Noori v Topaz Fine Foods Pty Ltd
[2018] VSCA 323
•5 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0051
| JAN ALI NOORI | Applicant |
| v | |
| TOPAZ FINE FOODS PTY LTD | Respondent |
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| JUDGES: | MAXWELL P, HARGRAVE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 October 2018 |
| DATE OF JUDGMENT: | 5 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 323 |
| JUDGMENT APPEALED FROM: | [2018] VCC 321 (Judge Dyer) |
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PERSONAL INJURY – Serious injury application – Applicant injured stepping off ladder –Symptoms of disabling pain – No corresponding organic injury – Pre-existing psychiatric illness – Whether aggravation satisfied serious injury test – Whether permanent severe mental or permanent severe behaviour disturbance or disorder – Whether required to ‘disentangle’ non-organic symptoms – Significant new pain symptoms not experienced prior to physical injury – Pain symptoms satisfied narrative test for serious injury – Serious injury threshold established – Appeal allowed – Meadows v Lichmore [2013] VSCA 201 distinguished, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied – Accident Compensation Act 1985 s 134AB(37).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC | Henry Carus & Associates |
| For the Respondent | Mr J Ruskin QC with Mr J McComish | Lander & Rogers |
MAXWELL P
HARGRAVE JA
FORREST JA:
Summary
This appeal concerns a serious injury application in the County Court which was based on para (c) of the definition of ‘serious injury’ in the Accident Compensation Act 1985 (the ‘Act’).[1] That is, the applicant claimed that, as a result of a work-related injury, he had suffered a
permanent severe mental or permanent severe behavioural disturbance or disorder.[2]
[1]The Act s 134AB(37).
[2]Ibid.
The applicant fell awkwardly from a stepladder. He subsequently developed symptoms of acute and disabling pain. There was, however, no organic injury which would have explained the levels of pain and loss of function which he identified. The judge accepted, nevertheless, that the applicant’s account of his experience of pain was genuine.[3] And it was common ground that, before the work accident, he had experienced no such symptoms.
[3]Noori v Victorian WorkCover Authority [2018] VCC 321 [58] (‘Reasons’).
The basis of the application under para (c) was attractively simple. The applicant had a pre-existing psychiatric illness or disorder, resulting from traumatic experiences both before and after he came to Australia as a refugee. His genuine experience of severe pain was both a symptom and a consequence of that ‘mental or behavioural disturbance or disorder’. The significant new pain symptoms constituted an aggravation or exacerbation of his prior condition, and had consequences which satisfied the ‘serious injury’ definition.[4]
[4]In this Court, counsel for the applicant raised the possibility that the pain symptoms constituted ‘a new diagnosable psychiatric condition’. It is unnecessary, in view of our conclusion, to consider this further.
The judge rejected the application. His Honour accepted that the accident had been a cause of ‘some of the plaintiff’s ongoing non-organic symptoms’. He said, however, that he
[had] difficulty in disentangling those work-related symptoms from the totality of the plaintiff’s ongoing condition.[5]
[5]Reasons [64].
With great respect, no question of ‘disentanglement’ arises under para (c) of the definition of serious injury. As the decisions of this Court make clear,[6] ‘disentanglement’ is a task which arises — if at all — only in relation to para (a) of the definition. That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the court is obliged — by s 134AB(h) — to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury’. Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences.
[6]Meadows v Lichmore [2013] VSCA 201 (‘Meadows’); Mason v Transport Accident Commission (2014) 68 MVR 474.
In relation to para (c), by contrast, the court is able to take into account both:
·‘the psychological or psychiatric consequences of a physical injury’; and
·‘the physical consequences of a mental or behavioural disturbance or disorder’.
In the present case, the applicant was severely disabled by the pain he was experiencing. That the pain had a psychological, rather than a physical, basis was not in dispute. Nor was there any doubt that the experience of pain was a reflection of the applicant’s pre-accident psychiatric condition. That was precisely how he put his claim.
None of that affected the analysis, however. On the uncontested evidence, it was the work accident which had caused the acute pain response. The respondent having conceded that the pain and suffering consequences satisfied the ‘narrative test’ for serious injury, the appeal must be allowed. We would set aside the judge’s decision and, in its place, order that the application be allowed. Our reasons are as follows.
Factual background[7]
[7]Paragraphs 10–13 are based on an agreed summary provided by the parties.
The applicant was born in Afghanistan on 31 December 1989 and came to Australia as a refugee in early 2010, when he was 21 years old. He spent time in detention centres on Christmas Island, Darwin and Curtin (in Western Australia) for about 18 months. He was subsequently granted a permanent visa. He had a difficult upbringing. The judge found that he suffered significant psychological issues whilst in detention and had attempted suicide.
After obtaining his visa, the applicant worked for eight months from February to October 2012 as a baker, process and machine operator in South Australia, before returning to visit his ill mother and other members of his family who were then in Pakistan.
The applicant had some trouble obtaining further employment when he returned to Adelaide. He moved to Melbourne and commenced full-time employment on 3 October 2013 as a factory hand and mixer.
On 29 October 2013 the applicant suffered a jarring injury to his back when he fell awkwardly from a stepladder.
The respondent put to the applicant in cross-examination, medical and other material relating to his period of time in detention in early 2010 and early 2011. These documents included:
(a) a statutory declaration dated 2 March 2010 which he had made in support of his refugee application and which set out some of the trauma to which he had been exposed; and
(b) medical records of International Health and Medical Services showing that:
(i) on 28 February 2010, he complained of trouble sleeping and of bad dreams;
(ii) on 4 February 2011 (a year later), he again complained of trouble sleeping and of nightmares;
(iii) on 7 February 2011, he had trouble sleeping and seemed depressed and said that he planned to commit suicide if his application for asylum were rejected;
(iv) on 11 February 2011, he was given medication for depression;
(v) on 16 February 2011, he appeared extremely depressed and at high risk of self-harm;
(vi) on 17 February 2011, he presented having thoughts of self-harm, and saying both that he would never kill himself, but also that he would have no choice but to do so if his claim to asylum were rejected; and
(vii) on 3 March 2011, he presented with lacerations on his arms.
As routinely occurs on a serious injury application, the judge was provided by each party with a large number of medical reports. In this Court, however, attention was focussed on two reports by Dr David Weissman, a consultant psychiatrist engaged by the applicant’s solicitors.
In his first report, Dr Weissman recorded the applicant’s description of his leisure activities and hobbies in the period before the work injury as follows:
He told me that he used to enjoy walking outside which gave him great pleasure. He told me that it also gave him great pleasure to walk to new shopping centres and spend time with his male friends. He told me that this was unlike his ‘own country’. He told me that in his ‘own country’ he could not walk outside otherwise he would be killed. He told me that he enjoyed living in Melbourne.
Dr Weissman then recorded the applicant’s description of his current disabilities, as follows:
He told me that he does not shower and dress himself every day now. He told me that he has physical difficulty showering himself and he sometimes has to ask his friends to wash his back. Also, he told me that he does not shower himself regularly because ‘Now I don’t have things in my mind unless my friends tell me to’.
He told me that he experiences pain pulling his pants down in order to go to the toilet and he experiences pain brushing his teeth.
He told me that he physically cannot do any cooking, cleaning or laundry.
He told me that he cannot do any gardening.
He told me that he cannot do any grocery shopping.
He told me that he walks for a maximum of 10 minutes limited then by back pain.
He told me that he sold his car because it is too painful for him to drive. He told me that he has not been able to drive because of his pain for two years.
Dr Weissman asked the applicant why he no longer walked to shopping centres or saw his friends. According to the report, the applicant replied:
Well, it’s just because of my back pain, I can’t even drive 15 minutes. That’s why I sold my car. I really can’t do anything because of my back pain.
Dr Weissman described the case as ‘very complex, complicated and difficult’. His assessment of the applicant was incomplete, he said, because the applicant
was evasive, guarded, withholding or simply did not answer questions regarding his past history.
As a result, Dr Weissman said:
I cannot meaningfully comment about the existence of, or the nature, severity and extent of, any potential pre-existing and unrelated factors.
As a corollary of this, I cannot meaningfully comment about the degree to which his current psychiatric conditions and mental injuries (to follow) are employment-related as opposed to being contributed to be pre-existing or unrelated factors, or a combination of all of the above.
However, based upon the file that I received — and not the history that I obtained from Mr Noori — and based upon my clinical experience and expertise, it seems likely to me that he had a significant degree of pre-existing and unrelated traumatisation, depression and ‘stress’ due to his prior experiences in Afghanistan, Pakistan, migrating to Australia, and being in detention centres, as well as ongoing worry and uncertainty regarding his family members in Pakistan.
However, regarding all of the pre-existing factors, it is impossible for me to say, at present, to what degree, if any, they remitted before his work-related injury.
Furthermore, in terms of his current, overall psychiatric state, (as indicated above) it is impossible for me to know ‘how much’ of this is due to those potential, pre-existing factors. I will move on.
Dr Weissman’s conclusion was expressed in these terms:
However, at this stage, Mr Noori has very significant and substantial, if not marked and severe, pain and symptom focus and preoccupation, if not fixation.
It seems to me that he has sustained and developed a full-blown [Chronic Pain] Disorder associated with psychological factors and a general medical condition (DSM-IV) also known as Somatic Symptom Disorder with predominant pain (DSM-V).[8]
Based upon his current, reported/subjective symptoms and based upon his current mental state examination, [the applicant] appears to be suffering from a moderate mixed reactive depressive and anxiety syndrome with prominent frustration, irritability and agitation.
Again I cannot make any meaningful comments regarding aetiology or contribution at this stage.
·At this stage, all I can say is that his employment seems to be contributing to his moderate mixed depressive and anxiety syndrome to some extent, unrelated factors (regarding his family in Afghanistan) contribute to his moderate mixed depressive and anxiety syndrome to some extent, and potential/probable pre-existing factors may still contribute to some extent.
·He is also suffering from a chronic Adjustment Disorder with depressed, anxious and irritable/agitated mood states of moderate intensity or severity.[9]
[9]Emphasis in original.
Dr Weissman saw the applicant three months later, on which occasion he was ‘more cooperative, less guarded, less withholding, and not specifically evasive regarding his past history’. On this occasion, Dr Weissman’s conclusion was expressed in these terms:
On the one hand, he had, and still had, a certain amount of premorbid depression, anxiety, ‘stress’ and a post-traumatic stress syndrome due to pre-existing and unrelated factors.
He was a person with significant and substantial emotional and psychological vulnerability factors.
On the other hand, from a physical and mental perspective, he was well enough to work full-time at a bakery in South Australia despite the above symptoms and features.
Furthermore, he was well enough both physically and mentally to work full-time for his pre-injury employer Topaz Fine Foods in Melbourne at the time of his subject/claimed work-related injury. This no longer appears to be the case, at least on psychiatric grounds, and possibly on physical grounds too (although the latter remains outside my area of expertise).
Diagnoses:
There is no reason for me to change my opinion from 28 April 2017 that [the applicant] is suffering from a chronic Adjustment Disorder with depressed, anxious and irritable/agitated mood states of moderate intensity or severity.
This chronic Adjustment Disorder, above, seems to be a moderate aggravation of a pre-existing condition.
He is also in the process of developing Chronic Pain Disorder associated with psychological factors and a general medical condition (DSM-IV), also known as a Somatic Symptom Disorder with predominant pain (DSM-V).
This is not surprising in someone with his degree of premorbid psychological and emotional vulnerability.[10]
[10]Emphasis in original.
The judge’s reasons
Having seen the applicant cross-examined, the judge made the following findings about his credit:
This is not a case where I am led to conclude that Mr Noori has consciously exaggerated the level of symptoms, or attempted to mislead the court in terms of the level of suffering experienced by him.
Nevertheless the disparity between the plaintiff’s pre-injury history set out in his affidavits and the matters raised with him in cross-examination concerning particularly his time in immigration detention, cause me great difficulty in regarding the plaintiff as a reliable witness, especially in terms of his pre‑existing psychological state.[11]
[11]Reasons [58]–[59].
The submission for the applicant, his Honour noted, was that:
The organic injury triggered a pre-existing but latent psychological condition which has now produced ongoing severe consequences for Mr Noori.[12]
[12]Ibid [60].
In support of that submission, counsel for the applicant had relied on the High Court decision in Federal Broom Co Pty Ltd v Semlitch.[13] His Honour set out the particular passage relied on from the judgment of Kitto J, as follows:
The respondent had a previous history of schizophrenia which predisposed her to delusions, and she had had delusions of different kinds before. But the incident of the tea chest was a contributing factor to the arising of a new delusion. This was a delusion that she continued to be seriously affected in a way which made it impossible for her to work by reason of abdominal pain.
The award she sought was made, and there is no dispute now that it was rightly made if the proper conclusion on examination of the evidence is that there was sufficient evidence to support a finding that the bringing about of the new delusion, which admittedly incapacitated the respondent for work, constituted an ‘injury’ within the meaning of the word as defined in s 6 of the Workers’ Compensation Act, 1926-1960 (NSW).[14]
…
Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.[15]
[13](1964) 110 CLR 626 (‘Semlitch’).
[14]Ibid 631.
[15]Ibid 632-3.
In the present case, the judge said:
Whilst such an approach is essentially valid, it ultimately depends upon whether the plaintiff has discharged the onus of demonstrating that the present non‑organic symptoms from which he suffers can properly be characterised as consequences of the original back injury suffered in 2013.
…
I accept the incident of 2013 has been a cause of some of the plaintiff’s ongoing non-organic symptoms, but I have difficulty in disentangling those work-related symptoms from the totality of the plaintiff’s ongoing condition.
…
The essential difficulty facing the plaintiff in the present case is to satisfy me that the non-organic consequences which are presently central to his ongoing incapacity can properly be characterised as consequences of the work-related back injury suffered in November 2013.[16]
[16]Reasons [62], [64], [67] (emphasis added).
The submission for the respondent, his Honour noted, was that:
Earlier major psychological traumas occurring in the plaintiff’s life were such that I could not conclude, for the purposes of granting leave, that the plaintiff’s current mental or behavioural disturbances or disorders could be causally linked to the initial back injury. The plaintiff’s credit, particularly in relation to histories given to doctors, was very much in dispute.[17]
[17]Ibid [8].
Later in his reasons, his Honour said:
The approach urged … by [counsel for the respondent] was consistent with approach taken by the Court of Appeal in Meadows v Lichmore Pty Ltd. The court in Meadows set out a two-step approach:
The first step to ask is whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
Although the present case is one which claims an entitlement for leave for pecuniary loss in addition to pain and suffering, I take the view that the approach dictated by the Court of Appeal in Meadows is the appropriate test to be applied in the present case.[18]
[18]Ibid [68]–[69] (citations omitted).
His Honour’s conclusion was in these terms:
The unreliability of the plaintiff as a historian makes it extremely difficult for me to accept the proposition urged upon me by [his counsel] that I should accept that his seven months employment in South Australia following his release from immigration detention was sufficient evidence for me to conclude that his psychological state at that time was such that he had both an unrestricted working capacity and a similar capacity for non-employment activities.
Although the current body of evidence could be assessed in such a manner, it ultimately requires a court to place a degree of confidence in the primary evidence given in this case by Mr Noori.
Frankly the plaintiff’s omissions of details of significant material in his initial affidavit, and his ongoing reluctance to accept matters put to him in cross-examination by [counsel for the respondent], have damaged his reliability to such an extent that I am not prepared to apply the analysis proposed by [his counsel] absent further corroborative material either from a treating medical practitioner or at least some lay evidence as to the plaintiff’s capacity at that time.[19]
[19]Ibid [72]–[74].
Did the applicant’s chronic pain disorder arise from his work injury?
It was common ground that, on an appeal from a decision in a serious injury application, the court should proceed by way of a rehearing in addressing the question whether the applicant has demonstrated the existence of a relevant injury and that the injury arose from the employment. In relation to the assessment of the severity of the consequences of such an injury, however, the court should adopt the Mobilio v Balliotis[20] approach.
[20][1998] 3 VR 833, 836.
In the present case, the judge accepted that the applicant had suffered some psychiatric injury as a result of the accident. As noted earlier, his Honour accepted that the accident ‘has been a cause of some of the plaintiff’s ongoing non-organic symptoms’.[21] In his Honour’s view, however, he was unable — because of the plaintiff’s unreliability — to separate those ‘work-related consequences’ from his other symptoms of psychiatric disturbance.
[21]Reasons [64].
The submission for the respondent in this Court was that his Honour had approached the question correctly and that, given the deficiencies in the applicant’s evidence, he was fully entitled to reach the conclusion which he did. As it was expressed in argument, the judge was satisfied that there was ‘some contribution from the work incident which is giving him pain’ but could not be satisfied about the contribution of ‘unconnected matters’ to the experience of pain. The critical issue, it was said, was that there were ‘multifactorial contributions’ to the applicant’s pain symptoms, and the judge could not be satisfied as to contribution made by the work injury.
In support of this submission, counsel for the respondent drew attention to the following passages from a report of Dr Symon McCallum, an interventional pain physician:
Mood
He claims to be depressed. He has a decreased sense of humour and he was extremely tearful during the consultation. He feels tired, has poor concentration and is anxious. He has panic attacks and has nightmares from what happened in Afghanistan. He may have PTSD. He states he has many problems. He denies suicidal ideation.
…
On examination he has normal reflexes, power and sensation in his lower limbs. His pain is made worse with extension and rotation of his back. His hips are normal as are his greater trochanters. Straight leg raise is normal. He possibly has positive sacroiliac joint pain.
He is tender to palpate his lumbar paravertebral muscles and laterally in his lower back.
Impression
I think Mr Noori’s problems are going to be muscular in origin but I think the depression and possible PTSD are significant factors.
Counsel also relied on this passage from a later report of Dr McCallum:
Mr Noori has a complex combination of physical and psychiatric injuries. It must be remembered that pain results in an emotional as well as sensory response. I think his history of experiences in Afghanistan, in detention and the subsequent psychological and psychiatric response to this are extremely significant to his current condition.
We are not persuaded by the respondent’s submission. The applicant placed no reliance on symptoms of anxiety or fatigue or loss of concentration, symptoms which may well have pre-dated the injury. On the contrary, as we have said, he relied solely on his experience of disabling pain, which began after the workplace accident.
With respect to the judge, it was neither necessary nor appropriate to separate out or ‘disentangle’ the consequences of the applicant’s pre-existing psychiatric condition. On the contrary, it was of the essence of his claim that his experience of pain was the consequence of his pre-existing condition and that it was the accident which ‘triggered’ that condition. The reliance on Meadows was misplaced.[22] As we said earlier, no question of ‘disentangling’ arises on a claim under para (c) of the definition.
[22]We are conscious that the applicant relied, in the alternative, on para (a) of the definition of ‘serious injury’ but his Honour was here addressing the para (c) claim.
The applicant’s case was that, because of his pre-existing psychiatric vulnerability, a relatively innocuous work accident resulted in such profoundly disabling symptoms of pain. The analysis of Kitto J in Semlitch was directly on point.[23] It was not in dispute that the applicant’s experience of pain commenced after, and as a result of, the work accident. Whatever limitations had resulted from his pre-existing condition, he had at least been able to be gainfully employed up to that point.
[23](1964) 110 CLR 626; see [22] above.
Once it was accepted that the applicant’s description of his pain was genuine and not feigned, it had to be concluded that he had a ‘severe disturbance’ within the meaning of para (c) and that its consequences satisfied the narrative test. Reservations about his reliability in other respects were of no consequence.
Leave to appeal must therefore be granted, and the appeal allowed. We will set aside the judge’s order refusing the application, and in its place order that the application be granted with respect to both pain and suffering damages and pecuniary loss damages.
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The report here referred, in error, to Post-Traumatic Stress Disorder. In his second report,
Dr Weissman identified and corrected the error.
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