Mitchell v Linde Material Handling Pty Ltd
[2011] VCC 216
•18 March 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-05643
| RUSSELL MITCHELL | Plaintiff |
| v | |
| LINDE MATERIAL HANDLING PTY LTD | Firstnamed Defendant |
| and | |
| WORKSAFE VICTORIA | Secondnamed Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 January 2011 |
| DATE OF JUDGMENT: | 18 March 2011 |
| CASE MAY BE CITED AS: | Mitchell v Linde Material Handling Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 216 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application in respect of pain and suffering damages and pecuniary loss damages – reliance upon both sub-paragraphs (a) and (c) of the definition of serious injury – specific incident resulting in injury to the upper back with development of chronic adjustment disorder and chronic pain disorder – separate consideration of physical and mental injuries – plaintiff under 26 years of age as at date of injury – s.134AB(38)(e)(i) – observations re inappropriate remarks made by two defendant’s medical examiners – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with | Nowicki Carbone |
| Mr M Ruddle | ||
| For the Defendants | Mr J Batten | Minter Ellison |
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages. In bringing his application, the plaintiff relies upon sub-paragraphs (a) and (c) of the definition of serious injury found in s.134AB(37) of the Act. Insofar as the injury under consideration is a physical one, it is injury to the cervical and thoracic spine suffered in a specific incident on or about 16 or 17 October 2006 when the defendant fell whilst on the tray of a truck, striking the upper part of his back. In the medical histories, claim forms and statements taken there is some confusion as to the precise date. However, the occurrence of the incident was not the subject of dispute in this application, although there was some cross- examination as to precisely how it happened. Bearing the above in mind, for the sake of simplicity I shall refer to the incident in which the injuries were sustained as having occurred on 17 October 2006. Insofar as the injury is a mental or behavioural disturbance or disorder, it is said to be constituted by an adjustment or pain disorder arising from the physical injury suffered in that incident. Of course, the test in relation to the mental disorder is a more demanding one than that applicable to the physical injury.
2 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.
3 Mr P Jewell SC with Mr M Ruddle of counsel appeared on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendants. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature, including surveillance film, and was tendered by consent, which was a most sensible and cost effective manner in which to conduct a case such as this.
4 Whilst there are two defendants named in this matter, their interests overlap entirely and henceforth I shall refer only to “the defendant”, meaning Linde Material Handling Pty Ltd, by which entity the plaintiff was employed and in the employment of which he allegedly suffered the relevant injuries and their consequences.
5 Further, as at the date of the incident which precipitated the plaintiff’s symptoms and consequences, he was 25 years of age. Accordingly, and as shall be discussed, s.134AB(38)(e)(i) of the Act applies and consideration of the six year “window”, together with other concepts set out in s.134AB(38)(f) of the Act, is not required in relation to pecuniary loss damages.
Factual background
6 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 7 In essence, I have no reason to disbelieve the evidence of the plaintiff. Surveillance video of him was shown to the court. It showed him doing such things as driving a motor vehicle, very briefly jogging, and walking with his children. In my opinion it was of no significant impact upon the plaintiff’s credit and cast no great light, either positive or negative, upon the plaintiff’s case. That this is so is perhaps underlined by the fact that it received little or no attention in closing addresses.
8 There are frequently some difficulties encountered by medical examiners in assessing persons suffering from conditions such as chronic pain disorder, particularly when this follows a physical injury which does not reveal itself in any marked pathology. It is also a more difficult task for the court. As shall be discussed, there has been a variety of medical opinions advanced. As I read them, whilst differing views are expressed concerning issues such as capacity, causation and the like, I cannot detect any opinion clearly stating that the plaintiff has been misleading, untruthful or malingering. The bulk of the medical opinions appear to proceed on the basis that his complaints and symptoms are real, at least to him.
9 In summary, I accept that the plaintiff did his best to answer questions accurately and honestly and I accept his evidence.
(ii) The plaintiff’s background, training and pre-injury employment 10 The plaintiff is currently aged 29 years, having been born on 9 March 1981. He has a partner and three young children. He was educated to approximately halfway through Year 11 level, and thereafter commenced apprenticeship as a chef. He worked in this capacity for approximately three years. Whether in fact he completed that apprenticeship is something that is not entirely clear.
11 In any event, the plaintiff then worked as a forklift driver and labourer and also had prolonged periods of unemployment. In approximately 2004 he began work as a forklift mechanic with Crown Equipment Pty Ltd.
12 In approximately August 2005 the plaintiff commenced employment with the defendant as a service technician. Essentially his duties consisted of him going on-site at various premises in order to service and repair forklifts. As I understand it, this frequently meant that the plaintiff went directly from home to a location where work upon a forklift was required. It was not necessary for him to report in to his employer’s premises, and he was notified as to where to go via a computer.
13 The actual duties performed by the plaintiff were physical in nature, involving such things as changing engine oil, greasing forklifts, lubricating lift chains, working on forklift tyres and the like. Prior to the relevant incident of injury, it was work of this nature which the plaintiff had been performing in his employment with the defendant. Prior to the relevant incident the plaintiff had commenced his participation in a training program conducted by the defendant, which involved potential progression through a number of levels as various modules were completed satisfactorily. These were conducted on-site and the plaintiff’s level of pay increased in accordance with the level achieved. It would appear that there are six such levels. As at the date of injury the plaintiff had advanced to Level 2, passing the appropriate practical and theory tests as at 2 June 2006. It was his intention to continue to train and advance himself and he subsequently completed some modules on his way to Level 3. Subsequently there will be further discussion of his progress in this regard and the economic effects of it.
(iii) The injuries (a) The state of the plaintiff’s health prior to the injuries 14 I am satisfied that the plaintiff suffered no significant symptoms or restrictions associated with injury, either physical or mental, prior to the relevant incident. The plaintiff had been assaulted in approximately 1998 and been involved in an accident where he came off his motorcycle in 1999. I accept that neither of these incidents left him with any symptoms or consequences of significance.
15 The plaintiff did admit to the use of cannabis over the years, and prior to the relevant incident, but claimed that his current intake was minimal. I am not of the view that the plaintiff’s unfortunate use of cannabis has any impact of significance upon his physical and mental health and I do not regard it as being a factor of any importance in his case. Insofar as radiological investigations of the plaintiff’s spine reveal any degenerative changes, and thus provide the foundation for an argument based upon aggravation, I am satisfied that such changes were not productive of symptoms prior to the relevant incident. Of course, in accordance with the authorities, if the injury, or part of it, is in the nature of an aggravation, it is the consequences of that aggravation which are to be considered. However, as I am satisfied that the plaintiff was free of relevant symptoms or restrictions prior to the incident of injury, the result is that the symptoms, restrictions and consequences which I am to consider are all of those from which he now suffers.
(b)
The injuries of 17 October 2006, their treatment and the assessments of them
16 On 17 October 2006 the plaintiff was on the tray of the vehicle provided to him by the defendant when he fell, striking the upper part of his back on the tow ball of the vehicle and then hitting the ground. The plaintiff struck the tow ball between his shoulder blades, and ultimately his head hit the ground. The plaintiff reported the incident to the defendant and also attended upon Dr Lok, a doctor whose surgery the plaintiff had attended for a pre-employment medical examination. It was at the request of the defendant that the plaintiff attended Dr Lok. Medication and physiotherapy were prescribed, and Dr Lok also placed the plaintiff on restricted duties.
17 The plaintiff continued to experience symptoms in his neck and upper back, and on 13 February 2007 Dr Lok referred the plaintiff to Dr Robert Gassin, a musculoskeletal physician. Dr Gassin referred the plaintiff for radiological investigations. A plain x-ray of 22 February 2007 was normal. Similarly, an MRI of 13 March 2007 showed no specific cause for the plaintiff’s symptoms. Dr Gassin felt that the plaintiff’s pain was most likely arising from the soft tissue surrounding the upper thoracic spine, but could not exclude some involvement of spinal structures. Bilateral medial branch blocks of T3/6 were later performed, but were not helpful. At that time Dr Gassin was of the view that there was little more that he could offer the plaintiff by way of treatment.
18 Dr Gassin later reviewed the plaintiff on 27 August 2008. At that review Dr Gassin diagnosed that the pain was most likely arising from the soft tissues of the upper thoracic region, and again could not exclude the involvement of spinal structures. He expressed the view that the plaintiff’s symptoms were consistent with the history of the fall as described and considered employment to be the cause of the plaintiff’s current condition.
19 From 23 February 2007 the plaintiff had been attending Dr Lee, who could be described as his own general practitioner, as opposed to Dr Lok whom the plaintiff seems to regard as being associated with the defendant. Initially anti- depressants were prescribed. On 22 May 2007, Dr Lee referred the plaintiff to Mr Bittar, neurosurgeon. Mr Bittar arranged for an MRI of the cervical spine, which revealed mild desiccation of the discs between C3 and C6, but the findings were otherwise normal. The advice apparently received was for the plaintiff to continue with his existing treatment with Dr Gassin or to see a rheumatologist.
20 Dr Lee placed the plaintiff on light duties four days a week with a break on Wednesdays. It would appear that the plaintiff requested a return to full duties, as he seems to have found some of the light duties not particularly enjoyable. He also worked for a period in a sales role. Ongoing availability of suitable light duties posed a difficulty and the plaintiff performed no work for the defendant from approximately July 2007. The plaintiff has sworn that his employment was actually terminated on 3 January 2008, although correspondence from the defendant would indicate that the date of formal termination was 11 June 2008.
21 In September 2007 the plaintiff attended upon Dr Lee in a stressed condition following a break-up with his partner and it was at this time that he used both alcohol and marijuana somewhat heavily. When examined by Dr Lee in November 2007, the plaintiff was experiencing some click in the neck at times with neck spasms. There was pain, not described as major, upon some movements. The plaintiff’s condition was much the same when Dr Lee last saw him on 19 August 2008. Dr Lee, in a report of 23 August 2008, expressed the view that the plaintiff had sustained muscular and soft tissue injury strains in the fall at work and that the chronic pain he was experiencing was a consequence of the injury. Between December 2007 and May 2008 the plaintiff had undergone physiotherapy and hydrotherapy treatment upon referral by Dr Lee, and this continued until funding for it ceased.
22 Dr Lee retired from practice late in 2008 and died shortly thereafter. Dr Phan then assumed the role of the plaintiff’s general practitioner. Dr Phan prescribed Panadeine Forte and placed restrictions upon any work duties performed by the plaintiff. He also referred the plaintiff to a psychologist, Mr Dunhill, as a result of the stresses to which the plaintiff was subject.
23 Because of the plaintiff’s poor progress, Dr Phan ordered a CT scan of the neck, this being performed on 25 August 2009. The CT scan revealed evidence of early degenerative change with early anterior osteophytes present at the C3/4 level as well as some evidence of ligament calcification between C3 and C5. However, no focal disc protrusion was seen and there was no evidence of neural compromise. Dr Phan then referred the plaintiff to Mr Justin Hunt, orthopaedic surgeon.
24 Mr Hunt saw the plaintiff on 23 November 2009. He took an appropriate history. Upon examination, the plaintiff’s main complaints centred upon his cervical region rather than his thoracic spine. In his report to Dr Phan of the same day, Mr Hunt commented that the reports of the previous MRI scan performed on 4 July 2007 showed some mild disc dislocation at the C3/4, C4/5 and C5/6 motion segments. He referred to the small area of calcification shown on the CT scan of 25 August 2009, although stating that the significance of this was not clear. He also referred to some very early anterior osteophytes at the C3/4 motion segment. Mr Hunt suggested a repeat MRI and a bone scan of the cervical spine.
25 On 7 December 2009 the plaintiff was again seen by Mr Hunt, who again wrote to Dr Phan. By this stage the further MRI scan and the bone scan had been performed. Mr Hunt expressed the view that the MRI scan was basically of the same appearance as that performed in July 2007, commenting that there was evidence of some degenerative disc disease involving the upper cervical motion segments with broad based disc bulge at the C5/6 level, but with no evidence of nerve root impingement. The localised bone scan essentially showed nothing of significance. Mr Hunt discussed the performance of medial branch blocks with the plaintiff, he being interested in pursuing that option.
26 Mr Hunt referred the plaintiff back to the Metro Spinal Clinic in relation to possible further medial branch blocks, and that clinic appears to have referred him on to Dr Gassin. These referrals appear to have taken place in early 2010. It would appear that funding for this particular form of treatment was not forthcoming and I gather that it has not taken place – see paragraph 23 of the plaintiff’s affidavit sworn 13 October 2010.
27 In relation to his mental condition, the plaintiff was referred to Mr Andrew Dunhill, psychologist, first seeing him on 19 August 2009. The plaintiff has continued to receive treatment from Mr Dunhill. Mr Dunhill has diagnosed an adjustment disorder with mixed anxiety and depressed mood and an acute pain disorder. The plaintiff also continues to see Dr Phan who prescribes Panadeine Forte for him. The plaintiff has also taken two tablets of Diazepam per day. However, the only time when the plaintiff had anti-depressant medication was for a relatively short period in either 2008 or 2009.
28 When the plaintiff was referred to the Metro Spinal Clinic by Mr Hunt, he was seen by Dr Brian Lovell. That doctor wrote back to Mr Hunt stating, inter alia, that the plaintiff’s neck pain was more mid-neck than at the base of the neck, so that slightly different levels may have been involved compared with the earlier negative medial branch blocks performed in the upper thoracic spine. Dr Lovell also reported to the solicitors for the plaintiff on 17 May 2010. In that report he refers to the examination which he carried out. Pain was provoked on extension, quadrant loading and left rotation in particular, the pain being mainly mid-neck and in the base of the neck to the saddle of the shoulder region. Maximal tenderness was at C4/5 and to some extent at C5/6. Dr Lovell was of the view that the pain was a direct result of the work injury and diagnosed it as cervical segment referred pain. He mentioned that the plaintiff had suffered from stresses and depression, but expressed the opinion that the prime cause of the pain and disability was the neck injury. He also stated that the plaintiff might have had more suffering because of psychological effects, but that these would have been the secondary, and not the primary, pain generator. He felt that the performance of medial branch blocks was “well and truly justified and there is no real medical basis for rejection of these investigations”. However, as stated, funding in respect of the further medial branch blocks apparently was not forthcoming.
29 The plaintiff has been seen by a number of specialists for medico-legal purposes. I shall deal firstly with those who have seen the plaintiff in relation to the physical injury.
30 The plaintiff was seen by Mr John O’Brien, orthopaedic surgeon, on 19 July 2010 at the request of the plaintiff’s solicitors. Mr O’Brien took an appropriate history. However, he was of the view that subjective signs indicated the presence of non-organic factors, and felt that the plaintiff was demonstrating a chronic pain disorder influenced by psycho-social factors. He also expressed the opinion that, given the history, employment remained a significant contributing factor to the current clinical presentation. He felt that the clinical condition was stable and the prognosis poor, as he was sure that the plaintiff had well established chronic pain. Mr O’Brien stated that his opinion was in line with that expressed by a Medical Panel when the plaintiff was examined in November 2005 “with the conclusion that the patient was suffering from a chronic pain disorder in association with a medical condition”. The only Medical Panel opinion contained in the material before me is that of 24 November 2008 in which the Panel expressed the view that the plaintiff was suffering from a chronic pain disorder and an adjustment disorder with depressed mood which had arisen as a consequence of a now resolved soft tissue injury of the neck area. This reads as if it is the opinion to which Mr O’Brien has alluded. Accordingly, it would seem that the reference to November 2005 is a typographical error and that the opinion in question is that of November 2008.
31 The defendant arranged for the plaintiff to be examined by Mr T J Russell, general surgeon, who reported on 18 June 2007. After delivering some gratuitous advice concerning suspicion about injuries that occur on Fridays and are reported on Mondays, something which has nothing whatsoever to do with medical examinations and opinions, Mr Russell concluded, with apparent reluctance, that the plaintiff had suffered an incident at work which had caused an acute neck flexion injury of the type that can sometimes be characterised as whiplash. He felt that there was a good prognosis for a full recovery.
32 Mr Paul Kierce, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 17 June 2008. Upon examination Mr Kierce found a full range of movements of the cervical and thoracic spine, and no neurological abnormalities. He was aware of the radiological investigations. He diagnosed a soft tissue injury to the cervical spine aggravating pre-existing cervical spondylosis, the injury occurring in the described incident. However, he was of the opinion that the work component had resolved and that the plaintiff was fit for unrestricted work activities.
33 On 26 November 2008 the plaintiff was seen by Mr Brian Davie, consultant orthopaedic surgeon, at the request of the defendant’s solicitors. Upon examination Mr Davie found nothing abnormal. He diagnosed non-specific neck and mid-thoracic pain probably arising from a soft tissue injury sustained in the accident on 17 October 2006. He believed that the plaintiff’s problems were more related to mental and neurotic factors than to any physical condition. He had found no evidence of any continuing problems of a physical nature.
34 Dr Roy Karna, rheumatologist, examined the plaintiff at the request of the defendant on 15 April 2009. Dr Karna could find no substantial ongoing structural or musculoskeletal pathology that was relevant. He believed that the plaintiff had recovered from an initial soft tissue injury but that there have been added psychosocial issues which may be driving a pain syndrome. He did not agree that there had been any aggravation of cervical spondylosis.
35 Mr Michael Dooley, orthopaedic surgeon, has seen the plaintiff at the request of the defendant’s solicitors on two occasions. The earlier of these was on 21 September 2010. Upon examination Mr Dooley found tenderness in the lower cervical spine towards the right side and in the interscapular thoracic region. Spinal movement resulted in some complaints of pain. Mr Dooley’s opinion was that, in the relevant incident, the plaintiff sustained soft tissues injuries to the cervical and upper thoracic spine regions. He felt that the plaintiff’s ongoing pain could not be explained on the basis of an organic injury alone, but believed that the plaintiff had developed a chronic pain syndrome. He felt that the plaintiff’s condition remained related to his employment but that the majority of his presentation related to the psychological reaction to injury and/or pain. I shall return to Mr Dooley’s views in relation to the plaintiff’s work capacity.
36 Mr Dooley re-examined the plaintiff on 2 December 2010. Essentially Mr Dooley’s view remained unchanged, although he did comment that the plaintiff seemed less irritable and more settled. He also stated that, in his view, the plaintiff’s condition remained related to his employment, in part to the organic injury and in the majority to the plaintiff’s psychological reaction to injury. He believed that the soft tissue injury sustained by the plaintiff involved some musculo-ligamentous damage and again commented on work capacity.
37 For medico-legal purposes the plaintiff has also been seen by consultant psychiatrists. At the request of his solicitors he was seen by Dr M J Nathar on 20 July 2010. Dr Nathar found little that was abnormal as a result of his mental status examination. He took a history of neck and upper back pain following the injury, which precipitated secondary anxiety and depression. He formed the view that the plaintiff’s psychiatric state had improved with some stabilisation, but that he was still troubled with residual anxiety and depression with excessive concern about the future. He diagnosed a combination of chronic adjustment disorder with anxious and depressed mood and chronic pain disorder involving psychological factors and general medical conditions. He believed that pain had become “the predominant mood of presentation” and that psychological factors were amplifying the residual physical problems. The chronic pain disorder was taking a course of its own. He implicated employment and the physical injuries. He was of the view that the plaintiff’s physical injuries and consequences have contributed significantly to the psychiatric injuries. He also implicated other factors, both related to employment and outside the scope of it. Dr Nathar regarded the prognosis as being guarded and poor.
38 Dr Norman Rose also examined the plaintiff at the request of his solicitors, this examination being on 9 September 2010. The diagnosis of Dr Rose was one of chronic pain disorder due to psychological reasons and an adjustment disorder with depressed mood. He expressed the view that the plaintiff’s physical injuries initially precipitated the psychiatric condition and that the plaintiff had been left with quite severe psychiatric problems in the form of a pain disorder and an adjustment disorder. He implicated employment. His prognosis was that the plaintiff was likely to remain in significant and severe pain indefinitely and would continue to be depressed.
39 At the request of the defendant, the plaintiff was examined twice by Dr Ian Jackson, psychiatrist. The first such examination was on 31 March 2009. Following that examination, Dr Jackson reported that the plaintiff presented with chronic pain apparently following the relevant upper back and neck injury. This became associated with a depressive reaction. Dr Jackson could not find a diagnosable psychiatric disorder. Interestingly, Dr Jackson included the following observation:
“My doubts about his actual WorkCover claims include that he signed a WorkCover claim form 30/10/2006 but this form was not completed by his employer and his employer did not fill in corresponding forms until January 2007.”
40 Frankly, this seems to be another instance of at tendency to which I referred above when discussing Mr Russell. In my view, it is not the role of independent medical examiners assessing plaintiffs, at the request of the Victorian WorkCover Authority (a model litigant), to be acting as private investigators or as some form of loss adjuster. It may be that I am misinterpreting what was meant by Dr Jackson, although the above follows a remark concerning “considerable inconsistencies”. In my view, and assessing it on its face, observations such as that quoted above have no place in what is meant to be a specialist medical report by an independent examiner. That is apart from the fact that it is an observation made without any obvious knowledge of the background facts and circumstances which might or might not have some bearing upon any delay between an injured worker completing his form and the employer completing the corresponding form. I shall comment no further other than to say that I regard it as disappointing that medical examiners should report in the manner which seems to have occurred twice in this case. Avenues of investigation of a claim or possible lines of cross-examination need not be suggested by such allegedly independent medical examiners. That medical examiners carrying out examinations at the request of the Victorian WorkCover Authority are meant to independent is made clear by s.112(1) of the Act. In any event, Dr Jackson came to the conclusion that the plaintiff did not have a diagnosable psychiatric condition and concluded that, from a psychiatric point of view, there was no bar to any form of employment.
41 Dr Jackson reviewed the plaintiff on 3 August 2010. He felt that the plaintiff had become resigned and fixed in terms of his depressive type symptoms. However, Dr Jackson remained of the view that the plaintiff was not suffering from a diagnosable psychiatric illness and could find no evidence of psychological factors of the pain disorder type that played a part in his chronic pain. Dr Jackson also complained that, in expressing his views, he was handicapped by having no necessary or appropriate documentation.
42 I have already referred above to the opinion of a Medical Panel of 24 November 2008. That was to the effect that the plaintiff suffered from a chronic pain disorder and an adjustment disorder with depressed mood arising as a consequence of the soft tissue injury to the neck area which had resolved. The Panel was of the view that the plaintiff’s incapacity for his pre- injury duties was still materially contributed to by the claimed injury.
43 As is probably apparent, this is a difficult case in which to arrive at a conclusion as to the type of physical or mental injuries suffered by the plaintiff. There was no real challenge as to the occurrence of the incident of October 2006. I accept that it occurred and that the description of it as given by the plaintiff is accurate.
44 In relation to the physical injury suffered by the plaintiff, I prefer the opinion of Mr Michael Dooley. He is an orthopaedic surgeon, examining on behalf of the defendant, who has had the opportunity of seeing the plaintiff twice in recent times. Indeed, his reports are the most current in the case. They seem to me to make sense and to strike a fair balance. He acknowledges the presence of considerable psychological reaction to injury and pain. However, he also points out that there is an organic component, which he describes as being a soft tissue injury that involves some musculo-ligamentous damage. He points to the fact that one would not normally expect to see an abnormality on an MRI in this regard.
45 Dr Phan has referred to the fact that a CT scan showed degenerative changes at C3/4 and C4/5. A question mark certainly hangs over the existence of degenerative change or of it being a factor of significance. Nevertheless, it seems that Dr Phan is of the view that there is an organic physical injury which lies at the heart of the plaintiff’s depression. Mr Hunt also has expressed the view that the plaintiff had neck pain secondary to early cervical spondylosis. Dr Lovell, also a treating doctor, diagnosed cervical segment referred pain.
46 I am of the view that the plaintiff has suffered an organic injury to the area of his neck and upper thoracic spine. Some doubt must remain as to whether there has been the aggravation of degenerative changes. On balance, I prefer the view of Mr Dooley that what has occurred is a soft tissue injury involving some musculo-ligamentous injury. I appreciate that Mr O’Brien has basically diagnosed a chronic pain disorder influenced by psychosocial factors. However, the views of those who have treated the plaintiff combined with the opinion of Mr Dooley (and particularly the latter) persuade me that an organic injury does exist. I prefer those views to those expressed by Mr Kierce to the effect that the work component had resolved, or by Mr Davie and Mr Karna to the effect that there was no evidence of any continuing problems of a physical nature. As stated, the opinions of Mr Dooley are current, sensible and balanced.
47 In relation to psychological or psychiatric consequences, I prefer the views of Dr Nathar and Dr Rose, and indeed that of Mr O’Brien, even if he is not a consultant psychiatrist. I accept that the plaintiff has a chronic adjustment disorder with anxious and depressed mood and a chronic pain disorder. Even leaving to one side my criticism of certain parts of the report of Dr Jackson, which do not bear upon the accuracy of any diagnosis, Dr Jackson complained of not being sent appropriate documentation and being handicapped as a result. He did, however, refer to “understandable secondary depressive symptoms”. On balance, I am of the view that the plaintiff suffers from a chronic adjustment disorder and a chronic pain disorder.
48 In relation to each injury, I am not of the view that there were pre-existing injuries, symptoms or restrictions of any significance. In each instance, it seems to me that the symptoms, restrictions and consequences have manifested themselves after the relevant incident of injury. True it is that the plaintiff used cannabis prior to the incident of October 2006 and it may be (whilst it is arguable) that there is some radiological indication of pre-existing degenerative changes in the cervical or thoracic spines, but I am not satisfied that any relevant symptoms of either physical or mental injury or ill health existed prior to the occurrence of the relevant incident. Whilst I shall only take into account the consequences of any aggravation (if this be considered a case of aggravation, a proposition with which I essentially do not agree), the consequences of such aggravation are those which the plaintiff now suffers.
49 It is apparent that, as alleged, there are quite marked psychological or psychiatric consequences of the physical injury existing in this case. Indeed, their existence and magnitude form part of the plaintiff’s case. However, in accordance with s.134AB(38)(h), they can only be taken into account for the purposes of sub-paragraph (c) of the definition of serious injury and not otherwise. Pursuant to s.134AB(38)(i), the physical consequences of a mental or behavioural disturbance of disorder can only be taken into account for the purposes of paragraph (c). Thus, it is important that, where appropriate, some distinction be made between the types of consequences. I shall turn to this shortly.
50 In relation to the permanence of the injuries, again the mix of physical and mental consequences complicates this to an extent. However, I am satisfied that the consequences of both type of injury suffered by the plaintiff are permanent within the meaning of the Act. Mr John O’Brien has stated that the plaintiff’s clinical condition is now stable (as at 19 July 2010), his prognosis is poor, and he has well-established chronic pain which will be an ongoing problem. In relation to the plaintiff’s capacity for employment, Mr O’Brien stated that the plaintiff was unlikely to return to gainful employment in the foreseeable future, and this statement also gives some indication of Mr O’Brien’s view as to permanence. The treating orthopaedic surgeon, Mr Hunt, expressed the belief in his report of 15 February 2010 that the plaintiff’s condition had stabilised. In relation to prognosis, Mr Hunt noted the long duration of the plaintiff’s symptoms since onset and stated that the symptoms would be classed as chronic. In his report of 17 May 2010 Dr Lovell described the plaintiff’s neck injury as being the prime cause of his pain and disability and stated that, on the pattern so far, the plaintiff’s prognosis for improvement was poor. In his report of 4 December 2009 Dr Phan expressed the opinion that, given that the plaintiff had not made any significant progress over the past three years, he would continue to experience pain and loss of function. Dr Gassin, the plaintiff’s treating musculoskeletal physician, expressed the opinion as early as 14 September 2008 that the plaintiff’s condition had stabilised and he was likely to suffer persistent pain and disability for the foreseeable future. Mr Dooley did not comment specifically on the permanence of the consequences of the plaintiff’s physical injury, but did state that, overall, he would be unable to continue his pre-injury employment on a fulltime basis. Whilst he was dealing more with the question of capacity, that statement seems to contain an inference that a particular state of affairs will continue. Bearing in mind the above, I am of the view that what could be described as the physical consequences of the plaintiff’s injury will persist for the foreseeable future and are thus permanent within the meaning of the Act.
51 In relation to the mental injury, Dr Nathar observed in his report of 21 July 2010 that the plaintiff’s general psychiatric prognosis was poor and that he was likely to have some mild, permanent psychiatric impairment which would not resolve to any significant extent. He also referred to preclusions and restrictions from which the plaintiff suffers as likely to be of a long-term nature. Dr Rose has stated that, as a result of the plaintiff’s mental injury, he is quite significantly precluded and restricted in relation to social, domestic and recreational activities and that these preclusions are indeed likely to be long- term. He has also stated that the plaintiff’s prognosis is that he is likely to remain in significant and severe pain indefinitely and will continue to be depressed. I have already referred to the opinion of Mr O’Brien. On the basis of his diagnosis, his remarks concerning prognosis could be treated as applying solely to a mental injury or arguably to a mental injury with some physical causation or component. Whatever be the case, he referred to the fact that the plaintiff demonstrated restriction in relation to his overall general domestic, social and recreational activities and this would probably be a permanent situation. I accept these opinions.
52 In summary, I am of the view that both the physical and psychological or psychiatric consequences of injury are permanent within the meaning of the Act.
(iv) The plaintiff’s employment, training and other development since the injury 53 The plaintiff continued performing restricted duties with the defendant until approximately April 2007. Thereafter, whilst he was certified as being fit for work subject to restrictions, it would seem that no appropriate duties could be provided by the defendant. His services were terminated on approximately 3 January 2008. Throughout the latter half of 2007 attempts at return to work on suitable duties were organised with the assistance of IPAR Rehabilitation, but these effectively came to nothing. The plaintiff attended at IPAR on a number of occasions during 2008, although an IPAR report of 29 October 2008 questioned his motivation. The plaintiff has also made some efforts of his own in an endeavour to obtain employment.
54 Towards the end of 2009 the plaintiff performed some sporadic shift work at a local fish and chip shop, this work being spread over approximately a month. He also did one trial shift at a local restaurant. Shortly before Christmas 2010 he tried work as a meter reader for one day, but gave evidence that, at the end of one and a half hours by way of a trial, his neck was not good and he suffered pain. He did not get the job. Otherwise the plaintiff has not engaged in employment. He has applied for numerous jobs. He also states that, through IPAR, he applied for a couple of courses which did not eventuate.
55 It would also appear that the plaintiff undertook two training sessions or modules in order to advance from Level 2 to Level 3 in the training program conducted by the defendant. There was some confusion in the evidence as to whether the plaintiff had completed these two modules before or after the incident of injury. However, Exhibit “RM-2” to the plaintiff’s affidavit of 17 January 2011 would indicate that in fact he performed his training for those two modules in April and May 2007. Thus, after the injury, he was continuing with the training program that would have led to a higher qualification.
56 I am not of the view that s.134AB(38)(g) operates so as to defeat the plaintiff’s claim. No submission of any substance was advanced in this regard, although the reasonableness of efforts made by the plaintiff to attempt to participate in alternative employment was raised in the defendant’s statement of issues. On balance, and bearing in mind the conclusion at which I shall arrive, I am not of the view that s.134AB(38)(g) operates to the detriment of the plaintiff. In any event, s.134AB(38)(g) takes one back to paragraph (f) which is not applicable in the present case. It is therefore debatable whether it has any application.
Ruling
(a) Injury to the cervical and thoracic spine (i) Pecuniary loss damages 57 I am of the view that the plaintiff has the capacity to engage in suitable employment when one considers the physical injury which he has suffered. However, I am of the opinion that he is precluded from engaging in his pre- injury occupation. In this regard, I would refer to the reports of Mr Dooley, which reports are comparatively current. His examinations were carried out at the request of the defendant’s solicitors, and they are reports which, to my mind, distinguish comparatively clearly between the physical injury sustained and any psychological or psychiatric consequences. For example, Mr Dooley stated as follows in his report of 6 October 2010: “I would expect that Mr Mitchell would at times note difficulty with regular heavy physical work or with a lot of work at and above shoulder level. Therefore, he would have difficulty carrying out his preinjury employment. I believe however that he is capable of carrying out a wide range of at least light physical work and clerical duties.”
58 Whilst Mr Dooley is clearly of the view that the plaintiff has had a psychological reaction to his injury or pain, he is nevertheless able to express an opinion in relation to capacity which appears to be based upon the physical elements of the injury. I interpret the above observations in this way. The follow-up report of Mr Dooley of 3 December 2010 is perhaps not quite so clear but, having discussed the plaintiff’s soft tissue injury, he does conclude that, “Overall Mr Mitchell would be unable to continue his pre-injury employment on a full-time basis”.
59 The treating orthopaedic surgeon, Mr Hunt, has commented upon capacity, and, whilst he has referred to such things as chronic pain symptoms, he has made a diagnosis which seems to me to be relating to physical matters. He has diagnosed axial neck pain secondary to early cervical spondylosis, which he has stated was supported by findings on repeat MRI scan. In his report of 15 February 2010, he has expressed the following view in relation to capacity:
“Mr Mitchell was incapacitated for his pre-injury employment at the time I last saw him, due to ongoing symptoms of axial neck pain…”
60 Similarly, Dr Lovell has diagnosed cervical segment referred pain and has stated that, whilst the plaintiff has suffered some stresses and depressions, the prime cause of his pain disability was due to his neck injury. He has made the following statement in his report of 17 May 2010:
“On the pattern so far his prognosis for improvement is poor, and unless we can find some form of treatment for reducing his pain, his prospects of returning to any form of work along the lines he had originally are practically nil.”
61 Again the impression strongly conveyed is that Dr Lovell was making his comments in the context of an injury which he considered to be physical.
62 The same might be said of the opinion of the treating general practitioner, Dr Phan. In his report of 4 December 2009, he has expressed the view that the plaintiff suffers from chronic neck pain, and has referred to degenerative changes at C3/4 and C4/5. He has also referred to depression. He has stated as follows:
“Given that the patient has not made any significant progress over the past three years, it is my opinion that the patient will continue to experience pain and loss of function, hence a return to his pre- injuries duties are unlikely.”
63 I appreciate that there are reports on behalf of the defendant effectively indicating that the plaintiff is capable of his pre-injury duties. However, I prefer the above opinions which are more current, and which represent the views of those treating the plaintiff and, in the case of Mr Dooley, of an experienced specialist who has examined recently on behalf of the defendant. It is my view that the plaintiff, by reason of the consequences of the physical injury suffered by him, is not capable of performing his pre-injury occupation.
64 However, I am of the view that the plaintiff is fit for suitable employment, and is not impeded from engaging in this by reason of any physical injury. Mr Dooley has expressed the opinion that the plaintiff is capable of carrying out a wide range of light physical work and clerical duties and is capable of carrying out occupations which were identified in the vocational assessment of WorkStreams, this assessment apparently being carried out at the request of the defendant. These occupations included such jobs as motor vehicle parts sales representative, order clerk, motor parts interpreter, despatch and receiving clerk and café worker. Reporting on 14 September 2008, Dr Gassin, the treating musculoskeletal physician, stated that the plaintiff would experience significant difficulty working as a chef or mechanic, but may be fit for less physically demanding work. Dr Lovell commented that, unless some form of treatment could be found which would reduce the plaintiff’s pain, his prospects of returning to any form of work along the lines he had originally are practically nil, but he does not comment concerning the plaintiff’s capacity for other duties, save that he also stated that the plaintiff’s neck pain “essentially meant that he has long term difficulties presenting for any effective work, and certainly not being able to return to work as a mechanic”. There is some ambiguity in this statement, but overall I do not interpret it as meaning that the plaintiff is permanently unable to perform suitable work. Similarly, whilst Dr Phan stated that a return to the plaintiff’s pre-injuries duties is unlikely, he has been prepared to certify the plaintiff as being fit for restricted duties.
65 Accordingly, I am of the view that the plaintiff is fit for suitable light duties. I am not of the view that, by reason of his physical injury, his capacity for employment has been destroyed. As a result, questions of “dollars and cents” arise. Whether the plaintiff has a loss of earning capacity of 40 per centum or more must be considered.
66 Given the age of the plaintiff as at the date of injury, the “six year window” referred to in s.134AB(38)(f) need not be considered – see s.134AB(38)(e)(i) and (ii). In particular, s.134AB(38)(e)(i) sets out the following pre-requisite for the granting of leave:
“(i) at the date of a decision under sub-section (16)(a) or at the date of the hearing on application under sub-section (16)(b), the worker has a loss of earning capacity of 40 per centum or more measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f).”
Thus, the “six year window” and other concepts contained in paragraph (f) do
not operate.67 As stated, in his employment with the defendant the plaintiff had been advancing through the training levels or modules applicable to his work as a fork lift mechanic. Between August 2005 when he commenced employment the defendant and October 2006 when he sustained the physical injury under consideration, he had progressed to Level 2. By the time that he ceased employment with the defendant, he was advancing towards Level 3. It is evident from his affidavit of 17 January 2011 that there are six levels that could be achieved. As might be anticipated, the quantum of the salary paid increases with the level of qualification achieved.
68 Mr Jewell urged upon me that the plaintiff would have achieved Level 4 status as a forklift mechanic by this time. Whilst I initially had some misgivings concerning this proposition, upon reflection it seems to me to be correct. The plaintiff had engaged in the training program run by the defendant and, at the time of sustaining injury, had achieved Level 2 and was preparing for his Level 3 examination. The plaintiff had progressed satisfactorily prior to the date of injury and apparently continued to advance thereafter prior to the termination of his employment. He was apparently well-motivated and there seems no reason to suggest that, as at the date of hearing, he would not have advanced to Level 4, given the progress previously made.
69 In his affidavit of 17 January 2011 the plaintiff has confirmed his belief that, had he continued to work for the defendant and had he not sustained the relevant injuries, he would be currently working as a Level 4 grade technician, if not Level 5. He has referred to the fact that it took approximately 10 months for him to pass from Level 1 to Level 2. In the circumstances, and given that almost four years have passed since the plaintiff was last employed by the defendant, the expectation that he would by now have achieved Level 4 status seems to me to be a reasonable one.
70 If that be so, the material provided by the defendant and exhibited to the plaintiff’s affidavit of 17 January 2011 would indicate that the current wage rate for a Level 4 handling service technician (the formal title of the plaintiff’s former position) is $65,546. This figure is inclusive of overtime but does not include certain other items to which I shall turn and concerning which there is some controversy. These items are the private use of a work vehicle, private use of a laptop computer, oils and lubricants for the work vehicle, and private use of a mobile telephone. Whether the provision of these items is to be considered in the calculation of loss of earning capacity was the subject of some debate. On the basis of the figures and calculations which I shall now set out, the inclusion of some value for these additional items would appear to be important in relation to the outcome.
71 Before returning to that last-mentioned point, I shall now deal with the comparator for the purposes of s.134AB(e)(i). Some five possible suitable employment options are identified in the NES vocational assessment report of WorkStreams, such report apparently being prepared at the request of the defendant. WorkStreams interviewed the plaintiff and seems to have had access to some material. As stated, it identified five suitable employment options, reliance being placed on these by the defendant. The highest paid of these employment options is that of a sales representative (motor vehicle parts and accessories). The evidence is that the expected wage for such a position is $757 per week. Let us for the moment select that as representing a suitable comparator when determining whether the required loss of earning capacity of 40 per cent or more has occurred (again bearing in mind the age of the plaintiff at the relevant time).
72 Therefore, on the evidence presented, the highest amount which the plaintiff could receive by way of “post-injury” earnings would be $757 per week which, when annualised, is $39,364 per annum. As previously discussed, the amount which the plaintiff would be earning if the injury had not occurred would be $65,546 per annum. 60 per cent of that figure is $39,328. Thus, whilst it is a close run thing, on those figures the plaintiff’s loss of earning capacity would be productive of a financial loss of less than 40 per centum. By my calculations, the financial loss would be 39.94 per centum.
73 There then arises the question of whether the additional items should be included. In my opinion some portion of them should be. With this plaintiff being a worker under the age of 26 years as at the date of injury, the method of measuring the loss of earning capacity of 40 per centum or more as set out in s.134AB(38)(f) is not applicable. That is specifically stated in s.134AB(38)(e)(i). It is in sub-s.(38)(f) that phrases such as “earning from personal exertion” appear. “Income from personal exertion” is defined in sub- s.(38)(a) of the Act and takes one back to s.6(2) of the Transport Accident Act 1986. Exactly how a financial loss of 40 per centum or more referred to in sub-s.(38)(e) is to be measured is not clear. What is required is a permanent loss of earning capacity productive of financial loss of 40 per centum or more, but no further statutory assistance is provided. If sub-s.(38)(f) is removed from consideration, factors such as gross income from personal exertion, the six year “window”, the concept of what most fairly reflects the worker’s earning capacity had the injury not occurred and the like, disappear. Indeed, there is no reference to the concept of suitable employment in s.134AB(38)(e), but only in sub-s.(38)(f) and (g). I might add that sub-s.(38)(g) does not take matters further as far as the present case is concerned, because it in turn takes one back to a determination “in accordance with paragraph (f)”.
74 Thus, one is brought back to what could be described as an unqualified comparison of capacity in order to establish whether the required loss of 40 per centum has been established. Whilst the definition contained in s.5 of the Act may be of assistance, it would not appear to have strict application. In relation to what the plaintiff might have earned had he not been injured, it seems to me to be reasonable that the concept of earning capacity should embrace all aspects of the financial package which the plaintiff would have received from the defendant had the injury not occurred.
75 I am not of the view that the amounts claimed in respect of the additional items of private use of the work vehicle, including oils and the like, and of the laptop computer and mobile telephone should be allowed as part of the plaintiff’s income in their entirety. Obviously these items would also be used in the course of the plaintiff’s employment, and it does not seem to me to be appropriate to allow, for example, the full amount of the annual running costs of the motor vehicle. According to Exhibit “RM-3” exhibited to the affidavit of the plaintiff, sworn 17 January 2011, the RACV estimate of the annual cost of running a Ford Territory TX (submitted by the plaintiff to be a comparable vehicle) is said to be $13,488.35. I have some doubts as to whether a Ford Territory of the type described in the exhibit is necessarily similar to a Ford transit van (as supplied to the plaintiff) but, even if it is, it does not seem to me to be correct to allow such full annual running cost as being part of the plaintiff’s salary package. Similar observations could be made in respect of the oils and lubricants, and also in relation to the use of the laptop computer and mobile phone. I asked the plaintiff a couple of questions concerning the proportion of time that the motor vehicle was used for private purposes as opposed to work duties, but his answers did not really take the matter any further. Doing the best that I can, I think it would be fair to say that one-third of the amounts claimed in respect of the additional items should be attributed to private use, and thus represent an additional benefit received by the plaintiff by reason of his employment, thus becoming part of his salary package. Therefore, I would add to the plaintiff’s “without injury” earnings the amount of $6,296, the total and essentially unchallenged cost of such items being $18,888. When that is added to the current level for a wage appropriate to a Level 4 technician, the total is $71,842. Sixty per cent of that sum is $43,105, which gross annual income comfortably exceeds the highest annual amount which the plaintiff could earn in the range of recommended appropriate employments.
76 I should add that, even if it were found that, as at this date, the plaintiff had advanced only to being a Level 3 technician, by the time the above extra amount of $6,296 was added to the salary of $62,712, as established by the evidence, 60 per cent of that amount would still exceed the annual income of a sales representative – the highest paid position in the range of suggested appropriate employments.
77 I appreciate that the manner in which I have approached the issue of whether the plaintiff has established a loss of earning capacity of 40 per centum or more for the purposes of s.134AB(38)(e)(i) closely resembles the general approach which would be taken if paragraph (f) was applicable, save for the requirement relating to the six year “window”. I have in fact looked at gross income from personal exertion in the equivalent of suitable employment, and, as stated earlier, those are concepts which appear in paragraph (f). With paragraph (f) not being applicable, there is then no statutory assistance as to how the loss of earning capacity of 40 per centum or more is to be measured in relation to a worker under the age of 26 years at the date of the injury. What is clear is that it is not to be measured as set out in paragraph (f). How it is to be measured is unclear. It seems to me that the court is effectively “at large” in determining whether the required percentage loss of earning capacity has been established. Not only is there little or no statutory assistance in this regard, but the material that has been put before me is directed far more towards the concepts contained in paragraph (f).
78 What I have attempted to do above is demonstrate that, even if the loss was measured as set out in paragraph (f) – with the exception of the six year “window” – and concepts such as gross income from personal exertion and suitable employment were adopted, the plaintiff would establish the loss of earning capacity of 40 per centum. When it is considered that, for the purposes of paragraph (e)(i), the court is “at large” or may take a broader approach to the loss of earning capacity, that the burden of proof has been discharged becomes even more apparent. For example, that an additional amount should be allowed in respect of private car use and the other items mentioned above seems to me to be, if anything, even more apparent. In Paterson v Stanmorr Pty Ltd (2000) 2 VR 460, the Court of Appeal was dealing with a situation involving some similarities to the present case but in the context of pre-injury average weekly earnings. Winneke P made the following observation at page 469:
“It seems to me that, in a case where the contract between the worker and employer demonstrates that the non-pecuniary benefits are an essential part of the worker’s earnings, there is no reason why the value of those benefits are not to be included in the average weekly rate of earnings…
…such average weekly rate of earnings does, in my view, include the value of earnings in kind which are intended to form a valuable part of the reward for the appellant’s services…
…it nevertheless remains true that the word ‘earnings’ has always been broadly interpreted over the years to mean the reward which the employer agrees, by contract or otherwise, to pay the worker for his or her services”.
His Honour went on:
“…it would be surprising if the legislative scheme, which is designed to compensate a worker for loss or diminution of capacity to earn income on the open labour market, were to measure such compensation for incapacity solely by reference to earnings in cash to the exclusion of earnings in kind”.
Further:
“…the legislation did not intend, in my opinion, to remove from the calculation of ‘average weekly earnings’ those payments of a non- pecuniary kind which the terms of employment disclosed as a valuable component of the worker’s emoluments…”.
Phillips JA stated as follows at page 481:
“Thus it can, I think, be said that historically the word ‘earnings’
included all rewards for labour, both in cash and in kind…”.
79 Whilst the above observations were made in the context of the ascertaining of the rate of statutory benefits pursuant to the Act, they seem to me to be of assistance in the present situation. Pursuant to s.134AB(38)(e)(i), it is the loss of earning capacity – the loss of the ability to obtain earnings – that must be measured, and measured without applying the strict requirements of paragraph (f). Certainly it seems to me that, as discussed in Paterson, “earnings” includes not only cash payments but rewards in kind. Applying that approach to the facts before me, and even allowing that the plaintiff has the capacity to earn the amount previously set out by reason of work as a sales representative (a proposition which is disputed by the plaintiff’s vocational assessment consultant, but which I have selected because it is the highest paid of the appropriate employments suggested by the defendant), the plaintiff has established the required loss of earning capacity of 40 per centum or more.
80 In addition, in order to obtain leave, the plaintiff must meet the requirements of s.134AB(38)(c) – that is, he must establish that the loss of earning consequence satisfies the “very considerable” test. In my opinion, it does. For someone of the plaintiff’s age, the loss of more than 40 per cent of earning capacity for the foreseeable future, and bearing in mind losses to date, when judged by comparison with other cases in the range, could fairly be described as being more than significant or marked and as being at least very considerable. Thus, the plaintiff has discharged the burden of proof in relation to both s.134AB(38)(c) and (e). I have already commented upon the permanence of the situation for the purposes of paragraph (e)(ii). The plaintiff is entitled to leave to bring proceedings for pecuniary loss damages.
(ii) Pain and suffering damages 81 The plaintiff having established that he is entitled to leave in respect of pecuniary loss damages, he is then also entitled to leave in respect of pain and suffering damages. In this regard I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170. I would also refer to the various decisions of this Court to similar effect.
(b)
Injury by way of chronic adjustment disorder and chronic pain disorder
82 As I understand the situation, once a plaintiff is successful in establishing that one injury suffered by him or her in a particular incident or in a particular way satisfies the criteria for serious injury, all injuries so suffered can be the subject of the proceedings in respect of which the relevant leave was granted. Accordingly, it is probably unnecessary for me to consider the plaintiff’s mental injury in isolation. However, were it necessary to do this, I am of the view that the result would be the same.
83 Dr Nathar has expressed the view that the plaintiff’s psychiatric injuries “would be regarded as contributing to a total psychiatric work incapacity for pre-injury duties”. He has also referred to suitable light duties, although whether this is in the context of the physical injury, the mental injury or a combination of both is not entirely clear. Dr Nathar appears to have some reservations in relation to the issue of suitable duties. Mr O’Brien, whilst not a psychiatrist, has also diagnosed a chronic pain disorder, and has indeed suggested that the plaintiff is totally incapacitated. Dr Rose has stated that the plaintiff has no capacity for pre-injury employment as a consequence of his psychiatric injury, and has a very limited and almost negligible capacity for regular full and part-time employment. Dr Jackson is of a different view, but I prefer the opinions of Dr Nathar, Dr Rose and Mr O’Brien. I would refer again to the discussion of their opinions as set out previously. I would also refer to the findings made above in relation to loss of earning capacity, which findings are equally applicable in relation to the mental disturbance or disorder. Further, again bearing in mind the age of the plaintiff, the permanence of the situation, past losses and the magnitude of the ongoing loss of earning capacity, I am of the view that the loss of earning capacity consequence could fairly be described as being more than serious to the extent of being severe. Thus, were it necessary, I would find that the plaintiff has discharged the burden of proof in relation to loss of earning capacity resultant from his mental injury, and this would result in his being granted leave in respect of both pecuniary loss damages and pain and suffering damages.
Conclusion
84 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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