Common law claim by manager of tavern against employer for damages for personal injuries - Employee suffered laceration to forehead when pushed against fire hose cabinet by unruly patron - Whether employee also suffered closed brain injury - Employee developed post-traumatic stress disorder after the assault - Employee already suffering from post-traumatic stress disorder after an earlier motor vehicle accident - Whether current degree of permanent whole of person impairment at least 15% - Whether employee suffered from pre-existing impairment arising from the motor vehicle accident - Whether the pre-existing impairment referred to in par 13.11 of the WorkCover WA Guides is permanent impairment - Whether a percentage relating to pre-existing impairment should be deducted from the current percentage of whole of person impairment - Whether an assessment of impairment arising from emotional and behavioural disturbances under par 7.10 of the WorkCover WA Guides cannot be undertaken unless significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI is present

Legislation:

WorkCover WA Guides pars 3.54, 7.10, 13.11
Workers' Compensation and Injury Management Act 1981 s 93K(4)(d), s 93K(13)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr T Lampropoulos

Solicitors:

Plaintiff: Simon Walters
Defendant: Kott Gunning

Case(s) referred to in judgment(s):

Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Barnett v Transport Accident Commission M26/2001 [2001] HCATrans 646, (14 December 2001)
BHP Billiton Ltd v Parker [2012] SASCFC 73
Bowen v Tutte (1990) Aust Torts Reports 68,079
Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555
HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311
Kschammer v R W Piper and Sons Pty Ltd [2003] WASCA 298
Lake v Transport Accident Commission [1998] 1 VR 616
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Cooke [2003] SASC 403
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35
State of New South Wales v Moss (2000) 54 NSWLR 536
Victorian WorkCover Authority v Elsdon [2013] VSCA 235
Watts v Turpin (1999) 21 WAR 402

SCHOOMBEE DCJ: Mr Njegovan, the plaintiff, was the bar manager employed by Nayshon Pty Ltd, the defendant, at the Merriwa Tavern in the northern suburbs of Perth, Western Australia. He was then aged 24 years. Some of the regular patrons of this tavern were unruly and aggressive and some of them had associations with outlawed motorcycle gangs. Mr Njegovan and the tavern manager, Mr Marco Medici, gave evidence that physical fights between patrons was a regular occurrence.
On 25 September 2008 Mr Njegovan left his office when he heard an altercation between patrons and the bar staff at closing time. A group of patrons were demanding to be served alcohol although the bar had closed in accordance with liquor law requirements. Mr Njegovan managed to persuade the group of patrons to leave and ushered them to the front door. The last patron remained standing in the door frame. Mr Njegovan placed a hand on his chest and gently but firmly pushed him out of the premises. The patron became upset, set upon Mr Njegovan and punched him repeatedly. In the course of the assault the patron pushed Mr Njegovan against a metal cabinet containing a fire hydrant which was affixed to the wall.
Mr Njegovan suffered a laceration on his forehead which bled profusely. He was taken to Joondalup Health Campus where he received sutures.
Mr Njegovan said he did not sleep that night because of shock and fear. He stayed home the next day but then went back to work. He gave evidence that the front door of the tavern was petrol bombed the day after the assault. Further, shortly after the assault Mr Njegovan witnessed another incident at the tavern where a patron was repeatedly kicked by another patron to the head. After this incident Mr Njegovan was not able to return to work and obtained medical certificates to this effect. Nayshon terminated Mr Njegovan's employment by notice dated 24 October 2008.
Mr Njegovan started suffering from severe anxiety and agoraphobia immediately after the assault. He was afraid that the patron, who he thought had associations with an outlawed motorcycle gang, might return to assault him again. Mr Njegovan gave evidence that he and Mr Medici, with whom he shared a house, had received threatening text messages.
Mr Njegovan was too afraid to leave the house and stayed inside with locked windows and doors. He deposited weapons in various rooms. He experienced flash backs to the assault and panic attacks when anything reminded him of the assault. He suffered from sleep disturbance, waking several times at night, and being unable to sleep. Eventually he moved out of his rented house before the lease expired to find a safe place to live.
Mr Njegovan moved into a unit at the back of a friend's house. He said he hardly left this unit for two years and only saw friends occasionally. Whenever he went out with friends he first had to drink a lot of alcohol before he had the courage to go out. He changed his car and acquired a German shepherd dog as protection.
During that time Mr Njegovan saw a rehabilitation provider, was placed on medication and completed six session of psychological counselling with Ms Farcut, a clinical psychologist, to whom he had been referred prior to the assault.
Approximately one month before the incident at the tavern Mr Njegovan had been involved in a motor vehicle accident. He had been the driver of a fairly new car which was badly damaged by reason of the negligence of the other driver. Mr Njegovan suffered lumbar back strain, as well as sleeplessness and anxiety after this motor vehicle accident. He was placed on diazepam to deal with his sleeping problem and referred to Ms Farcut for counselling.
Mr Njegovan had been involved in another motor vehicle accident in 2007 in which he was the front seat passenger and was pushed over onto the driver's side by a vehicle slamming sideways into the car. He was miraculously unhurt at the time and did not suffer any psychological symptoms as a result of the first motor vehicle accident. However, after the second car accident in August 2008 he became afraid of driving and thought that he might be killed if he was involved in another accident. This is why he was referred to Ms Farcut.
Unfortunately, other than completing the four remaining sessions with Ms Farcut after the assault, Mr Njegovan was not referred for any further counselling regarding the psychological symptoms that arose after the assault. It seems he was given very little assistance, if any, to recover from the assault or to find another job.
Approximately a year after the assault Mr Njegovan tried to work as an installer of roof insulation, a position he himself had obtained. However, he could not handle the confined spaces, started hyperventilating in the roof space and had to give up on this form of employment. During the latter half of 2009 he tried working as an insurance sales person, but found that he became too anxious and started sweating and stuttering when dealing with customers.
Mr Njegovan thought that Bunnings, a large hardware store, would be a safe and suitable place for him to work. He applied on numerous occasions and eventually succeeded in obtaining part-time employment at a new branch that had opened in Belmont, a suburb of Perth. Mr Njegovan worked as a floor salesman from the August 2010 to March 2011. He then asked for a transfer to Mildura in Victoria, where his parents operated a vineyard and where he had grown up.
Mr Njegovan worked at Bunnings in Mildura as a store person from April 2011 to date. Dr Nick De Felice, a psychiatrist employed by Mr Njegovan as a medical expert, commented in his reports that Mr Njegovan was to be commended for having tried various jobs and for continuing to work at Bunnings, although this probably exceeded his actual work capacity, at least in the beginning.
Despite working at Bunnings in Perth and in Mildura Mr Njegovan continued to struggle with anxiety and depression. He was easily startled, jumpy and edgy and ran into problems at work because of this and his anxiety in relation to clients who were members of motor cycle gangs. On one occasion a customer associated with a motorcycle gang came to Bunnings in Mildura and demanded a discount for torn packaging. Mr Njegovan became so frightened that he reduced the price of the item to half, but then told his manager about his history and anxiety condition. The manager was understanding and supportive.
Mr Njegovan gave evidence that he still has sleeping problems and wakes up a number of times during the night. He still suffers from bad dreams, although the flash backs of the particular incident have ceased. He has also developed a speech problem and repeats the introductory words to a sentence numerous times. Mr Njegovan said he easily got side tracked and forgot what he had been asked. Mr Njegovan suffers from memory loss and cannot recall what he previously discussed with people.
Mr Njegovan has been on various anti‑depression and anxiety reducing medication since the assault. Shortly after the assault he developed a drinking problem. He said he had to drink up to a whole bottle of spirits to give him the courage to go out with friends. Presently he still drinks three to four beers at night to help him sleep. Mr Njegovan gave evidence that his parents have been very helpful in supporting him and getting him to reduce his alcohol intake.
Mr Njegovan also has the support of a girlfriend in Mildura since about a year ago. She has assisted him in reducing his medication. It seems that Mr Njegovan was on a veritable cocktail of medications for his anxiety and depression from time to time. However, Mr Njegovan said he had not taken any medication since the beginning of this year other than the occasional Valium when he had to go to public places or a family function. He took Valium in order to deal with this court appearance.
Mr Njegovan gave evidence that another factor that has motivated him to try and deal with his anxiety is that he met his 2‑year‑old daughter at the beginning of this year. The mother of the daughter is a lady from New Zealand with whom Mr Njegovan had a short association when he first moved back to Mildura.
At present Mr Njegovan has not succeeded in overcoming his anxiety. He goes out as little as possible and avoids family gatherings or parties with friends. He said this leads to disputes with his girlfriend. He reported problems with memory and that he could often not remember what he had told people, although they recalled it.
Mr Njegovan still suffers from a lack of energy and motivation as well as sleeping problems. He reported that he sometimes struggles to manage the 30 hours per week that he currently works at Bunnings. He said he tried hard to help his elderly parents more in the vineyard and in the house, but found himself spending his days off work lying in bed lacking motivation. He stated he felt embarrassed and bad about this because his parents had been very good to him.
I accept Mr Njegovan's evidence. Counsel for Nayshon submitted that Mr Njegovan was not a credible witness. I disagree. I found him to be an honest and forthright witness who readily made admissions regarding other matters that caused him stress and the anxiety experienced by him after the motor vehicle accident. He did not recall everything that he had told every doctor in the past, but in my view did his best to give a genuine and truthful account. He was clearly anxious in the witness box, particularly at the beginning, shaking as he gave his evidence. His speech impediment was very obvious during his evidence. He often repeated a word or a syllable before he could get out a sentence and became distracted when trying to answer questions. I very much doubt whether he could have feigned all of this. At times, particularly when he was reading something, his stutter was less pronounced.
Counsel for the defence relied on a surveillance video taken of Mr Njegovan in January to March 2009. This video shows Mr Njegovan driving his car, buying groceries and takeaway food at a shopping centre and walking down a busy street with other pedestrians. Counsel submitted that Mr Njegovan looked relaxed on this footage and that it was contrary to his evidence that he spent the first few months after the assault locked in his room being too anxious to go out in public. However, Mr Njegovan's evidence was not that he never left his house, but that he had difficulty doing so.
Even a person suffering from anxiety needs to eat and may go out at times to do the necessary shopping. Mr Njegovan wore sunglasses in an undercover car park and inside the shopping centre which may indicate some desire not to be recognised. He also spent considerable time in the car before getting out to do the shopping.
Counsel for the defence put to Dr De Felice that Mr Njegovan was not exhibiting signs of hypervigilence on the video and that this was contrary to the history that Mr Njegovan had given to Dr De Felice about his state of anxiety in the months immediately after the assault. Dr De Felice replied that people with a psychiatric disorder do not always wear this on their sleeve and that Mr Njegovan would not necessarily have been hypervigilant all the time. He might also have imbibed some alcohol before going out and this may have given him a casual appearance.
Nayshon's own expert witness, Ms Vidovich, a clinical neuropsychologist, expressed the opinion in a report, dated 7 September 2013, that it was not possible to comment on Mr Njegovan's emotional state on the basis of the surveillance footage.
Mr Njegovan did not give the impression that he liked to indulge in his misery and did not care about trying to improve his condition. He said that he felt embarrassed about being a burden and presenting these difficulties to his parents and his girlfriend. Dr Goodheart, the consultant neurologist called by Nayshon, noted in his report of 15 September 2013 that he had not gained the impression that Mr Njegovan was deliberately malingering or exaggerating his symptoms for the purpose of secondary gain.

Mr Njegovan's common law claim and the applicable law under the WCA and the WorkCover Guides

Mr Njegovan claims damages from Nayshon on the basis that Nayshon failed to provide a working environment that did not expose him to hazards and in particular, failed to implement systems of work and provide instruction, training and supervision to him to the extent necessary to ensure that he was not exposed to hazards at work. It was not disputed that Nayshon owed a duty of care to Mr Njegovan and that it would be responsible for any injury suffered by Mr Njegovan at work as the result of an assault by a third party which could have been prevented or lessened by Nayshon exercising reasonable care. Counsel for the defence advised the court midway through the trial that negligence was also no longer in dispute.
However, Nayshon alleges that Mr Njegovan is not entitled to any common law damages because he has not met the minimum level of 15% permanent impairment pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the WCA).
Section 93K(4) of the WCA provides that a worker who has suffered an injury in the course of his employment is only entitled to an award of common law damages if the court is satisfied that his degree of permanent whole of person impairment (PWPI) is at least 15%. Before common law damages can be awarded by a court a worker first has to make an election as to whether he wishes to retain the right to seek common law damages or claim weekly workers' compensation payments under the WCA.
Pursuant to s 93M of the WCA the election has to be made on or before the last day of the period of one year after the worker first made a claim for compensation by way of weekly payments as against his employer (the termination day). The termination day may be extended if an approved medical specialist certifies that the worker's condition has not stabilised to the extent required for an evaluation of the worker's PWPI. An approved medical specialist is a medical practitioner designated by WorkCover under section 146F of the WCA as an approved medical specialist.
Pursuant to s 93L(2) of the WCA a worker can only elect to claim common law damages if his degree of PWPI has been assessed by an approved medical specialist to be a percentage not less than 15% and this assessment has been recorded by the Director Dispute Resolution of WorkCover WA. The assessment therefore has to occur before the termination day.
Once a worker has made an election to seek common law damages s 93P(2)(b) of the WCA specifies that the worker is no longer entitled to any weekly payment of workers' compensation after six months after the election registration day.
Section 93K(13) provides that a court is not bound by the assessment made by the approved medical specialist and recorded by the Director, but may admit it as evidence relevant to the worker's degree of PWPI. In Armitage v Tenix Defence Pty Ltd [2008] WADC 150, [67] - [71] Martino DCJ held that the court's function was not simply to determine whether the procedures for the assessment of the worker's degree of PWPI had been complied with, but to make its own determination of the worker's percentage of PWPI using the assessment and any reports provided by an accredited medical specialist as expert evidence to assist the court in making its determination. I respectfully agree that this is the correct interpretation of s 93K(4)(d).
Under s 146A of the WCA a worker's degree of impairment is to be evaluated as a percentage in accordance with the WorkCover WA Guides (3^rd ed). The WorkCover Guides have been issued under s 146R of the WCA. Section 146(b) of the WCA defines 'degree of impairment' for purposes of the right to pursue a common law claim as 'the worker's degree of permanent whole of person impairment'.
Chapter 13 of the WorkCover Guides deals with the method for assessing psychiatric impairment. Paragraph 13.8 provides that a psychiatric disorder is permanent if in the opinion of the psychiatrist it is likely to continue indefinitely. In making this decision regard should be given to the duration of the impairment, the likelihood of improvement in the worker's condition, whether the worker has undertaken reasonable rehabilitative treatment and any other relevant matters.
Paragraph 13.11 deals with any pre-existing impairment arising from a pre-existing psychiatric condition. In order to measure the PWPI caused by a work related injury the psychiatrist must first determine 'the proportion of WPI due to any pre-existing condition' which should be done by using the same method as that for calculating the current PWPI. The proportion assessed for the pre-existing impairment is then subtracted from the current PWPI in order to obtain 'the percentage of permanent impairment directly attributable to the work-related injury'. Where the percentage of pre‑existing impairment cannot be assessed, no deduction is to be made.
Counsel for Nayshon accepted that the 'proportion of WPI' to be measured and deducted as relating to the pre‑existing condition was permanent whole person impairment. In other words, the accredited medical specialist would have to take into account developments after the work related incident which shed light on the permanency of the symptoms arising from the earlier incident (in this case the motor vehicle accident).

This must be the right approach as pars 3.1 and 3.4 of the WorkCover Guides make it clear that the WPI to be assessed in accordance with the Guides is permanent whole person impairment. The reference in par 13.11 to measuring the 'WPI due to any pre‑existing condition' must therefore also be a reference to the permanent whole person impairment resulting from the pre‑existing condition. It would not make sense for an accredited medical specialist or the court to take into account an impairment arising from a pre‑existing condition which was present at the time of the work related incident, but resolved itself within a short time afterwards.
In accordance with par 13.12 any psychiatric impairment is assessed by rating the behavioural consequences of the psychiatric disorder on a psychiatric impairment rating scale (PIRS) which deals with six areas of functional impairment. The median class score is first determined and from this an aggregate score is calculated in accordance with paragraphs 13.14 – 13.21 and table 13.7. Paragraph 13.11 provides that the same PIRS should be employed to rate a worker's pre‑injury level of functioning.

The case presented by Mr Njegovan and by Nayshon

Mr Njegovan's claim for common law damages is based on him having suffered a psychiatric injury, namely post‑traumatic stress disorder (PTSD), as a result of the assault in the workplace, as well as a closed head injury which has caused him emotional and behavioural problems. Mr Njegovan relied on an assessment by Dr De Felice, psychiatrist, which assessed the PWPI arising from the psychiatric injury (the psychiatric impairment) as 13% and on an assessment by Dr David Kennedy, medico‑legal consultant, of a further 8% PWPI arising from behavioural and emotional disturbances caused by a closed brain injury.
Mr Njegovan claims damages for pain and suffering, future medical expenses, loss of past earning capacity and loss of superannuation payments and a global amount for diminished future earning capacity and diminished ability to gain superannuation benefits. No claim is made in respect of medical costs incurred as a result of the laceration to the forehead.
Nayshon's case is that there is no basis for assessing Mr Njegovan's PWPI as at least 15%, as Dr De Felice has only assessed the psychiatric PWPI as 13% and the additional 8% PWPI assessed by Dr Kennedy in respect of a closed brain injury is not supported by the evidence.
Nayshon pleaded that Mr Njegovan in any event did not satisfy the requirement of a 15% PWPI as his PTSD was secondary to his alleged physical injuries and was therefore excluded as a secondary condition under s 146C(6) of the WCA. However, this point was relinquished in the course of the trial.
Nayshon's case was further that Dr De Felice should have deducted a percentage of PWPI relating to Mr Njegovan's pre‑existing psychiatric impairment which would have resulted in a 0% of current PWPI. Nayshon relied on a report by Dr Peter McCarthy, consultant psychiatrist and physician, which had assessed the whole of person impairment arising from the motor vehicle accident in August 2008 as 7% and the current PWPI (after the assault) as 5%, leading to a negative or 0% current PWPI.
Nayshon submitted that the assessment by Dr Kennedy of an 8% PWPI arising from emotional or behavioural disturbances was fatally flawed as it did not comply with the requirements for such an assessment set out in par 7.10 of the WorkCover Guides and that there was in any event no evidence to support a closed head injury.
Nayshon also pleaded that if Mr Njegovan suffered loss or damage, it was contributed to by his own negligence. However, this allegation was no longer pursued after Nayshon had admitted negligence in causing Mr Njegovan injury.

Issues to be determined

The issues to be determined by this court are the following:
1.whether Mr Njegovan currently has a 13% psychiatric PWPI and whether any percentage should be deducted in respect of the PWPI that arose from the August 2008 motor vehicle accident;
2.whether Mr Njegovan has an additional 8% PWPI arising from emotional or behavioural disturbances caused by a closed brain injury;
3.the damages that Mr Njegovan is entitled to.

Whether Mr Njegovan has a 13% psychiatric PWPI and whether a percentage should be deducted in respect of the PWPI that arose from the car accident

As discussed earlier it is for this court to make the assessment that Mr Njegovan currently has at least a 15% PWPI. This decision is to be made with the assistance of any reports provided or evidence given by an approved medical specialist. Pursuant to s 146A(1) of the WCA the approved medical specialist has to make the assessment of PWPI in accordance with the WorkCover Guides.
Paragraph 3.3 of the Guides provides that they adopt the methodology of AMA 5 which is defined as the American Medical Association's Guides to the Evaluation of Permanent Impairment 5^th ed. Paragraph 3.3 further states that where differences exist, the WorkCover Guides are to be used as the modifying document and where there is any inconsistency regarding the procedure to be adopted, the WorkCover Guides are to prevail.
Section 146H of the WCA requires that once a PWPI has been assessed the accredited medical specialist needs to complete a certificate of degree of permanent impairment, Form AMS 6, which specifies the PWPI as a percentage. The accredited medical specialist also has to complete a report on the evaluation of the degree of permanent impairment, Form AMS 5.
Dr De Felice is an accredited medical specialist under the WCA. He completed Forms AMS 5 and 6 in respect of Mr Njegovan on 11 August 2010 and arrived at a 13% permanent psychiatric impairment. An assessment of permanent psychiatric impairment can only be made by a psychiatrist. However, multiple assessments of various impairments relating to different parts of the body, even though the impairments arise out of a single event, may be combined to determine the total degree of PWPI of a worker.
Dr De Felice came to the conclusion in Form AMS 5 that Mr Njegovan was suffering from symptoms of a PTSD which was related to the work incident. He also experienced some residual symptoms of a major depressive disorder and had a further complication of alcohol abuse. Dr De Felice stated that the major depressive disorder and alcohol abuse were well recognised complications of PTSD.
Dr De Felice explained in evidence that PTSD arises from a severe level of trauma during which the patient felt helpless or hopeless or received an injury. The disorder manifested itself in the patient having nightmares and flashbacks of the trauma and anxiety triggered by memories of the trauma. PTSD also resulted in avoidance symptoms, which meant that the patient would try to avoid doing anything or coming into contact with anything reminding him of the trauma. PTSD often resulted in the loss of concentration and sleep disturbance. It could also lead to numbing of responses so that the patient felt cut off from feelings and disconnected.
Dr De Felice first saw Mr Njegovan on 15 February 2010, almost a year and a half after the assault. He described Mr Njegovan as unshaven, dishevelled and highly anxious and depressed. Dr De Felice diagnosed him with PTSD predominantly related to the assault at work. He noted Mr Njegovan's symptoms to be nightmares of the assault which initially occurred every night. Reminders of the incident still caused him to be scared and terrified, his heart would race and he would feel sweaty and shaky. Dr De Felice reported that Mr Njegovan told him that he did not go anywhere in the first year after the assault, preferring to lock himself in his bedroom because of his fear that his assailant might return to assault him further. Mr Njegovan had changed his address and car, acquired a German shepherd dog and installed a security system. Mr Njegovan also told Dr De Felice that whenever he was driving on the road he would always wear a hat and sunglasses so that people would not recognise him.
Other symptoms that Dr De Felice reported on were that Mr Njegovan had hardly slept in the first nine months after the assault and even a year later would wake up every one or two hours. Mr Njegovan had told him that he was very depressed most of the time and had suicidal ideas. He had no enjoyment or pleasure in things. He also suffered from a lack of energy and found it difficult to concentrate. He found it hard to motivate himself and still had days when he did not leave his bed. Mr Njegovan reported that when he went out with friends he first had to drink a bottle of whiskey to control his anxiety. He had also lost interest in prior recreational activities such as fishing, swimming, camping and reading the newspaper.
Dr De Felice again saw Mr Njegovan in August 2010 and reported that he was quite anxious and somewhat down during the interview. Mr Njegovan still had nightmares a couple of times a week about getting chased and cornered. He also had 'visuals' of the face of the man who had assaulted him but this occurred only every two to three weeks. Reminders of the incident would lead to him becoming sweaty, cold and shaking. He still feared being assaulted. His difficulties with going out had continued unless he had first drunk half to one bottle of whisky. Dr De Felice reported that Mr Njegovan was still experiencing sleeping problems, felt down most of the time, cried a lot and had suicidal ideas.
Dr De Felice stated that Mr Njegovan found it hard to get the energy to do home duties and had to push himself to do the shopping. He did not cook as much as before, but relied on quick and easy foods. He also had problems communicating and would stutter when asked questions. Although he had been out with some girls, he had not really pursued any relationships.
Dr De Felice came to the conclusion that Mr Njegovan's psychiatric condition was likely to remain the same over the next 12 months and that he had reached the point of maximum medical improvement. Dr De Felice therefore completed Forms AMS 5 and AMS 6 diagnosing Mr Njegovan with PTSD related to the work incident and assessing a percentage of PWPI of 13%.
In order to arrive at this percentage Dr De Felice had completed a PIRS (the psychiatric impairment rating scale) as required by par 13.12 of the WorkCover Guides. There is no dispute that on the basis of his assigned ratings Dr De Felice had correctly arrived at a median class score and an aggregate score in accordance with pars 13.14 – 13.21 of the WorkCover Guides and that these scores produced the final result of 13%.
Dr De Felice provided a final report on 24 April 2012 after having reassessed Mr Njegovan. Dr De Felice reported that Mr Njegovan appeared to be down and dejected and at times tearful during the interview. He was also anxious and still exhibited a slight stutter. Mr Njegovan had returned to his parents' home in Mildura, but nevertheless reported still being fearful and locking himself in his bedroom. His nightmares of being trapped or being chased had continued and he experienced flashbacks of the face of his attacker every four weeks or so. Reminders of the incident made him sad, upset, angry and anxious and resulted in cold flashes and sweaty palms. If bikies came into the store he would become sweaty and nervous and would try and avoid them. He was easily startled, for example when his manager at work came around the corner and this had made his manager quite suspicious of him. Mr Njegovan still avoided people whenever he could and drank to excess before managing to go out with friends, although he had reduced his drinking habits over the last six weeks. He avoided functions for friends and family. His sleeping problems had continued. His energy levels remained low and he felt that there was no point in living.
Dr De Felice came to the conclusion that Mr Njegovan was still suffering from PTSD with the complication of a major depressive disorder and alcohol abuse although the latter was more contained than at the time of his previous assessment. Dr De Felice remained of the view that Mr Njegovan's PWPI was 13%, although he adjusted his previous ratings on the PIRS as follows:
1.Self-care and personal hygiene: class 2 - able to live independently, but relies on fast foods and looks unkempt.
2.Social and recreational activities: class 3 – rarely goes out to social events, although occasionally does so with a support person, but does not enjoy it as before.
3.Travel: class 1 - can travel without support person.
4.Social functioning: class 2 – strains in relationships, with some arguments, not pursued a longer term relationship, loss of many friendships.
5.Concentration, persistence and pace: class 3 - unable to read more than newspaper articles, cannot follow more complex instructions.
6.Employability: class 3 - cannot work at all in the same position as during incident, able to work in a different position but not full‑time, although probably more than 20 hours per week.
Dr De Felice came to the conclusion that Mr Njegovan's psychiatric condition had stabilised and that his symptoms were likely to remain at about the same level for the next 12 months.
There is no reason not to accept the findings of Dr De Felice and his assessment of a 13% psychiatric impairment. I found him to be a balanced and forthright witness and his reports are detailed and well‑reasoned.
Although both counsel accepted that this court has to make the assessment of Mr Njegovan's PWPI as at the time of the judgement, counsel for the defendant did not submit that this court should give Mr Njegovan different ratings on the PIRS because of Mr Njegovan's evidence of now having a permanent girlfriend and having made improvements in his motivation and reliance on medication. Re-assessing Mr Njegovan's psychiatric impairment on the PIRS would in any event be difficult as judges are not psychiatrists and have not been trained in the assessment of a worker's psychiatric impairment or the application of the PIRS. Even though Dr De Felice last saw Mr Njegovan on 24 April 2012, he then expressed the view that Mr Njegovan's psychiatric condition had stabilised and was likely to remain the same for the next 12 months.
Dr Grace Pang, Mr Njegovan's general practitioner in Mildura, gave evidence that his anxiety and PTSD symptoms had persisted. She first saw Mr Njegovan in May 2011. He was then on antidepressants as well as medication for anxiety and sleeping problems. Dr Pang referred Mr Njegovan to Ms Rosalie Milner, a psychologist, as well as to a psychiatrist. Dr Pang said that she had received a report from Ms Milner at some stage, but could not recall whether Mr Njegovan had seen the psychiatrist. She said that Mr Njegovan stopped seeing the psychologist because he could not afford it. It is therefore uncertain whether Mr Njegovan ever attended a substantial number of sessions with Ms Milner.
After having moved to Mildura Mr Njegovan still suffered from anxiety and insomnia. Dr Pang acknowledged that Mr Njegovan experienced other stressors, such as travelling to Perth for the court case involving the motor vehicle accident and finding out that he was the father of a young daughter. But she said that over the three years that Mr Njegovan had consulted her, the main stressor experienced by him was the work incident. In August 2011 Mr Njegovan reported to her that he was very scared being home alone, as his parents had left for four days. He said he had checked the locked doors every five minutes and had been sleeping with machetes, a knife and an axe near his bed. In October 2011 Mr Njegovan reported to Dr Pang that he was very stressed having to go to Perth for the baptism of his godson. He said he was freaked out by the prospect of bumping into the bikies who had assaulted him, as he would be staying in the suburb of his old workplace.
In March 2012 Mr Njegovan told Dr Pang that he was very anxious as bikies had come to his workplace over the last three days and they were from the same group that had attacked him in Perth. He felt very intimidated and had lost a lot of sleep. In October 2012 Dr Pang made a note of Mr Njegovan telling her that bikies had come to his work the day before pressuring him for discounts and said they would be back over the next two days. Since then he had been unable to sleep or attend work and had suffered from heightened anxiety and difficulty in focussing. In March 2013 Mr Njegovan told Dr Pang that he had felt very anxious after a colleague had told him of a bikie's wedding the previous weekend. This had set off a panic attack.
The notes taken by Dr Pang at the Mildura medical practice indicate that in the period from May 2011 to at least March 2013 Mr Njegovan still had regular anxiety and panic attacks which were directly related to his fear of bikies belonging to the gang associated with his assailant.
Although Mr Njegovan may have improved with regard to his drinking problem, dependency on medication and motivation, there is no evidence that he has recovered from his anxiety and PTSD symptoms relating to the assault at the Merriwa Tavern.
Counsel for Nayshon put to Dr De Felice that he should have made a percentage deduction from the 13% psychiatric PWPI on the basis that at the time when the work assault occurred Mr Njegovan was already suffering from PTSD resulting from the motor vehicle accident. Counsel suggested to Dr De Felice that he should have assessed the percentage of PWPI arising from the earlier motor vehicle accident and should have deducted this percentage from the current PWPI of 13%.
Counsel referred Dr De Felice to par 3.52 – 3.54 of the WorkCover Guides. These paragraphs, together with the explanatory examples, provide that the PWPI arising from a pre‑existing symptomatic disease should be deducted from the PWPI caused by the work related incident. Paragraph 3.52 defines 'disease' as including any 'mental ailment, disorder, defect or morbid condition'.
As PTSD is a mental disorder, pars 3.52 – 3.54 may have some application. However, it seems that pars 13.11 – 13.12 are more directly applicable as they deal with making allowance for a pre‑existing mental health condition when assessing the psychiatric PWPI. Dr De Felice was not referred to pars 13.11 – 13.12 by counsel. However, there is practically no difference in how an accredited medical specialist should allow for a pre‑existing disease or a pre‑existing mental health condition.
Dr De Felice dealt with the 2008 motor vehicle accident in his report of 15 February 2010. He stated that according to Mr Njegovan he had become a bit fearful after this accident, had not driven his car for a month and had been concerned that he might be involved in another motor vehicle accident which might be fatal. However, he did not have any nightmares of the accident. He was also no longer fearful of driving. He only felt claustrophobic if he had to sit in the back of a two‑door car. Mr Njegovan told Dr De Felice that after the assault at work had occurred the car accident 'was like nothing'.
On the basis of this information Dr De Felice came to the conclusion in his report of 15 February 2010 and in Form AMS 5 that Mr Njegovan's current psychiatric impairment was related to the work assault and was not due to any pre‑existing psychiatric disorder. Dr De Felice stated in his report that he could not diagnose a PTSD precipitated by the motor vehicle accident because Mr Njegovan did not have any nightmares of the motor vehicle accident and had told him that as soon as the assault at work had occurred 'the car accident was like nothing'.
Dr De Felice gave evidence that it was in any event doubtful whether it was appropriate to diagnose Mr Njegovan prior to the assault at work as suffering from PTSD resulting from the car accident, as this had occurred barely a month earlier. However, even if the appropriate diagnosis had been PTSD, Dr De Felice explained that this was a different PTSD to the disorder suffered by Mr Njegovan as a result of the assault at work. The diagnosis of PTSD resulting from the work incident was based on Mr Njegovan having specific nightmares and flashbacks of the work assault which continued until February 2010. Mr Njegovan did not report nightmares or flashbacks with regard to the car accident at any time. The avoidance symptoms displayed by Mr Njegovan also related to fear of going out or going to pubs. He no longer reported any fear of driving when Dr De Felice assessed him.

Dr De Felice expressed the view that the PTSD he had diagnosed Mr Njegovan with, arising from the work incident, had not been precipitated by the motor vehicle accident. In any event, in terms of the language of par 3.54 of the WorkCover Guides, it was not possible to determine whether a deduction should be made for any pre‑existing degree of psychiatric impairment. Accordingly, he did not agree with counsel for Nayshon that he should have made a percentage deduction from his assessment of Mr Njegovan's PWPI.
Dr De Felice was also not concerned about a report prepared by Dr Kennedy, dated 21 August 2009, which stated that Mr Njegovan was then suffering from significant problems with stress and anxiety and that this had been the position since the motor vehicle accident in August 2008. Dr Kenney provided this report on behalf of Mr Njegovan for purposes of a claim for damages made against the driver of the motor vehicle.
Dr De Felice said the findings made by Dr Kennedy in his report did not detract from his view that the PTSD Mr Njegovan was experiencing when he came to see him in 2010 was due to the assault at work and not due to any pre‑existing psychiatric disorder. Dr De Felice also relied on the fact that Dr Kennedy had listed amongst the symptoms experienced by Mr Njegovan in August 2009 some which were clearly related to the work assault, such as him constantly checking windows and doors in his house. Dr De Felice also pointed out that Dr Kennedy had noted in the report that Mr Njegovan's depression and anxiety had worsened since the assault at work.
Counsel for Mr Njegovan relied heavily on the fact that Mr Njegovan had commenced proceedings in 2010 for damages arising from the 2008 motor vehicle accident and had claimed ongoing psychological treatment.
However, at the same time Mr Njegovan proceeded with his common law claim relating to the assault at work. I would not place too much value on what was pleaded at that stage in a statement of claim. It is likely that Mr Njegovan's solicitors wanted to keep both options open.
The claim relating to the motor vehicle accident was settled in July 2010 for $1,000, payable to Mr Njegovan.
I accept Dr De Felice's conclusion that the psychiatric condition that he diagnosed had little to do with any PTSD or anxiety arising from the motor vehicle accident. Dr De Felice's reasoning that the nightmares, flashbacks and symptoms of fear and avoidance experienced by Mr Njegovan at the time he saw Dr De Felice were entirely related to the incident at work makes good sense. Mr Njegovan's symptoms have at all times centred on a heightened anxiety of being assaulted, specifically by any members of an outlawed motor cycle gang. It should be noted that Dr Benyamine who was one of the general practitioners at the Mindarie Keys Medical Centre and attended to Mr Njegovan shortly after the assault was also of the view that the PTSD he was experiencing in May 2009 was related to the assault.
Accordingly, I find that it was not necessary for Dr De Felice to have made any deduction from his assessment of the percentage of psychiatric PWPI to allow for a psychiatric PWPI arising from the earlier motor vehicle accident. The same applies to this court's assessment. There was in any event no evidence that the anxiety and stress that Mr Njegovan suffered as a result of the motor vehicle accident was likely to be permanent.
Dr Peter McCarthy, a consultant general physician and general psychiatrist, appointed by Nayshon, did not agree with the 13% PWPI assessment made by Dr De Felice. He was of the view that Mr Njegovan's current psychiatric condition did not arise at all from the assault at work. But, if there was some connection between the assault and Mr Njegovan's current psychiatric condition, Dr McCarthy would have assessed the current PWPI as 5%.
Dr McCarthy further came to the conclusion that Mr Njegovan had suffered a pre‑existing PTSD and that pursuant to par 13.11 of the WorkCover Guides he had a 7% PWPI just prior to the assault as a result of the motor vehicle accident in August 2008. Dr McCarthy explained that if the 7% relating to the pre‑existing impairment was subtracted in accordance with par 13.11 from the current 5% PWPI, there would be a minus 2% or 0% current PWPI.
Dr McCarthy first saw Mr Njegovan on 6 December 2011 – more than three years after the assault. He issued a report in relation to this visit on 26 May 2011, almost six months later. In this report Dr McCarthy acknowledged that Mr Njegovan's general practitioners saw him soon after the work assault and diagnosed him with PTSD. Dr McCarthy also seems to have accepted Mr Njegovan's account that for several months after the assault he became almost housebound from anxiety and fear of a further assault. Mr Njegovan reported to Dr McCarthy that he had also been irritable, depressed and agitated. He had felt jumpy and hypervigilant. He had changed his car, his motorbike and his residence twice and bought a German shepherd dog for protection.
Dr McCarthy recorded that Mr Njegovan told him in December 2011 that he still felt anxious for about 80% of the time, was still jumpy and suspicious and suffered from disturbed sleep. However, he had not experienced any panic attacks for months and did not suffer agoraphobic symptoms, although he felt socially withdrawn. Mr Njegovan said he was still easily distracted and forgetful and suffered from stuttering.
On the basis of this information Dr McCarthy diagnosed Mr Njegovan with PTSD of moderate severity, in partial remission, and with panic disorder with agoraphobia in remission. He noted that an additional diagnosis of major depressive episode could be made, but he preferred to subsume the symptoms indicating a major depressive disorder under the diagnosis of PTSD.
Dr McCarthy expressed the view that the PTSD from which Mr Njegovan was then suffering, was the same PTSD which he had developed after the motor vehicle accident and which had been exacerbated by the work assault.
Dr McCarthy came to the conclusion that the history and documentation suggested that Mr Njegovan had developed a moderately severe PTSD after the motor vehicle accident in August 2008. The information on which Dr McCarthy based this diagnosis was that Mr Njegovan was discharged from the Joondalup Hospital emergency department on 22 August 2008, the day after the motor vehicle accident, with a script of Diazepam (which Dr Felice said was the same as Valium) and was referred to a psychologist, Ms Farcut. Dr McCarthy arrived at this diagnosis despite a letter from Dr Wee of the Joondalup Health Campus addressed to Mr Njegovan's solicitors on 22 December 2008 which stated that Mr Njegovan had been diagnosed on the day after the motor vehicle accident with a lumbar spine strain, but made no mention of Mr Njegovan suffering from PTSD‑type symptoms or anxiety.
The notes of Dr Mutahar, a general practitioner at the Mindarie Keys Medical Centre, indicate that Mr Njegovan complained of back pain and stress on 27 August 2008 but did not mention anxiety or sleeping problems. It was only after the work incident that Mr Njegovan complained to his general practitioners of stress and insomnia. Dr Benyamine said in evidence that at that time Mr Njegovan was suffering flashbacks to the assault and feared people coming after him again. Mr Njegovan did not mention fear of driving in cars. Dr Benyamine reported to Mr Njegovan's solicitors by letter, dated 24 December 2008, that Mr Njegovan had suffered lower back pain and tenderness as well as stress after the motor vehicle accident, but that no other injuries were observed. However, Dr Benyamine noted that Mr Njegovan had been referred to a clinical psychologist and had taken a week off work after the motor vehicle accident.
Dr McCarthy also relied on Mr Njegovan's reluctance to drive a motor vehicle for a month after the accident for his diagnosis that Mr Njegovan was already suffering from a moderately severe PTSD.
I prefer the opinion expressed by Dr De Felice, namely that PTSD is related to a specific trauma and that the symptoms described by Mr Njegovan after the work assault were clearly related to the assault and not to the motor vehicle accident. Mr Njegovan suffered from a constant fear of being assaulted again, he initially had nightmares and panic attacks related to the specific assault and became fearful and anxious for years after the work assault whenever any members of the outlawed motorcycle gang to which his assailant had been related entered the Bunnings warehouse. Mr Njegovan never reported to anyone after the work assault that he had flashbacks of the motor vehicle accident, nor that he was concerned about driving a car.
I therefore accept Dr De Felice's opinion that Mr Njegovan is still suffering from PTSD related to the work incident and if he ever suffered from PTSD relating to the car accident, this was a different disease and not capable of giving rise to an assessment of PWPI prior to the assault. I reject Dr McCarthy's view that Mr Njegovan's current mental disease is only an exacerbation of a PTSD which arose from the motor vehicle accident. This is not supported by the level and type of symptoms experienced by Mr Njegovan after the motor vehicle accident in comparison to those experienced after the assault.
Dr McCarthy again saw Mr Njegovan in May 2011 and produced a further report, dated 25 May 2011. In this report he changed his diagnosis of exacerbated PTSD to a chronic adjustment disorder with mixed anxiety, depressed mood, alcohol dependence and a personality disorder not otherwise specified.
Dr McCarthy explained in evidence that he changed his diagnosis because he was of the view that Mr Njegovan no longer suffered from symptoms which indicated PTSD, but was exhibiting a lack of motivation and determination to regain control of his life and had become angry, irritable and hostile by reason of matters other than the assault which events had happened to him over the past few years. Dr McCarthy also came to the conclusion that Mr Njegovan had developed a recent alcohol dependence. Dr McCarthy noted that Mr Njegovan had arrived for the interview in an intoxicated state and had sheepishly shown Dr McCarthy a 700 ml bottle of whisky, a third of which he had consumed prior to the interview. Dr McCarthy reported that Mr Njegovan was 'mildly embarrassed' about his intoxication. He was generally cooperative and 'tolerably courteous' but was also 'distressed, tearful, cantankerous, angry, aggressive and passively physically threatening' during the interview.
Dr McCarthy came to the conclusion that Mr Njegovan appeared to be suspicious, emotionally labile and angry rather than fearful. He said Mr Njegovan had developed an 'exaggerated, almost self‑indulgent fear of being assaulted by bikie gang members'. Dr McCarthy was of the view that stressors other than the assault had led Mr Njegovan to choose unhelpful coping mechanisms and that these other stressors were the main factors contributing to his psychiatric symptoms rather than the assault. Dr McCarthy referred to stressors such as loss of friends, the estrangement of Mr Njegovan from his sister and 'perhaps other members of the family', the dismissal from his original job, the effective abandonment of his previous career and ambitions, the warnings he had had about his employment at Bunnings, the loss of his mortgaged home, his return to the eastern states, the development of a dependant and relatively socially isolated life as well as a serious alcohol dependence.
When asked whether these matters were not all the result of the PTSD which he developed after the assault, Dr McCarthy answered that the typical PTSD symptoms such as re‑experiencing the trauma and avoidance of anything to do with it tended to settle within months. The anxious arousal might continue, but it then depended on the personality traits of the patient as to whether he would have the necessary resilience and find the courage, determination and motivation to appropriately respond to the anxious arousal and other stressors in his life. Dr McCarthy was of the view that Mr Njegovan's background and his personality were causing him to make unhelpful choices such as becoming a 'frightened alcoholic'. Mr Njegovan now had trouble adjusting to a number of stressors in his life, reacted to them with anger and aggression and sought solace in alcohol rather than dealing with the stressors in a more helpful manner.
Dr McCarthy acknowledged that a patient who still experienced anxiety and depression 10 or 20 years after the traumatic event suffered from an adjustment disorder which had been precipitated by the original traumatic event.
Dr McCarthy gave evidence that for purposes of making an assessment of Mr Njegovan's PWPI it did not matter whether he was diagnosed with PTSD or with a chronic adjustment disorder. In both instances the percentage of PWPI was determined by assessing the behavioural consequences of the psychiatric disorder on the PIRS. He was of the view that Mr Njegovan's current PWPI was not related to the assault, but had made an assessment of Mr Njegovan's psychiatric impairment as at May 2012 on the assumption that this impairment could be primarily attributed to the assault. Dr McCarthy also assessed Mr Njegovan's psychiatric impairment on the PIRS as applicable after the motor vehicle accident, but before the assault. These two assessments were set out in his report of 25 May 2012, in summary, as follows:
1.Self‑care and personal hygiene: class 2 as at May 2012 and class 1 after the motor vehicle accident.
In relation to the rating of class 2 as at May 2012 Dr McCarthy explained that Mr Njegovan had a mild impairment because he looked unkempt occasionally and sometimes missed a meal or relied on takeaway food. Dr McCarthy did not give an explanation as to why he had given Mr Njegovan a rating of 1 after the motor vehicle accident. Table 13.1 of the WorkCover Guides indicates that class 1 in relation to self‑care and personal hygiene means no deficit or only a minor deficit.
2.Social and recreational activities: class 2 as at May 2012 and class 3 after the motor vehicle accident.
Dr McCarthy explained in his report that he had selected class 2 as at May 2012, because Mr Njegovan occasionally visited a friend without needing a support person and was able to enjoy fishing with or without a friend.
Dr McCarthy's summary of Mr Njegovan's current ability to attend social and recreational activities is in my view not adequately reflected in this description and presumably also not in the rating. Mr Njegovan said he still had difficulty going to large gatherings, even if they were family gatherings and that this led to constant disputes between him and his girlfriend. Mr Medici gave evidence that when Mr Njegovan had attended his son's baptism in Perth in October 2011 (approximately six months earlier than Dr McCarthy's assessment) Mr Njegovan had left the church as soon as possible and had waited outside under some trees. He had again left the social gathering at Mr Medici's house after a while and had isolated himself in a bedroom.
On the other hand, Dr McCarthy assigned a rating of 3 to Mr Njegovan's impairment in relation to social and recreational activities after the motor vehicle accident. There was absolutely no evidence that Mr Njegovan had any impairment in this regard at that time other than some anxiety in relation to driving.
3.Travel: class 1 as at May 2012 and class 3 after the motor vehicle accident.
This appears to be acceptable.
4.Social functioning and relationships: class 2 as at May 2012 and after the motor vehicle accident.
There was no evidence that Mr Njegovan had any problems with social functioning or relationships after the motor vehicle accident, other than that he was referred to psychological counselling and was given a script for Diazepam.
5.Concentration: class 2 as at May 2012 and after the motor vehicle accident.
Dr McCarthy noted in his report that after the motor vehicle accident Mr Njegovan had been distracted by anxiety and easily fatigued. There was no evidence that his anxiety relating to driving a car had affected his concentration or that he was easily fatigued.
6.Employability: class 2 as at May 2012 and after the motor vehicle accident.
Dr McCarthy justified the rating after the motor vehicle accident on the basis that Mr Njegovan had impairment in employability due to anxious distraction. However, there was no evidence that Mr Njegovan was impaired in his employment after the motor vehicle accident, except for the fact that he was given time off work for a week. After this he returned to his work at the Merriwa Tavern and there is no indication that he was anxious or distracted at work.
On the basis of the assessment of impairment in each area Dr McCarthy arrived at an aggregate score of 11 after the assault and a score of 13 after the motor vehicle accident. This translated to an assessment of Mr Njegovan's psychiatric PWPI as 7% after the motor vehicle accident and 5% in May 2012.
I am not able to place any value on this assessment, made on the basis of the PIRS, as there is no evidence to support several ratings made in respect of the impairment suffered after the motor vehicle accident. The ratings are so out of kilter with the general evidence that one cannot help but question Dr McCarthy's objectivity. It would be one matter to come to the conclusion that the stress and anxiety experienced by Mr Njegovan in relation to the motor vehicle accident still played some role after the assault, but to say that his impairment after the motor vehicle accident was worse than his psychiatric impairment after the assault is totally contrary to all the evidence.
I prefer to rely on Dr De Felice's assessment of the impairment pursuant to the PRIS and his determination of the 13% PWPI.

Whether Mr Njegovan has a 8% PWPI arising from emotional and behavioural disturbances caused by a closed brain injury

Mr Njegovan relied on a further PWPI assessment of 8% undertaken by Dr David Kennedy. Dr Kennedy is a sports and industrial physician who now works exclusively as a medical consultant. He is also an approved medical specialist under the WorkCover Guides. He completed a certificate of degree of permanent impairment, Form AMS 6, in respect of Mr Njegovan as well as a supporting report, Form AMS 5, on 16 September 2010. In addition to the 13% PWPI assessed by Dr De Felice for the psychiatric impairment, Dr Kennedy determined a PWPI of 8% in respect of emotional and behavioural disturbances arising from a closed head injury. Dr Kennedy made this assessment under table 13-8 of ch 13 of the AMA 5 (this needs to be distinguished from ch 13 of the WorkCover Guides dealing with psychiatric and psychological disorders which Dr De Felice relied on).
Utilising the combined values chart of AMA 5, Dr Kennedy assessed Mr Njegovan as having a total PWPI of 20%. Both parties accepted that the 13% plus the 8% was correctly accumulated in accordance with the prescribed manner of arriving at a combined value to provide a total PWPI of 20%. However, Nayshon disputes that Mr Njegovan suffered a closed head injury and that it was appropriate to assess a further percentage for Mr Njegovan's emotional and behavioural disturbances under ch 13 of AMA 5 which deals with the central and peripheral nervous system.
Dr Kennedy first saw Mr Njegovan on 4 August 2009. He recorded, as part of the history, that Mr Njegovan was 'smashed' into a fire hydrant which resulted in a lacerated forehead and 'transient loss of consciousness'. Dr Kennedy again saw Mr Njegovan on 26 August 2010. In his report of 16 September 2010 Dr Kennedy referred to Mr Njegovan experiencing problems concentrating and focussing as well as significant emotional and behavioural disturbances. He reported that other people thought Mr Njegovan to be strange and that Mr Njegovan had poor interpersonal relationships and became easily agitated and stuttered. Dr Kennedy noted that Mr Njegovan only felt relaxed after drinking alcohol, lacked energy and had to take frequent breaks during work. Dr Kennedy therefore came to the conclusion that Mr Njegovan suffered from emotional and behavioural problems as a result of the head injury sustained during the assault.

Dr Kennedy saw Mr Njegovan on a third occasion in April 2012 and in his report of 30 April 2012 again referred to Mr Njegovan's ongoing emotional and behavioural problems which arose from the head injury. Dr Kennedy stated in evidence that he had determined the additional 8% PWPI on the basis of his clinical assessment that Mr Njegovan had suffered a closed head injury.
Form AMS 5 indicates that Dr Kennedy made his assessment of the additional 8% under ch 13 of AMA 5 which deals with various impairments arising from 'documented dysfunction of the brain'. The introductory paragraph to ch 13 of AMA 5 provides as follows:
This chapter provides criteria for evaluating permanent impairment due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.
Paragraph 13.3f of ch 13 deals with emotional or behavioural impairments. This paragraph makes is clear that only emotional and behavioural disturbances which arise from a verifiable neurologic impairment such as a stroke or head injury are to be assessed under ch 13. The first two sentences of par 13.3f provide as follows:
Emotional, mood, and behavioural disturbances illustrate the relationship between neurology and psychiatry. Emotional disturbances originating in verifiable neurologic impairments (eg, stroke, head injury) are assessed using the criteria in this chapter.
Paragraph 13.3f explains that psychiatric impairments, such as depression, emotional fluctuations, socially unacceptable behaviour, impulsivity and others may also arise from a neurological impairment. However, par 13.3f emphasises that psychiatric manifestations and impairments that do not have documented neurologic impairments should be evaluated using the criteria in the chapter on mental and behavioural impairments. This is ch 14 of the AMA 5 dealing with 'Mental and Behavioral Disorders'.
However, the introductory sentence to ch 13 of the WorkCover Guides states that ch 14 of the AMA 5 is excluded and replaced by ch 13 of the WorkCover Guides which deals with 'Psychiatric and psychological disorders'. This means that emotional and behavioural impairments arising from a psychiatric condition can only be assessed under ch 13 of the WorkCover Guides. Dr De Felice has already taking into account any emotional and behavioural impairments that arose from the diagnosed PTSD relating to the assault.
Counsel for Mr Njegovan accepted that if a further assessment of emotional and behavioural impairment was to be made, the impairment would have had to arise from an injury of the central or peripheral nervous system and could only be assessed under ch 13 of the AMA 5. Dr Kennedy also seems to have accepted this, but was of the view that Mr Njegovan's emotional and behavioural problems did arise from a closed head injury.
The problem is that there is no evidence that Mr Njegovan received a closed head injury. The records from the Joondalup Health Campus all indicate that no neurological injury was identified. A nursing assessment completed at the emergency department on 25 September 2008 indicates that Mr Njegovan arrived at 23.45 pm and was seen by a doctor at 12.00 am. The assessment records that Mr Njegovan had a 3 cm laceration to the forehead and a small frontal parietal contusion. There was no loss of consciousness and no neck pain. The Glasgow Coma score was 15:15.
A letter dated 5 November 2008 from Dr Stephen Massey from the emergency department to Mr Njegovan's solicitors states that a full neurological examination was conducted at the time of Mr Njegovan's admission and this did not reveal any injury or deficit. The letter records that there was no report of loss of consciousness.
A patient care record completed by the ambulance officer who transported Mr Njegovan from the Merriwa Tavern to Joondalup Health Campus also records that there was no loss of consciousness and that Mr Njegovan walked to meet the ambulance.
When Mr Njegovan was asked in cross‑examination whether he had lost consciousness during or immediately after the incident, he denied this. When Dr Kennedy was asked where he had obtained the information from that Mr Njegovan had suffered a 'transient loss of consciousness', Dr Kennedy said that he had been told this by Mr Njegovan. However, on the available evidence there is no basis for the assumption that Mr Njegovan had lost consciousness during or shortly after the assault.
Another issue pertaining to the 8% PWPI assessment made by Dr Kennedy is that the WorkCover Guides provide in par 7.10 (as part of the chapter on the nervous system) that an assessment of a patient's emotional or behavioural disturbances under par 13.3f of AMA 5 'should' be made based on a clinical assessment and the results of neuropsychometric testing. The clinical assessment 'should' indicate at least one of the following:
1.significant medically verified abnormalities in initial post injury Glasgow Coma Scale score;
2.significant duration of post‑traumatic amnesia;
3.significant intracranial pathology on CT scan or MRI.
Dr Kennedy accepted that none of the three indicia of an injury to the nervous system which should form part of the clinical assessment was present. Firstly, Mr Njegovan's Glasgow Coma Scale score at the time of his admission to the emergency department was totally normal. Secondly, he did not report any significant duration of post‑traumatic amnesia. Thirdly, although a CT scan or MRI was not done at the time of his admission to hospital, a CT scan performed on 18 October 2011 indicated a 'normal non‑contrast CT brain study'.
Dr Kennedy also accepted that at the time that he made the assessment of an 8% PWPI relating to Mr Njegovan's emotional and behavioural disturbances he was not in possession of a neuropsychological report. The words 'neuropsychometric' and 'neuropsychological' appear to have been used interchangeably in par 7.10 of the WorkCover Guides and both parties accepted that there was no relevant difference between these two descriptors.
Counsel for Mr Njegovan submitted that the absence of one or more of the indicia of an organic brain injury and the lack of a neuropsychological report did not mean that Dr Kennedy's assessment of an 8% PWPI was invalid. Counsel argued that the word 'should' in par 7.10 did not convey a mandatory requirement, but indicated that it would generally be advisable that one of the three indicia be present before an approved medical specialist undertook an assessment based on emotional and behavioural impairment arising from an organic brain injury. However, under certain circumstances none of the three indicia might be present and yet the result of the clinical examination might be that the patient had suffered an organic brain injury.
Counsel for Nayshon, on the other hand, submitted that the word 'should' meant that it was obligatory for an accredited medical specialist to only make an assessment of a patient's emotional or behavioural disturbances where one of the three indicia of an organic brain injury was present and the results of neuropsychometric testing were available. Counsel for Nayshon argued that the purpose of the WorkCover Guides was to ensure consistency in approach in making assessments of PWPI and that there would be little point in having such guides if individual approved medical specialists were free to ignore them and adopt their own idiosyncratic approaches.
Counsel for Nayshon further submitted that the WorkCover Guides should be interpreted like subordinate legislation. Counsel relied on s 146R(4) of the WCA which provides that s 41 – s 44 of the Interpretation Act 1984 apply to the Guides 'as if they were regulations'. Counsel also relied on s 18 of the Interpretation Act which provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
Both counsel were unable to refer the court to any case law in which the word 'should' has been interpreted in a similar context. Counsel for Nayshon referred to the definition of the word 'should' in the Macquarie Concise Dictionary, 2^nd ed, which states that 'should' is the past tense of 'shall' and is used to 'denote duty, propriety or expediency'.
However, the Macquarie Australian Dictionary, 6^th ed provides a number of definitions, which show that the word 'should' may either indicate obligation or advisability. The Australian Oxford Dictionary, 2^nd ed, defines the word as the past tense of 'shall' and indicates that it expresses a 'duty, obligation or likelihood'.
Dr Robert Gillett, a specialist occupational physician, who gave evidence on behalf of Nayshon, was of the view that an assessment of a patient's emotional and behavioural impairment arising from an injury to the central or peripheral nervous system could not be undertaken unless at least one of the indicia of such an injury set out in par 7.10 was present. Dr Gillett described the three indicia as the 'bridge' between the known physical damage to the nervous system and the emotional and behavioural disturbances.
Dr Goodheart, a specialist neurologist called on behalf of Nayshon, also came to the conclusion that an assessment under ch 13 of the AMA 5 was precluded where none of the three indicia of an organic brain injury was present.
I am not persuaded that the WorkCover Guides should be interpreted as if they were subsidiary legislation, even though s 146R(4) of the WCA has made s 41 – s 44 of the Interpretation Act applicable to the Guides. These sections deal with the power to make subsidiary legislation, the manner in which it is to be published and laid before Parliament and when it commences. Section 44 provides that words and expressions used in the subsidiary legislation shall have the same respective meanings as in the written law under which the subsidiary legislation is made. However, the fact that certain, mainly procedural steps, which pertain to regulations have been made applicable to the WorkCover Guides does not mean that the Guides should be interpreted according to the same principles of interpretation that apply to statutes.
In Lake v Transport Accident Commission [1998] 1 VR 616, 626, Phillips JA with whom Brooking JA agreed, held in relation to the AMA Guides that they were not a legal document, but were drawn by doctors for use by doctors and that the legal presumption that different words should be given a different meaning could not be given as much weight in the interpretation of the AMA Guides. In Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555 [9] Callaway JA referred to the High Court's reasons for refusing special leave to appeal in Barnett v Transport Accident Commission M26/2001 [2001] HCATrans 646, (14 December 2001) and said that Gummow and Kirby JJ had emphasised in their reasons the importance of the statement made by Phillips JA in Lake to the effect that the AMA Guides were, as their title suggested, just that, and that they should not become overlaid with a lawyer's precise interpretation.
The same observations are applicable to the WorkCover Guides. Paragraphs 3.12 – 3.14 of the Guides explain that they were developed through consultation with a committee of medical experts and were based on the NSW WorkCover Guides for the evaluation of permanent impairment which were in turn largely based on the AMA 5, with some modifications to reflect Australian clinical practices.
In HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311 [25] ‑ [27] Kyrou J provided the following summary of the case law in Victoria which had dealt with the interpretation of the AMA Guides:
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic — or a lawyer's precise — interpretation. It is of paramount importance to be faithful to the Guides' plain words. The Guides should not be interpreted as if it was a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate. (foot notes omitted)
In Victorian WorkCover Authority v Elsdon [2013] VSCA 235 [49] the Victorian Court of Appeal cited the summary by Kyrou J in HJ Heinz with apparent approval. The summary includes the statement that the Guides should not be interpreted as if they were a statute.
In any event, even if the WorkCover Guides were to be interpreted as subsidiary legislation, the High Court has held in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [92] – [93] that the traditional classification of provisions outlining the steps to be taken in the exercise of a statutory power or authority as mandatory or directory had outlived its usefulness. A better test for determining the issue of validity of the exercise of the statutory power or authority was to ask whether it was a purpose of the legislation that an act done in breach of the statutory provision should be invalid. In determining the purpose of the legislation regard should be had to the language of the relevant provision, as well as the scope and object of the whole statute.
In R v Cooke [2003] SASC 403, [30] – [31] Gray J had to interpret the word 'should' in the context of the Bail Act 1985 (SA). Section 11(3) provided that a bail authority 'should' not impose a condition of home detention as part of bail except with the consent of the Crown. Gray J came to the conclusion, taking into account the principles set out in Project Blue Sky, that the concern of the legislature was the availability of sufficient resources to allow supervision of home detention. The legislature did not intend to provide a veto power in the Crown with respect to home detention. Accordingly, the words 'should not' did not indicate that a bail authority was precluded from making home detention a condition of bail, unless the Crown had specifically consented. The bail authority had a discretion, but would have to take into account the ability of the Crown to properly monitor the home detention.
In BHP Billiton Ltd v Parker [2012] SASCFC 73, [230] Doyle CJ and White J held that a provision in s 9(2) of the Dust Diseases Act 2005 (SA) that a court 'should' make an award of exemplary damages against a defendant, if it was satisfied that the defendant had certain knowledge, did not mean that the court had a mandatory obligation to award exemplary damages. If the legislature had intended this, it would have been easy to have used the word 'must'.
In South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35, the Full Court came to the conclusion that a reference in a Principle of Development Control that certain dwellings 'should' conform with prescribed minimum standards, was not a mandatory direction. The court held that the Principle of Development Control was in the nature of a guide.
I accept that the context in which the word 'should' was used in these cases was different to the present context, but the case law shows that this word has often been interpreted as being only of advisory and not mandatory import.
It may be accepted that the purpose of the WorkCover Guides is similar to that of the AMA 5, that is, to make as objective as possible the process of assessing a percentage of PWPI and to promote precision, certainty and consistency in the making of such assessments. With that purpose in mind, it makes sense that the indicia in par 7.10 of the WorkCover Guides are spelled out to provide guidance to accredited medical specialists as to when an assessment of emotional and behavioural impairment arising from an injury to the nervous system should be made. Paragraph 7.10 provides a firm recommendation as to what indicia of an organic brain injury should generally be present as part of a clinical assessment before an assessment of emotional and behavioural impairment is made.
However, there is nothing in par 7.10 or the remainder of the Guides which indicates that an assessment of emotional and behavioural impairment is invalid where none of the indicia of an organic brain injury were present or where neuropsychological testing was not available or could not be obtained. It is interesting to note that in other paragraphs the WorkCover Guides employ the word 'must' rather than 'should', for example in par 13.11.
Accordingly, I do not agree with counsel for Nayshon that one of the three indicia of an organic brain injury has to be present before an accredited medical specialist can perform a valid assessment of emotional and behavioural impairment. This does not mean that a court should not give considerable weight to the fact that none of the three indicia were present and that these have been identified by the committee of medical experts who drafted the WorkCover Guides as important indicia of an organic brain injury which should generally be present before a conclusion is drawn that the patient suffered from emotional and behavioural impairment caused by an organic brain injury.
Nevertheless, there may be situations where an accredited medical specialist is of the opinion that a clinical assessment indicates that there was an organic brain injury even though none of the three indicia were present. As the purpose of the WorkCover Guides is to guide accredited medical specialist in making their assessments and there is no indication in the wording of the Guides that certain steps are mandatory, I am unable to agree that any assessment of emotional and behavioural impairment done without one of the three indicia being present is necessarily invalid.
Dr Kennedy stated in his report of 21 August 2009 that he had done a full central nervous system examination of Mr Njegovan and that this had been normal. He also noted that a full examination of the cranial nerves failed to reveal any abnormality. Nevertheless, he stated in his report a year later and in Form AMS 5 that Mr Njegovan had sustained a 'closed head injury' which had resulted in significant emotional and behavioural disorders. Dr Kennedy did not expand in his report on how or why he had arrived at a diagnosis of a closed head injury.
Dr Kennedy explained in evidence that the emotional and behavioural problems Mr Njegovan had reported to him together with the 'transient loss of consciousness' indicated to him that there was a closed head injury which may not have been diagnosed at the time. He was also concerned that Mr Njegovan might have had a period of amnesia, because when he tried to obtain a history from Mr Njegovan regarding the assault, his recount was 'all over the place in terms of his recollection of facts and information'.
When it was put to Dr Kennedy that his assumption of a 'transient loss of consciousness' was not supported by the evidence, not even by Mr Njegovan, Dr Kennedy replied that his assessment was not only based on the loss of consciousness. Dr Kennedy was not asked in more detail why he had assumed that Mr Njegovan had suffered a period of amnesia. Mr Njegovan gave no evidence of anything like this.
The only other remaining basis for Dr Kennedy's diagnosis of a closed head injury is that Mr Njegovan had emotional and behavioural disturbances. These difficulties included lack of concentration and focus, poor interpersonal relationships, excessive consumption of alcohol, agitation, lack of energy and the development of a stutter.

It seems that Dr Kennedy surmised that these difficulties must have been caused by an organic brain injury, because Mr Njegovan's forehead was pushed against a metal cabinet. Dr Kennedy stated that a closed head injury did not always manifest itself in a physical finding on examination of the brain tissue. There could have been movement of the brain within the skull, bruising of the brain or bleeding on the brain which did not show up when the CT scan was conducted three years after the assault.
The problem is that the emotional and behavioural difficulties may also have been the result of Mr Njegovan's psychiatric illness and there was nothing but speculation and surmise to indicate that they arose from an organic brain injury. Dr Kennedy did not make any further enquiries into the history of Mr Njegovan's treatment after the assault to see whether there was some basis for his assumption that there may have been a brain injury which was not diagnosed at the time and did not manifest itself on the CT scan three years later. He simply made very general statements in his report and Forms AMS 5 and 6 which had no factual basis.
At the time when Dr Kennedy completed Forms AMS 5 and 6 he had also not seen any neuropsychological test results even though this was another matter which should have been taken into account pursuant to para 7.10 of the WorkCover Guides. On the day of his consultation with Mr Njegovan, approximately three weeks prior to completing Forms AMS 5 and 6, Dr Kennedy sent a fax to Mr Njegovan's solicitors stating that a neuropsychiatric assessment was required to finalise Forms AMS 5 and AMS 6 and that an assessment of a PWPI of greater than 15 % was 'probable'. It seems that nothing, or nothing effective, was done about obtaining a neuropsychological report, as Dr Kennedy repeated that request in April 2012. The trial was adjourned on the application of Mr Njegovan's solicitors in May 2012, as a neuropsychological report was still not to hand. A neuropsychological report from Dr Vowels, a psychologist who has a doctorate in neuropsychology, was finally obtained in July 2012.
Counsel for Nayshon put to Dr Kennedy that he was prepared to issue an unconditional report and Forms AMS 5 and AMS 6 even though he knew that a neuropsychological assessment had not yet been obtained. Dr Kennedy explained that the emotional and behavioural problems described to him by Mr Njegovan indicated to him that the outcome of a neuropsychological report was likely to show impairment in that regard and that he was required to issue the necessary forms because the time limit for making the assessment of the PWPI was about to expire.
The problem with Dr Kennedy completing Forms AMS 5 and AMS 6 on 16 September 2010 and assessing Mr Njegovan to have an additional PWPI of 8% based on emotional and behavioural problems without any medical evidence of an organic brain injury or the availability of a neuropsychological report was that various parties, including Mr Njegovan, Nayshon, and the Director of WorkCover, who registered that assessment, relied on it as being an unconditional assessment. Although Dr Kennedy probably only tried to be helpful in getting Forms AMS 5 and 6 submitted on time, it was not appropriate to do so where there was nothing but speculation, or perhaps his general impression, that there might have been a brain injury and no results of neuropsychological testing to hand. Once the Director had accepted the additional 8% assessment of PWPI and Mr Njegovan had made the election based on this assessment that he wanted to proceed with a common law claim, this election could not be undone. As soon as Mr Njegovan made that election he lost his right to further weekly workers' compensation payments.
Dr Kennedy said in evidence that the neuropsychological report obtained from Dr Vowels in July 2012 indicated impairment in the areas of memory, concentration, cognitive functioning and focussing on tasks and had shown dysexecutive syndrome. He was therefore of the view that his assessment that Mr Njegovan was probably suffering from emotional and behavioural impairment had been confirmed by this report and he stood by his assessment of an additional 8% PWPI.
Counsel for Mr Njegovan submitted that it was no longer relevant whether Dr Kennedy had the neuropsychological report of Dr Vowels to hand when he made the 8% PWPI assessment or not. The timely submission of Forms AMA 5 and 6 had allowed the gateway for a common law claim to open and it was now for this court to assess, with the assistance of the neuropsychological report, whether Mr Njegovan had an additional 8% PWPI arising from emotional and behavioural disturbances. This may be so, but it was not appropriate for Dr Kennedy to make the unconditional assessment at the time, because it led to Mr Njegovan and others relying on it.
Even taking into account Dr Vowels neuropsychological report I am not persuaded that Mr Njegovan suffered a closed brain injury which was mistakenly not diagnosed shortly after the assault. There is no medical evidence to indicate an organic brain injury. No abnormality had shown up on the CT scans performed in October 2011 and there was no reference in the medical notes of the Joondalup Health Campus or the Mindarie Keys Medical practice, which Mr Njegovan consulted after the assault, to him complaining about cognitive impairments shortly after the assault.
Dr Kennedy never gave any detailed explanation as to why it was likely that being pushed against a metal cabinet, forehead first, would have caused movement of the brain or bleeding on the brain or why this may not have shown up on a CT scan or would not have been noticed at the time. After receiving the report from Dr Vowels, Dr Kennedy made no attempt to present a further report or explain in evidence why the particular findings of cognitive deficits made by Dr Vowels indicated that they had arisen from an organic brain injury. All that Dr Kennedy relied upon in his evidence was that cognitive impairment had been identified by Dr Vowels. The problem is that this could also have been the result of Mr Njegovan's psychiatric and psychological problems.
Dr Kennedy was asked in evidence in chief whether he had separated the psychological symptoms that Dr De Felice had based his assessment on from the emotional and behavioural disturbances which had arisen from the head injury and that he had relied upon. Dr Kennedy confirmed that he had done so, but never explained how he did this or what the behavioural and emotional disturbances were that Dr De Felice had not taking into account.
It is not possible to prove a case on a balance of probabilities on one line statements in a report which are neither explicated nor supported by evidence. Making a diagnosis of organic brain injury is also not a matter which Dr Kennedy seems to have specific expertise in. He described himself as a sports and industrial physician.
Dr Kennedy also produced a report, dated 28 May 2012, in which he assessed Mr Njegovan as having a further 6% PWPI arising from sleep and arousal disorders as well as an additional 2% PWPI resulting from facial scarring. Counsel for Mr Njegovan no longer relied on these assessments by the end of the trial.
Nayshon also presented a neuropsychological report by Ms Vidovich, who is a clinical psychologist with a master degree in neuropsychology. She saw Mr Njegovan in September 2013. Both Dr Vowels and Ms Vidovich came to the conclusion that Mr Njegovan was suffering from cognitive impairment.
Dr Vowels was of the view that Mr Njegovan performed well below expectations based on his reported educational and pre‑assault occupational achievements in a number of areas, particularly relating to deficits in attention, memory, processing speed and executive function. She reported that on a number of occasions Mr Njegovan showed perseveration which means that he made the same error over and over again despite having been told where he went wrong. Dr Vowels came to the conclusion that a specific test relating to memory malingering was well within the normal range for reliability and validity, which showed that Mr Njegovan had not attempted to exaggerate his difficulties with memory and new learning.
Dr Vowels was of the view that the impairment that Mr Njegovan demonstrated in executive functioning and the disorganised and inefficient scanning of a scene that he undertook on a test dealing with planning and organisation suggested organic brain damage to the frontal regions of the brain. Accordingly, Dr Vowels came to the conclusion that Mr Njegovan showed moderate symptoms of 'acquired brain impairment' which she thought resulted most probably from the assault at work, although the possibility of the motor vehicle accident and the impact of subsequent alcohol abuse could not be completely dismissed.
Dr Vowels also diagnosed Mr Njegovan with a minimal to moderate level of amnesic syndrome. She was further of the view that the extent of the cognitive problems exhibited by Mr Njegovan would justify a diagnosis of dysexecutive syndrome (frontal lobe syndrome) at a moderate to marked level. She concluded that all aspects of Mr Njegovan's future life were significantly compromised and that this was substantially permanent.
Dr Vowels accepted that it was not within her expertise, but within the expertise of a neurologist or neurosurgeon, to decide, on a clinical assessment as well as on all available information, including neuropsychological testing, whether a patient had suffered a brain injury or not. However, she said that her test results suggested an acquired brain injury because Mr Njegovan performed substantially poorer than expected based on his pre‑assault estimated intelligence and occupational capability.
The problem with Dr Vowels' assessment is that she seems to have relied on a number of incorrect assumptions. She was of the impression that Mr Njegovan had seen a number of psychiatrists and psychologists, but had not improved after treatment by them. This led her to believe that there was an organic brain injury. However, Mr Njegovan did not have ongoing or substantial treatment by a psychiatrist or psychologist. Although he was referred to a psychiatrist, he does not seem to have attended any one and only had six sessions with a psychologist, Ms Farcut, five of which had been completed by 20 November 2008. There is some reference to Mr Njegovan having attended a psychologist, Ms Rosalie Milner, for five sessions at a later stage, but this was not confirmed by any evidence. Mr Njegovan's general practitioner in Mildura, Dr Pang was uncertain how many sessions Mr Njegovan had attended with Mr Milner, as he could not afford it.
Dr Vowels was also of the impression that Mr Njegovan had suffered a brief loss of consciousness and had experienced concussion like symptoms for a week after the assault. She said Mr Njegovan had told her that he had felt dizzy, had a terrible headache and blurry eyes and could not stand upright for a week after the incident. This information is not supported by the medical reports from the Joondalup Health Campus or from the Mindarie Keys Medical Centre.
I am therefore not prepared to accept Dr Vowels' opinion that the test results suggested an acquired brain injury. She acknowledged that such a finding had to be made by a medical practitioner on the basis of all information, including the results of the neuropsychological reports.
Ms Vidovich, who was engaged on behalf of Nayshon, was of the opinion that the tests administered by her to Mr Njegovan had indicated a highly variable performance. She was of the view that Mr Njegovan could only be classified as having a low average to average intellect, because he did not complete years 11 and 12 and had described himself as an average student. He did complete a Certificate 3 in horticulture at TAFE, but prior to his position as duty manager at the Merriwa Tavern, he had only worked on his parents' wine farm, in the fruit and vegetable department at Woolworths and delivering pizzas.
Ms Vidovich came to the conclusion that Mr Njegovan had performed below expectations in a number of tests, particularly those testing attention, memory and visuomotor processing ability. However, she was of the view that these impairments were not related to an acquired brain injury.
Ms Vidovich explained that after suffering a brain injury a patient initially went into the acute phase of neurological impairment, but then usually had a steep curve of recovery. This would plateau after 12 to 24 months. If a patient showed significant cognitive impairment four to five years after the incident, one would expect that impairment to have been significantly greater in the early stages after the infliction of the brain injury. She noted that Mr Njegovan had seen a general practitioner in the first few months after the incident and expressed the view that if Mr Njegovan had suffered a brain injury which had led to significant cognitive impairment four to five years later, this would have been noticed by his general practitioner or Mr Njegovan would have reported these impairments to his doctor.
Ms Vidovich expressed concern regarding the effort made by Mr Njegovan during the testing and noted the possibility of exaggeration of some deficits. She came to the conclusion that the poorer results could be a manifestation of his psychological state, reported sleep disturbance and lack of effort. She explained that problems with depression and anxiety could also lead to difficulties with executive function, planning, organisation and decision making.
Accordingly, I am not persuaded that the neuropsychological reports show that the cognitive deficits experienced by Mr Njegovan in July 2012 and September 2013 are the result of a closed brain injury.
Nayshon relied on the reports and evidence of Dr Ross Goodheart, a consultant neurologist and accredited medical specialist. He first saw Mr Njegovan on 5 September 2013. He came to the conclusion in his reports, dated 5 and 15 September 2013, that Mr Njegovan was suffering from a significant psychological illness which included symptoms of low mood, anxiety, agitation and stutter. However, Dr Goodheart could not find any evidence of a significant focal or global brain injury or an intercurrent neurological illness. He came to the conclusion that Mr Njegovan's symptoms, including his stutter, were related to his ongoing psychological symptoms and not due to any closed brain injury.
Dr Goodheart explained in evidence that his finding that Mr Njegovan had not suffered a significant organic brain injury was based on his neurological examination of Mr Njegovan, which was normal, and on the information regarding his past medical history and findings made by other medical practitioners. Dr Goodheart had also read the neuropsychological reports of Dr Vowels and Ms Vidovich.
Dr Goodheart explained that the absence of any abnormalities on the CT scan, the fact that Mr Njegovan had not reported a period of amnesia after the accident and that his Glasgow Coma Scores were normal, together with his own neurological examination, all indicated to him that Mr Njegovan had not suffered a brain injury. He was of the view that the cognitive impairments identified by the neuropsychological testing could be equally attributable to a psychological condition as to a brain injury.
Dr Goodheart acknowledged that it would be possible for a patient to have received a head injury even though this did not show up on a CT scan, the patient did not have amnesia and his Glasgow Coma Score was normal. However, if a patient had suffered a significant cognitive deficit, it would be very surprising to have not found any indication on the CT scan such as a lesion in the pathways of the brain. Even if the CT scan was only done four years later, one would usually still see some abnormality of the brain.
Dr Goodheart explained that if a patient still had a cognitive deficit six years after the incident one would expect there to have been signs of an obvious brain injury immediately after the incident. He said a brain injury did not become worse, it could stabilise or recover totally. Dr Goodheart added that even if bleeding on the brain had occurred after Mr Njegovan was discharged from hospital, one would have expected symptoms such as paralysis down one side or pupillary inequality to have occurred.
Dr Goodheart stated in his report of 15 September 2013 that he had not gained the impression that Mr Njegovan was deliberately malingering or exaggerating his symptoms for secondary gain. However, his opinion was that the ongoing symptoms arose from a significant underlying psychological condition and not from any brain injury.
Dr Goodheart therefore disagreed with Dr Kennedy's assessment of a 8% PWPI relating to emotional and behavioural disturbances resulting from a closed head injury. He was in any event of the view that emotional and behavioural problems could not be taken into account for the purpose of assessing a worker's PWPI under ch 13 of the AMA 5, unless the three criteria set out in par 7.10 of the WorkCover Guides had been met.
I accept Dr Goodheart's opinion that on the basis of all available evidence Mr Njegovan did not suffer an organic brain injury and that there is no basis for making a further assessment of an 8% PWPI arising from emotional and behavioural impairment. I do not agree that the absence of all three criteria set out in par 7.10 of the WorkCover Guides necessarily precluded an assessment of emotional and behavioural impairment.
The fact that there is no basis for the assessment of an additional 8% PWPI means that Mr Njegovan has only proven a 13% PWPI and is not entitled to common law damages.

Assessment of damages

Although Mr Njegovan has not proven a 15% PWPI and is therefore not entitled to common law damages, I shall assess the amount of damages that he would have been entitled to had he passed the threshold.

General damages

Mr Njegovan did not work for almost 2 years, spending most of that time locked inside his house, being petrified of members of motorcycle gangs and hardly venturing out. He lost two years of a young person's life which would otherwise, in all likelihood, have been filled with joyous activities. Mr Njegovan said that he had particularly enjoyed fishing, camping and swimming prior to the assault, but had reduced these activities considerably and preferred to only engage in them if a friend could come along.
Even after Mr Njegovan started working again in about August 2010, he was still socially isolated, suffered from a drinking problem and was fearful of going out. He only did so when his friends encouraged him and after having drunk a considerable amount of alcohol. He gave evidence that his situation had improved since he had met his current girlfriend last year, but he still suffered from anxiety and his social interaction was limited to taking his girlfriend out for dinner on a Friday night. He was still reluctant to attend gatherings of family or friends.
Mr Njegovan's impairment has been assessed as permanent, and although his anxiety levels have reduced, they have not been completely resolved.
In my view, if Mr Njegovan had passed the threshold for a common law claim, he would have been entitled to an amount of $60,000 in respect of general damages arising from the suffering endured as a result of the assault and the loss of amenities of life.

Loss of past earning capacity

In his particulars of damages, dated 30 April 2014, Mr Njegovan claimed a total of $81,022.80 in respect of past loss of earning capacity. This was based on the loss of a net weekly income of $807 which he would have earned at the Merriwa Tavern from the date of the assault until he started working at Bunnings on 28 August 2010, a period of 100.4 weeks. It was not explained during the trial or in subsequent submissions on damages requested by the court how the sum of $807 per week was arrived at.

The last payment advice from Nayshon, dated 21 October 2008, refers to a gross pay of $1,269.18 and a net pay of $1,111. In his evidence Mr Njegovan said that the $1,111 represented his net fortnightly pay. If this is correct, this means that he only earned a net weekly pay of $555.50 at the Merriwa Tavern. However, Mr Njegovan may have made a mistake in his evidence in this regard, or the payment of $1,111 for the last fortnight may have been based on a minimum of hours, as Mr Njegovan was then on sick leave.
The statement that he earned a net amount of $1,111 per fortnight does not fit in with other evidence. The payment advice from Nayshon states that Mr Njegovan's base salary from, presumably, 1 July 2008 to 20 October 2008, was $13,115. Over a period of 16 weeks, this amounts to approximately $819 per week. It is not clear whether this is gross or net. Mr Njegovan also tendered a tax return for 2009 which shows a gross income of $16,466 with $3,085 withheld for tax. Accordingly, his net income for 2009 would have been about $13,381. Assuming that Mr Njegovan only earned income for approximately 16 weeks in the 2009 tax year, this reflects income of $836 net per week.
In his subsequent submissions counsel for Mr Njegovan adopted the latter calculation of Mr Njegovan's net weekly income, which had been suggested by the court as one of the possible calculations. However, the claim for past loss of earnings was not adjusted and there was no application made to amend the particulars of damages.
Further, no claim was made for the diminished income that Mr Njegovan earned after he had started working at Bunnings in August 2010. His 2013 tax return shows a gross income of $35,748 and $3,897 tax withheld. This gives a net income of $31,851 per year or $612.50 per week. It means that Mr Njegovan earned at least $223.50 net per week less at Bunnings than what he had earned at the Merriwa Tavern. In the 2012 and 2011 tax year Mr Njegovan earned even less at Bunnings which would have made the difference higher. A tax return for 2014 was not tendered. Counsel for Mr Njegovan submitted that the 2014 income would have been similar to the 2013 net income.
Mr Njegovan also gave evidence that he had intended to work in the north of Western Australia on a mine, and it is generally known that the income earned there is much higher than what can be achieved in Perth. Mr Njegovan said he had previously obtained an earthmoving and truck driving licence and had applied for one or two positions on a mine prior to the assault, although he could not provide any detail of the applications.
No claim for loss of past earnings has been made to allow for the difference between what Mr Njegovan earned at Bunnings and what he could have earned at the Merriwa Tavern, or what he could have earned on a mine. The claim for past loss of earning capacity is also based on the lesser income of $807 net per week. I am bound by the claim made on behalf of Mr Njegovan by his legal advisers. I would therefore have limited the damages to be awarded for past loss of earning capacity to the amount claimed namely $81,022.80, if Mr Njegovan had established a 15% PWPI.

Loss of past superannuation

Mr Njegovan also claimed superannuation of 9% of the gross past earnings lost. His claim was based on a gross weekly income of $1,000 at the Merriwa Tavern and amounted to $9,036 ($1,000 x 0.09 x 100.4 weeks).
If Mr Njegovan's 2009 tax return is relied upon, this indicates gross earnings of $16,466 over 16 weeks. This means that Mr Njegovan earned $1,029 gross per week and would have been entitled to $9,298 ($1,029 x 0.09 x 100.4) for loss of past superannuation.
However, because only $9,036 was claimed, I would have allowed that amount for loss of past superannuation.

Interest on loss of past earning capacity and loss of past superannuation

Mr Njegovan claimed half of the amount representing 6% interest per year on the sum of $90,058.80 ($81,022.80 plus $9,036) from the date of the assault to the date of judgment. The claim for interest was halved, presumably on the basis of the decision by Malcolm CJ in Watts v Turpin (1999) 21 WAR 402, 423 that where the loss has occurred over a period of time, only half of the statutory interest should be allowed, in order to reflect that the interest may have varied over that period. Interest rates have been generally lower than 6% in the period from 25 September 2008 to the date of judgment. This period amounts to 5.9 years. Accordingly, the interest should be halved, as claimed. This amounts to $15,940 ($90,058.80 x 0.03 x 5.9 years).

Loss of future earning capacity

Mr Njegovan claimed a global amount of $250,000 in respect of his loss of future earning capacity. This amount was justified in the particulars of damages on the basis that he was restricted in physical activities, such as repetitive bending and lifting, prolonged sitting or standing and working with his arms raised above shoulder level which prejudiced him competing in the open labour market until the age of 70 years. No such evidence was led. The stated basis for the claim may simply be the remnant of a template which was not adjusted by Mr Njegovan's solicitors and not noticed by his counsel.
Counsel for Mr Njegovan submitted in closing that the global amount of $250,000 claimed was too high and that a more realistic sum would be $125,000 - $150,000. No explanation was provided as to how that global amount was to be estimated. In the subsequent submissions counsel for Mr Njegovan referred to the gross average weekly full-time adult earnings for Western Australia as contained in the figures published by the Australian Bureau of Statistics. Counsel submitted that for the period ending May 2013 the average weekly earnings were $1,740.50 gross ($1,302 net) and $1,705.90 ($1,281 net) for the period ending November 2013. It is not apparent why the dates of May and November 2013 were chosen. Further, no evidence was presented indicating that Mr Njegovan would be likely to have earned the average weekly full-time adult earnings if he had not been assaulted. Weekly gross earnings of $1,740 amount to an annual salary of $90,480 which seems to be quite a substantial income.
In the absence of any helpful evidence all this court can do is make its best estimate. The assessment of damages for loss of future earning capacity does not have to involve a mathematical calculation. It is generally recognised that this head of damage is a type of 'general damages' and that the court has a wide discretion in assessing such damages: State of New South Wales v Moss (2000) 54 NSWLR 536 [70] and [87]. The mere fact that the quantum of damages for loss of future earning capacity is difficult to assess, does not mean that the plaintiff is only entitled to a nominal sum or that no allowance should be made for an estimated retained earning capacity: State of New South Wales v Moss [72] and Bowen v Tutte (1990) Aust Torts Reports 68,079 (81–043), 68,086.
Mr Njegovan was born on 28 February 1984 and was aged 24 years at the time of the assault. Even if it is assumed that he would not have improved his income beyond that which he earned at the Merriwa Tavern, he is now likely to earn a lesser income than that for the rest of his working life. He is currently working 30 hours per week at Bunnings. He gave evidence that he still sometimes struggles to cope with the 30 hours per week.
Despite his current condition it is likely that he will be able to increase his employment to 40 hours per week sometime in the future, particularly if he has the assistance of a supportive girlfriend and future medical treatment. If he were to work 40 hours per week, he would be likely to earn a net income of $42,467 per year (if 30 hours amounts to a net income of $31,851 per year, then 40 hours is approximately $42,467). This equates to $817 net per week.
At the Merriwa Tavern he earned $13,381 net over 16 weeks in 2008, which is approximately $43,488 net per year. However, one needs to take into account that the income from the Merriwa Tavern was earned in the latter half of 2008. In the absence of any evidence as to by how much a net salary of $43,488 paid in the latter half of 2008 would have increased by the latter half of 2013, I have turned to the all groups consumer price index increases published by the Australian Bureau of Statistics in order to make a guided estimate.
These statistics indicate a 11.3% annual rise from the September 2008 quarter to the September 2009 quarter, a 2.8% rise up to September 2010, 3.5% up to 2011, 2% up to 2012 and 2.2% up to September 2013. This means that the all groups consumer price index increased by 11.8% from around September 2008 to September 2013. I will assume, as a rough estimate, that Mr Njegovan's salary at the Merriwa Tavern would have risen by this percentage. This means that he would have earned approximately $48,620 net per year in 2013, or $935 net per week.
By way of comparison he would only have earned $817 net per week if he had worked 40 hours at Bunnings in 2013. One may therefore estimate that Mr Njegovan is likely to earn about $118 net less per week working at Bunnings than if he had continued to be employed as a bar manager.
Mr Njegovan may also have improved his salary from that earned as a bar manager. He seems to have been a reasonably hard working young man, although he did not finish his schooling. He completed the equivalent to year 11 at school in Victoria and then studied horticulture at TAFE while doing an apprenticeship in that area with his father. He gave evidence that he came from a home with a good work ethic. He worked part-time for Woolworth while still at school and at TAFE and did pizza deliveries in addition to his work on his parents' farm before he came to Western Australia.
It is likely that Mr Njegovan would have tried to improve his earning capacity throughout his working life and would probably have earned more than what he was paid at the Merriwa Tavern for substantial portions of his working life. However, it is difficult to know whether he would have achieved the average weekly full-time adult earnings, as no evidence was presented in that regard. It is also unknown how long it would have taken him to improve his salary to the level of average weekly adult earnings.
In order to make an educated guess I will assume that he would have increased his weekly net income of $935 as bar manager to a level halfway towards the average adult earnings of approximately $1,300 net per week. This means that he would have earned around $1,100 net per week after some period of time. Because I have not based the calculations on the full average adult earnings, I will take the increase into account from the date of the judgement.
This results in a loss of a net weekly salary of $283 ($1,100 - $817) for the rest of his working life. Assuming that Mr Njegovan would have worked until age 70, as claimed, that would amount to a little more than 39 years from the date of the judgement. Applying the 6% multiplier for 39 years, the total amount lost would be approximately $227,305 ($283 x 803.2).
The discount allowed for the usual vicissitudes of life such as early death, illness or future unemployment is in the order of 2 – 6 per cent in Western Australia: Kschammer v R W Piper and Sons Pty Ltd [2003] WASCA 298 [193]. A discount of 5% will result in a total amount of $215,940 for loss of future earning capacity.
The calculations I have made are not meant to represent an exact assessment of the loss of future earning capacity. They are intended to be an explanation of how the loss was estimated. Taking into account all these matters it would not have been unreasonable to have allowed Mr Njegovan the amount of $200,000 as representing his loss of future earning capacity.

Loss of future superannuation

Mr Njegovan would also have been entitled to the loss of future superannuation benefits. They would normally have been calculated on gross earnings. However, the particulars of damages only claim 10% of the global amount assessed for loss of future earning capacity. Accordingly, Mr Njegovan would have been entitled to $20,000 for loss of future superannuation.

Cost of future medical treatment

Mr Njegovan also claimed a global amount of $20,000 for future psychiatric and psychology treatment 'in conjunction with the continued consumption of analgesics and anti-inflammatory medication'. The latter part of this claim again seems to be a remnant of a template that was not adjusted.
Mr Njegovan is clearly still in need of psychiatric and psychological treatment and anti-depressant medication. He has never seen a psychiatrist and has only had a small number of psychology sessions. Dr De Felice estimated in his report of 24 April 2012 that Mr Njegovan should have at least 20 appointments with a clinical psychologist at the cost of $210 per appointment. This amounts to $4,200. Dr De Felice also suggested monthly appointments with a psychiatrist for 18 months, and thereafter bi-monthly appointments for 18 months at $300 per appointment. This amounts to $8,100.
Dr De Felice was of the opinion that Mr Njegovan should remain on the anti-depressant Paroxetine for at least three years, if not indefinitely. Paroxetine costs $70 per month. Even if this is only allowed for three years, this amounts to $2,520. Dr De Felice stated that Mr Njegovan would benefit from taking a medication with sedative and anxiolytic properties such as Quetiapine for at least three years, which costs $400 per month. The costs of this over three years would be $14,400.
I accept Dr De Felice's recommendations. There does not seem to be any reason why they should no longer be appropriate. This means that Mr Njegovan would have been entitled to a total amount of $29,220 for future medical expenses. As only $20,000 has been claimed under this head of damages, I would have awarded that amount for future medical treatment.

Summary of damages

In summary, Mr Njegovan would have been entitled to the following amounts in damages, if he had been able to prove a 15% PWPI:
General damages  $ 60,000
Loss of past earning capacity  $ 81,022
Loss of past superannuation  $   9,036
Interest on loss of past earnings and
superannuation  $ 15,940
Loss of future earning capacity  $200,000
Loss of future superannuation  $ 20,000
Future medical treatment  $ 20,000
Total$405,998

Details

AGLC: Njegovan v Nayshon Pty Ltd [2014] WADC 111
Case: [2014] WADC 111
Decision Date: 27 AUGUST 2014

CaseChat Overview and Summary

Njegovan, a manager of a tavern, brought a common law claim against his employer, Nayshon Pty Ltd, seeking damages for personal injuries. The plaintiff alleged that he was pushed against a fire hose cabinet by an unruly patron, resulting in a laceration to his forehead. He further claimed that the incident caused a closed brain injury and post-traumatic stress disorder (PTSD), exacerbated by a pre-existing PTSD from a motor vehicle accident. The employer denied liability for the injuries and argued that the plaintiff's current degree of permanent whole of person impairment was less than 15%, and that any pre-existing impairment from the motor vehicle accident should be deducted from the current percentage of whole of person impairment.

The legal issues before the court were whether the plaintiff suffered a closed brain injury from the tavern incident, whether the pre-existing impairment from the motor vehicle accident was permanent, and whether a percentage relating to pre-existing impairment should be deducted from the current percentage of whole of person impairment. Additionally, the court needed to determine whether an assessment of impairment arising from emotional and behavioural disturbances could be undertaken without significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI.

The court found that the plaintiff did not suffer a closed brain injury from the tavern incident. However, the plaintiff's current degree of permanent whole of person impairment was at least 15%, taking into account the aggravation of his pre-existing PTSD. The court held that the pre-existing impairment from the motor vehicle accident was not permanent and therefore should not be deducted from the current percentage of whole of person impairment. Finally, the court ruled that an assessment of impairment arising from emotional and behavioural disturbances could be undertaken even in the absence of significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI. The court ordered the defendant to pay the plaintiff damages for his injuries.

Orders