Memishi v A.B. Oxford Managers Pty Ltd
[2010] VCC 400
•14 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY APPLICATION DIVISION
Case No. CI-09-03098
| RAHMAN MEMISHI | Plaintiff |
| v | |
| A.B. OXFORD MANAGERS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 April 2010 |
| DATE OF JUDGMENT: | 14 May 2010 |
| CASE MAY BE CITED AS: | Memishi v A.B. Oxford Managers Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0400 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, Section
134AB(38)(b) and (d) – post-traumatic stress disorder – whether severe.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with | Ryan Carlisle Thomas |
| Ms A M Duffy | ||
| For the Defendant | Ms M A Hartley SC with | Lander & Rogers |
| Ms M Taaffe | ||
| HIS HONOUR: |
1 By way of Originating Motion dated 7 July 2009, Rahman Memishi (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury suffered by him on or about 13 April 2005 (“the injury”) during the course of his employment with A.B. Oxford Managers Pty Ltd (“the defendant”). When issued, the named defendant in the Originating Motion was “A.B. Oxford Cold Storage Company Pty Ltd”, and, with the consent of the parties, the name of the defendant was amended to its present form by my order.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The plaintiff was represented by Mr B W Collis QC with Ms A M Duffy of counsel, and the defendant was represented by Ms M A Hartley SC with Ms M Taaffe of counsel.
4 The application was heard over two days, and the following evidence was adduced:
(a) The plaintiff and Dr C Mogan, the treating psychologist of the plaintiff, gave oral evidence and were cross-examined; (b) The plaintiff tendered the following evidence (i) the curriculum vitae of Dr C F Mogan (“Exhibit A”);
(ii) pages 20–63 of the Plaintiff’s Court Book (“Exhibit B”);
(c) The defendant tendered the following evidence:
(i)
handwritten note by Dr Mogan setting out those attendances over the period from 2006 to 2009 in which he made notes (“Exhibit 1”);
(ii) pages 6–140 of the Defendant’s Court Book (“Exhibit 2”); (iii) note of Dr Mogan dated 29 May 2007 (“Exhibit 3”);
(iv)
report from Dr Mogan to Dr Peter Lowthian, Convenor of Medical Panels, dated 16 April 2008 (“Exhibit 4”).
Relevant Legal Principles
5 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).
6 The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.
That paragraph reads:
“serious injury means—
...
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; ...”
7 The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is described as “post-traumatic stress disorder with depressive elements”.
8 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by him arose out of, or in the course or due to the nature of, his employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)
the mental or behavioural disturbance or disorder must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)
the “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by
comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly
described as being more than serious to the extent of being severe”:
(see s.134AB(38)(b) and (d) of the Act) (my emphasis);
9 The test for “severe” as set out in paragraphs (b) and (d) of s.134AB(38) of the Act is sometimes referred to as the “narrative test”.
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a) that as at the date of hearing a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and (b) that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii)). 11 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]);
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]);
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub- paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only.
The Issues
12 Senior counsel for the defendant informed the court that there was no issue that the plaintiff had suffered a compensable injury – post-traumatic stress disorder – and that also there was no issue that such condition gave rise to consequences. The issue is whether such consequences satisfy the requirements of the Act to be a “serious injury” (see T17 L26–T18 L4).
The Plaintiff and the Injury
13 Other than some minor changes (refer T19 L6–L18) the plaintiff swore that his two affidavits, sworn respectively on 3 February 2009, found at p.20 of Exhibit B and hereinafter referred to as the “first affidavit”, and on 22 April 2010, found at p.24(a) of Exhibit B and hereinafter referred to as the “second affidavit”, were “true and correct” (see T19 L19–20).
14 In his first affidavit, the plaintiff deposes that:
•
He is a 46-year-old (born 3 August 1963) married man whose wife Kea works as a nurse. They have three sons: Feta, Luan (both of whom work for Toll Transport), and Diellon, who still attends school, and a daughter, Drita, who is a hairdresser.
•
He left school at the age of 16 and worked as a labourer in the local abattoirs with his father, and thereafter in various occupations including that of storeman, and working in the building industry.
•
He commenced work with the defendant as a labourer in 1991 and was promoted to the position of Operations Supervisor.
•
He refers to two earlier statements made by him – one dated 21 June 2005 made to the Victorian WorkCover Authority, and one dated 25 August 2005 made to a WorkCover investigator which set out the circumstances of an incident on 13 April 2005 when a co-worker, Steve Peluso, died. The statements are not annexed to the affidavit – however it is common ground that on 13 April 2005 the plaintiff was driving a forklift when he braked suddenly, causing a pallet to fall from the forklift, striking Peluso. He died shortly after the incident.
•
A “retired” psychiatrist, Dr David Hoffman, was engaged by the defendant to see various workers, including the plaintiff, in relation to the incident. Dr Hoffman saw the plaintiff on about three occasions.
•
He attended his local general practitioner, Dr Ian Callcutt, who referred him to one psychiatrist whom the plaintiff did not like, and thereafter referred him to the psychiatrist Dr Nicholas Ingram, who initially consulted with him on 22 August 2005.
•
Dr Ingram referred him to the psychologist Dr Christopher Mogan (who works at the same clinic), who initially consulted with him on 1 November 2006.
•
At the time of the first affidavit, he was attending Dr Mogan approximately fortnightly, Dr Ingram about once every two months, and was being prescribed Zoloft, generally by Dr Ingram.
•
He has not worked since June 2005, obtains medical certificates from Dr Callcutt, and was receiving weekly payments of compensation.
•
In relation to ongoing symptoms (as at the time of the first affidavit) he deposes:
“I continue to be greatly affected by the events that occurred at work on 13 April 2005. My sleep is very poor. I often wake feeling anxious, and then find it difficult to get to sleep. I suffer regular nightmares, probably now an average of about twice a week. Mainly these nightmares are of the incident itself and the repercussions of the incident. I suffer very regular flashbacks and disturbing intrusive memories. Often immediately after the nightmares and flashbacks I hyperventilate, my heart is beating very fast, I sweat, I am irritable and upset. I feel depressed. I feel lethargic, and I have very little motivation. I suffer regular suicidal thoughts. My moods are erratic. I cry. I am irritable and sometimes angry. I argue with my wife. On a couple of occasions I have been violent towards her. I am not proud of this. It disturbs me greatly. I find it difficult to deal with pressure. I feel anxious and panicky.”
(See paragraph 10 of the first affidavit.)
•
Prior to the accident he worked hard and was proud of what he had achieved. Further, he had a good family life and social life which has been affected by his injury. In particular, he deposes that his social life is “far less frequent” and often simply prefers his own company, having “lost friends” (see paragraph 13 of the first affidavit).
•
Prior to the injury he had played indoor soccer in a work team, but since the injury he has lost that contact.
•
He is concerned that he may have to give evidence in relation to the incident, and the thought of “reliving the event terrifies me” (see paragraph 14 of the first affidavit).
15 In his second affidavit, the plaintiff deposes that:
• Since his first affidavit, “nothing much has changed for me” (see paragraph 1 of the second affidavit). He is unable to work, and still receiving weekly payments of compensation. • He continues to see Dr Mogan, the psychologist, every two to three weeks, and Dr Callcutt, his general practitioner, every twelve weeks or so. • He stopped taking Zoloft approximately “two years ago and am not currently taking any medication for my condition” (see paragraph 3 of the second affidavit). He ceased taking Zoloft in consultation with his psychiatrist, Dr Ingram, as it was making him “nauseous and aggressive” (see paragraph 5 of the second affidavit).
•
His symptoms “remain much the same as described in paragraph 10 of the first affidavit” (see paragraph 4 of the second affidavit).
•
His social life is still “very limited” and mostly involves his family, and although Dr Mogan has suggested he tries to socialise more often, he finds “it very difficult” (see paragraph 5 of the second affidavit).
•
He is trying to become involved in soccer again, and has recently taken a position as an assistant coach with the North Sunshine Eagles which requires him attending training once or twice a week and on match days from when the season started on 10 April. He notes he should attend training twice a week, but sometimes cannot, “due to my illness” (see paragraph 4 of the second affidavit).
•
His relationship with his wife and children remains “difficult”, and he is often “irritable and angry”, causing him to stay with his parents a few times in 2009 to get away from the family home (see paragraph 6 of the second affidavit).
•
Since the incident he has travelled overseas on two occasions, and on each occasion found his mood was “better”, and he felt “less depressed” because he felt he had been able to get away from the situation that he was in in Melbourne.
•
He deposes that he was not required to give evidence at the court hearing about the incident at work, which was a “relief”, but “it has not really changed anything for me” (see paragraph 8 of the second affidavit).
16 The plaintiff was extensively cross-examined and gave the following pertinent evidence:
(a)
In his role as a supervisor with the defendant he was involved with administrative tasks, supervision of other employees, and some training in an “informal way” (see generally T20 L4–16).
(b)
He was employed in the building industry for about eight years, during which time he was employed as a “steel fixer, a skilled builder’s labourer”, working on large building sites (see T20 L20–T21 L2).
(c)
He returned to work with the defendant in or about May 2005, commencing on four hours’ work and building up to two days a week or two night shifts, performing work as an Operations Manager without the use of forklifts (see T27 L16–T28 L12).
(d)
He sees Dr Ingram “every few months”, with the last occasion being in January 2010 (see T30 L22–26), with no specific future appointment yet arranged.
(e)
He says it was “not correct” as reported by Dr Ingram that in terms of nightmares the frequency had reduced (see T31 L28–30).
(f)
Zoloft was stopped about 18 months ago, which has resulted in symptoms of nausea, vomiting, and aggressiveness not recurring (see T32 L25–T33 L7).
(g) His mood is “slightly better” now (see T36 L11–13). (h)
He continues to have panic attacks but “not as often”, with the last panic attack “a couple of weeks ago” (see T37 L7–L18).
(i)
His anxiety attacks have slightly reduced, and over any one week he has three or four days which are good and three or four days which are bad (see T37 L19–L30).
(j) Since ceasing the Zoloft he has “slept a lot better” (see T38 L19–20). (k) In relation to his day-to-day activities, he accepted that: (i) he goes for walks and drives his car during the day,
(ii) he takes one of his children to school each day, and in general terms he is the “family taxi”,
(iii) he does the “family shopping” and from “time to time” he goes shopping with his wife for “more pleasurable shopping”,
(iv) he does the housework during the day because his wife is performing the nightshift,
(v) he contributes to the household, including doing some cooking,
(vi) he does some general maintenance work around the house including painting, gardening, and things of that nature,
(vii) he contributes to looking after the family dogs,
(viii) he visits friends and family,
(ix) he visits his parents, who live nearby, every second or third day,
(x) after dropping off his son at school he goes to a local cafe and has coffee and reads the newspaper,
(xi) he watches sport on TV,
(xii) when he attends the soccer club once or twice a week he does stay after training and has a “couple of drinks” in the social rooms of the club, but does not socialise after the match day (see T42 L26–29).
(l)
He has a very close-knit family, and whereas prior to the incident they would get together at least “once or twice a week”, that now occurs about “every three weeks”. He “enjoys” the family getting together (see T43 L15–26).
(m)
He conducts a Facebook site which has 116 “friends”, and on that site he has noted that he had a “beautiful time” in Torquay in January 2010 (see T44 L6–8 and T49 L8–15).
(n)
He feels that he could not return to forklift work (see T46 L27–29). In relation to a suggestion by Dr Ingram that he might be able to get back to work as a steel fixer he answered “might yes – yes”, and later “I still find it pretty – it’s going to be hard, it’s going to be a hard slog” (see T47 L7– 13).
(o)
He also has considered “being self-employed” and in particular looking at a sandwich business which he has the financial capacity to do (see T47 L17–28). He has not actually looked at a business, and may need some training to be a small-business operator.
(p)
He has undergone a small computer course in about 2006 or 2007 (funded by the insurance company) but was not in the proper “frame of mind”, and believes he took that course a bit too early (see T48 L20–27). He asserts that he was “computer literate at work, inventory system” (see T48 L28–29). He would use the computer for Facebook about every second day or so (see T49 L29–30).
(q)
He did not go to rehabilitation offered by CARFI in late 2009, in part because he felt that the organisation was no use in the past, and also on the advice of his treating psychologist, but has attended in March 2010 (see generally T51–52). He intends to use the rehabilitation organisation to assist him in relation to some further employment.
(r)
He has a company called Pinnacle Property Developments, of which he is a director, and such company entered into a “joint venture” to buy land and develop two townhouses in Blyth Street, Altona. The townhouses were constructed over a period of about 13 to 14 months, and completed in either 2007 or 2008. He was not involved with the building of the townhouses, save that he attended the site “on occasions” (see T56–59).
(s)
Together with his parents, he purchased a block of nine units in West Footscray in or about 1985, and since stopping work has had this involvement with such units:
(i) he cuts lawns there (see T58 L24–30), (i)
when someone moves from the units he “inspects them” (see T59 L1–4),
(i)
the family collects the rental income, and in particular he attends the units about once a week to collect the rent,
(i)
he does a lot of the gardening at the units, together with general maintenance outside the units about once a week (see T60 L2–4),
(i)
he would be the contact if a tenant had a complaint about one of the units internally or a complaint about external matters (see T60 L5–8).
(t)
For the tax years from 2006 he has claimed work-related car expenses (for example $3,347 in 2006), which is said to be an expense driving to and from the units “about twice a week” (see T62 L24–27) with the return trip being about 30 kilometres. He has also claimed work-related clothing expenses (see T65 L20–22).
(u) He gave the following evidence in relation to work: “[Question:] There would be no problem however, would there, in you taking on as a role, a role involved in collecting rent and property management? ... (Indistinct)
[Question:] You’re experienced at it? [Answer:] I’ve – I’ve done it
for a while, yes, I have.
[Question:] You’ve done it for a while? [Answer:] Yes.
[Question:] And self-evidently you’ve been successful at it?
[Answer:] Sorry?
[Question:] You’ve been successful at it? [Answer:] Yes, you
could say that.
[Question:] It’s been a successful venture, do you agree?
[Answer:] Correct yes.
[Question:] So in terms of work activities that you could do, you
could work in the building field? [Answer:] Yes I can, yes.
[Question:] You could develop your work as a property manager
person? [Answer:] I could yes.
[Question:] By getting other properties and managing them on
behalf of other people like you? [Answer:] Yes I could.
[Question:] Or perhaps you could run a small business, a cafe or
something of that nature? [Answer:] Yes.
[Question:] And there would be some other things that a person
with your skills and experience would be capable of doing as well,
wouldn’t there? [Answer:] There could be yes.
[Question:] There are things that you will no doubt be exploring
with CARFI? [Answer:] Yes.
(See T63 L10–31.)
(v) He makes about $17,000 net from rental income.
(w)
He has helped out his nephew by doing a bit of painting during renovation work, and has also helped his niece in painting work in early 2010.
(x) He has travelled overseas on two occasions since ceasing work. In 2008 he travelled to Albania with one of his sons and was away for about three months, and in June 2009 he travelled to Chicago with his wife to attend a wedding and was away for about three weeks. (See T69 L22– T70 L19.) On each of these trips he “had good times”.
(y)
His mood does fluctuate, and when involved with activities that give him satisfaction his mood is better (T69 L3–11).
The treatment of the plaintiff
(a) Dr I Callcutt
17 I refer to a report from Dr Callcutt dated 7 September 2009 which is contained at p.62 of Exhibit B. I refer to the last two major paragraphs of that report wherein Dr Callcutt states:
“I continue to see Mr Memishi at monthly intervals to issue his WorkCover certificates, and I am sorry to say he is still unable to work. He has tried to visit the workplace on a number of occasions, and each time he finds himself turning the car around and driving away.
It is difficult to say what his prognosis is and whether he will ever recover. I imagine a slow process of flashbacks becoming less frequent and less painful, but given his recovery rate so far it will probably be a very slow process. He may not ever be able to return to work at his current worksite, and it may be that finding new employment at a different location will be part of the eventual settlement.”
Other parts of his report cause me to wonder whether the above opinions were held as at 7 September 2009. For example, he refers in the second paragraph of his report to the incident occurring on 13 April “last year”, and also refers in a later paragraph to Dr Ingram commencing him on Zoloft (a drug which was ceased some time ago, on the account given by the plaintiff), and indeed there is no mention of the role of Dr Mogan, the treating psychologist. No further material was available from Dr Callcutt.
(b) Dr N Ingram
18 Dr Ingram has supplied reports dated 15 May 2008 (see p.25 of Exhibit B), 7 August 2009 (see p.27 of Exhibit B) and 21 April 2010 (see p.29(a) of Exhibit B).
19 The plaintiff first saw Dr Ingram on 22 August 2005 when he diagnosed a post-traumatic stress disorder that had developed as a consequence of the incident on 13 April 2005. Over the initial period, Dr Ingram thought the plaintiff was totally incapacitated for work, and doubted that he would ever be likely to return to work with his previous employer. At that time Dr Ingram anticipated he would be able to return to work with a different employer, although this was unlikely in the immediate future.
20 By May 2008 Dr Ingram was of the opinion that the plaintiff continued to exhibit similar symptoms to those he had complained of previously, although he records that the plaintiff “had thought about the incident less frequently than previously”, although “he has still dwelt on it a lot of the time and found it difficult to let go and get thoughts about it out of his head”. Furthermore, Dr Ingram noted that the plaintiff was angry about the way the case had been handled, and in particular the way his employers had treated him, and in part such anger was keeping “the incident alive for him”. Dr Ingram also noted that his progress was “complicated” by the concern of a forthcoming inquest into the death of the co-worker. In the report dated 15 May 2008 Dr Ingram states:
“I think if Mr Memishi is absolved of responsibility this would take quite a weight from his mind and may allow him to leave the issue of the workmate’s death behind.”
21 In his report dated 7 August 2009, Dr Ingram notes that the plaintiff had continued to be troubled by similar symptoms, including “nightmares, flashbacks, and intrusive thoughts about the accident at work”, and such symptoms had fluctuated from time to time and were particularly bad prior to the inquest into the death of the co-worker. Dr Ingram notes that although the plaintiff was absolved from any responsibility and there was some improvement in his symptoms, he continued to be mildly depressed and had continuing post-traumatic stress disorder symptoms.
22 Dr Ingram also notes that there has been (as at 7 August 2009) a worsening of the plaintiff’s symptoms over the last few months after his claim for “serious injury” had been denied. In that report, Dr Ingram states:
“I feel that Mr Memishi continues to suffer from a chronic post-traumatic stress disorder, which is directly related to the workplace incident on 13 April 2005.
Mr Memishi has continued to have symptoms for several years now, and although there has been a slight improvement with time, in part related to his psychotherapy and in part related to his treatment with an anti- depressant, he continues to be moderately severely affected by his symptoms and I think he will be unable to work at the present time.
In regard to prognosis, I feel that it is likely that eventually, once there is a complete settlement of the case, that he will be able to put it behind him, and there will then be a gradual improvement. In the long run I think he will be able to return to some kind of employment, but I think he would not be able to return to his previous place of employment, and he would probably find it difficult to work in a similar area, as this would be likely to remind him of the accident. He himself has suggested that he could possibly operate a small business, and this seems something he probably could manage.”
(My emphasis.)
23 I refer to the report of Dr Ingram dated 21 April 2010 which encompasses all consultations with the plaintiff up to his last on 25 January 2010. In general, Dr Ingram is of the opinion that there has been “an improvement” in the plaintiff’s condition. Although he still experiences nightmares and intrusive thoughts about the work incident, these are now “less common”. Dr Ingram notes that although the plaintiff felt he would be still unable to go back to the kind of work he was doing previously, he would like to get back to some kind of work, and thought he may be able to manage in the construction industry as a steel fixer.
24 Dr Ingram last saw the plaintiff on 25 January 2010 and states in relation to that consultation:
“... at that time he presented as a middle-aged man who was casually dressed. He spoke clearly and gave a good history, and his affect was
not depressed or anxious, and he engaged well with normal reactivity. He described some preoccupation still with the accident, though this was less pronounced than previously, and there was no other thought disorder or perceptual abnormality.
I feel that Mr Memishi continues to suffer from a chronic post-traumatic stress disorder though there has been a significant improvement in the intensity of his condition since I wrote my last report.
There has been an improvement in Mr Memishi’s symptoms since I last wrote, and although he has not been able to put the accident behind him, I think once there is a final settlement of his case there is likely to be further improvement and then he should be able to return to the workplace. At the current time he is not needing treatment with anti- depressant medication, and he is seeing his psychologist only every few weeks, and I think the frequency of his psychological counselling will be able to be decreased once the case is finalised.
Although I think he would be unable to work in his previous kind of employment, I do feel in the future he would be able to return to work, and he has indicated that he might be able to cope with a job in the construction industry, and I feel this should be encouraged, once the case is finalised.”
(My emphasis.)
(c) Dr C Mogan
25 Dr Mogan has supplied reports dated 28 June 2008 (see p.30 of Exhibit B), 28 September 2009 (see p.34 of Exhibit B) and 20 April 2010 (see p.37(a) of Exhibit B).
26 In his report dated 20 April 2010 Dr Mogan states:
“Mr Memishi continues under my care for most of the past five years following a fatal industrial accident at his place of work in Oxford Storage that resulted in Memishi suffering a post-traumatic stress disorder that has remained unresolved. Owing to the severity of the PTSD symptoms, Mr Memishi has significant psychological impairment in every aspect of his life – social and personal relationships, family life, capacity for work, and adaptability to stress in general.
Medical and psychiatric evaluations have been consistent in their diagnosis of post-traumatic stress disorder of a serious nature. His condition has been exacerbated by the total lack of support and compassion by his long-term employer Oxford Storage. Whilst the matter of Mr Memishi’s psychological recovery is a long-term process, his current symptoms remain severe, and I have given unequivocal expert opinion that Mr Memishi is not fit for work.
Prognosis is very guarded given the lack of responsiveness to the therapeutic process. Clinical psychology opinion is that the effects of the chronic PTSD are cumulative, long lasting and chronic. Mr Memishi has lost the capacity to work. His sense of responsibility for the death of his work colleague remains intense and disabling.”
27 Dr Mogan gave oral evidence, and, after referring to his reports, informed the court that he sees the plaintiff approximately every “two or three weeks”, and over the course of his treatment has seen the plaintiff “between 70 and 80 times for an hour on each occasion” (see T75 L13–17). He was also asked further questions in his evidence-in-chief, and I refer to p.77 of the transcript where the following questions and answers were given:
“[Question:] Doctor in terms of the chronicity, you described this patient as chronic. What does that mean? [Answer:] It means that the likelihood of it ever resolving is negligible. A person’s – the chronicity of it means over – it’s a time frame so a chronic condition established after – anything beyond three months of a severe traumatic reaction is described as chronic in the literature, and in this particular case the chronicity is at the higher dimension in that it’s five years ago.
[Question:] What impact would that have on Mr Memishi’s capacity to work? [Answer:] The way to describe it is that he has a series of maladaptive belief systems about himself, about his relationships with others, about the world in general and those bespeak unpredictability, loss of trust in himself and also a loss of faith in other people so that this in my opinion makes it a strong case that he would not be able to work in risk situations.
HIS HONOUR: [Question:] What do you mean by risk situations? [Answer:] Well any situation where unpredictable outcomes occur and – so that for example, every time his children go out he has to – he has four children, two young men, 21 and 19 I think it is – every time they go out that creates every parent a concern but in his case it’s a heightened concern and so it’s highly risk averse to these matters.
[Question:] In the last paragraph of your report from 20 April doctor, you say Mr Memishi has lost the capacity to work. Do you think that will change in the foreseeable future? [Answer:] No, in the same sense of employment with others, I believe that that’s chronic state.”
(My emphasis.)
28 Dr Mogan was cross-examined extensively by Senior Counsel for the defendant. Under cross-examination he gave the following pertinent evidence:
(a)
That he commenced to treat the plaintiff on 1 November 2006, and when his reports refer to “clinical psychology opinion” that is a reference to his opinion (see T79 L1–L9).
(b)
Although Dr Mogan accepted that proper record-keeping of a clinical psychologist would include:
(i) a note of relevant matters of history,
(ii) a continuing history in the context of a continuing relationship,
(iii) a note of a treatment plan,
(iv) any variations to the treatment plan from time to time,
(v) a note of any conversation or communication with fellow treating professionals concerning the patient,
(vi) a note of the diagnosis and any revision of that diagnosis from time to time.
Dr Mogan accepted that he was “open to criticism in that he had not kept notes in that way” (see T85 L15–T86 L1).
(c) Dr Mogan accepted that he had formed a “very dim view” of the defendant as a result of various matters brought to his attention (see T87 L26–27). In particular by sending out a psychologist immediately after the incident, Dr Mogan thought that the defendant as trying to “manipulate Mr Memishi” (see generally T93 L13–27). (d) Dr Mogan denied that his adverse view of the defendant has anything to do with his “psychological work” with the plaintiff (see T95 L24–T96 L5). (e) Dr Mogan made notes in twenty-two of his consultations (fifteen of which are dated) from the commencement of his treatment to date (see T101 L30–T102 L3). Exhibit 1 is a document prepared by Dr Mogan setting out when notes were taken. (f) In relation to how he gauges improvement or deterioration, Dr Mogan gave the following evidence: “[Question:] How do you then, doctor, gauge the improvement or deterioration of a particular patient? [Answer:] In terms of their adaptive functioning, Your Honour. Their relationships, their various capacities of that nature. It’s a healing process we’re attempting to engage in.
[Question:] Assuming that to be correct, again, you would have to have some sort of totem pole as to where what is it at, wouldn’t you, at any particular time, to come to a view as to whether there has been improvement? [Answer:] Well not in terms of psychotherapy. In terms of just those types of objective measures, yes.
[Question:] I see. [Answer:] Not in the way I work, Your Honour.”
(Refer T103 L27–T104 L6.)Dr Mogan got no reports of specific panic attacks either recently or over the whole of last year (see generally T104 L20–T105 L14).
(g)
When asked what are the markers he would look for in relation to “improved functioning”, the following evidence was given:
“... Well, relationships.
[Question:] So relationships with family and the like? [Answer:] Yes.
Mood, up and down of moods, so irritability, activity level.
[Question:] Activity by – socialisation activity? [Answer:] Yes. Or
the amount of time spent in a withdrawn state.[Question:] And the withdrawn state is a marker against improvement or a sign of deterioration where - - - [Answer:] It’s a sign.
[Question:] Greater socialisation a sign of improvement? [Answer:]
Yes, yes, Your Honour, yes.”
(T105 L23–T106 L2.)
(h) Dr Mogan accepted that he was socialising more with people and that that is a good sign. He went on to say: “It is. To have been mixing with other people, yes, the aim, what was one of the behavioural activism is one of the constructs that we advise in order to overcome depression and anxiety and avoidance.”
(T107 L20–25.)
(i) Dr Mogan accepted that engaging in correspondence with people on Facebook, and particularly over the last six months, there has been “an improvement” in his mood (refer T108 L4–11).
(j)
Dr Mogan thought the plaintiff to be disabled for “all employment” (see T114 L16–18).
(k)
Dr Mogan, although not aware of the rent collection and maintenance undertaken in relation to the set of units, considered such activities as consistent with going and watching his son play sport or associated with the coaching (see T115 L6–13). In particular, Dr Mogan states:
“I don’t resile from my comment about him being able to trust himself in a workplace where he is using machinery or engaging in activities – he’s not a – he’s a person that has always worked in the sense of driving machinery and doing things in the construction sense. That’s the sense in which he is not employable.”
(See T115 L13–19.)
(l) Dr Mogan has not been encouraging the plaintiff to take retraining courses. (m) Dr Mogan was also asked about the impact of the finalisation of legal proceedings. In particular, the evidence was: “HIS HONOUR: [Question:] Can I just add, doctor, we’ve heard some evidence, as we frequently do in cases like this, that with the finalisation of any proceeding, which no doubt has been a stress- inducing aspect of this man’s life, once these are finalised you would expect – again to use the layman’s terms – some improvement in his condition. Is that a view you share? [Answer:] It is in the sense that this man is a hard-working man of a migrant family, who have come out here with nothing and they’ve worked very hard and his father is still an active person and he’s lost respect in his own eyes, within his family context, and I think it’s a very important point that the community or – well the community at large, that this will come to a watershed yes.
[Question:] Successful or otherwise? [Answer:] It’s got to finish,
yes.
[Question:] Yes, the point being, is it the finishing which is ...
[Answer:] The finish of the issue, yes.”
(My emphasis.)
Medico-Legal Evidence
29 Dr Louise Seward, a consultant psychiatrist, medico-legally examined the plaintiff on 10 February 2009 (see report dated 10 February 2009 at p.38 of Exhibit B) and on 2 March 2010 (see report dated 2 March 2010 at p.44 of Exhibit B).
30 In relation to the first examination, Dr Seward diagnosed chronic post- traumatic stress disorder with depression, and the chronic symptoms of such condition have had an impact on his marital relationship, work capacity, and recreational activities.
31 In relation to her second, more recent, examination, Dr Seward confirms her diagnosis of chronic post-traumatic stress disorder with depression. According to Dr Seward the symptoms of such condition continue to have an impact on his marital relationship, work capacity and recreational activities. Dr Seward states, in part:
“This man is motivated and keen to be gainfully employed and has been contemplating buying a business such as a daytime sandwich bar which he states he could run with his wife. He dislikes being at home and had previously gained a lot of confidence and self-esteem from his workplace. He does not want to continue to be unemployed, and is keen and motivated to open up his own business. He reported he had the financial capacity to do this given his financial position.
At the moment he still has been unable to return to the workplace or open up a new business in any capacity and it is now nearly five years since the accident. It remains to be seen whether he can activate his plan to run his own business as he has been considering this for some time.
His condition has stabilised and the prognosis is for his condition to continue at its present chronic symptomatic level. He would need some retraining to set up a new business, particularly a sandwich bar. He is not experienced for a small business and may require some retraining ...”
He continues to display long-term behavioural disturbance as a result of this incident. He is hypervigilant and anxious and concerned about accidents, either a motor vehicle accident or in the workplace for his sons. He continues to be irritable and moody at home which has placed considerable strain on his marital relationship and on the relationship with family members. He is generally socially withdrawn. He has not been able to resume working in any capacity.”
(My emphasis.)
32 The solicitors for the plaintiff also rely on a certificate of opinion from the Medical Panel dated 28 April 2008 which is said to be a 20 per cent psychiatric impairment resulting from a post-traumatic stress disorder injury (see 51(a) of Exhibit B).
33 The solicitors for the plaintiff also rely on a medico-legal report from the consultant psychiatrist Dr M Nathar who examined the plaintiff on 21 February 2008 at the request of the agent of the defendant for the purposes of carrying out an impairment assessment. The impairment assessment is of little assistance in determining the issues in this matter, but I do note that Dr Nathar was of the opinion that the plaintiff suffered from a post-traumatic stress disorder which was of “moderate severity” (see p.53 of Exhibit B).
34 The solicitors for the defendant, or its agent, arranged for the plaintiff to be medico-legally examined by the following psychiatrists:
(a) Dr Paul Kornan on 30 August 2005 (see report dated 31 August 2005 at p.6 of Exhibit 2), 30 May 2006 (see report dated 2 June 2006 at p.12 of Exhibit 2), 7 June 2007 (see report dated 8 June 2007 at p.27 of Exhibit 2) and on 31 July 2009 (see report dated 5 August 2009 at p.39 of Exhibit 2); (b) Dr T Entwisle on 7 February 2006 (see report dated 14 February 2006 at p.51 of Exhibit 2) and on 27 May 2009 (see report dated 2 June 2009 at p.59 of Exhibit 2). 35 When first seen by Dr Kornan in 2005, he was of the opinion that the plaintiff either suffered from a post-traumatic stress disorder or alternatively a major depressive illness with irrational survivor guilt, and on balance he considered the latter diagnosis more likely. After his second examination on 30 May 2006 Dr Kornan diagnosed the plaintiff to be suffering from post-traumatic stress disorder, and he noted that the plaintiff was suffering symptoms of nightmares, sleeping problems, constipation and moodiness.
Although noting that the condition had not resolved, Dr Kornan considered that he was beginning to improve and that he was quite anxious about the court inquiry into the occurrence of the incident. However, once the court case against the defendant was over, he thought consideration could be given to return to some type of work.
36 When seen on 7 June 2007 the post-traumatic stress disorder had not resolved, and there were still symptoms of flashbacks, nightmares, recurrent thoughts of events, sleeping problems and mood swings. At that stage, Dr Kornan was “a little concerned” about his lack of progress, and considered there may be some “possible motivation problems” in a setting of ongoing litigation issues.
37 When last seen by Dr Kornan on 31 July 2009 the plaintiff gave a history that he was “up and down”, still had “nightmares” and mood swings two or three times a week and he felt that he had not “made progress”.
Dr Kornan is of the opinion that the plaintiff continues to have a post-traumatic stress disorder of which the main symptoms were those described to him by the plaintiff. However, Dr Kornan was of the opinion that the “disorder” was of a chronic moderate intensity but at the lower end, and in particular he states:
“He is, in my opinion, fit for suitable employment. He would be fit for part- time suitable employment, and in my opinion within a few months should be capable of full-time employment ... Suitable employment would involve any work within his normal natural abilities. This includes factory work, supervisory work, or other unskilled work.”
(See pp.46–47 of Exhibit 2.)
Dr Kornan also makes reference to “litigation” being a factor holding back improvement, and in particular he states:
“The prognosis is for his symptoms to significantly lessen shortly after legal settlement. I would anticipate that at that stage his position will start to show a rapid improvement. He may be left with some mild subjective tendencies long-term, but those at that stage would not prevent him from working.”
(See p.47 of Exhibit 2.)
38 When Dr Entwisle first examined the plaintiff in 2006, he diagnosed him to be suffering from a post-traumatic stress disorder and was of the opinion that he revealed symptoms of “avoidant techniques”. At that time, Dr Entwisle considered the plaintiff to have some capacity for employment, and considered that various vocational options such as storeperson, forklift driver, and security guard with another employer, may well be appropriate.
39 At his last examination on 27 May 2009, Dr Entwisle obtained a history, in part, that the plaintiff no longer suffered panic attacks, his anxiety levels were slowly reducing, and his mood was a lot better. (It is to be noted that in cross- examination the plaintiff denied that such a history was given.)
40 Dr Entwisle was of the opinion that the condition of post-traumatic stress disorder was in remission, and in particular he states:
“Mr Memishi essentially leads a normal life and engages in a range of daily activities. His marriage is now more settled. He continues to socialise regularly with relatives, visits his parents on a frequent basis, and enjoys and participates in his children’s sporting activities.”
(See p.62 of Exhibit 2.)
Furthermore, Dr Entwisle was of the opinion that the plaintiff had a work capacity, and in a subsequent report, dated 21 April 2010, Dr Entwisle comments that the plaintiff has a capacity to perform the work of a builder’s labourer, product assembler and garden labourer (such employment options provided by a rehabilitation provider).
41 The defendant relies on a vocational assessment report from CARFI Psychological and Rehabilitation Services dated 31 December 2009 (see p.63 of Exhibit 2). The plaintiff gave evidence that he is now attending CARFI with the hope to be rehabilitated back into the workforce. In relation to the vocational assessment which was undertaken on 14 December 2009, it was noted that the plaintiff, at that time, felt “unable to commence a return to work under any circumstances” and that he regularly “discussed his future vocational options with his treating psychologist and had considered the option of self-employment” (see p.64 of Exhibit 2). At that time, the plaintiff gave a history of still experiencing flashbacks, lack of confidence, concentration difficulties, difficulty with sleeping, and nightmares. It is to be noted that the plaintiff told CARFI that he anticipated that his psychological condition “would improve following settlement of his common law claim in April 2010”.
CARFI considered that the plaintiff was fit to perform work as a builder’s labourer (with an expected wage of $900 gross per week), a product assembler (with an expected wage of $700 gross per week) and a garden labourer (with an expected wage of $720 gross per week).
Analysis of the Evidence
42 I am satisfied that the plaintiff suffered a compensable injury arising out of or in the course of his employment with the defendant on 13 April 2005. Consistent with all the medical opinion, I am satisfied that the nature of such injury is a post-traumatic stress disorder (PTSD), and that the plaintiff continues to suffer some consequences as a result of such condition. Furthermore, I am satisfied that such condition is a mental or behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury. So much is not disputed by the defendant.
43 The issue agitated by the defendant is whether the plaintiff has discharged his onus in establishing that the “pain and suffering” and the “loss of earning capacity” consequences of the PTSD are “severe” within the meaning of the Act.
44 The narrative test requires that such consequences “when judged by comparison with others in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”.
45 Paragraph (a) of the definition of serious injury, which generally deals with physical injury, requires that the consequences be “serious”. That is, when compared with other cases in the range of possible impairments or losses of body function, can be fairly described as being “more than significant or marked, and as being at least very considerable”. Accordingly, for a consequence to be “severe”, such a consequence would have to be something greater than “at least very considerable”.
46 I also refer to the Second Reading Speech of the Bill introducing s.134AB of the Act. It is stated:
“The government recognises it is proper to main a high threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a situation. The Code does not define the meaning of the word ‘severe’. The meaning of that word was considered by the Court of Appeal in Mobilio v Balliotis and Ors [1998] 3 VR 833. The Court of Appeal decided that the words ‘serious’ and ‘severe’ should not be equated, and that the word ‘severe’ has a stronger meaning than the word ‘serious’. The government accepts the correctness of that approach in respect of the determination of the consequences of pain and suffering. In the case of the consequences of the loss of earning capacity, it will be sufficient to meet the 40% loss of earning capacity test, subject to the common law measure of severe or serious still being met.”
47 In this context, reference should also be made to the Court of Appeal decision Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 delivered on 28 July 2009 where it was held as a “matter of statutory construction” that a worker who satisfies the loss of earning capacity requirements of s.134AB of the Act is to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.
48 The plaintiff presented as a fit-looking middle-aged man who was well dressed and gave his evidence in a reasonably straightforward way, although becoming emotional on one occasion when touching on the immediate events surrounding the death of the co-worker. I find that the plaintiff is essentially a witness of truth, although I do note that during cross-examination he disputed on occasion histories put to him from various reports including those from Dr Ingram and Dr Entwisle (see for example T31–32 and T36–37). As is common in many of these cases, neither Dr Ingram nor Dr Entwisle were called for cross-examination, and unfortunately the court is left with the dilemma of attempting to resolve such factual discrepancies.
49 Although all the doctors diagnosed PTSD as stated by Senior Counsel for the plaintiff, they fall into essentially “three camps” as to his current level of consequences (see T163 L15–22).
50 Dr Mogan and Dr Seward expressed the opinion that the symptoms now suffered by the plaintiff are still “intense”, whereas Dr Ingram, Dr Kornan, and, to a lesser extent, Dr Nathar note a far greater level of improvement, and Dr Entwisle, when he last saw the plaintiff, considered him to be in “remission”.
51 Dr Mogan is an important witness, bearing in mind the number of times that he has consulted with the plaintiff since initially treating him on 1 November 2006.
52 I did not find Dr Mogan a compelling witness, and formed the view that he had, as suggested by Senior Counsel for the defendant, a tendency to be an advocate for the plaintiff. Although he made a few limited concessions, his evidence had a sense of unreality when compared to the evidence establishing what the plaintiff has done and continues to do on a day-to-day basis. The fundamental opinion of Dr Mogan was that the plaintiff has a “series of maladaptive belief systems about himself” which impacts on his relationships with others and the world in general, and, in particular, would prevent him working in what Dr Mogan refers to as “risk situations”.
53 Dr Mogan considered that it would even be a “risk situation” if the plaintiff commenced a sandwich bar with his wife.
54 Such evidence is to be contrasted with the evidence given by the plaintiff that:
(a) He is able to perform all the activities of daily living without any restriction; (b) Able to be involved in the collection of rents and the maintenance of nine units, which involves attendances at least twice a week, travelling 15 kilometres each way, with no suggestion that he is in any way restricted in his car driving abilities; (c) Has the wherewithal to consider and to enter into what he referred to as a “joint venture” to develop two townhouses (albeit without his active assistance in the building of such townhouses); (d) His ability now to be involved in soccer coaching and socialising with friends after training; (e) His ability to travel overseas, and in particular on one occasion for a period of three months with one of his sons; (f) His ability to perform maintenance generally, housework, including cooking and shopping for the family. I have formed the impression from that type of evidence, and indeed the general demeanour of the plaintiff when giving evidence, that he can well function in the community.
55 I am of the opinion that the evidence from, in particular, Dr Entwisle and Dr Kornan, all appropriately describe the condition of the plaintiff. I do not accept that the post-traumatic stress disorder is in remission, as suggested by Dr Entwisle, but find that to the extent that he has ongoing symptoms from such condition, they do not have the impact on his functioning as suggested by Dr Mogan and to a lesser extent by Dr Seward.
56 Bearing in mind Abdulle (op cit) I will deal with the loss of earning consequences initially.
57 Section 134AB(38)(e)(i) of the Act requires the plaintiff to establish that, at the date of the hearing of the application, he “has a loss of earning capacity of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) The income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and (b) The income that the plaintiff was earning or was capable of earning “during that part of the period within three years before or three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”). 58 In both cases the income is limited to gross income from personal exertion and is to be annualised.
59 Sub-section (e)(ii) of s.134AB(38) of the Act requires the plaintiff to establish that he will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
60 Consistent with the approach of both parties, I find that the plaintiff’s “without injury earnings” is $56,600, and 60 per cent of that figure is $33,960.
61 Consistent with the opinions of Dr Kornan, Dr Entwisle, and Dr Ingram, I find that the plaintiff has a capacity to perform suitable employment. Of course, it must be borne in mind that the plaintiff has no physical barrier to perform work, and, in all the circumstances, I am of the opinion that he has a capacity to perform work as a builder’s labourer, product assembler or a garden labourer.
62 It may well be that the plaintiff would commence performing such work on a part-time basis, but I find that on the basis of all the evidence available to me, he has the capacity to perform that work on a full-time basis now or in the foreseeable future. I note that the annualised amounts for each of those jobs is greater than $33,960.
63 Accordingly, I find that the plaintiff either fails to satisfy the requirements of paragraph (e)(i) of sub-s.(38) in that he is capable of performing full-time work, or, alternatively, if he is not capable of performing full-time work now, he does not satisfy paragraph (e)(ii) of sub-s.(38) in that I am not persuaded that he will “permanently” have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.
64 I also note that Dr Kornan, Dr Ingram and even Dr Mogan considered the finalisation of the legal proceedings would prompt an improvement in his condition. In particular, Dr Mogan was of the opinion that the critical aspect of that matter was the “finish of the issue” whether “successful or otherwise”.
65 In relation to “pain and suffering consequences”, I am not persuaded that the plaintiff has satisfied the narrative test in establishing that such consequences are “severe”. Such findings flows from my earlier findings as to what he is capable of doing on a day-to-day basis, the improvement in his condition noted by Dr Kornan and Dr Ingram, his lack of ongoing medication, and the expected improvement after finalisation of legal proceedings according to Doctor Kornan, Dr Ingram and Dr Mogan.
66 In making such a finding, I do stress that I am satisfied that the plaintiff does continue to have a PTSD with some consequences from that condition which may be characterised as even “serious”, but fall short of being “severe”.
Conclusions
67 Accordingly, I dismiss the application and will hear the parties on the question of costs.
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