Pettiford v Toyota Motor Corporation Australia Limited
[2016] VCC 741
•3 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY APPLICATION
Case No. CI-09-01249
| SHAUN PETTIFORD | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMTED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 and 23 May 2016 | |
DATE OF JUDGMENT: | 3 June 2016 | |
CASE MAY BE CITED AS: | Pettiford v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 741 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – serious long-term impairment or loss of a body function – injury to the cervical spine – serious long-term mental or behavioural disturbance or disorder – severe psychiatric illness
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | - |
| For the Defendant | Mr I D McDonald | Minter Ellison |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages against the defendant in respect of the pain and suffering and pecuniary loss consequences of injury sustained by him in the course of his employment with the defendant over the period between April 2002 and October 2003.
2 In the application, the plaintiff relies upon an injury sustained to his cervical spine. In addition, the plaintiff alleges that he has developed a severe psychiatric illness.
3 On 16 March 2015, a Medical Panel convened by reason of a referral made by the Court on the application of the defendant in this proceeding, made findings that:
· the disability with which the plaintiff currently presents as a result of the condition present in his cervical spine was constitutional in origin, and was such that the plaintiff currently presented with no inability arising from the injury, which precludes him from returning to his pre-injury employment.
· having regard to the plaintiff’s alleged psychiatric injury alone, the plaintiff did not have an incapacity for work.
4 In the course of the proceeding, I have made a number of Rulings to the effect that, by reason of the findings of the Medical Panel, the plaintiff in this proceeding was limited only to seeking an order of the Court that he should have leave to commence a proceeding in respect of the pain and suffering damages arising by reason of his work-related psychiatric illness.
5 I explained my Rulings to the plaintiff at the time at which they were made and for the sake of clarity I will append the relevant transcript to my judgment.
6 In this application, the plaintiff relies upon two affidavits sworn by him on 30 October 2008 and 24 June 2013, together with an affidavit of his mother sworn 30 October 2008. In addition, the plaintiff relies upon radiology and medical reports appearing between page 107 and page 174 of the Court Book. The defendant relies upon medical evidence appearing between page 187 and page 214 of the Court Book. For the purpose of clarity, I append to these reasons, the Court Book Index which sets out the particulars of the material to which I have referred.
7 In the application, in addition to the evidence contained in the plaintiff’s affidavits, the plaintiff gave evidence from the witness box and was cross-examined. Having regard to the fact that the plaintiff is self-represented and that his most recent affidavit was completed in June 2013 in the course of the hearing, I gave the plaintiff the opportunity to give evidence in order to update the content of his affidavit and set out the symptoms with which he presents at this time, by reason of his psychiatric illness.
8 The evidence given by the plaintiff in the course of the proceeding and his cross-examination are matters of record, and are set out in the transcript, which I also append to these reasons. I do not propose to refer specifically to that evidence unless it is necessary to give context to, or to explain, my findings in this matter.
9 In the course of the proceeding, I explained to the plaintiff his obligation to provide evidence which satisfied me, on the balance of probabilities, that he presented with a “serious injury” as defined by s134AB(37) of the Accident Compensation Act 1985 (“the Act”), namely that his psychiatric injury is appropriately described as a –
“… permanent severe mental or permanent severe behavioural disturbance or disorder.”
10 It is clear that in this instance for the plaintiff to succeed in this application, the evidence must be such that I am able to identify the discrete effects of the plaintiff’s psychiatric illness which is both work related and not influenced by other factors including the symptoms caused by the condition in his neck.
11 In the application, the defendant contests the severity of the plaintiff’s psychiatric illness, whether it is a compensable injury and its permanence.
The Plaintiff’s evidence as to the effect of his current psychiatric illness
12 In the course of his evidence, the plaintiff said that his psychiatric illness was such that it caused him to be largely dysfunctional, in that he suffered from:
· Significant depression, such that the only time he was able to escape his symptoms was when he was sleeping;
· General lethargy, exhibited by his sleeping through the night before waking around 11.00am to go to the lounge room to go straight back to sleep until the early evening;[1]
[1]Transcript (“T”) 87 and 92
· Difficulty concentrating, such that it prevented him from completing further education and training programs;[2]
[2]T90
· Difficulty dealing with people, including getting frustrated and angry, such that he had no social life and no friends;[3]
[3]T92
· General feelings of irritability, frustration, a lack of self-confidence, of being overwhelmed, being uncomfortable around people and of being a failure;[4]
[4]T92 – 94
· Feeling worthless and that life is not worth living;[5] and
· A breakdown in familial relationships.[6]
[5]T93
[6]T94
Findings as to the Plaintiff’s general credibility
13 While the plaintiff presents with a number of serious criminal convictions, I found the plaintiff generally to be a forthright and eloquent witness.
14 I am satisfied that no aspect of the plaintiff’s criminal history causes me to doubt the fact that the plaintiff, in the course of his evidence, was doing his best to give a true account of the effect of his psychiatric illness upon him and the consequences for him, on a daily basis, as to that illness.
15 Equally, in assessing his evidence, I must take into account that the plaintiff, in representing himself, presented his case from his own perception of his illness, which is clearly subjective insofar as it deals with the relationship between the plaintiff’s current psychiatric disability and his work process with the defendant.
16 Further, in presenting his case, the plaintiff is faced with a considerable hurdle, given:
· my obligation to assess the consequences of the plaintiff’s psychiatric illness as at the present date; and
· the time gap associated with the fact that the most recent medical report as to the nature of the plaintiff’s psychiatric illness was authored by Dr Muhamed Nathar in July 2013.
17 Although I found the plaintiff’s evidence generally to be consistent, I formed the opinion that there was an inconsistency in the plaintiff’s description as to the disabling effect of his psychiatric illness upon his day-to-day life and the plaintiff’s evidence that:
· He had not sought treatment from a specialist psychiatrist since being discharged from the care of Dr Fotakis;
· He felt that his condition was such as to enable him to continue to apply for employment;
· He clearly possessed the ability to manage the presentation of the court proceeding in this instance.
18 My finding in this respect imposes some difficulty for me in fixing the extent of the impact of the plaintiff’s psychiatric illness upon his ability to function. However, for the reasons I will set out below, I do not consider that difficulty to be determinative of the outcome of this application.
The medical evidence
19 Much of the medical evidence relied upon by the plaintiff deals with the nature of the condition with which the plaintiff presents in his cervical spine and, in that sense, it is largely irrelevant to the nature, permanence and severity of any psychiatric illness with which the plaintiff presents.
20 Putting aside the issue as to whether the plaintiff’s condition in his cervical spine is in any way related to the work he undertook with the defendant, the medical evidence satisfies me that the plaintiff suffers from a significant degenerative condition in his cervical spine, which is responsible for causing him considerable neck pain, and symptoms extending from his cervical spine into his right shoulder and arm.
21 In the course of his closing submissions, the plaintiff relied heavily upon the evidence of his treating psychiatrist, Associate Professor Peter Doherty, who has authored a number of reports dated 15 March 2007, 16 April 2007, 7 May 2007 and 19 June 2007.
22 There can be no issue that when the plaintiff first presented to Associate Professor Doherty, he presented with a very serious condition, such that Associate Professor Doherty considered it appropriate that the plaintiff be admitted as an inpatient to the Melbourne Clinic for treatment of that condition. In a series of reports, Associate Professor Doherty describes the severe pain with which the plaintiff presented by reason of the condition in his neck and the treatment administered to the plaintiff in respect to the Major Depressive Disorder, which Associate Professor Doherty was satisfied, at that time, stemmed from a combination from his physical symptoms.
23 In his report of 16 April 2007, Associate Professor Doherty commented as to the effect of that condition upon the plaintiff in the following terms:
“… I believe he has been seriously unwell for sometime and he has no current capacity to undertake pre-injury duties or other potential duties at this point in time.[7]
[7]Defendant’s Court Book (“DCB”) 151
24 While this was the opinion of Associate Professor Doherty in May 2007, Associate Professor Doherty commented that the plaintiff was:
“… remarkably improved. The pain from his neck has abated. His depression has been relieved.
He is only on anti-depressant medication. His reliance upon painkillers has ceased.
I have referred him back to his general practitioner for ongoing care.”[8]
[8]DCB 153
25 In a report dated 19 June 2007, Associate Professor Doherty made the following comments:
“I believe Mr Pettiford has suffered from a depressive disorder, which has been adequately treated. I believe he is suitable to return to work.
…
I believe Mr Pettiford is now capable of returning to fulltime employment.
…
It is my opinion that Mr Pettiford … is now fit, from a psychological and psychiatric point of view, to return to work.
…
I treated Mr Pettiford for a depressive disorder. At the time of his discharge from hospital, and subsequently, I believe his depressive disorder has resolved. From that point of view, that is, from the psychological and psychiatric point of view, it is my opinion that it is unlikely that Mr Pettiford, on returning to work, should have a relapse of depression … I believe the risk of relapse of depressive disorder is extremely low.”[9]
[9]DCB 154-5
26 There is no issue that the plaintiff, at the present time, is not receiving treatment from a psychologist or psychiatrist, and that his current condition is managed by his general practitioner, Dr Fotakis. I note that in his reports of February 2008 and May 2013, Dr Fotakis, while commenting upon the significance of the plaintiff’s physical injury to his cervical spine, made no mention of the presence or significance of the plaintiff’s psychiatric illness.
27 Equally, there can be no issue that in late 2012, Dr Fotakis recognised the fact that the plaintiff presented with a psychiatric illness which required management, in that Dr Fotakis referred the plaintiff for such management to Dr Kirthi Kumar, a consultant psychiatrist.
28 Dr Kumar reported upon the plaintiff’s presentation to him in a report dated 28 February 2013. In the course of that report, Dr Kumar opined that the plaintiff presented to him with an exacerbation of his major depressive condition, the plaintiff “having been depressed since the injury”.[10] In identifying the cause of the plaintiff’s depression, Dr Kumar listed the following factors:
[10]PCB 159
(i) Loss of work;
(ii) His estrangement from his partner and children;
(iii) Non-acceptance of his WorkCover claim;
(iv) Past cannabis abuse;
(v) Strained relationship with his now deceased father
and commented that the most significant factors involved the plaintiff’s loss of work and estrangement.
29 At that time, Dr Kumar commented:
“The reality is that he is not able to return to preinjury duties or similar duties due to persisting pain condition. Depressive symptoms may well get better but i (sic) do not see him free of depressive and anxiety symptoms. He will not return to premorbid levels of functioning and psychological state.”[11]
[11]DCB 160
30 On 5 July 2013, Dr Muhamed Nathar, a consulting psychiatrist, expressed an opinion as to the plaintiff’s then presentation, and reported:
“I would have to say that the most important and significant contribution factor to his psychiatric problems persisting until now would have to be the significant physical injuries he has in his neck. Therefore, his psychiatric injuries would be consistent with the stated cause.
He probably will need to take anti-depressants for life.”
…
Overall, although there may be ongoing significant psychological deficits and continuing depression at the mild to moderate level as well as continuing moderate Chronic Pain Disorder, I expect that in the long-term his psychiatric conditions will not deteriorate but will remain stable at around the current level of functioning.
It would appear with his attitude, that his psychiatric injuries alone would not prevent him getting employment in any work within his physical limitations. However, the psychological component of his Chronic Pain disorder certainly would put limitations on the range of physical work he can do on top of any physical limitations. There is therefore an associated psychiatric work incapacity of around 25% which is likely to be permanent.”[12]
[12]DCB 167
31 In the series of reports between December 2005 and June 2014, Dr Paul Kornan, a consultant psychiatrist who examined the plaintiff on behalf of the defendant, diagnosed the plaintiff as presenting with an Adjustment Disorder, which in no way impacted upon the plaintiff’s ability to work in his pre-injury duties, or in an alternative work environment. While in his report of 3 March 2009 Dr Kornan opined that the plaintiff, at that time, presented with a psychiatric illness which was significantly related to pre-existing non-work-related factors, he also opined that the plaintiff was currently unfit for work.
32 In his final report of 12 June 2013, Dr Kornan opined, having had access to the reports of Associate Professor Doherty and Dr Kumar, stated:
(i)that the plaintiff’s current psychiatric difficulties had no relationship to his initial employment with the defendant; and
(ii)that from the psychiatric viewpoint, alone, the plaintiff was fully fit for work.
Findings
33 Given the medical evidence to which I have referred as to the nature and effect of the plaintiff’s psychiatric illness, I am satisfied that the evidence as to that illness establishes, quite categorically, that at the time at which the plaintiff:
· presented to Associate Professor Doherty, he was suffering from a severe and debilitating psychiatric illness which was not stable and required careful management;
· was discharged from the care of Associate Professor Doherty, he had recovered substantially from the disabling effect of his psychiatric illness such that he was fit for work on psychiatric grounds and was no longer suffering from work related depression.
34 I am further satisfied that the extent of that recovery persisted such that since that time and up to the time at which the plaintiff last saw Dr Kumar, Dr Nathar and Dr Kornan, the plaintiff’s psychiatric illness did not interfere with his capacity to work.
35 It follows that I am satisfied, even independently of any bar to the plaintiff’s entitlement to seek an order for leave to commence a proceeding against the defendant in respect pecuniary loss damages (a bar which clearly arises by reason of the findings of the Medical Panel in this instance), there is no medical evidence in support of the position that the plaintiff’s psychiatric illness currently operating so as to preclude him from work.
36 Having regard to the evidence given by the plaintiff as to the effect of his current psychiatric illness, insofar as it impacts upon his social and recreational activities, namely that it causes him to be largely dysfunctional in his life such that he has withdrawn from life and spends much of his time sleeping, it is clear that the plaintiff’s level of dysfunction has increased markedly from that which was present at the time of the discharge of the plaintiff’s management by Associate Professor Doherty in mid 2007, and Dr Kumar in January 2013.
37 There is however no medical evidence available to me which allows me to make a finding as to whether this deterioration is in any way related to or caused by the plaintiff’s employment by the defendant or the defendant’s system of work.
38 Further, the repeated reference in the medical evidence, particularly from Dr Kumar and Dr Nathar, to the effect that the plaintiff’s symptoms at the time of their respective examinations of the plaintiff during 2013, were caused by a number of factors including:
(i)The plaintiff’s physical pain – which by reason of the findings of the Medical Panel is not causally related to the work process undertaken by the plaintiff in the course of his employment with the defendant;
(ii)His estrangement from his partner and children – which I am satisfied the evidence establishes is unrelated to the plaintiff’s work process with the defendant;
makes it impossible for me to identify:
·the nature and extent of any influence which the plaintiff’s work process with the defendant currently has upon his current presentation and psychiatric illness;
·the discrete influence, if any, which the plaintiff’s psychiatric illness has upon his ability to function in the absence of the influence of other matters which the structure of the Act requires me to ignore.
39 As to the latter issue, given that:
(i)a number of medical practitioners have commented upon the relationship between the plaintiff’s physical symptoms and his psychiatric injury; and
(ii)it is clear that the plaintiff is obliged, in this instance, to establish the extent to which any impairment of his level of functioning arises solely by reason of his psychiatric illness
I am not satisfied that the evidence in this instance allows such an analysis to take place, or such a finding to be made. For this reason it must follow that the plaintiff’s application must fail.
40 Independently of the above finding, in the course of his evidence, the plaintiff clearly identified the fact that he had not sought treatment from a psychiatrist with respect to his current illness and explained his decision not do so in the following terms:
“I got approval to see Dr Kumar by Cambridge, and then I started seeing him and then a month after, or three months later, they just stopped paying, so I’ve not been able to see any psychiatrist since him, Your Honour, yeah. And the reason why I won’t go and see the five free visits we get from the government is because I know my psych’s way more than five visits worth to get fixed.”[13]
[13]T125
41 I am satisfied, given the history of the improvement in the plaintiff’s condition whilst he was under the care of Associate Professor Doherty, that with appropriate treatment, the impact of the plaintiff’s work-related psychiatric illness upon his ability to function could, at that time, be considerably reduced.
42 I am further satisfied that the plaintiff, in giving the evidence to which I have referred to above, was recognising the fact that his current level of incapacity arising from the presence of his psychiatric illness had the potential to be improved by effective treatment. For that reason, I am not satisfied that the plaintiff has established that the current consequences of his illness are in any way permanent.
43 Given that in an application of this type the plaintiff has an obligation to establish:
· the permanence of the condition with which he presents; and further
· that he presents with an injury arising out of or in the course of his employment with the defendant;[14]
I am not satisfied, for the reasons set out above, that the plaintiff has established the two prerequisites which he must be established before he is entitled to the making of the order he seeks in this application.
[14]See s82 of the Act
44 Independently of that finding, even assuming that the plaintiff had satisfied me that his current disabilities are solely caused by the effect of a work-related psychiatric illness (which for the reasons which I have previously set out, he has failed to do), when account is taken of the fact that:
(i) the plaintiff’s psychiatric illness:
·is not so severe that it impacts in any way upon his ability to engage in employment or to continue to make application for employment within his physical limitations;
·allows the plaintiff to function at a level at which he demonstrated in providing his evidence and submissions in the course of this application, namely, as an articulate, reasonable person who was able to process and respond appropriately to the issues and questions put to him;
(iii)the severity of the plaintiff’s symptoms have not been such as to motivate him to seek treatment from a specialist psychiatrist, notwithstanding his experience of having achieved a significant improvement in his symptoms and level of functioning during the relatively short periods in which his condition was managed by Associate Professor Doherty between March 2007 and June 2007;
(iv)the plaintiff’s condition is such that he has been able to maintain a relationship with his children, in particular, his son, which he accepted, in the course of his evidence, involved the position in which he related normally to his son;
I am satisfied that while it might be said that the work-related component of his current psychiatric illness might be described as being responsible for an impairment, a function which he has appropriately described as being serious, in that it meets the definition of being more than significant or marked and as being at least very considerable, I am not satisfied that the plaintiff has demonstrated that the level of impairment generated by his injury meets the definition of severe, as employed by the Act.
45 For these reasons I am not satisfied that the plaintiff is entitled to the leave which he seeks in this application.
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