and ceasing work with the defendants, he did not return to any type of work with the defendants. It was suggested to the plaintiff that Dr Cuthbertson, his treating general practitioner, and Ms Elin Schwab, his treating psychologist, encouraged him in late 2005 or early 2006, to find work within his physical capabilities. In particular, the following evidence was given:
Q:“And did they encourage you in late 2005, early 2006, to find work that was within your physical capabilities, but in an area that you’ve worked in, in the past, that of being a personal carer?---
A:Um, I was offered a job because people knew that I could work with people like that, and they - I did some voluntary work, um, when I was working with Woollahra, and they found out about the type of work I did, and I was asked to - to put my name down for the job with Sacred Heart.”[26]
[26]T34, L5-12
28 The plaintiff confirmed that he commenced at Sacred Heart Mission in January 2006 and got the job because he was approached by Ms Natalie Parkes, who works for the Salvation Army, who controls the Sacred Heart Mission. The plaintiff explained that he was doing some voluntary work as a carer in Frankston when Ms Parkes suggested that there was a position at the Sacred Heart Mission as a personal carer and which he ultimately accepted.
29 In particular, the following evidence was given:
Q:“And did you discuss that with Dr Imeneo and Elin Schwab?---
A:No, I did not, not at the time.
Q:Right. So, you just took the job - or you went to see them about the job, that’s the Sacred Heart Mission?---
A:Yes.
Q:Where was it, where was the work to be done?---
A:Queens Road and Lorne Street in Melbourne - Albert Park Lake.
Q:And at the time did you have a car, did you - - - ?---
A:Yes, I did have a car.
Q:Right. And the job, what did it involve?---
A:It involved just mentoring people about, um, lifestyle, um, living skills and just basically talking to them and then just being a mentor, situation.
Q:And the clients you were dealing with, what background, did they have psychological difficulties, or physical difficulties, or what?---
A:Yes, they did, sir.
Q:What, both?---
A:They had both, and many other things.
Q:Might be, what, drug impaired, or - - - ?---
A:Yes, all that, or alcohol - - -
Q:Or alcohol, anything like that?---
A:Yes, all - - -
Q:Bipolar, schizophrenia, all those sorts of conditions?---
A:Yes, sir, yes.
Q:And were you encouraged, or did you do it of your own volition, study to get the next qualification for the certificate that you attained about - - - ?---
A: was asked to complete my, um, the - level - it was - - -
Q:Four, was it?---
A:Certificate 4 in Mental Health and Drugs and Alcohol.
Q:Right. And where did you do that course?---
A:At Sacred Heart.
Q:Right. And what was involved in that course?---
A:It was just basically learning and on-job training.
Q:Right. And you eventually got that certificate?---
A:Yes, I did.
Q:And I presume you were working while you were doing it?---
A:I was - I wasn’t - - -
Q:As well as doing the certificate?---
A:I wasn’t well working, but I was working.
Q:Yes. And when you started there in January 2006, how many days a week would you work?---
A:Approximately five, but sometimes six.
Q:And - - - ?---
A:And it was full part-time work.
Q:Full part-time work?---
A:Yes.”[27]
[27]T35, L10 – T36, L18
30 When queried about the actual hours he did work, the plaintiff described that basically he was doing the “sleep over” which would start at 5.00pm in the afternoon and continue to ten o’clock and then a sleep over until seven o’clock the next morning and then he would be home by ten o'clock in the morning.
31 When queried as to whether his duties changed over the time that he was working for the Sacred Heart Mission, the plaintiff stated:
“It changed all - it was changing all the time because I wasn’t well at times so they would change the hours around for me, so some staff members were complaining about my work wasn’t up to speed because I was stargazing.”[28]
[28]T37, L14-18
32 The plaintiff accepted that most of the time he was working for the Sacred Heart Mission he was on night duty but he was called in to perform day work as well. He estimated approximately 70 to 75 people lived at the premises and during the night duty there were up to three staff members available at the premises. The plaintiff commented that because he “never slept well”, he was always up during the night and although there were some incidents during the night, his difficulty getting to sleep was due to his inability rather than being disturbed by incidents.
33 In particular, the plaintiff gave evidence that sometimes clients would lose their keys and it was necessary to respond to a buzzer to let them into the building and on occasion there were “major incidents” which required appropriate authorities to be notified.
34 The plaintiff accepted that “at times” he would work two shifts over a 24-hour period and he further accepted that he was a very conscientious worker and took pride in his work.
35 When queried under cross-examination about a series of events towards the end of his employment with the Sacred Heart Mission, the following evidence was given:
Q:“You had a number of episodes of assaults and verbal abuse towards the end of 2008 and early 2009, is that correct?---
A:There were verbal attacks on all the staff, I wasn't the only one.
Q:No, but you did have occasions where you have verbal abuse on an occasion, physical threats and - - -?---
A:On one or two occasions, I did, yes.
Q:And you became concerned at times for your safety?---
A:Yes, once I did because he made a threat.
Q:In early 2009, Dr Imeneo says that by February 2009 your work situation was really bad, you’d been threatened physically and repeated and you were alone on night shifts. Is that the situation?---
A:I wasn’t well, yes.
Q:No, but was the work situation really bad? Had you been threatened physically repeatedly?---
A:Yes.
Q:And you were alone on nightshifts?---
A:Well, I called it alone but there was another staff member upstairs.
Q:And progressively over the next few months, Mr Imeneo tried to get you off nightshifts but by May 2009 there’d been a dramatic deterioration in your condition and you were accompanied to Dr Imeneo by a Richmond Fellowship - - -?---
A:Supporter.
Q:- - - supporter and you were deeply upset at the time because of what had happened and that had involved some assaults on
you?---
A:Yes, it did.”[29]
[29]T41, L9 – T42, L2
36 In answer to a question from the Court, the plaintiff stated that throughout the period of employment with the Sacred Heart Mission, he was attending Dr Imeneo once a fortnight and initially Richard Hill, who he believed to be a psychiatrist, and later Ms Elin Schwab, a psychologist. He was attending Elin Schwab approximately twice a month.
37 The plaintiff accepted that towards the end of 2008 and early 2009, he received threats, one of the clients at the residence was stalking him and he also received one physical attack where he was pushed. When queried as to whether, over this period of time, it appeared that his mental health was deteriorating, the plaintiff stated:
“I was always deteriorating from the day I started in 2006.”[30]
[30]T44, L1-2
38 The plaintiff also commented in cross-examination that although he was complaining about the work at the Sacred Heart Mission, he realised that if he stopped work he would not be able to make any money, so he “continued to work even with my illness”.[31]
[31]T44, L31
39 The plaintiff accepted that he had made a claim for compensation against the Sacred Heart Mission which was accepted and he has continued to receive weekly payments of compensation to date.
40 The plaintiff asserted that during the period between 2006 and early 2009, there were changes to his medication “to cope with work basically” and during such time, he was attending Richard Hall and telling him that he could “barely work”. The plaintiff also gave evidence that he has come under the care of a treating psychiatrist, Dr Kruk, from about April 2012 and since then there has been some changes in his medication. He continues to see Dr Kruk approximately once a month.
41 When questioned about whether any of his doctors has suggested some type of return to work, the plaintiff responded that Dr Kruk has not raised that issue nor has Dr Imeneo.
42 When queried about his organic injury, the plaintiff gave evidence that he goes to physiotherapy once a fortnight, at which time he receives treatment to his neck, shoulder and back.
43 When the last paragraph of his second affidavit was put to him – where he speaks of the stabbing incident and that he had fourteen months off work – and which would appear to be inconsistent with what he stated earlier in his cross-examination, the plaintiff responded he has no idea where that information came from in his affidavit and that he has ongoing problems with memory.
The re-examination of the Plaintiff
44 Under re-examination, the plaintiff stated that he drives a car “very rarely” now, although he continues to own a car. When he drove to the Sacred Heart Mission he had difficulties not turning off where he should have, parking in the wrong place or forgetting how to drive to a particular place.
45 When queried about his evidence that at the Sacred Heart Mission he was not “well” when working, the plaintiff stated:
“My post traumatic disorder - since I was released from hospital I had problems sleeping and still suffer the terror nightmares and stuff, that affects my concentration and that’s when I bet into stargazes, you know, or I'm deep in thought, I’m not there at the moment. It’s only happened since my injuries from the hospital. I never used to do this previously.”[32]
[32]T64, L11-18
46 The plaintiff described that over the course of his employment with the Sacred Heart Mission, his roster was reduced from five to four and then to three days, and during this period of time, staff at the Mission were “complaining about my work and complaining to me”.[33] The plaintiff gave evidence that at end of his employment with the Sacred Heart Mission, he was working three days and that had been the case for “probably a year-and-a-half – a year and a bit – probably a year and about three months”.[34]
[33]T64, L27
[34]T65, L24-27
47 The plaintiff described that over the course of his work at the Sacred Heart Mission, he was “barely working on all eight cylinders”:
“I – I was barely working on all eight cylinders. I was probably working on about three and-a-half – four cylinders all the time that I was working there. That’s how I felt, that’s how my work appeared.[35]
[35]T66, L8-13
48 Later, in his re-examination, the plaintiff stated that he was not physically or mentally well and was not “up to speed” when working at the Sacred Heart Mission. When queried about what he meant when he “wasn’t up to speed”, the plaintiff stated:
“I couldn’t carry out my job, I believe, and - and now, looking back on it, I had a lot of time to think about that, that in hindsight I shouldn't have been working because I wasn’t in no state. I shouldn't have been bloody working, that’s it. I was terribly - I - I - when I look back on the whole thing it was a bad time. I should’ve been - I should’ve looked after myself better. I should have been in a better - better mind, which I wasn't. I am doing my best today to recall things I’ve had no idea that I've written but I know when I see the affidavit I’ve written it - re-reading it today has made me think about things.”[36]
[36]T68, L12-23
49 During the re-examination, counsel for the defendants sought to further cross-examine the plaintiff on a limited area which he overlooked in his earlier cross-examination. When queried about the use of cannabis when working at the Sacred Heart Mission, the plaintiff replied “absolutely not”.[37] The plaintiff did accept that he had used cannabis on one occasion in or about March 2010, although he accepted that he did use cannabis a few times when he was nineteen.
[37]T71, L11
50 Under further re-examination, the plaintiff gave evidence that he has trouble sleeping in a single bed because of “PTSD” as it reminds him of laying on a bed when he was given the injection during the surgery incident. The plaintiff confirmed that over the period that he was working at the Sacred Heart Mission, he had the use of a helper from the Richmond Fellowship Support Group. During this period of time they could visit him up to three days a week.
51 The plaintiff also gave evidence that during his period of employment with the Sacred Heart Mission, he was seeing Dr Imeneo about once per fortnight and was treated with medication and counselling. He also confirmed that he was seeing Richard Hall when working at the Sacred Heart Mission, and Elin Schwab commenced treatment after he had left Sacred Heart.
52 When queried as to what he meant when he informed the Court that he “was always deteriorating from the day I started in 2006”, the plaintiff stated:
“I’d tried to return to work to solely provide me for money to pay things. That was the only reason. But I didn’t realise that - what the job entailed and it absolutely changed my aspect of life and how it should be, the way people treated each other, the way they treated me. It was just - I couldn't keep up with it. It was just too much. Too much pressure, anxiety, stress, the whole works.”[38]
[38]T79, L8-15
53 The plaintiff also confirmed that he continues to be treated with Norspan patches which are for his back, neck and shoulder. One patch lasts for about a week and gives some pain relief.
54 The plaintiff confirmed that Richmond Fellowship changed its name to Mind Australia and continues to assist him.
The medical evidence relied on by the Plaintiff
Dr Robert Kruk
55 Dr Robert Kruk has been the treating psychiatrist of the plaintiff since 17 April 2012. His reports dated 14 February 2013, 21 March 2013 and 1 June 2013 were tendered.[39]
[39]Exhibit B, PCB 77-82 – note that the report dated 1 June 2013 was not part of the Court Book
56 The defendants required Dr Kruk for cross-examination and he gave evidence that he is a legally qualified medical practitioner and holds a Fellow of the Australian College of Psychiatrists. He practises as a consulting psychiatrist, and the plaintiff was referred to him by his treating general practitioner, Dr Imeneo. He confirmed that he initially saw the plaintiff on 17 April 2012 and his last consultation prior to giving evidence was on 19 September 2013.
57 When first seen, the plaintiff gave a history of the “surgery incident”, after which he developed “severe depression, anxiety, feelings of withdrawal and hopelessness together with frequent nightmares and panic attacks”.
58 Dr Kruk was informed by the plaintiff that there was no history of psychiatric illness prior to the “surgery incident”. Furthermore, he obtained a history that when working at the Sacred Heart Mission, he was “assaulted by a client who also threatened to stab him with a fork and had previously stalked him”.
59 Dr Kruk, at the time of his initial consultation, was of the opinion that as a result of the “surgery incident” and the assault at the Sacred Heart Mission, the plaintiff developed a range of anxiety, depressive and post-traumatic symptoms which persist to date. His diagnosis at that time was Major Depressive Disorder, Panic Disorder and Chronic Pain Syndrome.
60 Dr Kruk notes:
“Since the initial assessment, Mr Kere’s mental state has mildly improved. The psycho motor retardation that was evident in April 2012 has subsided and he described feeling less depressed. Chronic aches in the body, panic attacks, moderately depressed mood and frequent thoughts about the attack at the Sacred Heart Mission persist. He remains socially withdrawn and his memory and problem solving skills seem to be impaired. … .”[40]
[40]Exhibit B, PCB 79
61 At the time of his report dated 14 February 2013, Dr Kruk was of the opinion that the plaintiff will never be able to return to meaningful employment and he even struggled when attempting some voluntary work with Riding for the Disabled organisation. In his report dated 23 March 2013, Dr Kruk responded to a query by the solicitors for the plaintiff, and in part answers:
“He often gets flash backs of the incident … [the surgery incident] … and re-experiences it in dreams. Mr Kere acknowledged that his memory of the incident was rather patchy and sometimes mixed with the memories of the incident at Sacred Heart in which he was threatened with a fork. For these reasons it is difficult to conclude that Mr Kere suffers from Post Traumatic Stress Disorder with regard to the alleged anaesthetic mishap. I would rather formulate it as traumatic memories which do not necessarily reach the threshold for PTSD.”[41]
[41]Exhibit B, PCB 82
62 In his final report dated 1 June 2013, Dr Kruk confirms his earlier opinion that the plaintiff would never be able to return to meaningful employment, and in particular, he states:
“His psychiatric diagnosis is a Major Depressive Disorder. The goal of treatment is to reduce the burden of his symptoms, improve his daily functioning and reduce the risk of suicide. The origin of his depression is complex as both his employment at Drum Masta and Sacred Heart Hospital and alleged medical mishap at the Frankston Hospital contributed to his illness.”[42]
[42]Exhibit B, PCB 4, report dated 1 June 2013 at
63 Under cross-examination, Dr Kruk stated that he consulted with the plaintiff on average once a month. Furthermore, he confirmed that throughout the course of the treatment of the plaintiff, he did not obtain a history of the plaintiff being stabbed by an intruder in 1996 (“the stabbing incident”).
64 In particular, Dr Kruk expressed the opinion that the plaintiff’s ability to recall past events was “to a large extent limited by his depression, by his mental state, and at times those events were confused in terms of their timeframe”.[43]
[43]T102, L11-14
65 Dr Kruk accepted that the assault with the fork when working at the Sacred Heart Mission “affected him significantly on the basis for his recollections of the incidents and attendance”.[44] Dr Kruk reiterated that it is his opinion that although the plaintiff suffers from severe depression, he does not have sufficient evidence to suggest that Post-Traumatic Stress Disorder was the “number one condition”. However, the depression was significant enough for him to suffer memory problems.
[44]T106, L2-4
66 Dr Kruk said he got a basic history of his employment with the Sacred Heart Mission and did not get any history that prior to the assault towards the end of his employment that he had had any trouble carrying out his duties at that work. When queried by the Court as to the ongoing causes of the plaintiff’s Major Depression and post-traumatic symptoms, Dr Kruk stated:
Q:“Insofar as you have made the diagnoses you have under DSM IV, what - as far as you’re concerned, what are the ongoing causes for that?---
A:I think that the causes of his depression are multiple and - as it is very often the case after a work related injury, they include the initial injury and in his case the employment with Drum Master and the hernias, the - - -
Q:And the what?---
A:And the inguinal hernias.
Q:Yes?---
A:The subsequent operation at Frankston Hospital. Meanwhile he also experienced another work related injury in terms of the stabbing incident and on top of that his loss of functioning and loss of ability to have a normal life. So it's very difficult to pinpoint a single cause. I think it's been a chain of events that relate to his psychiatric disability.”[45]
[45]T120, L11-25
Dr F Imeneo
67 Dr Frank Imeneo has been the treating general practitioner of the plaintiff since about June 2005. His reports dated 12 October 2005, 5 February 2009, 5 November 2010, 9 July 2012 and 24 April 2013 were tendered.[46]
[46]Exhibit B, PCB 30-39
68 The defendants required Dr Imeneo for cross-examination and he gave evidence that he is a legally qualified medical practitioner and has been a qualified Methadone prescriber for over twenty years. In particular, over the last twenty years of his general practice, he has been involved in predominantly managing mental health problems, often in association with substance abuse.
69 By way of his reports, Dr Imeneo asserts that when he took over the treatment the plaintiff in June 2005, he was reliant upon medical notes and reports from earlier doctors including Dr Cuthbertson and Dr Homolka.
70 Dr Imeneo reports that the plaintiff was agitated and anxious when first seen, at which time he described the onset of his symptoms and the timing of their appearance following the surgery incident.
71 In his first report, Dr Imeneo notes that the plaintiff was not suffering from any form of substance abuse or under the influence of any substances to produce his symptoms. He diagnosed the plaintiff to be suffering a Post-Traumatic Stress Disorder and associated Major Depression. At that time, he began attending weekly counselling to assist his recovery.
72 In his report dated 5 February 2009, Dr Imeneo notes that the anxiety level experienced by the plaintiff has never “satisfactorily settled” and makes the plaintiff more vulnerable to external stressors than usual.
73 In his report dated 5 November 2010, Dr Imeneo states, in part:
“Pat has been away from work since being diagnosed with an exacerbation of previous Post Traumatic Stress Disorder (PTSD) which has made it impossible for him to continue his employment. This exacerbation has been related clearly to ongoing work stressors over a period of time which had not been resolved at the time he had to leave his employment. His pre-existing PTSD relates to several incidents, including an episode where he was stabbed by a schizophrenic patient who thought he was someone else, almost bleeding to death as a result, and an anaesthetic disaster where he received partial analgesia for a significant surgical procedure. And this is recognised as one of the most emotionally and physically traumatic and scarring experiences one can have. His current symptoms are so severe and persistent because they are based on previous and well as recent traumas. There has been no significant non employment related factors in the recent triggering of his previously settled PTSD.
His main symptoms with his PTSD are a chronically high background anxiety level, with propensity to panic and agoraphobic spells. He experiences flash backs to traumatic episodes which further disable him. During an anxiety flare he is often disorientated, confused and unable to care for his own needs.”[47]
[47]Exhibit B, PCB 34
74 In his report dated 9 July 2012, Dr Imeneo also states:
“His initial injuries were sustained in an accident related to his work duties where he was required to move heavy drums. He sustained serious physical injuries including his left shoulder injury and bilateral hernias directly in relation to the trauma experienced in this accident; this appear clear from medical records pertaining to his incident. Subsequent to this injury he sustained a severe psychiatric – psychological trauma due to incomplete anaesthesia during his hernia repair; this repair was performed at Frankston Hospital, and the impacts of this trauma have been ongoing.
His situation is somewhat complicated by several factors. These include a degree of previous trauma, so that he had a significant degree of anxiety disorder and some elements of Post Traumatic Stress Disorder prior to his work accident. His subsequent employment has seen his psychological traumas exacerbated further by workplace issues, so that he has several contributions to his ongoing psychiatric state. Despite this, the major contributor to his ongoing psychological distress remains in my view his anaesthetic mishap at Frankston Hospital. His physical injuries when first assessed after his accident were severe and it is apparent that he has suffered some associated physical injuries not established at the initial assessment, due to the severity of the apparent trauma. This includes a low back injury which I believe is not established as being directly work related.
I would summaries his current disabilities relating to his accident as follows:
·Left shoulder injury producing persisting limitation of strength and movement in this joint. This impairment is consistent with a soft tissue injury derangement of the joint under considerable physical strain, consistent with documented injuries. This injury restricts his capacity to use his left shoulder for forceful or repeated actions due to pain.
·Persistent discomfort and restriction of movement affecting both groins. This is consistent with the trauma suffered during his accident, the degree of trauma to these regions and the subsequent surgical correction needed.
·Low back pain without clear radicular signs, again consistent with a physical injury to this site. I believe that he had several drums fall on his during the accident, and it is far from difficult to imagine that his injuries extended beyond those clearly apparent at initial presentation. Pat avoids the use of any regular analgesia other than anti inflammatory treatment, which has been regularly needed for both his shoulder and back pain. He has limited capacity for lifting, bending, sitting, standing consistent with his persistent low back pain and stiffness.
·Post Traumatic Stress Disorder with persisting panic disorder. …
Pat’s disabilities are directly related to his workplace injuries and subsequent treatments for these injuries. His disabilities are persistent, and in particular his psychiatric condition will require long term medical and counselling input.
Pat regained a capacity to work for a period subsequent to these injuries and was employed as a personal care attendant for a period of several years. It was during this employment that he unfortunately experienced further traumas which have contributed to the persistence of his psychiatric issues. I would point out though, that to a large degree this employment was gained and sustained through workers who had been involved in his medical care, who offered this position to him to give him a protected way to return to employment. His employment at this time did not represent that his disabilities – injuries had reduced to a degree normally consistent with seeking further employment. His symptoms were stable but persistent, and it is very likely that they contributed to his subsequent traumas in this workplace, which ended up being far from any protected environment. … His decision to leave his workplace once this had become apparent was on direct medical advice from myself. … .”[48]
[48]Exhibit B, PCB 36-37
75 Under cross-examination, Dr Imeneo advised that he referred the plaintiff to Elin Schwab, a psychologist, in June 2009 after he had ceased work at the Sacred Heart Mission. Dr Imeneo also accepted that issues at the end of 2008 and early 2009 at the Sacred Heart Mission triggered the worsening of the plaintiff’s condition.
76 The following evidence was given about the role of the plaintiff’s work at Sacred Heart Mission:
Q:So is it fair to say that once he started work his PTSD had settled to an extent that allowed him to work at the Sacred Heart Mission?---
A:He was able to engage in employment with some limitations.
Q:Further down you say that, ‘He has been affected by physical disability in terms of back and chest wall pain for which he is receiving physiotherapy treatment. This is related to a physical assault which occurred in his workplace.’ Is that the physical assault at Sacred Heart Hospital?---
A:Sacred Heart Hospital, yes.
Q:Now, up until the time where he – if I use the word "deteriorated" towards the end of 2008 and early 2009, up until that time he had been coping reasonably well with his work at the Sacred Heart Hospital with intermittent hiccups, would that be fair to say?---
A:He was coping though it was having an influence for some time prior to him leaving work on his condition. We had lots of discussions about the fact that his work was contributing to a deterioration.”[49]
[49]T132, L12-30
77 Dr Imeneo gave evidence that throughout 2008, he was probably seeing the plaintiff once every month to six weeks, and on 16 December 2008, there was a flare-up of the plaintiff’s Post-Traumatic Stress Disorder for which Xanax was prescribed for the first time. Furthermore, on 28 February 2009 or 16 March 2009 (probably the February date), Dr Imeneo recorded –
“Work situation is really bad. Threatened physically repeatedly. Long on night shifts. Body’s response is ‘Fight, run away’.”
Dr Imeneo interpreted that to mean that the plaintiff should not be left in that environment.
78 Dr Imeneo gave evidence that any neck and left shoulder injuries suffered during the course of his employment with the defendants were “relatively minor issues for his ongoing care”.[50]
[50]T141, L3-4
79 Under cross-examination, the following evidence in particular was given:
Q:“As far as you were concerned in early 2006, is it correct to say that the contributors to his post traumatic stress disorder diagnosed by you, being the previous incidents, that they settle enough for him to be able to go back to work in the job that he was doing at the Sacred Heart Mission?---
A:They allowed him to return to a workplace in an usual fashion and in what was supposed to be a protected fashion.
Q:Who said - - -.”
HIS HONOUR:
Q:“Doctor, I understand it was protected. That was protected for psychological reasons wasn’t it?---
A:More so that - - -
Q:There’s nothing – there’s nothing in - - -?---
A:His employment – and this is what I need to explain. His employment at Sacred Heart would not have occurred in a normal circumstance. Pat had a good association with the community worker that initially referred him to me, Natalie Parkes. She, with the closure of Peninsula Youth and Family Services in Frankston, took over Sacred Heart and out of good faith offered Pat a role where we felt he could be further supported. It was almost a protected role, except it didn't work out to be like that.”[51]
[51]T141, L5-26
80 When Dr Imeneo was queried as to what he meant by a protected return to employment, he advised the Court that this was not to do with putting physical limitations on his type of work but rather:
“No, and in fact, at that time because I knew the person who would be in charge of his role, there was actually no formal arrangement made, it was just known by Natalie as well as myself of Pat's past and that appropriate duties would be selected according to that.”[52]
[52]T145, L29 – T146, L3
81 Dr Imeneo accepted that the plaintiff did not discuss the job at Sacred Heart Mission prior to him taking such job. Furthermore, although he could not recall when he had any contact with the employer at Sacred Heart Mission, there was only discussion with the employer in a formal sense at around the time of the deterioration towards the end of 2008.
82 Dr Imeneo asserted that although there were no formal arrangements, he knew that the plaintiff’s employer at Sacred Heart Mission was aware of his background and would be aware of “what situations not to expose him to”.[53] Dr Imeneo, when queried as to what was done, responded by saying it was apparent that something was done early because that he coped with the employment without triggering his condition in 2006, 2007 and early 2008, during which time there were no issues.
[53]T147, L11
83 Dr Imeneo also accepted that over the period from the commencement of employment at the Sacred Heart Mission up until late 2008 or early 2009, he gave no medical certificates restricting his activities at that workplace. However, since ceasing work in early to mid-2009, Dr Imeneo has been supplying certificates certifying him totally incapacitated for work to due “accumulation of his injuries”.
84 Counsel for the defendants put to Dr Imeneo a variety of medical reports that he had written to other medical practitioners and in particular, to a medical questionnaire which he signed on 10 September 2009.[54] The medical questionnaire completed by Dr Imeneo on 10 September 2009 was directed to the compensation insurer of the Sacred Heart Mission which is presently paying the plaintiff compensation. The following questions and answers were given in relation to questions 7 and 8:
[54]Exhibit 4
“7(a)What is preventing your patient from attending work? What specific barriers or issues are preventing your patient from returning to work at his or her pre-injury workplace?
Persistent safety concerns provoking anxiety reactions. Incidents involved have been repeated over time, so Pat is unable to return to the original workplace without exacerbating his anxiety.
(b)Would any specific intervention(s) enable a return to full or partial pre-injury (or alternative) duties? Please detail.
Pat has with treatment managed to recover to the degree that he is fit for consideration of a return to carer or personal support duties. It is critical to avoid the environment in which he experienced trauma at this stage of his recovery.
8(a)Are you aware of any past history or stress or psychological condition? Had this resolved prior to the reported injury date?
Pat had previously consulted me with regard to his condition of PTSD related to two separate extremely traumatic incidents. With medical and counselling treatment he had recovered to the extent of being able to work full time with no changes needed to his medication regimen over two years until late 2008.”[55]
(My emphasis)
[55]Exhibit 4, Defendants’ Court Book (“DCB”) 183
85 Dr Imeneo explained that the two separate extremely traumatic incidents referred to in response to question 8(a) were the surgery incident and the earlier stabbing incident.
86 Under re-examination, the medical regime over the period of two years until late 2008 involved –
“Triple therapy which includes an antipsychotic medication to reduce flash backs, mood stabilising treatment to even the mood out and an anti depressant to assist the mood as well”.[56]
[56]T153, L8-11
87 Further more, the plaintiff was also prescribed the beta blocker which is to inhibit the anxiety response.
88 Dr Imeneo also gave evidence that over the period from early 2006 until say late 2008, the plaintiff was displaying symptoms of his psychiatric state as the medications can only ameliorate symptoms. The increase in medication in late 2008 has continued to date. During the period from 2006 to 2008, the plaintiff, according to Dr Imeneo, displayed “an increased vulnerability to any external stressors”.[57]
[57]T154, L5-6
Dr R Cuthbertson
89 The plaintiff also relies on reports from an earlier treating general practitioner, Dr R Cutherbertson. His reports dated 9 May 2004, 8 February 2005 and 22 October 2008 were tendered.[58]
[58]Exhibit B, PCB 24-29
90 Dr Cuthbertson initially saw the plaintiff on 11 August 2003, at which time the plaintiff was complaining of a one-month history of right iliac fossa pain and a two-week history of left shoulder pain, both of which he related to problems with his work. Examination at that time revealed no abnormality in the right groin and the only abnormality of the left shoulder was tenderness over the medial border of the left scapular. Dr Cuthbertson diagnosed soft-tissue injuries and prescribed a high strength anti-inflammatory drug.
91 On review on 15 August 2003, the plaintiff complained that his left shoulder was not improving and he was still getting right iliac fossa pain at work. At that time, he informed Dr Cuthbertson that he moves approximately 300 empty 44-gallon drums per day. He was referred for physiotherapy and given a WorkCover certificate.
92 The physiotherapist considered that the problems related to the neck and the plaintiff underwent a CT scan of the cervical spine on 29 August 2003 which showed a moderate right-sided posterior lateral osteophytic ridge causing narrowing of the right C4-5 exit foramen and less prominent C5-6 exit foramen narrowing.
93 Dr Cuthbertson referred the plaintiff to the neurologist, Dr R Rollinson, after which an MRI scan was requested. On 13 November 2003, the plaintiff presented with right groin swelling, and examination revealed a right inguinal hernia which was unable to be reduced, and he was referred to the local Emergency Department where it was reduced.
94 The MRI scan of cervical spine undertaken on 20 November 2003 showed disc bulging, in particular C4-5 on the right and C5-6 bilaterally with the appearances “not particularly severe, especially on the left”.[59] When seen by Dr Rollinson on 2 December 2003, there appeared to be no neurological involvements in the neck and his symptoms appeared to be settling with ongoing physiotherapy once weekly.
[59]Exhibit B, PCB 25
95 On 23 February 2005, he underwent a right inguinal hernia repair and umbilical hernia repair and experienced the anaesthetic problem. Dr Cuthbertson last saw the plaintiff in August 2005.
Dr R Rollinson
96 The plaintiff also relies on the reports of Dr Russell Rollinson dated 13 October 2003 and 26 November 2008.[60] Dr Rollinson initially saw the plaintiff on 13 October 2003 when he obtained a history that the plaintiff had had neck pain for two or three months. Examination revealed restriction of neck movements, particularly lateral rotation for the right, but normal muscle bulk strength, reflexes and sensation.
[60]Exhibit B, PCB 54-56
97 Dr Rollinson reviewed the plaintiff on 2 December 2003, at which he had a copy of the MRI scan report which he describes as showing “only normal wear and tear, allowing for his age. There is certainly no neurological Involvement.”[61]
[61]Exhibit B, PCB 56
98 Ultimately, Dr Rollinson made a diagnosis of neck and arm pain, with the cause of such pain uncertain but probably a soft-tissue injury. At the date of his last examination, he was improving and he expected that he would be able to return to work. Furthermore, he expected the plaintiff to be able to make a full recovery, there being no evidence of permanent neurological disability.
Mr Richard Hall
99 The plaintiff also relies on the reports of the psychologist, Mr Richard Hall, dated 16 October 2005, 9 January 2006 and 10 December 2008.[62]
[62]Exhibit B, PCB 58-76
100 Mr Hall first consulted with the plaintiff on 19 July 2005 and was continuing to consult with the plaintiff as at the date of his last report. When seen on the first occasion, Mr Hall obtained a history of the surgery incident and made a diagnosis of Post-Traumatic Stress Syndrome, suicidal ideation, together with depression and acute Anxiety Disorder.
101 In his report dated 10 December 2008, Mr Hall noted that the plaintiff had returned to work as a care assistant at a boarding house for homeless people. In particular, Mr Hall comments that work keeps him stable and gives him a feeling of safety combined with adequate self-esteem. He states:
“Mr Kere is presently working in a very supportive team like faculty for ex-homeless people as a personal care attendant. He is well respected there and is able to manage the work shifts. When he is not working his personal life seems to break up and day to day issues tend to get on top of him. The structure of work has assisted his recovery.”[63]
(My emphasis)
[63]Exhibit B, PCB 75
102 It is to be noted this comment was made in circumstances where the plaintiff had been attending Mr Hall throughout 2005, 2006, 2007 and 2008.
Ms Elin Schwab
103 The plaintiff also relies on reports from the psychologist, Ms Elin Schwab, dated 1 September 2010, 14 April 2013 and 21 April 2013.[64]
[64]Exhibit B, PCB 40-53
104 Ms Schwab first consulted with the plaintiff on 27 June 2009. The plaintiff was referred to her by Dr Imeneo and in such referral, Dr Imeneo noted the surgery incident and the “substantial trauma” experienced by the plaintiff at the Sacred Heart Mission.
105 In her first report, Ms Schwab diagnoses the plaintiff to be suffering symptoms consistent with Post-Traumatic Stress Disorder caused by the surgery incident and the incidents at the Sacred Heart Mission.
106 In her second report dated 14 April 2013, the plaintiff refers to three incidents – the first being the occurrence of injuries during the course of his employment with the defendants, the second being the surgery incident and the third being what she refers to as “the assault” and being stalked by a resident of the Sacred Heart Mission.
107 In particular, Ms Schwab stated:
“Mr Kere was employed by the Sacred Heart Mission St Kilda Inc where he worked various shifts, but normally night shift. It was not unusual for Mr Kere to work two shifts over a 24 hour period, returning home to Frankston for a few hours between shifts. From Mr Kere’s report of his work role, it appears that he was a very conscientious worker who enjoyed his work and took pride in his work. … .”[65]
(My emphasis)
[65]Exhibit B, PCB 47
108 Ms Schwab considers the plaintiff is totally incapacitated for work, and a cause of such incapacity is the “surgery incident”.
Medico-legal – reports relied on by the Plaintiff
109 The plaintiff relies on the following medico-legal examinations:
(a)Examination by the general surgeon, Mr Michael Flaim, on 1 July 2010;[66]
(b)Examination by the occupational physician, Dr Robyn Horsley, on 17 November 2010,[67] 30 May 2012[68] and 9 January 2013;[69]
(c)Examinations by the consultant psychiatrist, Dr N Epstein, on 13 July 2010,[70] 28 June 2012,[71] 6 December 2012[72] and 5 September 2013.[73]
[66]Report dated 5 July 2010, Exhibit B, PCB 83-85
[67]Report of same date, Exhibit B, PCB 86-93
[68]Report of same date, Exhibit B, PCB 94-99
[69]Report of same date, Exhibit B, PCB 100-104
[70]Report dated 14 July 2010, Exhibit B, PCB 105-112
[71]Report dated 6 July 2012, Exhibit B, PCB 113-117
[72]Report dated 10 December 2012, Exhibit B, PCB 118-122
[73]Report dated 9 September 2013, Exhibit B,PCB 123A-123H
110 When seen by Mr Flaim, the plaintiff gave a history that on a particular day in 2003, he reached up for a drum and this was “followed by an awkward lifting incident when the drum threatened to fall onto him from a height”.[74] He also gave a history that as a result of such incident, he suffered symptoms in his neck, right shoulder and abdomen. On the day seen, he complained of chronic neck and right shoulder pain for which he undertakes hydrotherapy. These symptoms are aggravated when he performs heavy lifting.
[74]Exhibit B, PCB 83
111 On examination, Mr Flaim noted the restriction of movement in the cervical spine and in particular, there was a marked restriction of extension. However, there were no signs of radiculopathy and no signs of hyper-reflexia in the legs. Furthermore, right shoulder movements were also full in range and of normal strength with no findings suggestive of rupture of a rotator cuff.
112 Mr Flaim was of the opinion that the plaintiff suffered cervical spondylosis which had been aggravated by the nature of the lifting involved in his work. In this respect, he would have difficulty working overhead but would have no difficulty carrying out the work in the disability area which is not particularly physical work.
113 When initially seen by Dr Robyn Horsley, the plaintiff presented with ongoing disability in the left shoulder, cervical spine, umbilical and inguinal hernias and psychological issues. In particular, Dr Horsley obtained a history that in or about August 2003, he was manoeuvring 44-gallon drums when he experienced pain in the abdomen, together with neck and left shoulder pain. The plaintiff gave a history that in relation to his neck and left shoulder, he experiences some “seizing up” in the cervical spine intermittently which causes him to then have difficulty turning his neck left and right. He informed Dr Horsley this had happened three times that year and such seizing up can last up to three days to a week. Sometimes he has physiotherapy, which gives him relief.
114 Examination revealed some limitation of cervical movement although there were no triggerpoints on light touch palpation of the spinous processes or articular pillars. Extension was only half the normal range with relevant movements in the order of about two-thirds of normal range. Reflexes were normal.
115 Dr Horsley noted that the plaintiff self-manages his left shoulder and neck condition and she describes such conditions as “low grade” and do not require any specific management. She described the neck injury as some aggravation of pre-existing degenerative changes in the cervical spine, giving rise to intermittent symptoms.
116 When later examined in May 2012, Dr Horsley commented that the cervical spine and any left or right shoulder condition do not require any further medical management and the primary focus of treatment is on his psychiatric status.
117 When finally reviewed on 9 January 2013, the plaintiff complained of ongoing “issues with his neck and left shoulder girdle”. In particular, he told Dr Horsley that he avoids activities such as repetitive overreaching, pushing, pulling and above shoulder activities. He described chronic discomfort in the left shoulder girdle and cervical spine, which varies on the visual analogue scale of 5 to 6 out of 10.
118 Dr Horsley notes that with physiotherapy, there has been a significant improvement in the range of the right shoulder movement since her last review and that left shoulder movement remains “mildly restrictive”. Dr Horsley was also of the opinion that the plaintiff suffers ongoing “mechanical neck pain”.
119 When initially examined by the psychiatrist, Dr Epstein, the doctor obtained a history of the stabbing incident, the surgery incident and also an incident on 29 January 2009 when at the Sacred Heart Mission he was pushed, punched and hit by one of the residents. Furthermore, Dr Epstein obtained a history that the plaintiff also suffered some degree of low-back injury as a result of this “assault”.
120 At that time, Dr Epstein was of the opinion the plaintiff had developed a Post-Traumatic Stress Disorder following on from the surgery incident. However, Dr Epstein noted that the plaintiff retrained and worked as a personal care attendant but worked in a frightening environment and was subject to being stalked and harassed and was assaulted on 29 January 2009, leading to a back injury, and had not returned to work since then because of the back injury.
121 When seen on the second occasion, Dr Epstein considered the plaintiff to be suffering symptoms of a Major Depressive Disorder and a resolving Post-Traumatic Stress Disorder. He considered that the Post-Traumatic Stress Disorder and Major Depressive Disorder appeared to have occurred following the hernia repair operation (the surgery incident) but had improved. He notes that more recently, his depression became more apparent after he ceased work in January 2009.
122 When seen in December 2012, Dr Epstein continued to have the opinion that the plaintiff suffered symptoms of a Major Depressive Disorder and a resolving Post-Traumatic Stress Disorder, together with some panic attacks. Dr Epstein was also of the opinion that the symptoms of depression had worsened following the death of the plaintiff’s father in mid‑October 2012.
123 Dr Epstein last examined the plaintiff on 5 September 2013. Seemingly, Dr Epstein went over in some detail the complete history of the plaintiff and again made a mental state examination. He expresses his ultimate opinion in these terms:
“Patrick Kere was the victim of an anaesthetic mishap on 23 February 2005 when he was rendered paralysed and remained conscious and was unable to breathe for a short time and was terrified he was going to suffocate. He subsequently developed aspiration pneumonia and asthma.
He has had other mental health symptoms since 1996 at least. On that occasion he was the victim of a home invasion and required surgery. He had a work injury on 14 August 2003 when lifting and developed severe abdominal pain and was diagnosed with a right inguinal hernia and umbilical hernia. He has had other health problems including a back injury arising from an assault during his work as a personal care attendant on 29 January 2009 that led to him stopping work and receiving WorkCover weekly payments.
He [has] symptoms of a Post Traumatic Stress Disorder with panic attacks, nightmare, flashbacks and many negative thoughts and has had a variety of treatments for his mental health problems.
He continues to have symptoms of a major depressive disorder and some panic attacks and some residual symptoms of Post Traumatic Stress Disorder. He said his symptoms of depression had become worse since his father’s death in mid-October 2012.
His Post Traumatic Stress Disorder symptoms are associated with some anxiety about having contact with the Frankston Hospital, nightmares and mild panic attacks. It is uncertain as to whether his nightmares relate to the anaesthetic complication but he stated he regarded this as the most frightening episode he had experienced and thought it was the major cause of his anxiety, nightmares, flashbacks and panic attacks.
As I stated previously there have been many factors contributing to his current mental state including his work injury on 14 August 2003, although this has only contributed to his depressive state in a mild degree and has not contributed to his Post Traumatic Stress Disorder. This appears to have primarily come from the effects of the anaesthetic mishap.
In my view the anaesthetic mishap alone did not prevent him from working. He retrained as a personal care attendant and commenced work in that capacity in 2006 and later became a case worker with the residents. He was doing sleepovers and usually working at night and thought the work kept him stable and gave him a feeling of safety and increased his sense of self esteem. He was continuing to experience symptoms in part arising from the anaesthetic mishap.
The incident that led to him ceasing work on 29 January 2009 involved him being assaulted at work and he was not able to continue and has not worked in any continuing capacity since then. It appears that his employment was a form of therapy to help him cope with symptoms arising from a variety of experiences, especially the anaesthetic mishap, and since he is no longer able to work the effects of that have become much more dominant because he had few distractions.
His inability to continue working has led to an exacerbation of symptoms. He remains unfit to return to work in any capacity because of his mental state and this situation is unlikely to alter in the foreseeable future. His prognosis for improvement is poor. He will need ongoing psychiatric and psychological treatment.”[75]
(My emphasis)
[75]Exhibit B, PCB 123F – 123G
124 It is also convenient to refer to the medico-legal examinations relied on by the defendant:
(a)Examination of the general surgeon, Mr J L Sinha, on 5 November 2003;[76]
(b)Examinations by the consultant psychiatrist, Dr T Entwisle, on 18 July 2005,[77] on 26 May 2009,[78] 19 February 2010,[79] 12 May 2010,[80] 19 August 2010[81] and on 11 March 2011;[82]
(c)Examination by the occupational physician, Dr David Fish, on 19 June 2009;[83]
(d)Examination by the general surgeon, Mr M Troy, on 21 December 2010;[84]
(e)Examination by the consultant psychiatrist, Dr I Jackson, on 11 January 2011.[85]
[76]Report dated 9 November 2003, Exhibit 2, DCB 20-23
[77]Report dated 22 July 2005, Exhibit 2, DCB 59-62
[78]Report dated 28 May 2009, Exhibit 2, DCB 63-66
[79]Report dated 26 February 2010, Exhibit 2, DCB 67-70
[80]Report dated 17 May 2010, Exhibit 2, DCB 71-74
[81]Report dated 26 August 2010, Exhibit 2, DCB 75-79
[82]Report dated 18 March 2011, Exhibit 2, DCB 80-84
[83]Report of same date, Exhibit 2, DCB 85-90
[84]Report dated 22 December 2010, Exhibit 2, DCB 91-96
[85]Report dated 12 January 2011, Exhibit 2, DCB 100-110
125 When seen by Mr Sinha in November 2003, the plaintiff gave a history that he had suffered from neck pain on and off for about five months before August 2003. The plaintiff believed that the neck pain may have originated from his habit of looking up while at work when stacking drums. The plaintiff also gave a history that he consulted a medical practitioner and was advised that he had a “muscular problem”. He was referred for a CT scan examination of his cervical spine which he was told revealed “a disc problem”, and later referred to a neurologist for assessment of his condition. When seen by Mr Sinha, the plaintiff had been off work for about two months.
126 In particular, he gave no history of any particular incident at work and no history of pre-existing neck problems. The plaintiff complained of pain in his left arm extending from the shoulder down to the elbow, especially when turning his head to the right.
127 Examination of the neck revealed restriction in movement and pain and discomfort in the left shoulder extending to the elbow level.
128 According to Mr Sinha, the CT scan of the cervical spine in August 2003 revealed degenerative narrowing of the disc space in the mid and lower cervical levels, right-sided posterolateral osteophytic ridge causing narrowing of the right C4-5 exit foramen without any disc protrusion, and diffuse osteophytic ridge causing mild narrowing of the exit foramen on the right at the C5-6 level and mild narrowing of the left exit foramen also at the same level.
129 Mr Sinha was of the opinion that the employment of the defendants contributed to an aggravation of disc degenerative disease of the cervical spine, predominantly at the mid and lower cervical levels. At that stage, Mr Sinha concluded that the plaintiff was suffering a partial incapacity and was unfit to perform any demanding manual work.
130 Dr Fish examined the plaintiff primarily to render an assessment for the purposes of an AMA assessment. He obtained a history that at the time of the “injury”, he was generally manoeuvring 44-gallon drums and in particular, on 14 August 2003, was lifting down a 44-gallon drum from a stack when he felt a pulling sensation in the stomach and a “crunching and pinching sensation over the left side of his neck”.
(b)The plaintiff did give evidence that as far as he was concerned, he was “deteriorating from the day I started in 2006”.[98] Furthermore, the plaintiff also gave evidence that he was complaining about the work at the Sacred Heart Hospital but he realised he would not be able to make money so “he continued to work even with my illness”.[99] Also, the plaintiff gave evidence that during the period between 2006 and early 2009, there were changes to his medication “to cope with work basically” and during such time was attending Richard Hall and telling him that he could “barely work”. Such assertions by the plaintiff would appear to be largely inconsistent with the evidence of Dr Imeneo, who did not change his medication until late 2008, and the evidence of Mr Hall, who considered that the plaintiff was coping with such work and indeed was therapeutic;
(c)The plaintiff also gave evidence that at the end of his employment with Sacred Heart Hospital, he was working three days, and that had been the case for “probably a year-and-a-half – a year and a bit – probably a year and about three months”;[100]
(d)Dr Imeneo gave evidence that although he was coping at the Sacred Heart Hospital, such work was having an influence for some time prior to him leaving work in early 2009. Dr Imeneo comments:
“We had lots of discussions about the fact that his work was contributing to a deterioration.”[101]
[98]T44, L1-2
[99]T44, L31
[100]T65, L24-27
[101]T132, L28-30
161 Clearly, such evidence has the potential to suggest that perhaps the condition of the plaintiff, when he ceased work in early 2009, is no more than a sequel to his condition resulting from the surgical incident rather than at least partly resulting from his employment experiences at the Sacred Heart Hospital.
162 Such evidence, insofar as it relates to the comments of Dr Imeneo, would appear to be inconsistent with his earlier comments about the fitness of work of the plaintiff to perform such work at least until 2008. Furthermore, the evidence, such that it is, does not really support the proposition that the plaintiff’s hours were diminishing from early days in his employment.
163 I refer to the Employer Injury Claim Form dated 29 January 2009 submitted by the Sacred Heart Mission in response to the claim for compensation made by the plaintiff against that organisation.[102] In that document, it is asserted that at the time of the claim, he was working 17 standard hours per week at the rate of $18.2066 gross per hour. His gross weekly earnings were $309.51, together with a shift allowance of $279.20. However, I also refer to the summary of the taxation returns of the plaintiff,[103] wherein it is recorded:
(a)Earnings for the financial year ending 30 June 2006 – $19,095
(b)Earnings for the financial year ending 30 June 2007 – $30,911
(c)Earnings for the financial year ending 30 June 2008 – $28,217
(d)Earnings for the financial year ending 30 June 2009 – $25,577
[102]Exhibit D, PCB 125-126
[103]See Exhibit C, PCB 124
164 Bearing in mind that the plaintiff did not commence employment with the defendants until early 2006 and ceased in early 2009, there would not appear to be vast variations in his earnings over that period that would suggest diminishing hours.
165 After a consideration of all the evidence, I find that the present incapacity of the plaintiff results from his condition diagnosed by Dr Kruk to be a Major Depressive Disorder. As stated by Dr Kruk, the “origin” of his depression is complex, as both his employment with the defendants (including the surgery incident) and his employment with Sacred Heart Mission contributed to this illness.[104] In a similar way, Dr Epstein opined that his present condition is contributed to by his work injury on 14 August 2003 (only to a mild degree), the surgery incident after which he continued to experience symptoms and the stressful conditions and in particular the assault) that occurred at the Sacred Heart Mission.
[104]Exhibit B, PCB 4, report dated 1 June 2013
166 No doctor opines that the incapacity of the plaintiff has been solely caused by any incident of his employment with the defendants, whether that be the incident in August 2003 or indeed more appropriately, the surgery incident. However, all doctors opine that the surgery incident is at least a cause of his present condition rendering him incapacitated. Other causes involve the events at the Sacred Heart Mission and depending on which history you accept, that may extend to assaults, stalking and/or verbal and physical abuse and also, on some accounts, the stabbing incident and work incident in August 2003.
167 I do not consider that much turns on the stabbing incident as that was some years earlier to these events and seemingly, the plaintiff was functioning well by the time he commenced employment with the defendants and certainly taking no medication for any psychological or psychiatric symptoms. Similarly, the actual incident manoeuvring 44-gallon drums in August 2003 may play a limited role, but the two major contributing events appear to be the surgery incident and what the plaintiff experienced during the course of his employment with the Sacred Heart Mission in late 2008 and early 2009.
168 In such circumstances, the defendants submit that the plaintiff had a clear capacity for employment from early 2006 to late 2008 or early 2009 when his employment with the Sacred Heart Mission “aggravated” or “exacerbated” his previous psychiatric condition, rendering him incapacitated for employment. Against that, the plaintiff submits that either the incapacity now suffered by the plaintiff is a sequel to the surgery incident or, alternatively, it is enough that the surgery incident is a cause of his present incapacity.
169 I do refer to the decision of AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[105] which I consider to be of some assistance in determining this issue. In that matter, Filipowicz sought to commence common-law proceedings against his former employers, Arnold Ribbon Co Pty Ltd (“Arnold”) and AG Staff Pty Ltd (“AG”). He alleged that he had suffered a right shoulder injury during the course of his employment with Arnold on 26 August 2003 and that such shoulder condition had been aggravated during the course of his employment with AG in July 2006.
[105][2012] VSCA 60
170 There was no dispute that Filipowicz suffered compensable injuries to his right shoulder in the course of his employment with Arnold and AG respectively. The issue was as to whether Filipowicz had suffered a “serious injury” within the meaning of paragraph (a) of the definition of serious injury in s134AB(37) of the Act. In this sense, Filipowicz relied on paragraph (a) of the definition of “serious injury” – to wit, “permanent serious impairment or loss of body function”.
171 The trial Judge, applying the decision of Grech v Orica Australia Pty Ltd,[106] found that each of the respective injuries “materially contributed to the ultimate consequences” and Filipowicz was entitled to commence common-law proceedings against Arnold and AC for both pain and suffering and loss of earning consequences.
[106](2006) 14 VR 602
172 The Court of Appeal held that the trial Judge applied the wrong test. In particular, the Court held that the decision of Grech dealt with causation issues in the context of a single ongoing condition (in that case bilateral carpal tunnel syndrome which commenced prior to 20 October 1999 and continued after that date), rather than two separate injuries arising out of two discrete incidents where the subsequent injury aggravated the earlier injury.
173 In particular, Kyrou AJA (with whom Mandie and Bonjiorno JJA agreed), stated:
“Section 134AB was enacted against a background of similar schemes in s 135A of the Act and s 93 of the Transport Accident Act 1986 (‘TA Act’). Section 134AB(38)(b) and (c) essentially codified Humphries v Poljak, which concerned s 93 of the TA Act.
Petkovski also concerned s 93 of the TA Act. The Appeal Division held that, in the case of a pre-existing condition, ‘an analysis must be made of the extent of impairment of a body function before and after the relevant injury’, and the claimed aggravation must itself be a ‘serious injury’. The Appeal Division confirmed the clear intention of Parliament not to permit minor aggravations to attract a grant of leave.
Petkovski has been applied by this court to s 135 of the Act. Petkovski, and its application to s134AB, were affirmed in Guppy.
…
Accordingly, for the purposes of s 134AB of the Act, an aggravating injury must itself qualify as a serious injury.
As it was common ground that Mr Filipowicz had suffered two separate compensable injuries on or after 20 October 1999, the trial judge should have determined the applications for leave to commence common law proceedings against Arnold and AG in the following manner.
First, his Honour should have identified each injury.
Secondly, his Honour should have delineated the impairment consequences of each injury.
Thirdly, in the case of the AG injury, which, although an aggravation of the Arnold injury, was a separate injury, his Honour should have determined whether the injury qualified as a serious injury under s 134AB(37) of the Act as amplified by s 134AB(38).
Fourthly, in determining whether Mr Filipowicz had discharged the onus of establishing that the AG was a serious injury, his Honour should have made a comparison between Mr Filipowciz’s condition before the AG injury and his condition after the AG injury, and should then have made an assessment of the additional impairment.
Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. The AG injury had to satisfy the requirements of a ‘serious injury’ in its own right rather than in combination with the Arnold injury.”[107]
[107]See Filipowicz (op cit) at paragraphs [25] – [26], [29] – [35]
174 I also refer to the decision of Guppy v Victorian WorkCover Authority[108] wherein Mr Guppy suffered injury to his back on 21 May 2001 during the course of his employment with Malcolm McClure Pty Ltd (“McClures”). He was off work for a period of time, returned to work on light duties, but due to continuing difficulties with his back, left that employment in September 2001.
[108][2010] VSCA 164
175 In early 2004, he approached Bendigo Access Employment Inc (“Access”) hoping that that organisation could find him suitable employment within his physical restrictions. In April 2004, Mr Guppy commenced employment on a part-time basis with Access and during the course of that employment on 19 August 2005, suffered an aggravation of his earlier back injury, causing him to ultimately cease work at the end of 2007. Consistent with the principles set out Filipowicz, the Court directed that the appropriate approach was to determine whether the first injury suffered by Mr Guppy with McClures was a serious injury by reference to the consequences of such injury and similarly, to determine whether the second injury with Access was a serious injury by reference to the consequences of that injury.
176 I consider the decision of Filipowicz is analogous to the circumstances of this matter, save that in Filipowicz, the plaintiff suffered a low-back injury in one employment which was subsequently aggravated in a second employment. However, as pointed out by the Court of Appeal, it is necessary to identify each injury, delineate the impairment consequences of each injury and more particularly, not to “accumulate” the two injuries.
177 Applying the principles set out in Filipowicz, one can clearly identify a psychiatric injury which has given rise to some permanent impairment. However, it is then necessary to delineate the impairment consequences of that injury, and to that extent, the plaintiff demonstrated his capacity for employment over the period from 2006 to late 2008 or early 2009. There was no suggestion that such earnings over that period were less than 60 per cent of the “without injury earnings” of the plaintiff with the defendants. For completeness, and again consistent with the principles enunciated in Filipowicz, it would be arguably open to the plaintiff to allege that the compensable injury that he suffered during the course of his employment with the Sacred Heart Mission has given rise to a “serious injury” based on the principles established in Petkovski. In this sense, whereas the plaintiff was demonstrating a capacity for work up until such time that his pre-existing psychiatric condition was “aggravated”, such aggravation caused him to cease work and increase his medication. Again, it is a matter of identifying the subsequent injury and delineating the impairment consequences of such injury.
178 Both parties made detailed submissions in relation to this particular critical issue, and in particular, it was submitted on behalf of the plaintiff that the decisions of Altona Bus Lines v Lococo,[109] Acir v Frosster Pty Ltd[110] and Alcoa of Australia Ltd v McKenna[111] are of assistance in determining this issue.
[109][2002] VSCA 159
[110]Op cit
[111](2003) 8 VR 452
179 In Altona Bus Lines, the worker, Lococo, was employed as a bus driver and suffered the following injuries:
(a) On 3 July 1995, in the course of his employment, he was alighting from a bus when he slipped and fell and as a result, suffered a low-back injury for which he was treated with analgesia and anti-inflammatory medication. He was off work for about three weeks and returned to light duties and remained on light duties for a number of months before resuming full-time work as a bus driver, experiencing intermittent pain;
(b) On 3 December 1998, the worker rose from his seat on the bus, forgetting to disengage his seatbelt, and suffered severe pain in his lower back which gradually worsened, and radiological studies revealed that he had suffered a disc extrusion compressing the L5 nerve root. He returned to work on light duties but did not resume bus driving;
180 The plaintiff applied, pursuant to the provisions of s135A(4) of the Act, to bring proceedings for the recovery of damages in respect of the injury which he suffered on 3 July 1995. Because of the provisions of s134A of the Act, the worker could not recover any damages in respect of the injury he sustained on 3 December 1998.
181 In order to obtain leave, the worker was required to establish that the injury on 3 July 1995 was a “serious injury” within the meaning of s135A(19) of the Act, to wit the injury had to fall within paragraph (a) of the definition, in that he had sustained “a serious long-term impairment … of a body function”.
182 Buchanan JA (with whom Chernov JA and Eames JA agreed), stated:
“Whether an injury is ‘serious’ depends upon the extent of the impairment or loss of a body function resulting from the injury. Where separate injuries resulting from separate incidents impair one body function it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury. Each injury and the impairment of a body function resulting from it must be considered separately. … .”[112]
[112]Altona Bus Lines v Lococo (op cit) at paragraph [7]
183 Later, Buchanan JA stated:
“At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a ‘sufficient contribution’ to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, ‘the additional effects [those which became manifest in 1998] are consequences of the original injury’ and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a ‘severe long-term impairment of a body function’. … .”[113]
[113]Altona Bus Lines v Lococo (op cit) at paragraph [12]
184 I consider that such decision is essentially consistent with Filipowicz as Buchanan JA effectively found that the trial judge considered the original injury to be a “serious injury” and the additional effects of such injury manifested itself in 1998.
185 I do not consider such a decision assists the plaintiff in this matter as there was distinct and clear evidence as I have so found, that the plaintiff was capable of performing his work throughout 1996, 1997 and most of 1998 until events unrelated to his employment with the defendants aggravated his pre-existing psychiatric state.
186 The matter of Acir v Frosster Pty Ltd[114] involved a claim for damages brought by Acir against Frosster Pty Ltd. Because Acir was gravely ill, he was given leave pursuant to s135BA of the Act to proceed to the claim for damages, which would include a determination as to whether or not he had suffered a “serious injury”.
[114]Op cit
187 An issue arose as to the appropriate calculation of the “without injury earnings” of the worker. That issue involves a determination of what the plaintiff was earning or was capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred”.[115]
[115]See s134AB(38)(f)(ii) of the Act
188 Within the three years after the injury said to be a “serious injury”, a supervening event interval which, on one view of the evidence, extinguished the worker’s earning capacity and would have caused him to cease working in the three-year post injury period.
189 In those circumstances, the defendants submitted that the “without injury earnings” should be viewed as nil on the basis that the unrelated supervening event would have destroyed the worker’s earning capacity. Against that, the worker submitted that questions of non-work related supervening events are not to be considered in the making of a s134AB(38)(f) determination – rather, the role of such events is confined to the assessment of damages in the common-law proceeding.
190 Forrest J determined that for the purposes of fixing a representative figure for “without injury earnings”, under s134AB(38)(f) of the Act, the Court should not take into account the supervening event which destroyed the worker’s earning capacity.
191 I do not consider that the issue so decided by Forrest J assists in the determination of the issue in this proceeding. Essentially, Forrest J decided that supervening unrelated events occurring within the three years after the occurrence of the injury are not relevant in determining the “without injury earnings” of any particular worker. The issue in this proceeding is whether the total incapacity now suffered by the plaintiff is a consequence of any serious injury impairment caused by a compensable injury arising out of or in the course of the plaintiff’s employment with the defendants.
192 Counsel for the plaintiff also made reference to Alcoa,[116] and in particular, to the “observations” made by Chernov JA, one of the presiding Court of Appeal judges, where, at paragraph 19, he states:
“Where a respondent to a subs (4)(b) application seeks to resist the application on the basis that the injury does not fall within s 135A(2), the evidentiary burden of making out that case falls on it. The real question is, however, to what standard must the respondent prove its case on that issue – is it sufficient if it establishes it on the balance of probabilities or must it go further and effectively satisfy the court, much like a defendant seeking summary judgment, that the applicant’s prospects of establishing that the injury falls within s 135A(2) is ‘absolutely hopeless’ or ‘bound to fail’. I consider that the better view is that the latter situation applies. … .”
[116]Op cit
193 It is submitted that consistent with the dicta of Chernov JA, that there is an onus on the defendant to establish that the merits of the plaintiff’s application for the serious injury certificate in relation to pecuniary loss is “bound to fail”.
194 I consider that such submission is of no relevance to the subject proceeding. Alcoa involved the operation of s135A of the Act and although members of that Court were unanimous in dismissing an appeal by Alcoa, they differed as to whether a worker, for leave to bring proceedings pursuant to s135A(4)(b) of the Act, is required to satisfy the Court not only that he or she has sustained a “serious injury” within the meaning of s135A(19), but also that the injury meets one or both the sets of criteria contained in paragraphs (a) and (b) of s135A(2) of the Act.
195 Chernov JA considered that the task of the Court under s135A(4)(b) of the Act is limited to determining whether the worker has sustained a compensable injury arising out of or in the course of his or her employment that meets the definition of “serious injury” in s135A(19) of the Act, and, in an appropriate case, deciding whether, in the exercise of a discretion, to refuse leave notwithstanding that the applicant has sustained a serious injury.
196 It was in this context that there was discussion as to whether a Court would be entitled, in the exercise of discretion, to refuse to grant leave.
197 It is only when the court has initially determined that a worker has sustained a compensable injury arising out of or in the course of his or her employment that meets the definition of “serious injury” in s135A(19) of the Act that any possible discretion should be exercised. As pointed out earlier in this judgment, s135A has never contained the additional requirement that it is for a worker to satisfy s134AB(37)(e), (f) and (g). I do not consider that the dicta of Chernov JA has any relevance to this proceeding.
Conclusion
198 Applying what I consider to be the appropriate principles of law based on my findings of fact, I find that the plaintiff has failed to discharge his onus in establishing leave to bring common-law proceedings for “pecuniary loss damages” in respect of the psychiatric injury arising out of or in the course of his employment with the defendants.
199 I do grant leave to the plaintiff to bring common-law proceedings for “pain and suffering damages” in respect of the psychiatric injury arising out of or in the course of his employment with the defendants.
200 I will hear the parties on the issue of costs.
ANNEXURE A
1 The plaintiff tendered the following material:
·Exhibit A – affidavits of plaintiff sworn 8 July 2011 and 6 May 2013
·Affidavit of Andrea Atkinson sworn 1 October 2013
(at pages 8 – 14H Plaintiff’s Court Book (“PCB”))
·Exhibit B – medical reports of the general practitioner, Dr Cuthbertson, dated 9 May 2004, 8 February 2005, 22 June 2005 and 22 October 2008
(at pages 24 – 29 PCB)
·Medical reports of the general practitioner, Dr F Imeneo, dated 12 October 2005, 5 February 2009, 5 November 2010, 9 July 2012 and 24 April 2013
(at pages 30 – 39 PCB)
·Reports of the psychologist, Ms E Schwab, dated 1 September 2010, 14 April 2013 and 21 April 2013
(at pages 40 – 53 PCB)
·Reports of the neurologist, Dr R Rollinson, dated 13 October 2013 and 26 November 2008
(at pages 54 – 56 PCB)
·Report of Peninsula Surgical Group dated 12 January 2009
(at page 57 PCB)
·Reports of the psychologist, Mr Richard Hall, dated 12 October 2005, 9 January 2006 and 10 December 2008
(at pages 58 – 76 PCB)
·Reports of the treating psychiatrist, Dr R Kruk, dated 14 February 2013, 23 March 2013 and 1 June 2013
(at pages 77 – 82 PCB)
·Report of the general surgeon, Mr M Flaim, dated 5 July 2010
(at pages 83 – 85 PCB)
·Reports of the occupational physician, Dr Robyn Horsley, date 17 November 2010, 30 May 2012 and 9 January 2013
(at pages 86 – 104 PCB)
·Reports of the psychiatrist, Dr M Epstein, dated 14 July 2010, 6 July 2012, 10 December 2012 and 9 September 2013
(at pages 100 – 123A PCB)
·Exhibit C – taxation summary 2001-2012
(at page 124 PCB)
·Exhibit D – Employer Injury Claim Form dated 29 January 2009
(at pages 125 – 126 PCB).
2 The defendants tendered the following material:
·Exhibit 1 – letter from Messrs Maurice Blackburn to Dr Kruk dated 23 February 2013
·Exhibit 2 – medical report of the general surgeon, Mr J L Sinha, dated 9 November 2003
(at pages 20 – 23 Defendant’s Court Book (“DCB”))
·Reports of the psychiatrist, Dr T Entwisle, dated 22 July 2005, 28 May 2009, 26 February 2010, 17 May 2010, 26 August 2010 and 18 March 2011
(at pages 59 – 84 DCB)
·Report of the occupational physician, Dr D Fish, dated 19 June 2009
(at pages 85 – 90 DCB)
·Report of the general surgeon, Mr M Troy, dated 22 December 2010
(at pages 91 – 99 DCB)
·Report of the psychiatrist, Dr I Jackson, dated 12 January 2011
(at pages 100 – 110 DCB)
·Exhibit 3 – employment agreement with Sacred Heart Mission
(at pages 140 – 147 DCB)
·Exhibit 4 – medical reports of Dr F Imeno dated 16 March 2009, 1 July 2009, 26 August 2009, 13 September 2009, 27 October 2009
(at pages 177 – 182 and from pages 186 – 187 DCB)
·Medical practitioner questionnaire
(at pages 182 – 185 DCB)
·Exhibit 5 – vocational report dated 3 June 2005
(at pages 111 – 118 DCB)
·Exhibit 6 – transaction history – Sacred Heart Hospital
·Exhibit 7 – part of notes from the general practitioner, Dr F Imeneo
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