Kerridge v Monsfelt
[2009] VCC 154
•13 March 2009
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.
| DAMIAN KERRIDGE | Plaintiff |
| v | |
| MONSFELT PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18, 19 and 20 November 2008 |
| DATE OF JUDGMENT: | 13 March 2009 |
| CASE MAY BE CITED AS: | Kerridge v Monsfelt Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0154 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – alleged psychiatric injury as a result of bullying and harassment – acceptance of liability and brief period of payment of statutory benefits – whether payments validly terminated – whether alleged inability to return to particular workplace whilst particular individual is there might constitute incapacity so as to attract payment of benefits – whether injury occurred at all and weight to be attached to acceptance of claim – whether open to defendant to rely upon grounds other than those contained in notice of termination.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M O’Connor | Constable Connor & Co Pty Ltd |
| For the Defendant | Mr C Miles | Wisewoulds |
| HIS HONOUR: |
General background
1 This matter comes before me pursuant to a writ issued by the plaintiff in which he seeks from the defendant, which was his employer, weekly payments of statutory benefits pursuant to the Accident Compensation Act 1985 (“the Act”). As shall be discussed, the defendant accepted liability to make such payments but, within a very short time, terminated them. There is no argument but that the appropriate notice was served prior to such termination and that the required conciliation process has been completed. The defendant admits that, by letter of 5 April 2007, it accepted liability to make weekly payments; asserts that it lawfully terminated such payments; and denies liability in respect of any ongoing payments on the basis that the plaintiff is no longer incapacitated for his pre-injury duties and is otherwise not entitled to the relief sought. It would appear that weekly payments were terminated on 13 April 2007, and thus the plaintiff is claiming an entitlement to weekly payments of compensation from that date.
2 Mr M. O’Connor of counsel appeared on behalf of the plaintiff. Mr C. Miles of counsel appeared on behalf of the defendant. Oral evidence was adduced from the plaintiff; from the plaintiff’s general practitioner, Dr Christopher O’Brien; from Dr Michael Duke, a consultant psychiatrist who saw the plaintiff once on behalf of the defendant; from Mr Francis Watson, the manager of the defendant’s premises at Myrtleford; from Mr Kenneth Edgar, a proprietor and director of the defendant at the relevant time; and from Mr Graham Edgar, a partner in the defendant at the relevant time. Various documents were also placed in evidence and both counsel made helpful submissions.
The conduct of the hearing
3 I shall now set out a summary of the evidence called on behalf of the parties. This shall include reference to some non-controversial facts.
(a) Evidence-in-chief of the plaintiff 4 The plaintiff is aged 26 years, having been born on 16 September 1982. He resides in Porepunkah in north-eastern Victoria. He has a partner and two young children. He was educated to Year 10 level whilst living in Queensland, and thereafter engaged in labouring work, mainly of a casual nature. In approximately 1999, the plaintiff came to Victoria and continued to engage in such casual work. He had suffered a depressive episode whilst in Queensland, although confusion surrounds the date of that in relation to the move to Victoria. This episode shall be discussed further when I am dealing with the plaintiff’s medical history and condition.
5 The plaintiff commenced work with the defendant in early 2006. The defendant at the relevant time effectively ran three Tyrepower outlets or stores, one of these being in Myrtleford, one in Corowa, and with what could be described as the head office being in Albury. The plaintiff was employed at the Myrtleford store. The work involved was physical in nature and, as one might expect, related to the maintenance and replacement of tyres on vehicles, and predominantly the tyres of trucks and tractors. In particular, the defendant had a sizeable contract to service the vehicles of a local transport company called Green Freight. Given the injuries upon which the plaintiff relies, which are psychiatric or psychological in nature, and the circumstances in which they allegedly arose, namely bullying, harassment and physical assault, the actual physical demands of the work performed are only marginally relevant.
6 The plaintiff alleges that, within a few weeks of his commencing work with the defendant at Myrtleford, his boss, Frank Watson, began behaving in an aggressive way towards him, engaging in verbal abuse and threats. The plaintiff alleges Watson swore at him and accused him of incompetence.
7 It should be said that the only other employee at the Myrtleford office was a gentleman called Nathaniel Monshing, a cousin of the plaintiff’s de facto wife. Mr Monshing at one stage arranged a meeting with what the plaintiff described as “the bosses” at the Myrtleford store, this being arranged because of Mr Watson’s attitude and behaviour towards the plaintiff and Mr Monshing. In fact, the plaintiff referred to meetings (plural) at which either Ken or Graham Edgar, or two other gentlemen who were “bosses”, attended. The other gentlemen involved were Leo and Jamie Conroy, who also had a proprietorial or management interest in the defendant. The plaintiff stated that there were at least half a dozen meetings in relation to these issues. The outcome was that it was decided that the plaintiff and Mr Watson should have minimal contact, at times using Mr Monshing as an intermediary. However, given that there were only three people in the workplace, having such minimal contact proved difficult. The plaintiff alleged that there would be brief improvement and then a return to the previous conditions.
8 He also alleged that he was physically bullied by Mr Watson on a couple of occasions, once when there was a Green Freight driver present. The plaintiff stated that he was having some trouble taking the wheel off a Green Freight vehicle when Mr Watson began swearing at him, telling him he should not be touching the wheel, and pushed him out of the way and to the ground. He alleged that, on another occasion when he went to take some wheel nuts off a car with a rattle gun, Mr Watson told him not to because the particular customer did not like that gun being used. He pushed the plaintiff to the ground and took over the job himself.
9 Following this incident, there were further discussions with “the bosses” and it is the plaintiff’s recollection that he threatened to leave. The reason he gave for wanting to leave was the verbal abuse, the bullying and the harassment by Mr Watson, and he spoke to Mr Ken Edgar in this regard. Apparently, Mr Leo Conroy arrived, there was another discussion and a further attempt to resolve the matter, and again the improvement was only temporary. The plaintiff claimed that Mr Watson then resumed abusing him virtually every day, and sometimes more than once during the day.
10 As a reaction to this, the plaintiff developed a rash on his body. He also started to get tearful at work, although this may have begun within the first few weeks of employment. He claimed that he did not feel safe when Mr Watson was making threats towards him, he became tense, his sleeping was affected and he had nightmares. The plaintiff had suffered an earlier depressive episode in 2002, but, unlike in the situation now being described, he did not suffer sleeplessness, night sweats and nightmares.
11 He said that he also became aware of pressure in his chest, and this commenced not long before he collapsed at work and went to hospital, this being in November 2006. At the time of feeling pressure in his chest, he attended at the Standish Street Medical Centre. The plaintiff also had aggressive outbursts in reaction to what was occurring to him. Furthermore, he developed an ulcer approximately midway through the period of his employment with the defendant. There has been a recent recurrence of that.
12 As a reaction to his stress and anxiety, he also started vomiting, almost on a daily basis, this again being something that had not occurred during the depressive episode in 2002. This still occurs, but is no longer on a daily basis because of medication which the plaintiff takes in relation to it. However, he still vomits every two or three days in the early morning. He also took Valium for a period, a mood stabiliser and a muscle relaxant. This is in addition to taking Cipramil for anxiety and depression. The plaintiff is on a waiting list for counselling at the Bright Community Health Centre, this being due to start in the immediate future.
13 On the day of his collapse, the plaintiff had an argument with Mr Watson. He believes he lost consciousness and woke up on the ground. He rang his partner, who organised a visit to Dr Bennie at the Standish Street Medical Centre, and organised to pick up the plaintiff from work. The plaintiff alleges that, whilst waiting for his partner to arrive, he was again verbally abused by Mr Watson on the basis that he should be working and that there was nothing wrong with him. When the plaintiff said that he needed to see someone in order to find out what his problem was, he was effectively told by Mr Watson not to return to work.
14 He was taken by his partner to see Dr Bennie, was sent to the Myrtleford Hospital, and remained there for some three days on an intravenous drip. Within a few days of his return to work, shortly after hospitalisation, he was again abused by Mr Watson on the basis that he did not have a medical certificate and had not rung in order to confirm where he was. Mr Watson continued to abuse the plaintiff on almost a daily basis, and his symptoms continued. There was no further physical abuse.
15 Because Dr Bennie could not identify any particular problem, the plaintiff changed medical practitioners and began to attend Dr Philipiah. At this stage the plaintiff said he felt sick every morning, was losing weight, felt run down and had anxiety attacks, and accordingly was no longer able to work. He ceased work on 12 January 2007.
16 The plaintiff admitted that, on approximately 20 January 2007, he entered Mr Watson’s caravan at the workplace and took some items. He was charged and pleaded guilty in relation to this. He received a Community-based Order and was ordered to make restitution. He made his WorkCover claim in March 2007.
17 In approximately October and November of that year, the plaintiff did two months seasonal work on a hop farm. He did not get the same work in 2008 because that employer found out about his WorkCover claim for depression and the like. The plaintiff is able to take up a part-time position as a trainee arborist on a trial basis in the near future. Finally, he confirmed that his symptoms, including vomiting, were continuing.
Cross-examination of the plaintiff
18 In cross-examination, the plaintiff stated that he had suffered two previous episodes of psychiatric illness, the earlier occurring when he was in Queensland. He was treated by a general practitioner, receiving medication and counselling. He agreed that he was off work for at least 12 months and that he was on medication. He also agreed that it was quite a severe illness or depressive state. When he stopped taking his medication for a while and after about 12 months, there was another episode of depressive illness. At that time he saw both a general practitioner and a psychiatrist who was based in Wangaratta. Again, he was on medication, but did not believe that he was doing any more than casual work at this time. He agreed that it had been generally hard for him to hold down a job.
19 The plaintiff also referred to a previous motor vehicle accident which he had had when on his way to work at a sawmill in approximately 2004, and which put him off work for approximately three months. He admitted an outburst of anger in 2001 which resulted in him punching a car and damaging his dominant right hand. He had a problem in 2001 in relation to a driving matter which involved a criminal prosecution, and admitted that he was depressed, but not suffering from manic depression, at that time.
20 In relation to his collapse at work in November 2006 and his subsequent attendance at Dr Bennie’s practice, he agreed that there was nothing in the notes of Dr Bennie that indicated that he attended that practice at that time in relation to an anxiety or depressive condition or other psychiatric illness. There were three attendances, but none related to such a condition. The plaintiff confirmed that he was “pretty sure” that the day of his collapse at work was 27 November 2006. It was put to him that his attendance upon Dr Bennie on that day related to symptoms possibly consistent with septicaemia or meningitis. It was put that the next entry, 30 November 2006, related to the plaintiff being much better “on penicillin” and referred to interscapular pain. Pneumonia was excluded. He agreed that his next visit to Dr Bennie concerned an eye problem following welding at home. This was in December 2006.
21 The plaintiff admitted that he had been convicted of marijuana use and that a Domestic Violence Order had been taken out against him by his partner. These events seem to have occurred in 2004. Apart from a traffic matter, he also admitted his convictions and punishment in relation to breaking into Mr Watson’s caravan. He admitted placing graffiti on the outside of Mr Watson’s van and items, including a safe and a camera, had been stolen, although he stated that he had two accomplices with him when this occurred.
22 The plaintiff disagreed with the proposition that there had in fact only been one relevant meeting whilst he was employed by the defendant, that it was with Mr Graham Edgar, and that it concerned following the correct chain of command when making a complaint. He disagreed he had been the source of difficulty in dealings between himself and Mr Watson.
23 The plaintiff could only recall one occasion on which Mr Watson complained to him about his failure to wear a safety vest. He essentially disagreed that he “back-chatted” Mr Watson, but said that he may have done this on a couple of occasions because of the way that Mr Watson was talking to him. He disagreed that there was a major issue concerning him taking time off without giving proper notice and said that this was only discussed after he had returned from hospital on the one occasion. On reflection, he also recalled an occasion when his partner had gone into labour and he had asked for time off from one of the “big bosses in Albury”. He admitted that, on one occasion, Mr Watson had reprimanded him for using bad language to his partner when she came to the store. He disagreed that Mr Watson, in bringing to his attention issues such as safety and timekeeping, did so in a patient and nice way, and that he responded in an abusive manner. He disagreed with the assertion that Mr Watson had never laid hands on him.
24 Upon reflection, he also agreed that he may have taken time off to meet with his solicitors in relation to a driving matter and effectively conceded that he did not notify Mr Watson as to what he was doing. However, he claimed that he spoke to Ken and Leo (“the bosses”), as like many people, he could not talk to Mr Watson.
25 The plaintiff claimed that, on 12 January 2007, Mr Watson became aggressive and the plaintiff ended up jumping into his car and doing a skid from the driveway nearly all the way to the end of the street because he felt angry. He agreed that the police attended, and that he was ultimately charged. This was the last day on which he worked. He also agreed that, after the police intercepted him in relation to this, he went to the doctor. He also agreed that it was on this occasion that he changed from Dr Bennie to another doctor, who was the locum at Dr O’Brien’s practice.
26 The breaking into Mr Watson’s caravan occurred about eight or ten days later. The plaintiff claimed that he did this after he received a termination letter. The plaintiff was subject to considerable cross-examination concerning this, on the basis that it was alleged that he did not receive a letter of termination until March 2007, the breaking-in offences being committed between 20 and 22 January 2007.
27 The plaintiff also admitted that he made inquiries concerning Mr Watson’s caravan being on the premises of the defendant, going so far as to consult solicitors, because he was led to believe that this was illegal. He admitted that he “wanted to get him”. In fact, he had made such inquiries whilst he was still working for the defendant. He stated that, on this occasion, he consulted the solicitor involved during his lunch break, but agreed that he was probably half an hour late in getting back to work.
28 The plaintiff agreed that he knew within a few days that the police thought that he had been involved in the break-in. He agreed that he was involved in two lots of trouble with the police (the car incident and the break-in) immediately after the termination of employment and that this may have placed a little extra pressure on him. He denied that he was overly worried. He agreed that the charge of stealing would have been a big worry for him. However, he continued to insist that he received two letters effectively sacking him. The earlier, according to the plaintiff, referred to keeping his job open. He admitted that, by breaking into the defendant’s premises and behaving as he did in relation to Mr Watson’s caravan, he would have been putting his job at risk if it were still open.
29 The plaintiff agreed that, when he first went to the Bright Medical Centre on 12 January 2007, he complained about depression and labyrinthitis. He stated that he was not given a WorkCover certificate and said that he did not want to make a claim because he knew how hard it would be, given his experience following the motor vehicle accident. On 17 January, he again saw the doctor but did not know whether, as recorded in the doctor’s notes, he had told him that his mood was “okay”. He was equally unclear about blood tests. He agreed that he probably told the doctor that he had temper problems, and that he was abused as a child. He could not remember whether it was on 14 February 2008 that he first obtained a WorkCover certificate.
30 The plaintiff alleged that he had received one lot of training but no rehabilitation, and that he had applied for several work positions, but had been rejected because of his ongoing WorkCover claim. He had applied for a gardening position with the Alpine Shire which he believed he could have done and would have liked. He had done two months of work at the Rostrevor Hop Gardens. He enjoyed that outdoor work, and was paid approximately $5,000-$5,500 for the two months work, this being on a contract basis, and he stopped work at the end of the season. He stated that it was not the work that bothers him, but who he works with.
31 The plaintiff also put in an application for a tyre fitter position in Benalla through an employment agency. He stated he could have managed the work physically, and coped psychologically if he had good people to work with. He had not applied at another tyre firm in Myrtleford (there are two) because of a desire to move out of the area. He also knew that there were no jobs available at these places, he knowing people there. Had there been positions vacant, he could have done the work. Similarly, he did not apply for work at a tyre fitting establishment at Bright because he was aware that there were no positions vacant. He would have been capable of doing such work both physically and emotionally. Similarly, it was his belief that no such positions as a tyre fitter would be available in Wangaratta although there are four or five tyre fitting places there.
32 The plaintiff had also completed a course in relation to driving a forklift, which he passed, but claimed that he could not afford a licence.
33 In relation to his capacity to work at his former place of employment, the plaintiff agreed that Mr Watson had resigned and that, some four or five weeks after that resignation, he visited the defendant’s premises in order to ask the new boss for his job back. He agreed, that with Mr Watson gone, he could do the work, although he had heard that the new boss was “pretty hard”.
34 The plaintiff stated that Dr O’Brien was the only person who had been treating him, although he was on the waiting list to see someone at the Bright Alpine Community Health Centre. On one occasion he saw a psychologist at Wangaratta Community Health, but transport to and from Wangaratta was a problem, and it was for that reason that he was put on the waiting list at Bright. He denied that a psychologist visits him at home, and said this was in fact a social worker. At this point, I might say that exactly what was occurring in this regard is not clear to me. It would appear that this person, who seems to have visited on a regular basis for the best part of a year, may have been visiting the plaintiff because of some report or complaint and it may have been in relation to his children. In any event, he also received some advice concerning his bankruptcy. He agreed that things to do with his children and his bankruptcy would be further causes of concern and worry. He has also been convicted of some driving offences in recent times, but is legally able to drive if he could afford to purchase another licence.
35 The plaintiff agreed that the certificates given to him by Dr O’Brien were for fitness for work everywhere except at the defendant’s workplace. This is so for all except one certificate in December 2007 when it was said the plaintiff could not work at all. He could not recall why this was so. He also agreed that he had been in a fight and required medical attention in March 2007 and stated that he was “pretty lucky” that he had not been charged in respect of it.
Re-examination of the plaintiff
36 The plaintiff’s brief evidence in re-examination could be summarised as follows.
37 The plaintiff was not absolutely sure whether he received a letter or a phone call in relation to termination of employment after providing a certificate from Dr Philipiah which stated that he was unfit for work from 12 January 2007 to 29 January 2007. Whichever it was, it was to the effect of not bothering to return to work. He believed that this occurred prior to his breaking into Mr Watson’s caravan. In any event, his belief at the time that he went on to the defendant’s premises and committed the offences in relation to Mr Watson’s caravan was that he did not have a job to which to go back.
The evidence of Dr O’Brien
38 Dr O’Brien, the plaintiff’s treating general practitioner, gave evidence on behalf of the plaintiff via the video link. His evidence, including cross examination, could be summarised as follows.
39 Dr O’Brien adopted two reports (one being in the nature of a questionnaire) as being true and correct. They were placed in evidence. He stated that he continued to prescribe anti-depressant medication for the plaintiff and to provide counselling. The plaintiff has regular appointments in relation to his WorkCover claims, and Dr O’Brien sees him concerning them. The plaintiff is also on medication in relation to stomach acid and takes painkillers. Dr O’Brien was of the view that the plaintiff’s condition had not changed greatly since his report of 31 May 2007, but added that the plaintiff had many psychological stressors apart from the work-related one.
40 In cross examination, Dr O’Brien agreed that his notes indicated that, at the time of the plaintiff’s first attendance on 12 January 2007, he had four problems. These were depression, a rash, labyrinthitis and a post-viral condition. The notes, compiled by Dr O’Brien’s locum, made no ongoing references to the rash, but the notes in relation to the plaintiff’s attendance on 17 January 2006 recommended that he have three to six months off work, should start on medication and should see a psychologist concerning abuse as a child. Dr O’Brien agreed that, in the notes, the first reference to a WorkCover claim was on 14 February. In relation to the plaintiff’s history that he had been to another doctor in October or November and had been hospitalised because of a stress condition, Dr O’Brien agreed that he had no notes from a hospital and was largely reliant upon the plaintiff’s history. He had no notes from another surgery referring to a stress condition. The first certificate that was issued on 14 February referred to stressors with the family as well as work.
41 Dr O’Brien agreed that he had never referred the plaintiff to a psychologist or psychiatrist, and never felt that the plaintiff’s symptoms were severe enough to warrant such a referral. He also agreed that, from the earliest stages of his doctor/patient relationship with the plaintiff, he was of the opinion that the plaintiff could work anywhere, but advised against having further contact with Mr Watson. The plaintiff would have been fit for work at other tyre fitting services. Indeed, he would have been fit for work at the defendant’s premises if Mr Watson was no longer there. However, working at that particular place of employment had caused the plaintiff anxiety. If his immediate superior had gone, the plaintiff would have been fit to work at that place of employment immediately.
42 Dr O’Brien was unaware of the fact that the plaintiff had been convicted in relation to the caravan incident, but was aware of motoring offences, relationship problems, marijuana use, domestic violence and the plaintiff’s financial difficulties. He was aware of what could be described as “breakdowns” in the past. He could not comment upon the role of the various stressors, but agreed that it was reasonable to say if someone was already stressed, adding other stressors would make them more anxious. Dr O’Brien also said that he could think of no particular circumstance that arose in January 2008 that led to a deterioration in the plaintiff’s work capacity but believed that the change in certification may have related to Centrelink benefits. There may have been a clerical error. He could not recall whether the plaintiff had told him whether he had been sacked from work or had left voluntarily.
43 In re-examination, Dr O’Brien agreed that there was a certificate dated 17 January 2007 indicating that the plaintiff had a significant long-term illness, namely, depression, which was not resolving and needed input from a psychiatrist. The certificate also stated that work was creating a number of problems and the plaintiff should not be working, being certified as unfit for 90 days. Ongoing counselling every four weeks has continued, together with referral to a free psychology counselling service.
44 That concluded the oral evidence on behalf of the plaintiff.
The evidence on behalf of the defendant
(i) Mr Watson
45 The evidence of Mr Watson, including cross examination, could be summarised as follows.
46 Mr Watson officially retired from his position with the defendant on 3 January 2008, although he had taken some time off prior to that. He worked for the defendant for 16 years, and, in 2006, was living in a caravan on the defendant’s premises at Myrtleford. He was the manager of the business, which was a tyre fitting and repair business. He confirmed that there was a sizeable contract with Green Freight. He recalled the plaintiff, whose work involved tyre fitting and general duties. Originally his relationship with the plaintiff was not too bad, but ultimately there was a lot of disagreement. Mr Watson said that there was difficulty getting the plaintiff to do his work, that at times he did not come to work and Mr Watson did not know what was going on, and that this made things difficult, especially in relation to the important contract with Green Freight.
47 Mr Watson denied picking on or bullying the plaintiff, but said that he had to instruct him at times as to how things were done, and at times matters “got a bit heated”. This occurred when he was asking the plaintiff to perform his duties and instructing him as to the way in which they were to be done. The plaintiff would then abuse him. The plaintiff used bad language towards him, and he responded. According to Mr Watson, he tried to explain to the plaintiff what he had to do, but the plaintiff kept arguing with him. Mr Watson denied vigorously that he had ever pushed or shoved the plaintiff.
48 Mr Watson described difficulties in getting the plaintiff to wear a safety vest at Green Freight’s premises, which was one of that entity’s requirements. The plaintiff did not wear such a vest. Ultimately, there was discussion with the Occupational Health and Safety officer from Green Freight and it was suggested that Mr Ken Edgar be contacted about the matter. The plaintiff would wear the safety vest for a short time, but then not wear it again.
49 In addition, the plaintiff gave no advance warning of when he was going to take time off and be absent. Given that there were only three people at the workplace, this created difficulties. Mr Watson said that he raised this issue with the plaintiff but that the plaintiff did not change his ways to any great extent. On a few occasions the plaintiff’s partner came to the workplace and there were occasions when he was using abusive language towards her. Mr Watson told him that his home concerns should not be brought to work.
50 At no stage did the plaintiff say to Mr Watson that he was being bullied by him or that Mr Watson was causing him anxiety, nervousness or psychiatric problems. On no occasion did he observe the plaintiff faint or collapse at work, and he had no idea that the plaintiff had been in hospital at any time. When Mr Watson last saw the plaintiff at the workplace, he was leaving with a battery under his arm saying that he was taking it home for Nathanial Monshing. It was shortly after this that Mr Watson’s caravan was broken into, damaged, and some goods stolen.
51 In cross-examination, Mr Watson agreed that there were a number of employees who came and went. However, he disagreed that there were something in the order of ten in five years. He denied that there were difficulties in keeping staff because of conflict between himself and staff members. He agreed that, because people were working with high air pressure, it was a reasonably dangerous working environment, but employees were trained as to the correct way in which to do the job. They were trained on-site by Mr Watson. He said that he was patient in teaching people, but that he found it difficult to work with the plaintiff at times. He again denied vigorously that he had ever laid hands on the plaintiff. He stated at times there was a bit of swearing but denied that he had reduced the plaintiff to tears. He denied that the plaintiff was pushed to the ground in the rattle gun incident, which he remembered. He recalled finishing the job himself with the wheel brace, which he denied taking from the plaintiff, but which he said was hanging up ready for use. Mr Watson finished the job because of the plaintiff’s habit of swearing at him and carrying on when advised how to do things. He also denied that he was told either by the plaintiff, or by “the bosses”, that the plaintiff was threatening to leave because of the altercations that were occurring.
52 He could recall only two meetings which involved Mr Ken Edgar coming to Myrtleford. He understood that Mr Edgar had told the plaintiff and Mr Monshing that Mr Watson was the manager. They should have a meeting with him each morning and check what they had to do. At the second meeting it was Mr Graham Edgar who attended. That meeting followed an altercation resulting in the plaintiff effectively locking Mr Watson in the premises. Mr Watson said that he wanted someone to come over and sort out what was happening and Mr Graham Edgar came and spoke to the employees. This improved his relationship with the plaintiff for a little while, but then things returned to normal.
53 Mr Watson’s unhappiness when the plaintiff took time off because his partner gave birth to a child was because he was never informed by the plaintiff that he was going to have time off. As a result of the plaintiff’s absence, he rang Albury in order to find out if those at the workplace there knew what was going on. He also denied that, at one of the meetings, it was agreed that he would not speak directly to the plaintiff but would communicate via Mr Monshing, describing this suggestion as rubbish. He also repeated that the plaintiff never fainted at work whilst he, Mr Watson, was present. He reiterated that he had been unaware of any hospitalisation of the plaintiff in November 2006. He stated that he had never seen a doctor’s certificate in this regard.
(ii) Dr Michael Duke 54 The evidence of Dr Duke, including cross examination, could be summarised as follows.
55 Dr Duke adopted as true and correct three reports, these being dated 28 March 2007, 13 April 2007 and 2 April 2008. These were tendered in evidence. Whilst three reports were prepared, Dr Duke in fact only saw the plaintiff on one occasion. Dr Duke said that he understood termination of the plaintiff’s employment with the defendant was more on commonsense grounds rather than anything to do with a psychiatric illness, and in part related to the offence with which the plaintiff was charged. He stated that there was no psychiatric problem which would have stopped the plaintiff working at the defendant’s Myrtleford premises. Dr Duke also said that, if there was no evidence that Dr Bennie treated the plaintiff for a stress-based rash and admitted him to hospital accordingly, that would be a substantial variation on what he had been told by the plaintiff. Dr Duke was also unaware of some of the other stressors potentially affecting the plaintiff, such as bankruptcy, the problem with the child welfare people, and his relationship breakdown.
56 In cross-examination, Dr Duke agreed that he had expressed the view that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood, and perceived unremitting abuse and assaults by his manager. The plaintiff had also given him a history of irritability because of money worries, diminished appetite, sleeping problems, loss of libido and some mood problems. Dr Duke found that the plaintiff’s mood was in the lowered range, but there were no organic features and no abnormalities relating to perception or cognition. He received no history of problems with vomiting but agreed that, whilst it was not within his area of expertise, nausea and vomiting can be associated with nervousness. Whilst expressing the view that there had been no substantiations of the problems which the plaintiff said he had encountered with Mr Watson, Dr Duke accepted that if, in another job, the plaintiff had workmates who knocked him around, abused him and browbeat him, it would be expected that this may cause some difficulty. If his history of relentless verbal altercations and abuse over a 12 month period were accepted, this could have an effect upon his ability to cope in the future with similar circumstances. Dr Duke also agreed in answer to a question of mine that what is constructive criticism to one person may be perceived by another as harassment.
(iii) Mr Kenneth Edgar 57 The evidence of Mr Kenneth Edgar, including cross examination, could be summarised as follows.
58 Mr Edgar had been proprietor and director of the defendant at the relevant time. Mr Watson was manager at Myrtleford from the time that the store opened. Mr Edgar could only recall attending one meeting at Myrtleford in 2006, this being with Mr Watson and Mr Monshing. The meeting was because Mr Watson, as manager, asked if Mr Edgar could attend because he could not take any more of staff not doing what they were told. At no stage was Mr Edgar called to a meeting by or for the plaintiff. He described Mr Watson as being very honest, well respected in the town, and of impeccable credibility and trustworthiness. He had handled accounts worth over $1 million. Mr Edgar had no reason to believe that Mr Watson was harassing the plaintiff.
59 Mr Edgar denied that he had any telephone conversation with the plaintiff prior to his letter of 9 March 2007, in which he gave the plaintiff two weeks notice as he had exhausted his sick leave entitlements, and noted that the plaintiff was unfit to resume work for at least 90 days and that this could extend to six months. Mr Edgar denied that the plaintiff was ever threatened with the sack. In fact, since that letter, the plaintiff rang Mr Edgar and asked why his position was not terminated because he needed money that might be payable to him. Mr Edgar told him that, since the writing of the letter, the plaintiff had put in a WorkCover claim and therefore his employment was unable to be terminated. Accordingly, he has never been sacked and that remains the case.
60 In cross-examination, Mr Edgar repeated that, after the plaintiff was sent the letter giving him two weeks notice, the plaintiff rang and asked why he was not terminated after two weeks. Mr Edgar stated that he had not done this on legal advice because of the WorkCover claim which was received. The plaintiff was, in essence, complaining because he had not been terminated. He also stated that, when the letter containing the two weeks notice was sent, the reason was because, there being three persons required at the workplace, it could not operate with just a manager and one other person. The job had been held open after receipt of the first certificate. The defendant was “prepared to cop” unfitness for a certified period of 17 days, as in the first certificate, but not another certificate extending the period for up to six months. At the time of the letter, he did not communicate with the plaintiff at all. Mr Edgar denied that the WorkCover claim had in fact been received prior to the sending of the letter of 9 March 2007. He believed that the claim form arrived in the mail and was received on approximately 13 March after the long weekend.
61 Mr Edgar denied that he had had any meetings with the plaintiff in Albury or any telephone conversations about anything to do with these matters. The plaintiff never advised him he was being verbally abused by Mr Watson or by anyone else. He was not aware of conflict between Mr Watson and the plaintiff, and seldom went to the Myrtleford store as Mr Watson ran it. Mr Edgar would only go there at Mr Watson’s request or if he was doing such things as delivering stock and the like.
62 All that Mr Watson told Mr Edgar was that Mr Monshing and the plaintiff would not do as they were told and were causing trouble with a major account. Mr Watson was threatening to resign. Mr Edgar reaffirmed to Mr Watson that he was the manager, had been for 10 years, and was still the manager. He called Mr Monshing in and told him to do exactly what he was told, that he did not own the place, and that he was a member of staff. He was to have a meeting with Mr Watson every morning to plan the day’s work. Mr Monshing said that he was happy with this. “I told him to go and get the plaintiff and bring him in, but he said he would talk to the plaintiff later and it would be no problem”.
63 He again denied that the plaintiff had told him that he was subjected to significant verbal abuse from Mr Watson. He had no recollection of being told that Mr Watson had physically pushed the plaintiff, and doubted very much if such a thing would ever occur.
64 Mr Edgar also said that probably half a dozen different people worked at Myrtleford over a five year period, and that staff were difficult to keep because the tobacco industry was then paying big money.
(iv) Mr Graham Edgar 65 The evidence of Mr Graham Edgar, including cross examination, could be summarised as follows.
66 Mr Edgar is the current owner of the defendant and in 2006 and early 2007 was working in the business as a partner, being based at Albury. At no stage was he contacted by the plaintiff about complaints of harassment, bullying or the like. However, he did meet with the plaintiff and Mr Monshing at Myrtleford on one occasion, and in the absence of Mr Watson, had addressed them about their behaviour towards the manager. He told them to do their job as instructed. The plaintiff may have said that he could not work with Mr Watson any more because he may yell at him when he had not done what was asked to do, and Mr Edgar told the plaintiff to do his job.
67 In cross-examination he did not agree that the plaintiff had said that Mr Watson was abusive verbally to him. Mr Edgar had told the plaintiff and Mr Monshing that they needed to show some respect to the management and sort out the problems. He was unaware of any strategy that the plaintiff was not to speak to Mr Watson.
68 That concluded the oral evidence. Various documents were tendered. Submissions were then made on behalf of the parties. I shall now summarise them.
Submissions
(a) The submissions on behalf of the defendant 69 The submissions of Mr Miles on behalf of the defendant could be summarised as follows.
70 The plaintiff’s past psychiatric history, which includes specialist treatment and treatment over substantial periods, is significant. His treatment then was far greater than at present, as, in relation to this claim, he has not been treated by a psychiatrist or even a psychologist. He has had trouble with the law, and had exhibited irritability and violent behaviour prior to this episode. Reference is made to the punching of the car in 2001. His relationship with his partner has been unstable. His employment with the defendant is the second longest job that he has ever held, so the conditions cannot have been that bad.
71 It is central to the plaintiff’s case that he had collapsed due to a psychiatric problem at work in November 2006, that Dr Bennie treated him for this, and that he was hospitalised. No evidence has been received from Dr Bennie. His notes have been tendered, and there is nothing in them to indicate anything like a psychiatric condition. Similarly, no material has been produced from the hospital although its records have been subpoenaed. Dr O’Brien was not familiar with the contents of the hospital records.
72 The opinions of both Dr O’Brien and Dr Duke were premised upon there being such a collapse and hospitalisation, and indeed the Notice of Acceptance and subsequent Termination Notice were based upon collapse on 27 November 2006.
73 It is apparent that, before any alleged psychological condition or collapse, the plaintiff was setting out to do Mr Watson harm in relation to the legality of the caravan being on the premises. This does not establish bullying or stress at work. It simply shows that the plaintiff was out to cause trouble for Mr Watson.
74 The evidence of Mr Watson and of the Edgars should be accepted. That evidence establishes that, at the very least, the plaintiff has been greatly exaggerating his evidence in relation to such matters as fainting, hospitalisation, physical assaults and the like. It is also apparent that, when Dr Bennie apparently did not want to be part of the plaintiff’s claim, the plaintiff switched doctors. Then, at his initial attendances, the emphasis was on family problems and child abuse rather than work issues, together with other general health issues such as the rash, labyrinthitis and post-viral illness. Even the first WorkCover certificate refers firstly to significant stress in life and with family. Of course, by this time, the plaintiff had broken into his employer’s premises and fundamentally broken his contract of employment. He would have realised by then that his employment future with the defendant was shaky.
75 The break-in, and his driving offence, would have added to the stress which was upon him. The claim should never have been accepted, and reference was made to the evidence of Mr Ken Edgar as to the circumstances in which it was. Given the offence which the plaintiff committed, he did not comply with the requirements of s.93DA(1)(a) of the Act. He can scarcely return to suitable employment if he has committed the offence which he has admitted. Essentially, by his conduct he terminated the employment relationship.
76 As a last resort, the defendant’s argument is that any incapacity which the plaintiff had disappeared with the departure of Mr Watson from the workplace. Dr Duke gave evidence that the plaintiff’s adjustment disorder did not prevent him from returning to work at his normal workplace. In looking at the definition of “current work capacity” contained within s.5 of the Act, what should be considered is the class of pre-injury employment (that is, as a tyre fitter) and not the specific employment at the particular workplace. What is required pursuant to the decision of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 is that, when considering the meaning of “current work capacity” or “partial incapacity”, what is looked at is the class of pre- injury employment. The labour market that is reasonably accessible is considered. Reference is also made to the decision of Wright M in Retallick v Lyndoch Warrnambool Inc (delivered 17 October 2007) to the effect that a desire not to return to work at a specific place of employment does not amount to incapacity as described in the Act.
77 In the present case, the plaintiff at all times had the capacity to work as a tyre fitter in Myrtleford and the surrounding district. Indeed, if he had not created the problem of breaking into the defendant’s premises, he might have transferred to another branch within the organisation. The plaintiff in the present case was kept on as a nominal employee because of the fact that he put in a WorkCover claim.
78 If it is incorrect that at no stage was there incapacity, the plaintiff’s claim is otherwise ended by his return to work at the hop farm. That was an actual return to work, and, pursuant to the Act, no notice is then required for the termination of payments. Reference is made to s.114(5) of the Act.
79 The defendant’s final fallback position is that, once Mr Watson retired, there was absolutely no obstacle to the plaintiff returning to work. The evidence establishes that. In fact, he enquired as to whether he could return to work at the defendant’s Myrtleford premises. Before and since then, he has had a large number of stressors that do not relate to his employment.
80 The court is entitled to look into all matters in accordance with s.39(1AA) of the Act. Once there has been a termination of payments and an inquiry into that termination, all questions and matters are open for consideration. Accordingly, once there has been a valid termination following upon a notice, the defendant is not confined to the grounds set out in that notice.
81 The decision of the Court of Appeal in Ansett Australia Ltd v Taylor [2006] VSCA 171 does not apply to the situation relating to weekly payments. Various decisions of the County Court are more relevant. The plaintiff continues to bear the burden of proof in relation to the establishment of initial injury.
(b) The submissions on behalf of the plaintiff 82 The submissions of Mr O’Connor on behalf of the plaintiff could be summarised as follows.
83 Firstly, the evidence in relation to the circumstances surrounding the termination of the plaintiff’s employment with the defendant is clear. It followed receipt of the medical certificate of 7 January 2007 which indicated that the plaintiff would be unfit to return to work for 90 days or, possibly, six months. This fits with the plaintiff’s evidence that he was told by somebody at managerial level that he was not to come back, and this in part explains his motivation for the illegal activity which followed. However, the reasons for the termination of his employment are clear and do not relate to the incident upon which attention has been focused.
84 The plaintiff’s evidence was clear and consistent and should be accepted. In relation to the plaintiff’s account of his going to hospital, the defendant could have examined the relevant records, and, as it is, the plaintiff’s evidence is not in fact under challenge. It is admitted that the reason why he attended there was the subject of some challenge (this submission occurred in the context of a discussion as to whether, in the absence of any evidence from either the hospital or Dr Bennie, I was entitled to draw the type of inference referred to in Jones v Dunkel (1959) 101 CLR 298). Whatever the reason for the hospitalisation, there was no challenge to the proposition that the plaintiff was in hospital for three days in November 2006.
85 It also cannot be disputed that significant disputation occurred at the workplace. It is a question of perception, and it really does not matter whose version of events is correct. Reference is made to the decision of His Honour Judge Strong in Mitrevski v C Stokes & Co Pty Ltd (delivered 28 January 2000).
86 The admissions by the defendant of the plaintiff’s impairment claim and of his claim for weekly payments of compensation are significant, bearing in mind the decision of the Court of Appeal in Ansett Australia Ltd. No evidence has been called which provides any explanation for the “U-turn” in relation to the decision. There is no reason to allow the defendant to resile from the clear admissions made.
87 The decision of the medical panel is binding and it is to the effect that the plaintiff has an eight per cent permanent psychiatric impairment resulting from the accepted work injury. This should be borne in mind along with the admissions. Dr Duke also conceded that the plaintiff would have difficulties working if he was placed with workmates who knocked him around, abused him and the like. The plaintiff was enthusiastic about returning to work, but always with the rider that he be provided with staff who were willing to treat him correctly. The court is entitled to conclude that his prospects of being able to retain employment in the future have been significantly diminished. This is because of the experience he had with Mr Watson and the aggravation of a pre-existing injury which was caused by that experience.
88 The plaintiff had suffered two previous episodes and was vulnerable at the time he commenced work. His evidence establishes that, as a result of his work, he again commenced suffering symptoms in 2006, and those symptoms were more significant than those previously suffered by him. He was certified as being unfit for work for an extended period of time in early January, pointing to the gravity of his condition at that time.
89 Clearly, the plaintiff could not have returned to work with the defendant whilst Mr Watson was still there. He could not return to his pre-injury employment. The plaintiff has an incapacity if he is unable to carry out all the work performed for the employer prior to the injury, but is still capable of some other work. Reference is made to the decision of His Honour Judge Stabey in Doolan v Accident Compensation Commission (delivered 15 April 1987). In considering suitable employment, the place of residence of the plaintiff at Porepunkah must also be considered. Further, the plaintiff was actually not trained as a tyre fitter and the number of positions available to him would clearly be limited. It would be likely he would again be exposed to workplace altercations, and would now be far less able to deal with them. In addition, the regime of medications which the plaintiff was and is taking would affect his ability to work.
Ruling 90
This is a quite complicated matter, but in my opinion the plaintiff’s action must fail. I shall now turn to my reasons as to why this is so. They are not set out in order of importance or significance.
91
Overall, it seems to me that the plaintiff fails on the question of capacity. That is so wherever the burden of proof may lie. The issue of the existence of any incapacity in a case such as this, being one involving alleged psychological or psychiatric injury, seems to me to be inextricably linked to the credit of the plaintiff and whether he can be relied upon as giving an accurate account of the factual events which he claims were causative of his symptoms and incapacity. Mr O’Connor is quite right in suggesting that cases such as this involve matters of the perception of events on the part of the individual. As I said during the conduct of the matter, one person’s constructive criticism is another person’s harassment. However, whether that perception is causative of an injury which produces incapacity beyond the date of the termination of payments is another matter. The investigation of that issue necessarily involves consideration of not only the plaintiff’s credit and reliability but also of the circumstances and severity of the injury for which liability was accepted.
92
Furthermore, the only psychiatric evidence given in this case was that of Dr Duke. He expressed the view that the reason why the plaintiff could no longer work with the defendant related to commonsense grounds rather than psychiatric grounds, referring to his belief that the plaintiff’s services had been terminated and to the incident relating to the caravan (he referred to it as a car, but the meaning was clear). He also prefaced his opinion that the plaintiff might encounter difficulties working with people who knocked him around or abused him, with the caveat that this was so if the events described concerning Mr Watson occurred. Thus, in his opinion, the credit and reliability of the plaintiff in accurately describing what occurred with Mr Watson was fundamental to his opinion as to whether or not the plaintiff might encounter difficulties in a “robust” workplace in the future.
93
I do not regard the plaintiff as being a reliable witness in relation to the events that occurred at the defendant’s workplace and involving Mr Watson. I accept that there were disagreements. However, in my opinion Mr Watson was a completely frank and straightforward witness, and in any instance where there was a conflict of evidence between Mr Watson and the plaintiff, I prefer the evidence given by Mr Watson. Apart from the fact that he seemed to me to be a very impressive witness, his version of events was consistent with that given by the Edgars, both of whom were also credible and impressive witnesses. On the other hand, the plaintiff, whilst at times giving frank evidence in relation to other factors and stressors occurring in his life, did not impress me as being accurate in relation to issues concerning his period of employment with the defendant. For example, his evidence concerning taking time off without notice, meetings with the management, compliance with instructions given by Mr Watson and being manhandled did not strike me as being either reliable or accurate. He made some gradual concessions concerning time off and lateness without notice being given. His evidence concerning the number of meetings he had with management and what was said at them is at odds with the evidence of Mr Watson and the Edgars, they being, as stated, impressive witnesses whose evidence I accept. I also prefer the evidence of Mr Kenneth Edgar in relation to the timing of the attempted termination of the plaintiff’s employment and I do not accept that the criminal activity in which the plaintiff engaged at the defendant’s premises after his last working day resulted from the fact of, or a threat of, dismissal. I also do not accept the assertion that, following an argument with Mr Watson, the plaintiff lost consciousness and fell to the ground and that Mr Watson then continued to abuse him. I accept Mr Watson’s evidence in this regard. I accept that Mr Watson never witnessed any collapse on the part of the plaintiff and had no idea that the plaintiff was taken to hospital, much less abusing the plaintiff and telling him that there was nothing wrong with him. In short, I have formed the opinion that there were several instances when the plaintiff’s evidence could not be accepted. He was not a reliable witness.
94
The evidence adduced on behalf of the plaintiff in relation to his hospitalisation in November 2006, and the reasons for this, was also of limited value, to put it at its highest. Dr Bennie, who was treating him at the time, was not called to give evidence. His notes were placed in evidence. They reveal that the plaintiff had three attendances upon Dr Bennie in November 2006. The first, on 23 November 2006, refers to nausea and previous gastric ulceration. The second, on 27 November 2006, refers to pathology being requested in relation to blood cultures with a question mark next to the word “septicaemia” and also contains the words “febrile some meningitic features”. The third entry, on 30 November 2006, refers to the plaintiff as being much better, being on penicillin, having intrascapular pain, and measures being taken to exclude pneumonic changes. The next entry, dated 4 December 2006, is in relation to welding flashes to both eyes whilst the plaintiff was welding at home. The next entry, dated 9 January 2007, concerns “pityriasis rosacea”, being a rash developed by the plaintiff. Thus, the notes of Dr Bennie, the treating doctor of the plaintiff at the time he alleges he suffered the collapse in November 2006 with subsequent hospitalisation for reasons basically connected with this claim, make no reference to it.
95
The plaintiff adduced no evidence from the hospital to which he says he was sent by Dr Bennie, so that the court was left entirely in the dark in this regard. Even if, because of the acceptance of liability by the defendant, the burden of proof was reversed or if, because of such admission, the plaintiff was under no obligation to call any evidence in relation to the original occurrence of injury, one might have thought that some evidence, whether it be from Dr Bennie or from the hospital, might have been introduced by the plaintiff so as to support his account of the severity of the symptoms from which he suffered and the resultant incapacity.
96
The evidence of Dr O’Brien, called by the plaintiff, did not assist greatly in this regard. Whilst, when the plaintiff was first seen at Dr O’Brien’s practice by a locum on 12 January 2007, depression was one of four conditions listed, there was no reference at that stage to work, to treatment by Dr Bennie, or to hospitalisation. The next attendance on the locum, on 17 January 2000, referred, inter alia, to the need for the plaintiff to attend upon a psychologist because of abuse which he had received as a child. There was a further attendance on 31 January 2007, and the first reference to any WorkCover claim occurred on 14 February 2007. Dr O’Brien agreed that he was mainly dependent upon what the plaintiff told him in relation to earlier complaints and treatment, and that he had no notes from Dr Bennie’s surgery or from the hospital. Incidentally, Dr O’Brien agreed that thereafter there were a number of stressors in the plaintiff’s life, but he at no stage felt that the plaintiff’s symptoms were severe enough to warrant referral to a psychologist or psychiatrist.
97
In relation to the circumstances in which the plaintiff ceased work, I accept the evidence of Mr Watson that the plaintiff at no time told him that he was going to leave. I accept that, on the plaintiff’s last working day, which seems to have been 12 January 2007, he worked late until approximately 6pm to 6.30pm. He then departed with a battery under his arm, saying that he was taking it home for Mr Monshing, the battery having been requested in a telephone call. The plaintiff simply did not return to work thereafter, and it was shortly after this that the breaking into of Mr Watson’s caravan and the theft occurred. This version of events concerning the plaintiff’s last working day was basically unchallenged, and the plaintiff stated in evidence that he could not recall any specific incident that prompted him to threaten to leave. I accept Mr Watson’s evidence.
98
I do not accept that Mr Watson manhandled the plaintiff or pushed him to the ground. I found the plaintiff’s evidence in this regard unconvincing. Mr Watson vigorously denied it. I accept Mr Watson’s evidence. Mr Ken Edgar denied that the plaintiff had ever told him that he had been pushed by Mr Watson, and doubted very much that Mr Watson would ever do such a thing. I accept Mr Edgar’s evidence.
99
Thus, the factual basis of Dr Duke’s opinion in relation to whatever incapacity the plaintiff may have had has not been established to my satisfaction. Dr Duke was given a history of bullying, Mr Watson constantly swearing at the plaintiff and physically pushing him around. In my opinion, the occurrence of some disagreements concerning the manner in which the plaintiff did his work represents the high water mark of the bullying and the like, and this is even after allowing for the perception of the individual. The plaintiff was hospitalised for three days for reasons that are far from clear (I note that he says that he was placed on a drip). The notes from his general practitioner at that time reveal little, if anything, that assists the plaintiff, and that doctor was not called to give evidence. The plaintiff made no complaint on his last working day, and simply did not return to work. When seen by Dr O’Brien’s locum, the plaintiff having changed doctors because, to use his words in evidence, “Dr Lee Bennie couldn’t pinpoint any particular problem with me”, depression was only one of a number of conditions mentioned and, at the next attendance upon that locum, what was noted was that the plaintiff should see a psychologist because of abuse he received as a child.
100
Again, the scenario is one of minimal, if any, incapacity then resulting from a work-related condition, even if liability was subsequently accepted and weekly benefits paid for a very brief period.
101
A questionnaire completed in handwriting by Dr O’Brien and dated 22 March 2007 records the following:
“Feels is his(sic) fully capable of work but not in that workplace”.
It also contains the following observation:
“Would benefit from change of workplace & short term counselling”.
In a report to the plaintiff’s solicitors of 31 May 2007, Dr O’Brien expressed the view that the plaintiff was capable of fulltime work but did not believe the plaintiff would be able to return to work with the defendant. Whilst this report post-dates the termination of payments on 11 April 2007, basically it reflects what was earlier said in the questionnaire by Dr O’Brien on the question of capacity.
102 Prior to payments being terminated, the defendant had also obtained a report dated 28 March 2007 from Dr Duke. His opinion at that time, and as repeated in his oral evidence, was based upon a history of perceived unremitting abuse and assaults by Mr Watson. The reason given to him by the plaintiff for cessation of work was the development of both psychological and physical problems. Dr Duke made the following observations:-
“He is naturally unable to carry out his pre-injury job because he
has been terminated.”
And─
“Mr Kerridge cannot return to the workplace in which he was terminated. In my view, he does have a capacity to perform other sorts of work.”
It is to be remembered that Dr Duke stated in his oral evidence that what he meant was that the plaintiff could not return to work with the defendant on common sense grounds rather than psychiatric grounds, Dr Duke believing that the plaintiff’s employment had been terminated.
103 It seems to me that, even if the plaintiff’s evidence as to abuse and assaults by Mr Watson was accepted (and I do not accept the plaintiff’s version of events), and even if his basically unsubstantiated version of his medical treatment and the reason for it were accepted (and given that I do not find him to be a reliable witness, I have grave misgivings about such automatic acceptance) and even if his cessation of employment was directly related to a work-related injury (which may seem a doubtful proposition, but the admission of liability has to be borne in mind), the highest level at which he could place his incapacity as at April 2007 would be that he was unable to return to his former place of employment but would be able to perform all of his pre-injury duties elsewhere. Indeed, this high point might be even more restricted. It may well be that his incapacity was specific not just to his former place of employment but to that place whilst Mr Watson remained there. It is to be recalled that, admittedly at a later date, the plaintiff enquired after employment at the defendant’s Myrtleford premises, Mr Watson having retired. In addition, it is to be remembered that the defendant had, at the relevant time, more than one workplace. Thus, even if the evidence on behalf of the plaintiff referred to above was accepted, it seems to me that his incapacity as at April 2007 was probably confined to one particular workplace of the defendant whilst one particular individual remained there.
104 Does this level of incapacity attract payments pursuant to the Act after the date of termination? Viewed very technically, and in certain circumstances, an argument along these lines might be able to be advanced. In the present case, the high water mark of the plaintiff’s incapacity claim has already been described. In my opinion, that is not sufficient to attract ongoing weekly payments. The plaintiff was a tyre fitter. He remained fit to continue work as a tyre fitter. It seems to me that the decision of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 assists the defendant rather than the plaintiff. Whilst set in the context of a different statutory scheme, some of the observations of the majority are of assistance. In relation to partial incapacity for work, what is emphasised is the reduction of the employee’s ability to sell his labour on the open market. There is reference to various authorities. The injury in question was of a physical nature but, if the word “psychiatric” was substituted for the word “physical” in the following extract, the usefulness of the decision in the context of the present case might be seen:-
“It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work”.
This extract is to be found at page 178.
105 The majority went on to underline the fact that a worker is not partially incapacitated if he can do all the things that he could do before the injury. However, the theme to which the High Court returned was that of the injured worker’s ability to sell his labour on the open market. It is to be remembered that Yacob, a clerk, suffered a physical injury which rendered him unable to undertake the activities of lifting, climbing and bending which had been associated with his pre-injury clerical duties, but could otherwise perform clerical duties. He became, to employ the language of the judgment, “a non- climbing clerk”. Against this background, it was said by the High Court at p.179:-
“In the present case because the Commission found that the respondent’s injury disabled him from performing part of his pre- injury work, it follows he was partially incapacitated for work – he was unable to undertake clerical duties which involved climbing, lifting and bending. His capacity for work, due to injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him.”
106 The same could not be said of the present situation. If, for example, the plaintiff had developed an allergy to rubber, but was still fit for employment in the auto industry which did not involve the handling of tyres, he would be partially incapacitated within the meaning of Yacob and compensation could well be payable. His ability to sell his labour on the open market would have been reduced as a result of his inability to obtain employment in positions requiring contact with tyres. However, that is not the situation. There is no evidence to suggest that he developed either a physical or psychological sensitivity to work as a tyre fitter. He could still sell his labour on the open market as a tyre fitter. Any restriction which he had was confined to one particular place of employment with the defendant and, in my opinion, whilst one particular person was working there. That falls well short of the type of test applied in Yacob. There has been no meaningful restriction on the plaintiff’s ability to sell his labour on the open market or, indeed, in the field in which he had been working.
107 I have been discussing the plaintiff’s alleged incapacity at what I consider to be the highest level at which it could be put on the basis of the available evidence essentially interpreted in favour of the plaintiff. In fact, I am far from satisfied that any incapacity existed as at April 2007. I have already discussed the absence of persuasive supporting medical evidence. As stated, in any situation where there has been a clash of evidence, I prefer that of Mr Watson and of the Edgars to that of the plaintiff. It is clear from the evidence that the plaintiff bore some ill will towards Mr Watson, and, prior to his leaving the employment, attempted to get Mr Watson into trouble because of the location of the caravan on the worksite. He even attempted to obtain the services of a solicitor in this regard, but was sent away. I do not accept his evidence concerning bullying and physical assaults. I do accept that there were disagreements arising from his refusal to follow instructions or to observe safety measures. I accept the evidence of the Edgars in relation to any meetings that were called. I accept that the plaintiff simply left his employment and, shortly after that, effectively broke back into the premises and, with others, placed graffiti upon Mr Watson’s caravan and was party to thefts from that caravan. I am of the view that no incapacity whatsoever has been established, but, in any event, I am of the view that no incapacity existed beyond the termination of the very brief period of weekly payments.
108 Next, I am of the opinion that the plaintiff suffered no injury as alleged whilst employed by the defendant. The factual basis of any such injury has simply not been made out, and that is so no matter where the onus might lie. Again, questions of the reliability of the plaintiff, supporting medical evidence, the obvious credibility of the defendant’s witnesses and the like are to be considered. Mr O’Connor referred me to the decision of the Court of Appeal in Ansett Australia Ltd. Firstly, that decision is set against a different statutory context. Secondly, it is to be remembered that the oft-quoted passage from the leading judgment of Ashley JA is to the effect that, even if the required coincidence of relevant facts in relation to the acceptance of liability is established, the acceptance of liability for a claim stands as an admission, but not as being conclusive. Many reasons are given as to why this is so. It may well be that an acceptance, in appropriate circumstances, constitutes an admission which would ordinarily be of much weight. However, it is quite clear that His Honour did not intend that an acceptance of liability should be viewed as a “be all and end all” admission. Evidence can overturn the effect of such admission and greatly reduce the weight to be attached to it. It remains a factor, and should be taken into account, but, as stated by His Honour, it is not conclusive even if it may be very significant if the correct coincidence of facts exists.
109 In the present case, I am of the view that the evidence, and, in some instances, the absence of evidence which leads to the conclusion that no injury as alleged occurred exceeds in weight and significance the effect of the acceptance of liability. I do not accept that the plaintiff was subject to bullying, constant abuse and physical assaults. His evidence concerning the number of meetings with his superiors and what was discussed at them seems to me to be patently incorrect. The contemporaneous medical evidence that is available does not support the occurrence of injury of the type and for the reasons alleged. Indeed, it points in other directions. In summary, and for the reasons already expressed, I find that injury within the meaning of the Act and as alleged did not occur.
110 There was some discussion as to whether the occurrence of injury, as opposed to the question of incapacity, could be the subject of discussion and analysis, given that the notice terminating payments was based solely on incapacity and no further notice has been served. Mr Miles submitted that no further notice was required and that, pursuant to s.39(1AA) of the Act, all questions or matters relating to termination of weekly payments could be considered. Mr O’Connor did not have a great deal to submit in this regard. I note that in Sheean v Sancella Pty Ltd, a decision of Her Honour Judge Lawson delivered 29 November 2005, Her Honour ruled that s.39(1AA) was wide enough to include termination of weekly payments on a ground that had not been relied upon in the original notice. Given the principle of comity between co-ordinate divisions of the same jurisdiction, it seems to me that I should follow that decision unless I am convinced that it is wrong. It was not argued before me that the decision in Sheean is wrong, and, in any event, I am more inclined to the view that it is correct. I appreciate that the contrary proposition was not argued at any length in this case. Accordingly, whilst the decision in Sheean does not bind me, I intend to follow it. I am therefore of the view that my finding in relation to the non-occurrence of the alleged injury is one that is open to me despite the fact that the notice of termination is based upon the question of incapacity rather than the occurrence of injury and that no subsequent notice has been served.
111 Thus, I am of the view that:-
(a) Putting the plaintiff’s case in relation to incapacity at its highest, it does not succeed in relation to an entitlement to weekly payments of compensation after the date of termination. (b) In any event, no incapacity after the date of termination of payments exists. (c) In any event, no compensable injury within the meaning of the Act arose out of or in the course of the plaintiff’s employment with the defendant.
112 Accordingly, the proceeding is dismissed. I shall hear the parties as to any ancillary orders that may be required.
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