Payet v Victorian WorkCover Authority
[2015] VCC 1259
•11 September 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-05686
| TERENCE JAMES PAYET | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2015 | |
DATE OF JUDGMENT: | 11 September 2015 (Revised) | |
CASE MAY BE CITED AS: | Payet v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1259 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to his right arm – major depressive illness – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J M Moulds QC with Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Mr W R Middleton QC with Ms N Wolski | Lander & Rogers |
HIS HONOUR:
1 In this matter the plaintiff seeks leave to commence a proceeding, claiming general damages in respect of injuries allegedly sustained by him in the course of his employment with Adecco Pty Ltd.
2 Relevantly, the plaintiff asserts that he has suffered an injury which meets the definition of “permanent severe mental or permanent severe behavioural disturbance or disorder” within the meaning of that term as employed by the Accident Compensation Act 1985, as amended.
3
In the proceeding, the plaintiff relies upon three affidavits sworn by him on
12 July 2012, 13 December 2013 and 6 August 2015, respectively. The plaintiff also gave viva voce evidence in the course of the application. Otherwise each of the parties rely upon medical and like evidence tendered by them.
4 The content of the plaintiff’s three affidavits are a matter of record. No point is served in restating that content verbatim in the course of these reasons. It is appropriate, in order to give context to my reasons, that I provide a brief summary of the plaintiff’s three affidavits in which he said that:
·He suffered an injury to his right arm, and a major depressive illness, both of which were caused by reason of the conditions to which he was exposed in the course of his work.
·The symptoms of his mental illness involved:
(i)difficulty with concentration and poor memory;
(ii)depression;
(iii)suicidal thoughts;
(iv)severe loss of libido, such that he had no motivation to engage in sexual intercourse with his wife;
(v)hearing voices which were critical of him;
(vi)violent thoughts directed towards his supervisor.
·He was currently employed on a full-time basis with a company called Injectronics, but found work difficult, stating that he was under a lot of stress by reason of his physical injuries and the constant worrying of trying to hide his emotional problems from his employer. In this respect, he said that he sought “to hide my psychological issues from people at work although people called me crazy from time to time”.
·He currently employed medication in the form of an antidepressant.
·He continued to have shoulder pain which came and went, and elbow pain, which was less severe than his shoulder pain.
·He suffered from lack of motivation and a very low mood.
·He was prone to bouts of anger, and had difficulty controlling his emotions.
·Before suffering his injury, he used to attend nightclubs and bars. He had a wide circle of friends and was a young man who enjoyed life.
The viva voce evidence
5 In the course of cross-examination, the plaintiff said:
· He had initially made no complaints to his treating doctors as to the fact that he had been bullied and harassed commenting:
“… like I told you before when I had my arm injury ... it looked stupid to me to tell my doctor I’ve got a shoulder injury or I’ve got this injury because I felt embarrassed, ashamed. If I tell him I got harassed as well, they’re probably thinking am I lying or something like this, I don’t know. There was a lot of things going in my head … I tend to drift – my mind tends to drift … .”[1]
[1]Transcript (“T”) 36
· He had, in recent years, been involved in two relationships which had both resulted in his becoming engaged: on the first occasion to a Chinese lady and subsequently, to a lady he had met in Thailand, who he had subsequently married in 2013. He said that his daughter of that relationship was born in April of last year.
· His current treatment involved him seeing his general practitioner, Dr Doss, at the Doveton Medical Centre. He said he thought he had told Dr Doss that he had been bullied and that he was depressed. It was put to the plaintiff that Dr Doss had not treated him for his psychiatric problems, to which the plaintiff responded:
“He may have done, I don’t know. He may have said some things to me, you know, to try to help me … Well he’s tried to help, like, he might say some things, you know, to say some things to make me feel better, you know. I don’t know if that’s part of helping me, you know. He’s a nice man, like I said.”[2]
[2]T46
6 It was put to the plaintiff that he had not been seeking treatment from the Doveton Medical Centre, to which he responded:
“Why should I go there for – because they know everything what’s going on? … I go down there to get my prescriptions.”
7 The plaintiff was questioned as to the history of his prescription of Avanza. He agreed that there was a period during which he had not been prescribed Avanza, commenting:
“But I got tablets off my aunty because she has given me some tablets for depression.”[3]
[3]T50
The plaintiff said that:
· He did not know the name of the medication he had obtained from his aunty, explaining that he obtained the tablets from her “because it didn’t cost me nothing” and that he knew that the tablets were an antidepressant.[4]
[4]T50
· He employed Nurofen to manage his pain and that his use of the medication depended upon the level of his symptoms, that he could not recall when he ceased taking Seroquel and that when taking Avanza he occasionally broke:
“… my Avanza in half because it costs me money. You know, sometimes I break it in half to – for example, if you get one month – a one month subscription – example, if you’ve got a one month subscription, if you cut it in half to save money it drags it out to longer than that.”[5]
[5]T53
8 The plaintiff described suffering from the following ongoing symptoms:
·Heart palpitations
·Irritability
·A tendency to isolate himself from other people
·A tendency to lose momentum with respect to motivation
·He heard voices commenting:
“I start thinking in my head – voices, ‘You’re an f-ing arsehole’. You know, this and that and then at the same time, you know, when I start hearing something about myself, you know, ‘You’re not good enough. Why aren’t you doing this right?’ Blah, blah, blah, blah. And this is the thing that makes me – I don’t understand. I try to think why. Why do I hear this for, what for, is it – is it from a dead, from the past? It is his voice I hear? And then I hear another voice. Like, you know, I was sitting in there before. I was hearing like a devil’s voice in my head. I don’t bloody know what for. And then I try to control it and say: ‘You don’t hear nothing. You’ve got it under control, don’t worry.’ It’s like I'm fighting with myself. I don’t understand how it bloody works. … .”[6]
[6]T60
He continued:
“When my boss is telling me off, I have voices while he’s telling me, ‘You’re an idiot, f-ing arsehole,’ and this and that, whatever comes out of my mouth but in the head and then afterwards it’s like I'm telling myself, you know, ‘You’re not good enough’ but it’s another voice, you know what I mean? I don’t understand, get a hammer, hit my head and look in there. I don’t understand … .”
· He described experiencing flashbacks of his manager, George.
9 The plaintiff said that:
· He worked full time, Monday to Friday, from 7.30am to 4.00pm, commenting that he struggled through his work mentally and physically.
· Since his injury, he had completed a diploma in a course he undertook at the Berwick TAFE called “something like Networking Administration”. He said that course had involved him attending for two or two-and-a-half years and that he had done his best to attend every day.
· His current work involved testing airflow meters which involved the clicking of the button, commenting:
“Any – any person, a baby could do that job.”
· He had travelled to China and Thailand during the periods set out in exhibit 1.
· His trips to China involved the courting of his Chinese fiancée who he had met on the internet.
· His first trip to Thailand was for a holiday, during which he met his wife. His subsequent trips involved his marriage, a surprise visit to his wife, attending for the birth of his daughter, and travelling to bring his wife and daughter to Australia.
· His mood varied depending on the day.
· Before the subject injury, he had been outgoing, he socialised, he had a particular interest in radio-controlled cars, about which he had considerable expertise and about which people would consult him for advice. He described radio-controlled cars as having been his passion prior to his injury and said that, whilst his mother had encouraged him to try to pick himself up generally:
“I've just lost interest. I've tried a numerous amount of things to keep me occupied, but I lost interest.”[7]
[7]T88
10 The plaintiff said that:
· When he went to a chemist with a prescription for medication, he did not look at the prescription or the medication.
· He regularly drove around alone at night, as this activity soothed him.
· He had little interest in any intimate relationship with his wife and that his wife could not understand this. He described his relationship with his wife as:
“I don’t interact with her at all. It’s like I’m a zombie. I don’t know, like I don’t have – I feel embarrassed saying this – sexual relationships with her. Sometimes I don’t know – I don’t understand. I have a daughter, you know what I mean. Sometimes I think to myself, ‘What am I doing here?’ you know. It doesn’t make sense.”[8]
[8]T88
· In his current work, he sometimes had arguments with the boss. He feared for the loss of his job because if he had no job, he would not be able to support the family.
The relevant medical evidence
11
In a report dated 13 September 2013, the plaintiff’s general practitioner,
Dr Mohan Doss, states that:
· The plaintiff presented to him in February 2008 complaining of feeling depressed due to the chronic nature of his physical problem.
· Whilst the plaintiff thereafter complained of the presence of pain associated with his right elbow, it was not until March 2011 that the plaintiff again complained about being depressed, at which time he was referred to Dr Mahalingam, a psychiatrist;
· He (Dr Doss) had not managed the plaintiff’s psychiatric problems.
12 In a further report dated 27 July 2015, Dr Doss said:
· The plaintiff had not been attending his practice on a regular basis.
·
On 4 June 2015, the plaintiff had been seen at the practice by
Dr Gunawardana, who had provided a prescription for Avanza; and
· He could not opine as to the plaintiff’s “psychological condition”.
13 In a report dated 16 October 2013, Dr Nagalingam Mahalingam, a consultant psychiatrist who treated the plaintiff at the referral of Dr Doss, states that when the plaintiff presented in December 2011, he complained of poor sleep, suicidal ideation, palpitations, low mood, irritability and social isolation for two years following the break-up of a relationship. He also reported hearing voices that people are talking about him and passing derogatory comments.
14 Dr Mahalingam diagnosed the plaintiff as presenting with depression with psychotic features and commenced treatment in the form of Avanza, an antidepressant, and Seroquel, an antipsychotic.
15 As to the plaintiff’s presentation in October 2013, Dr Mahalingam commented:
“… his symptoms improved and he is now symptom free except occasional memory of the abuse at Safeway. He is now mostly managed by his G.P.
…
He has chronic r shoulder and r elbow pain, following lifting heavy objects while working at Safeway.
He has recovered from the psychiatric injury (Chronic PTSD & Depression) and working full time now.
…
He needs to continue his medications Avanza and Seroquel indefinitely.”[9]
[9]Plaintiff’s Court Book (“PCB”) 60 – 61
16 Dr M J Nathar, consulting psychiatrist, first examined the plaintiff at the referral of the plaintiff’s solicitors on 22 March 2012.
17 At that time, Dr Nathar described the plaintiff as being a surprisingly good and clear historian and commented that it was his belief that the plaintiff’s psychotropic medications had helped settle his mental state.
18 Dr Nathar described the plaintiff as presenting as decidedly anxious and uncomfortable, commenting that the plaintiff’s overall stream of thinking was normal and that he reported the presence of auditory hallucinations.
19 As at March 2012, Dr Nathar opined:
(i)that the plaintiff was able to work in alternate duties within his physical limitations;
(ii)that whilst there might be a number of possible diagnoses as to the plaintiff’s presentation, he favoured a diagnosis of “schizoaffective psychosis” which had arisen out of the plaintiff’s employment;
(iii)that the plaintiff provided a forthright and honest account of his problems;
(iv)that whilst he considered that there could be no doubt that the aetiology of the plaintiff’s presentation would be controversial, by reason of the fact that Chronic Schizophrenia was generally regarded as being inherently constitutional, on the balance of probabilities, Dr Nathar was satisfied that it was likely that the plaintiff’s “… psychological/psychiatric injury has been caused by his employment with Adecco P/L”.[10]
[10]PCB 69
(v)that the effect of the plaintiff’s psychiatric impairment as causing “… a markedly significant reduction in his ability to engage in his full range of social and recreational activities”[11] and commented that whilst he considered the plaintiff was able to cope with his alternate duties:
[11]PCB 70
“It is really very difficult to predict what the next few years will be like for him.”[12]
[12]PCB 70
20 In a further report dated 18 November 2013:
(i) Dr Nathar opined that the plaintiff presented with a schizoaffective illness involving two interrelated but not completely independent conditions, namely depression and anxiety on the one hand and, at the same time, psychotic and schizophrenic-type symptoms.
(ii) Dr Nathar commented:
· That, in addition, the physical injuries suffered by the plaintiff would add to his stressors, commenting
“… I am therefore again confident that he has a kind of schizoaffective illness, with emphasis on the affective component; where I believe that his illness had arisen out of employment where employment would remain the significant contributing factor”.[13]
[13]PCB 77
· As to the ongoing consequences of the plaintiff’s psychiatric injury in the following terms:
“He has to be very vigilant about controlling his mood state and irritability, with the help of psychiatric and psychological treatment and medications and therefore he seems to be able to continue working in this kind of assembly type work, which he described to be at the lowest rung in the company. However, his psychiatric injury would make him rather fragile and vulnerable and he could easily relapse at any time which may result in some temporary, permanent or event partial work incapacity.”[14]
[14]PCB 77
He continued:
“If one accepts that his history is accurate and I have no reason to doubt this, then clearly his ongoing psychiatric problems have resulted in a marked and significant reduction in his ability to socialise, to attend to any recreational activities that he has and this will continue into the foreseeable future.
In terms of future treatment, he will need to continue his present line of psychiatric and/or psychological treatment and he probably will need to take anti-psychotic and/or anti-depressant medication for life.
In terms of his prognosis, this is guarded in the sense that he will have significant long-term permanent difficulty, which however would be at a manageable level as long as he takes his medications and comply [sic] with his current treatment regime.”[15]
[15]PCB 78
21 I note that the history given by the plaintiff to Dr Nathar was generally consistent with that set out in his affidavits, to which I have previously referred, namely that he tended to be socially withdrawn; that he had difficulty coping with his relationship, with his wife describing his feelings of getting married as a “dead feeling”; that he had “far too much stuff in his head”; that there was something wrong with his sleep and that he sometimes heard voices from an old friend who had died many years ago, or voices telling him that he was an idiot.
22 In a further report dated 18 June 2014, Dr Nathar maintained the positions expressed by him in his earlier reports, commenting that it was his belief that the plaintiff had not recovered fully from his psychiatric illnesses, that he needed to take medication and was still symptomatic, although he was able to work in a low-stress, less demanding job.
23 In a report dated 29 July 2015, Dr Nathar maintained his previous diagnosis that the plaintiff presented with a work-related Schizoaffective Disorder, commenting that the plaintiff reported;
· the presence of low libido and no motivation for sex:
“… his wife had insinuated that maybe he is gay. This has been happening for a while now”[16]
[16]PCB 85
· that he was socially avoidant and had a low opinion and tolerance for other people;
· that he sometimes woke at night with sensations as if someone was touching him, but no one was there;
· that he had difficulty controlling his anger;
· that at work he often sang, sometimes loudly, in order to motivate himself;
· that he heard voices but could not tell whether those voices were coming from inside or outside his head and that, outside his work environment, he did not do very much.
24 As at July 2015, Dr Nathar commented that:
· the plaintiff’s thought patterns were such that he was not suicidal;
· he continued to favour the diagnosis that the plaintiff presented with a residual Schizoid Affective Disorder;
· whilst the plaintiff retained a capacity for work in the presence of some psychiatric impairment, he appeared to be significantly socially isolated, having a reduced interest and motivation for past recreational activities.
25 Dr Nathar concluded his report, commenting:
· that the plaintiff had significant long-term difficulties with residual mood problems and interpersonal difficulties; and
· that the plaintiff required long-term antidepressant medication and also the use of antipsychotic medication were he to deteriorate in the future.
26 In a further report dated 31 August 2015, Dr Nathar opined that the primary reason for the plaintiff’s presentation was his perception that he had been bullied and harassed.
27 Dr Alan Jager, a psychiatrist retained on behalf of the defendant, has examined the plaintiff on three occasions between August 2008 and August 2014.
28
When he first examined the plaintiff in August 2008, Dr Jager obtained a history consistent with that provided by the plaintiff in both in his affidavits and to
Dr Nathar. At that time, Dr Jager noted that the plaintiff was undertaking an IT course and opined that the plaintiff presented with a mild Major Depressive Disorder which did not preclude the plaintiff from undertaking full-time pre-injury employment.
29 Dr Jager re-examined the plaintiff on 17 July 2011.
30 On that occasion, he described the plaintiff as presenting:
· squirming in his seat and making little eye contact
· as being nervy and engaging little with the interview
· as evidencing a tendency to mumble
· as reporting hearing his dead friend’s voice from the 1990s from inside his head, telling him that he was not good enough.
31 Dr Jager maintained his previous position that the plaintiff presented with a mild Major Depressive Disorder which did not interfere with his ability to undertake the activities of daily living but did reduce social functioning, in that the plaintiff tended to isolate himself. He described the plaintiff’s condition and that the plaintiff’s psychiatric impairment had not, at that time, stabilised.
32 In a report dated 15 August 2014, Dr Jager opined that the plaintiff presented with a chronic Major Depressive Disorder, that that condition was a secondary consequence of the plaintiff’s pain, commenting:
“He is working full-time and he’s fit to do so within his physical restrictions.
I’ve learned little of his treatment in telling me he takes one antidepressant tablet a day. He could do with more. He really should be under the care of a consultant psychiatrist and his depression more aggressively treated with individual talking therapy and high dose antidepressant medication with antipsychotic medication as required.
He has a long-term illness and I expect it to require treatment indefinitely.”
33 I am satisfied, having regard to the description by Dr Jager of the plaintiff’s presentation over the period of his assessment of the plaintiff that there has been a significant change for the worse in the plaintiff’s presentation between August 2008, at which time Dr Jager opined that the plaintiff presented with a mild Major Depressive Disorder and the plaintiff’s presentation in 2014, in which Dr Jager opined that the plaintiff presented with a Chronic Major Depressive Disorder, which was likely to persist indefinitely and required aggressive treatment with high-dose antidepressant medication and antipsychotic medication as required.
34 In a report dated 2 September 2015, Dr Jager described the plaintiff as presenting, as at the time of his last assessment of the plaintiff in August 2014, with a Chronic Major Depressive Disorder with psychotic features, and commented:
“… the varying nature of psychosis means that its skewers the individual’s perception of reality.”
35 Dr Jager opined that that the plaintiff’s emotional distress was at all times caused by his experience of pain from the physical disorder, commenting:
“The plaintiff does experience significant emotional distress that is ongoing. It is my firm opinion that this distress is a function (not only of his constitutional nature) but of his ongoing musculoskeletal pain arising from his work injuries.”
36 It is clear that:
· Dr Jager takes no issue with the fact that the plaintiff’s current presentation is genuine and is causally related to his employment; and
· Dr Nathar holds the same opinion.
37 For the purpose of the current application, I am satisfied that little turns on the issue as to whether the psychiatric illness with which the plaintiff currently presents is secondary to his physical symptoms or primary in its aetiology. I make that statement having regard to the fact that the plaintiff continues to report symptoms of pain and that Dr Jager recognises the fact that the psychosis can skewer an individual’s perception of reality. I interpret that comment by Dr Jager to have application to the plaintiff’s perception of pain although Dr Jager does not specifically address that issue in his report.
38 Notwithstanding the differing views between Dr Jager and Dr Nathar as to the triggering mechanism for the plaintiff’s symptoms, given:
(i) the longstanding experience of each of these medical practitioners in opining as to the relationship between psychiatric illness and employment;
(ii) the opinion expressed by both practitioners as to the presence of that relationship in this instance and also as to:
· the genuineness of the plaintiff’s presentation; and
· the symptoms associated with the psychiatric illness with which he presents;
(iii) their agreement as to the plaintiff’s need for significant levels of prescription medication to manage his condition;
I am satisfied, having regard to the opportunity which each of these doctors have had to assess the plaintiff and chart not only the consistency of his presentation but also the severity of his symptoms, that the plaintiff has established the relationship between his current psychiatric illness and the employment the subject of the claim.
39 In making this finding, I prefer the evidence and opinions of these doctors to that of Dr Mendelson, who, in expressing his contrary opinion as to causation, does so from a position of considerable disadvantage given that he has seen the plaintiff only on one occasion in 2015.
40 Professor George Mendelson, in a report dated February 2015, opined:
(i)that the plaintiff did not present with any diagnosable mental disorder which would be attributed to his previous employment; and
(ii)that the plaintiff’s auditory hallucinations are not causing any overt problems to him and that he appeared to have adapted to those problems, and that his overall prognosis of his Schizophrenic Disorder involved the possibility of transient exacerbations of symptoms in his response to environmental stressors;
(iii)that the plaintiff presented with a Psychotic Disorder which should be monitored by a “consultant psychiatrist” so that appropriate antipsychotic medication can be recommenced without delay if there is any deterioration in his mental state.
41 Of the three positions taken by Dr Mendelson, whilst I accept the last of the three positions given the consistency between that position and those of Dr Nathar and Dr Jager:
· I reject the first position for the reasons I have referred to earlier; and
· I find the second position to be totally unpersuasive for the following reasons.
42 A regular feature of the plaintiff’s presentation to Dr Nathar and Dr Jager involved a description of hearing voices which disturbed him for the reason that they abused him and caused him to feel incompetent.
43 Dr Mendelson records the plaintiff as providing a history merely of hearing voices and comments on the basis of that history alone that those voices are not causing the plaintiff any overt problem and that he appeared to have adapted to them.
44 This was not the plaintiff’s viva voce evidence nor was it consistent with the history given by the plaintiff to Dr Nathar and Dr Jager. In my judgment, the plaintiff appeared quite agitated, as he described voices that he heard and the effect of those voices upon him. I find it unlikely that a careful examiner would have failed to elicit from the plaintiff a history equivalent to that which the plaintiff provided both to Dr Nathar and Mr Jager on this issue.
45 For the above reasons, and taking into account the consistency between the opinions expressed by Dr Nathar and Dr Jager as to the relationship between the plaintiff’s work and the mental illness with which he currently presents, I prefer the evidence of both Dr Nathar and Dr Jager upon that issue to that of Dr Mendelson.
Findings
46 In undertaking the exercise of judgment required of me in assessing the severity of the psychiatric illness with which the plaintiff presents, I find myself strongly influenced by the plaintiff’s presentation as he gave evidence, which I found to be quite unsettling.
47 Whilst I am satisfied that the plaintiff generally did his best to be truthful and responsive, he often smiled inappropriately when giving evidence, appeared at various times quite agitated, was occasionally argumentative and gave the impression of being disassociated with his environment. Whilst his case was opened and at the conclusion of his evidence, the plaintiff sat quietly to the extreme left-hand side of the Court, and in no way sought to draw attention to himself, but appeared to be restless, uncomfortable and upset. For all of these reasons, the plaintiff presented, in my opinion, as a person suffering from a mental illness of the severity described by Dr Jager and I have little doubt, given my observations of the plaintiff, that his fellow employees may be reluctant to engage with him.
48 It is put on behalf of the defendant that the plaintiff’s capacity for activity which involved his undertaking an IT course in 2008 is relevant to the plaintiff’s current capacity for activity.
49 I find that position to be unpersuasive, having regard to the period which has elapsed since the plaintiff undertook the course in 2008[17] and the clear deterioration in the plaintiff’s psychiatric state as evidenced in the alteration in the opinion expressed by Dr Jager over the period during which the plaintiff had been examined by him.
[17]I fix this timing by reason of the history obtained by Dr Jager in his initial report in August 2008.
50 Whilst in 2013 the plaintiff’s treating psychiatrist, Dr Mahalingam, regarded the plaintiff to be largely symptom-free, it is clear that at that time, the plaintiff’s psychiatric state was being stabilised by his use of both an antidepressant in the form of Avanza, and antipsychotic medication in the form of Seroquel.
51 It is clear from the comments made by Dr Mahalingam as at October 2013 that he anticipated, given the relative stability of the plaintiff’s presentation, that the management of the plaintiff’s psychiatric condition could be taken over by his general practitioner, who would continue his anti-depressive and anti-psychotic medication.
52 Notwithstanding the expectation by Dr Mahalingam in this regard, the plaintiff has received virtually no treatment for his psychiatric illness from his general practitioner, his antipsychotic medication was discontinued, and the plaintiff employed what could be described as a laissez-faire approach to his use of Avanza.[18]
[18] I infer from the statements by Dr Mahalingam in his report that he expected Dr Doss to maintain the plaintiff’s prescriptions of both Avanza and Seroquel. Given the comments by Dr Doss in his most recent report, it is clear that he has not done so and has little insight into the level of the plaintiff’s mental illness or his need for treatment. Further, given the plaintiff’s evidence as to his reluctance to consult his general practitioner in the presence of his belief as to the limited therapeutic benefit associated with such attendances (see the plaintiff’s evidence to which I have referred in paragraphs 7 and 9 above), I am satisfied that the status quo in this regard is likely to persist indefinitely.
53 My impression of the plaintiff was that whilst he was distressed by his emotional state, he had little insight into the cause of that condition or the need to employ a consistent and disciplined approach in his use of medication to deal with it.
54 The plaintiff clearly considered that all antidepressants were equally efficacious and that the dose rates of those antidepressants were largely irrelevant, given the practise which the plaintiff employed, which made little sense when assessed rationally, in deciding to:
· at times make use of the antidepressants prescribed for the use of his aunt; and,
· at other times, to employ half the dose rate of the Avanza prescribed for his use, in order to make the prescription last longer.
55 My strong impression of the plaintiff when he gave this evidence was that he was telling the truth as to his belief and that he regarded the practice to which I have referred above as being appropriate.
56 Notwithstanding the consistent statements voiced by Dr Nathar, Dr Jager and, to a lesser but consistent extent, Professor Mendelson, that the plaintiff requires management by regular psychiatric consultation and the prescription of antidepressants and antipsychotics, it is clear that Dr Doss has no insight into the plaintiff’s needs in this regard.
57 I am satisfied in these circumstances that it is unlikely that the management suggested by the consultant psychiatrists, in the form of anti-depressive and anti-psychotic medication to the plaintiff, will never be implemented and that the plaintiff’s current presentation as described by Dr Jager as involving a Major Depressive Disorder which is not being appropriately managed will persist.
58 It follows, in my opinion, that the plaintiff is likely to remain in the state of relative emotional limbo in which, as he described, whilst he has been able to maintain simple and undemanding employment, he does so in circumstances in which he behaves, on occasions, inappropriately and in doing so, causes his fellow workers to identify him in the derogatory manner in which he has described.
59 Whilst the plaintiff has travelled to China and Thailand, I accept his evidence that he first went to each of these countries on the basis of the repeated statements by his mother that he should find himself a wife; and as such, that those trips should not be categorised as being an indicator of the plaintiff’s capacity or tendency to travel for enjoyment.
60 In assessing the influence of the plaintiff’s mental illness, I give due weight to the fact that he has the capacity to engage in full-time work of a menial nature but also take account of his evidence as to his behaviour in the workplace.
61 I am satisfied that by reason of his mental state, the plaintiff requires long-term management with prescription-strength antidepressants and antipsychotic medication, which need attests, in itself, to the severe level of his illness, and that by reason of that illness, the plaintiff:
(i) has a dysfunctional relationship with his wife, both generally and intimately;
(ii) remains unmotivated and largely antisocial;
(iii) remains confused and distressed by reason of:
· the destructive nature of statements made by voices which he hears and the demoralising influence of those statements upon him;
· the impaired relationship which he has with his wife, both physically and emotionally.
· his inability to socialise and control his temper;
· his inability to motivate himself to engage in activity generally, and specifically to engage in the pastimes which he previously enjoyed, such as his involvement with radio-controlled cars, in respect of which he clearly derived a level of self-esteem, given his expertise in that activity.
62 In assessing the issue which arises in this case, namely whether the plaintiff's pain and suffering consequences when judged by comparison with other cases in the range of possible impairments, or losses of body functions may be fairly described as being severe, I am required to assess the consequences in terms of pain and suffering which the plaintiff's injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases.
63 My task has been described as involving a value judgment in which matters of fact and degree and of impression are operative: see Stijepic v One Force Group (Australia) Ltd & Anor;[19] and one in which I am required to:
[19][2009] VSCA 181
“… take into account not only what symptoms there are in what a worker is precluded from doing, but also what limits there are to symptoms, and to inhibitions upon activities. It is true that impairment is concerned with what has been lost, but the significance of what has been lost which bears upon the seriousness of the consequences may be informed to some extent by what is retained.”
See Dwyer v Calco Timbers Pty Ltd (No 2).[20]
[20][2008] VSCA 260
64 In applying that approach to my assessment of the evidence in this case, I am satisfied that it is appropriate to describe the psychiatric condition with which the plaintiff presents by reason of the consequences which that condition has upon the plaintiff’s life as having been “severe”, as that term is employed by the provisions of the Act.
65 In these circumstances I am satisfied that the plaintiff's impairment meets the high threshold test which is imposed by the Act and accordingly that the plaintiff has made out his case as to his entitlement to the leave sought in this proceeding.
66 I will hear the parties as to the precise form of the order which I should make in the proceeding, and also upon the issue of costs.
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