Kesidis, Anna v Nandhra Holdings Pty Ld
[2010] VCC 109
•25 February 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01669
| ANNA KESIDIS | Plaintiff |
| v | |
| NANDHRA HOLDINGS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 5 February 2010 |
| DATE OF JUDGMENT: | 25 February 2010 |
| CASE MAY BE CITED AS: | Kesidis, Anna v Nandhra Holdings Pty Ld |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0109 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application reliant upon s134AB(37)(c) of the Accident Compensation Act 1985 – serious injury claimed for permanent severe mental or permanent severe behavioural disturbance or disorder in respect of pain and suffering and loss of earning capacity consequences – leave granted to plaintiff to bring proceeding for damages in respect of serious injury.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Opie & Co. |
| Mr M A Nightingale | ||
| For the Defendant | Mr B R McKenzie | Minter Ellison |
| HER HONOUR: |
1 The plaintiff seeks leave to commence proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages for pain and suffering and loss of earning capacity arising out of an injury suffered in the course of her employment with the defendant in 2003.
2 It is alleged by the plaintiff that in the course of her employment she was required to perform work which caused injury to the cervical spine which was described in the medical reports as “an aggravation of a pre-existing cervical degeneration with referred symptoms into the right arm and referred headaches” (“the physical injury”). That aspect of her claim was abandoned. It was conceded by counsel for the plaintiff that based on the medical evidence, she would not be able to establish that the consequences of the physical injury met the relevant statutory definition of “serious injury” under s.134AB(37)(a).
3 It is the plaintiff’s case that, as a result of her employment, she has suffered a “permanent severe mental or behavioural disturbance” as defined by sub- paragraph (c) of the definition of “serious injury” appearing in subsection (37) of s.134AB of the Act. The body function is psychiatric impairment. The plaintiff seeks leave to claim damages against the defendant both with respect to the pain and suffering and economic loss consequences of her employment.
4 In bringing the application, the plaintiff relies upon two affidavits, dated 23 December 2008 and 21 December 2009. The plaintiff gave oral evidence.
5 In her first affidavit, the plaintiff deposes that:
• She worked full-time for ten years until her first child was born. • She returned to the workforce part-time as a pharmacy assistant. •
She was employed with the defendant in August 2001. She worked a four-day week from 9.00 am to 3.00 pm. She also worked part-time as a receptionist at a doctor’s surgery for three months. Her duties involved looking after customers, stocking shelves, unpacking daily orders, ordering stock, cleaning and checking prescriptions. There was often a shortage of staff, of which she complained to her employer.
•
In October 2003, she experienced pain in her neck, back and right shoulder. She consulted a general practitioner in November 2003 but continued to work with pain, and ceased work in January 2004. She continues to be incapacitated for work. She suffered the physical injury and felt depressed and anxious. She consulted a range of doctors in respect to her physical and psychiatric conditions, including Dr Graeme Symington, a neurologist; Mr Gul Keng, an orthopaedic surgeon; Mr Kim Boyden, a rheumatologist; Ms Fiona Batchelor, a psychologist; Mr Peter Blombery, a physician; and, in 2006, Associate Professor Michael Wong, a psychiatrist. She received increased medication and consulted her general practitioner on a regular basis. She attended physiotherapy sessions.
•
She enjoyed an active social life with her husband, family and friends, dancing, socialising and maintaining her home. She has become socially withdrawn. Her marriage problems led to her marriage breakdown in May 2008.
6 In her second affidavit, the plaintiff said she continued to consult her general practitioner and psychiatrist, who prescribed medication, including Zoloft, Epilim, Losec, Imovane, Valium and Panadol daily. She did not believe that she could work. She is constantly tired because of lack of refreshing sleep, and in pain. She is devastated that she can no longer work, as she enjoyed work and was good at it. She is no longer able to run her home and enjoy a meaningful and rewarding home life. Despite taking medication and extensive and ongoing psychiatric and psychological treatment, her mental state remains poor. She suffers constant and significant anxiety and depression and unhappiness and lacks energy and motivation. Her self-esteem and confidence is very low. She stated she returned to the matrimonial home in late 2009 at the request of her daughter who was sick. The matrimonial relationship is very fragile; she sleeps in a separate room and lives out of suitcases.
7 In cross-examination, the plaintiff agreed that she suffered neck pain in the past, could not remember when, but stated it did not stop her from working or functioning. Further, she agreed that she fell on a step in the pharmacy. In re-examination, she agreed that the fall occurred in mid-2003 and that she continued to work until January 2004. From October 2003, she noticed pain in her neck and shoulder and first suffered headaches. She gave evidence that since October 2003 her physical and psychiatric conditions have not improved: her condition has worsened. She has followed all the recommendations of her doctors. Apart from the time she had off work with her children, she worked most of her life. She would like to return to work if she was well enough. She liked work, she was good at it, and was complimented on her work performance by her employer. She was very hurt and upset when she was sacked. She agreed that her house was paid off and her husband paid all household expenses but she had no money of her own and she liked to have money to spend on herself and her children.
8 The plaintiff said that she became depressed. She felt that the pain was getting worse and she was not coping as well as she should have been and she was losing concentration while at work. She would make lists, then lose the list. She became very unsettled and nervous and was not coping at all with anything. She only drives locally, otherwise she gets panic attacks. She does not use public transport.
9 As to her current state, she said:
“I can’t concentrate, I just don’t remember things. I’m really slack at remembering, I’ll write notes, I’ll lose the notes. I just don’t know what exactly I’m – I just don’t have the – the concentration that I used to have, and I just don’t remember things. I just keep – keep losing things, I keep forgetting things. I just – I lack concentration. I get stressed out so easy I just get panic attacks.”
10 In cross-examination, the plaintiff became confused, she could not remember dates, she had difficulty in following and understanding simple questions and became visibly upset. Cross-examination was interrupted to enable her to regain her composure. She spoke in a flat manner. She was neatly dressed. She was proud of her work. She impressed me as a hardworking woman who took her responsibilities at work seriously. She conveyed to me the distress she felt because of her inability to work and care for her family. She impressed me as a woman who was trying to do the best she could in difficult circumstances. Her demeanour in Court was consistent with her evidence and suggested that she was suffering from significant stress.
The Plaintiff’s Medical Evidence
11 The plaintiff relied upon medical reports from a number of doctors; however, the more significant were those of her general practitioner, Dr N Nassios, and her psychiatrist, Associate Professor Michael Wong, who were cross- examined.
12 The medical evidence relied on by the plaintiff may be summarised as follows:
Dr G Symington
13 Dr Symington, a neurologist, saw the plaintiff in January 2004 in respect to her physical injuries and noted the plaintiff was:
“clearly depressed and that depression was likely to be a factor in her
persistent symptoms”.
Dr Nassios
14 The plaintiff’s general practitioner, Dr N Nassios, reported on 3 March 2004 that she had been seen in November 2003 as a result of the physical injuries suffered in October 2003. She continued to work with pain until 15 January 2004. She was given a certificate for WorkCover. Dr Nassios stated that since the plaintiff had not worked, she had felt increasingly depressed and anxious. He diagnosed the plaintiff with mild depression and anxiety related to her physical injury and her inability to work.
15 In May 2004, Dr Nassios diagnosed:
“Significant depression and anxiety related to her inability to work and
chronic pain.”
16 The plaintiff had provided Dr Nassios with a Return to Work Plan. He considered the duties were inappropriate given her mental and physical state. It was his opinion that she was unable to attend work due to her mental and physical state, she had poor concentration and poor ability to function with simple tasks. He considered her best chance of returning to work was to aggressively treat her anxiety/depression.
17 In December 2004, Dr Nassios diagnosed significant anxiety and depression related to her chronic pain and inability to work.
18 In October 2005, Dr Nassios stated the plaintiff suffered significant anxiety and depression. He believed her work-related injuries were the sole cause of her current incapacity and that her future prognosis with respect to her current condition was poor. He stated that she was totally incapacitated for employment: he was not certain whether this would be indefinite, but he expected that it probably was.
19 In December 2005, he considered the plaintiff’s prognosis was poor: her anxiety and depression had not improved. It was his view that her condition was entrenched and he did not see any resolution to her problem.
20 In February 2006, Dr Nassios stated that, as the plaintiff’s mental state had not improved, she was unfit for work for six to twelve months. He noted that the plaintiff was seeing a pain specialist, Dr Peter Blombery, who prescribed medication with side effects. In a report of March 2007 to the insurer in respect to the funding of further psychological treatment, Dr Nassios stated that the plaintiff was being assisted by psychological and psychiatric treatment and urged further funding.
21 In response to a question asked of him by counsel for the plaintiff as to the plaintiff’s current state to carry out any form of work, Dr Nassios stated:
“I believe Anna has quite severe anxiety and depression, and I believe she is totally unfit to have any form of employment, light duties or normal duties, with respect to the anxiety and depression. … The anxiety and depression started very early in her condition and has been present virtually the whole time since.”
22 He was asked whether the incapacity is likely to continue for the foreseeable future or permanently. He answered:
“I believe it’d be permanent.”
23 In cross-examination, he stated that it was possible that if the plaintiff’s pain was alleviated then her psychological symptoms would be alleviated. In respect to a referral to a pain management course, he said:
“… it could - be beneficial, certainly worth a try. It may have no benefit,
but it may have some benefit.”
24 In re-examination, Dr Nassios was asked:
“What will the consequences of that depression and anxiety be for her
firstly in terms of her life, and lifestyle?”
25 He answered:
“Her life will be a life of depression and anxiety. It will affect her
motivations, her moods, her sleep, her interests in life.”
26 Dr Nassios said that there has been a particularly massive change in the plaintiff’s life since October 2003 and January 2004. He said:
“That dramatic change has – has turned her life upside down, and has affected virtually every aspect of her life, and including her employability, probably family relationships and all other aspects as well.
. . .
I believe she will continue to have depression and anxiety.”
Dr Kim Boyden
27 The plaintiff saw Dr Boyden, rheumatologist, in February 2004. He treated her physical injury but suggested a referral to a psychologist to help manage her chronic pain state. Otherwise, with her current psychological state, he believed it would be very difficult for her to return to work.
28 In January 2005, he said that medical treatment should be directed along psychological grounds, treating the plaintiff’s depression and decreasing her reliance on strong analgesics.
Ms Fiona Batchelor
29 In a report dated 20 July 2004, Ms Batchelor, psychologist, stated that the plaintiff had a tendency to catastrophize a situation, that she required reassurance, but that her anxiety level and depressed mood meant that she did not fully grasp information.
30 In a further report of 5 December 2005, Ms Batchelor stated that the plaintiff had clinical depression and anxiety secondary to chronic pain and an inability to work. She did not agree with the opinion expressed by Professor Mendelson, who saw the plaintiff on behalf of the defendant, that the plaintiff had a capacity for gainful employment within the limitations of her physical condition.
31 In a further report of 14 February 2006, Ms Batchelor noted that the plaintiff had experienced increased anxiety, decreased mood and a worsening of her sleep disturbance. She noted that the plaintiff struggled with handling any paperwork or bills due to difficulties in concentration, and forgot information and became easily confused. Ms Batchelor noted that the plaintiff would love to be able to return to work, she had a good work ethic and it had been a considerable blow to her not to be able to assist in financially supporting her family.
32 In another report of 23 April 2007, Ms Batchelor described the plaintiff as being motivated and keen to pursue volunteer work.
Mr Peter Blombery
33 The plaintiff was seen by Mr Peter Blombery, physician, in 2005 in relation to her physical injuries. It was his opinion that she was suffering secondary depression which was enhancing her experience of pain.
Associate Professor Michael Wong
34 In a report dated 29 March 2007 to the Accident Compensation Conciliation Service, Associate Professor Wong reported that he had seen the plaintiff regularly since April 2006 on a monthly basis. It was his view that the plaintiff suffered a Major Depressive Disorder and that her work-related injuries were the cause of her depression. He noted that she did not have depression before her work-related injuries and she required regular psychiatric treatment which included medications (anti-depressants, mood stabilisers, sleeping pills) and supportive psychotherapy. He thought it unlikely that she would be able to return to her pre-injury level of occupation, functioning, and indeed any type of work, and that she would require long-term psychiatric treatment.
35 In his report of 11 November 2009, Associate Professor Wong noted that despite being reviewed on a monthly basis, there had been no improvement in the plaintiff’s mood: since the beginning of 2009, there was a worsening of her pain. She remained depressed and anxious and continued to require Zoloft, Epilim, Valium and Imovane.
36 In cross-examination, Associate Professor Wong agreed that the plaintiff’s depression was closely related to her perception of pain and that the pain was related to her physical injuries. He said that there had been no improvement in her depression and anxiety state since the report of November 2009, despite the fact that he had seen her on three occasions. He stated that his opinions expressed in his first report were formed after he had managed the plaintiff for nearly twelve months. He said that it was reasonable for a psychiatrist to form such an opinion after one year of intensive treatment. He indicated that, notwithstanding the plaintiff had been taking significant medication for some years, there had been no improvement in her condition. This was despite the fact that he had recommended the patient reduce her levels of medication. She had tried but failed.
37 It was his opinion, because of the plaintiff’s persistent anxiety and depression, that she was unable to return to work. He was asked whether she could return to work in a number of different capacities for two hours as:
(i) a medical receptionist two days a week. It was Associate Professor Wong’s view that her level of anxiety and depression would not permit her to perform that kind of work. He thought it would have a negative impact on her anxiety and depression. (ii) a sales assistant selling hair products in a pharmacy. He said he would be cautious about this type of work as it involved personal and interpersonal interaction. If a patient is mentally ready to return to work, that work should involve minimal personal interaction. (iii) a mail sorting clerk. He deferred to the opinion of a physical specialist, he thought the work might involve repetitive physical action which might have a detrimental effect on her physical injuries. (iv) a lotteries’ agent. From the nature of the description of the job, he thought it might involve multiple skills in both interpersonal interactions and repetitive physical and cognitive actions that could potentially put stress on the plaintiff’s mental wellbeing. 38 He agreed that the plaintiff’s attendance at a pain management clinic may improve the plaintiff’s level of perception of pain and that might impact on her depression.
39 In re-examination, he agreed that the plaintiff had a Major Depressive Disorder which was permanent. She was not fit for any employment and he did not consider that she would be fit for any employment in the foreseeable future.
The Defendant’s Medical Reports
Associate Professor George Mendelson
40 Associate Professor Mendelson, consultant psychiatrist, examined the plaintiff in October 2005. It was his view that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and it was secondary to the ongoing stressor of chronic pain. He recommended a time- limited multidisciplinary pain management program, followed by vocational rehabilitation which would enable her to return to work within the limitations of her physical condition.
Mr Brian Davie
41 The plaintiff was seen by Mr Brian Davie, consultant orthopaedic surgeon, in October 2005. He thought it was reasonable to obtain a psychiatric opinion. He felt that she was capable of returning to similar work.
Dr Mary Wyatt
42 The plaintiff was examined for medico-legal purposes by Dr Mary Wyatt, occupational physician, in September 2009. On examination, the plaintiff presented as a despondent, affected and sad person. She cried on a few occasions and pointed out that she hated her life. It was Dr Wyatt’s view that much of the plaintiff’s treatment is for her depression and anxiety and she commented upon the significant doses of medication. Dr Wyatt addressed the plaintiff’s capacity for work in respect to her physical injury but not her mental state.
Mr Ian Jones
43 The plaintiff was seen for medico-legal purposes by Mr Ian Jones, orthopaedic surgeon, in September 2009. He noted, on examination, that the plaintiff was depressed and tearful. He thought that the plaintiff’s depression was significantly impacting upon her physical complaints and recommended that a psychiatrist’s opinion be obtained.
Video Surveillance
44 I note the defendant has admitted that the plaintiff has been subjected to surveillance, film taken and video produced. The fact that the video was not shown to the Court enables me to conclude that it would not assist the defendant’s case.
Has the Plaintiff established her entitlement to commence proceedings with respect to the pain and suffering consequences of the work injury?
45 In order to establish the plaintiff’s entitlement to commence proceedings seeking damages for pain and suffering and loss of enjoyment of life, she must establish, on the balance of probabilities, that she has suffered a permanent severe mental or behavioural disturbance or disorder, the pain and suffering consequences of which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may be fairly described as being more than “serious” to the extent of being “severe”. The assessment of the plaintiff’s condition is to be undertaken as at the date of the application.
Defendant’s submission
46 Counsel for the defendant submitted that:
(i)
the plaintiff has not satisfied the Court that she has suffered a permanent severe mental or permanent severe behavioural disturbance under s.134AB(37)(c). As a general proposition the plaintiff does not meet the requisite standard, namely the nature and extent of the injury, compared with the range of cases that come before the Court, could never be said to be a serious injury as a general proposition;
(ii)
the serious injury must be permanent (s.134AB(37)) that is, indefinitely for the foreseeable future. The plaintiff’s general practitioner referred her to a Pain Management Clinic at St Vincent’s Hospital. Until the plaintiff undertakes the course, the plaintiff cannot satisfy the Court that the injury is “permanent”;
(iii)
finally, in relation to the plaintiff’s economic loss claim, the plaintiff has not made every reasonable effort to return to work: she simply has not tried.
47 I reject the defendant’s submission outlined in paragraph 46(i). I note that the medical evidence relied upon in respect to the plaintiff’s mental or behavioural condition was not current. The only psychiatric report was that of Associate Professor Mendelson, which was dated 24 October 2005. I must consider the plaintiff as at the date of the application.
48 Dr Ian Jones, an orthopaedic surgeon, examined the plaintiff in September 2009 at the request of the defendant. He described her as a “depressed and tearful-looking person”. He suggested that a psychiatric opinion be obtained due to his view that the plaintiff’s depression was significantly impacting upon her physical complaints. No such report was obtained.
49 Furthermore, the other doctors retained by the defendant had only seen the plaintiff on one occasion and for her other related injury.
50 By contrast, the plaintiff’s evidence and the medical reports, including the evidence of Dr Nassios and Associate Professor Wong, was that the plaintiff had required extensive medical treatment and significant medication for many years for the treatment of her psychiatric condition.
51 I accept the evidence of the plaintiff’s general practitioner, Dr Nassios, and her psychiatrist, Associate Professor Wong. Both had treated her on a regular basis over many years and had a much better opportunity to assess the consistency of the plaintiff’s presentation and the effects upon her life. Further, they gave evidence at trial as to her current condition. In particular, Dr Nassios had treated her prior to her injuries and in re-examination, he said that pre-2003, she was a well-motivated and a self-motivated person. He said that her life had been turned upside down; every aspect of her life had been affected, including her employability and family relationships. He believed the depression and anxiety will affect her motivation, moods, sleep and interest in life. Both Dr Nassios and Associate Professor Wong gave evidence to the Court that the plaintiff’s condition was permanent, that is, for the foreseeable future.
52 I reject the defendant’s submission that the plaintiff cannot satisfy that the injury is permanent as she has not attended the Pain Management course at St Vincent’s Hospital, as outlined in paragraph 46(ii). First, there is no evidence that the Pain Management course will affect the permanency of her condition. Secondly, I accept the evidence of Dr Nassios. In re-examination, he said the referral was to enable her to cope with her problems and try and live her life accepting those problems, as opposed to her previous level of function and capacity to work. It was his view that she would still be left with depression and anxiety and her condition was permanent.
53 I reject the defendant’s submission on the economic loss component outlined in paragraph 46(iii). I accept the evidence of the plaintiff’s medical witnesses that she is unfit to return to work. I note there was no up-to-date medical opinion to the contrary relied upon by the defendant. Counsel for the defendant said that because she had not made every reasonable effort to return to work she had not tried. The current medical evidence was that she was not fit to work.
54 The defendant relied upon a workplace assessment prepared in September 2005, which noted that the plaintiff had no work capacity at that time, but suggesting other occupations that the plaintiff may be suited to. First, I have to consider the plaintiff at the date of trial. Secondly, the medical evidence is that she has worsened since 2005. Each of the occupations identified in the workplace assessment were put to Associate Professor Wong in cross- examination. He stated that the plaintiff could not perform those jobs, and provided reasons why. I accept those reasons.
55 In conclusion, I am satisfied that the plaintiff has established on the balance of probabilities the test as set out in s.134AB(37)(c) of the Act. I have considered the evidence of the plaintiff and have accepted the evidence of her treating doctors, Dr Nassios and Associate Professor Wong. Their evidence was that the plaintiff has a Major Depressive Disorder which was permanent. She was not fit for any employment and unlikely to be so in the foreseeable future.
Loss of Earning Capacity
56 I accept that because of the plaintiff’s psychiatric condition she does not have the capacity to work, a view supported by her general practitioner, Dr Nassios, and her treating psychiatrist, Associate Professor Wong. The plaintiff ceased work in January 2004 and has not returned to work.
57 I accept that the plaintiff’s incapacity for work extends beyond returning to her previous employment as a pharmacy assistant.
58 In these circumstances, in my view, the plaintiff has a permanent severe mental or permanent severe behavioural disturbance or disorder.
59 The plaintiff satisfies the narrative test. It follows that no issue about retraining and rehabilitation arise under s.134AB(38)(e), (f) and (g).
60 As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, she is then at large to make a claim for damages for both pain and suffering and loss of earning capacity: see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, at paragraph 63.
61 Accordingly, I grant the plaintiff leave to bring damages for both pain and suffering and loss of earning capacity.
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