Pfeifer v Ceres National Foods Pty Ltd (trading as Pureharvest)
[2022] VCC 472
•14 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02517
| WILLIAM RAYMOND PFEIFER | Plaintiff |
| v | |
| CERES NATIONAL FOODS PTY LTD (trading as PUREHARVEST) (ACN 005 851 436) | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 21 March 2022 | |
DATE OF JUDGMENT: | 14 April 2022 | |
CASE MAY BE CITED AS: | Pfeifer v Ceres National Foods Pty Ltd (trading as Pureharvest) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 472 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric condition – pain and suffering – loss of earnings – side effects of medication on work capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Turner v Love (1995) 21 MVR 314; Richter v Driscoll (2016) 51 VR 95; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable v Abdulle [2009] VSCA 170; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494;
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr L B R Allan | Carbone Lawyers |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HIS HONOUR:
Introduction
1The plaintiff, William Pfeifer, is a 45-year-old man who overcame a learning disability requiring special assistance at school to complete Year 11 at Warrigal Regional College. Following school, he commenced, but did not finish, an engineering course at TAFE due to his difficulties with reading and writing, later completing a TAFE course in welding.
2Mr Pfeifer commenced employment with the defendant, Ceres National Foods Pty Ltd, as a cleaner/labourer in March 2017, working on average 40 hours a week. Throughout some of the period that he was working for the defendant, he was also working at an egg farm packing boxes for another 12 hours per week.[1]
[1]Affidavit of Mr Pfeifer sworn 9 February 2021, paragraph [14], Plaintiff’s Court Book (“PCB”) 6
3Prior to his role with the defendant, Mr Pfeifer had stable work in various manual labouring roles,[2] including from about 2012 to February 2017 as a farmhand/handyman at Floraknoll Farm.
[2]Agreed chronology; Affidavit of Mr Pfeifer sworn 9 February 2021, paragraphs [4-13], PCB 5-6
4Mr Pfeifer alleges that during 2017 and 2018, he was subjected to bullying and harassment in the course of his employment with the defendant. Finding it increasingly difficult to cope, he ceased work with the defendant on or about 20 July 2018. Save for a short period during which he continued his part-time work at the egg farm, he has not worked since.
5By Amended Originating Motion filed 9 August 2021, Mr Pfeifer seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (c) of the relevant definition of “serious injury”,[3] both for pecuniary loss and for pain and suffering consequences. For the reasons that follow, I grant his application, both in respect of pecuniary loss and pain and suffering.
[3]Permanent severe mental or permanent severe behavioural disturbance or disorder
The issues
6It is not in dispute that Mr Pfeifer sustained a psychiatric injury – most likely an Adjustment Disorder with Mixed Anxiety and Depression – in the course of his employment with the defendant.
7Nor is it in dispute that by reason of his injury, Mr Pfeifer is not fit for his pre-employment duties with the defendant.
8On the critical issue, Senior Counsel for Mr Pfeifer submitted that, as a consequence of his permanent, severe psychiatric condition, Mr Pfeifer has no capacity for any employment.
9The defendant opposed the relief sought on the basis that:
(a) Mr Pfeifer’s psychiatric condition was not permanent, in the sense that it had improved over time, and was “likely to improve” in the future;
(b) Mr Pfeifer was capable of suitable employment with an alternative employer, such that he could not establish the requisite loss of earnings of 40 per cent or more of his “without injury” earnings; and
(c) the pain and suffering consequences to Mr Pfeifer did not satisfy the narrative test.
10Counsel for the defendant submitted that despite not having worked since December 2018, Mr Pfeifer had residual capacity to perform any employment for which he was suitably trained on a full-time basis, having regard to his background, age and experience.
11Whilst Mr Pfeifer’s credibility was in issue, and I was troubled by some of his answers under cross-examination, overall I accept that Mr Pfeifer did his best to provide honest answers. For the reasons set out at the end of this judgment, I find that any difficulty with the reliability of his evidence was not determinative of this application.
12Before turning to the evidence, I will briefly set out the applicable principles in the context of the issues in dispute.
Statutory scheme and relevant principles
13Mr Pfeifer bears the onus of demonstrating that his psychiatric condition is permanent, and that the consequences are severe.
14The principles in applications of this type are well known and I need not set them out in any detail. In short, I must consider whether the consequences to Mr Pfeifer, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe, in accordance with the narrative test set out in sub-sections 325(2)(b) and (d) of the Act, and the principles in Mobilio v Balliotis.[4]
[4][1998] 3 VR 833
15To satisfy the requisite threshold in relation to pecuniary loss, I must also be satisfied that Mr Pfeifer has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in sub-sections 325(2)(e), (f) and (g) of the Act.
16The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[5]
[5]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
17The parties agreed that it was not necessary for the Court to determine a precise figure for notional “after injury” earnings to be satisfied one way or the other as to whether Mr Pfeifer had established the requisite loss of earnings of 40 per cent or more. As to the question of pecuniary loss, the application falls for determination on a binary basis: either Mr Pfeifer did not have any capacity for employment at all, in which case he established the requisite loss of earning capacity; or he had capacity to engage in suitable employment on a full-time basis, in which case leave would not be granted to commence proceedings against the defendant for pecuniary loss.
18For the purposes of the application, I proceed on the basis of Senior Counsel for the plaintiff’s submission that Mr Pfeifer’s “without injury” earnings are best represented by the amount as disclosed in his most recent taxation return,[6] and that if Mr Pfeifer retained capacity for suitable employment on a full-time basis, his “after injury” earnings would have been in a similar amount.
[6]In the financial year ending 30 June 2018, Mr Pfeifer earned work-related income of approximately $51,195.00: plaintiff’s affidavit sworn 9 February 2021, [63], (PCB 14)
19I have considered the evidence in accordance with the principle that the consequences of a psychiatric injury for an injured person need not necessarily be confined to symptoms which it directly produces. Those consequences may include the need for treatment, its type and frequency, and any past or future side effects it might have, including the side effects of medication used to relieve symptoms of the psychiatric condition.[7]
[7]See Turner v Love (1995) 21 MVR 314 at 323-4 per Ashley and Hedigan JJ
20I have had regard to the principles in Richter v Driscoll[8] and Harris v DJD Earthmoving Pty Ltd[9] in assessing whether Mr Pfeifer has retained a capacity to engage in suitable employment.
[8](2016) 51 VR 95 at paragraphs [74]-[97]
[9][2016] VSCA 188
21In considering Mr Pfeifer’s evidence, I have had regard to the authorities in dealing with credit on occasions of this type to the effect that the Court must analyse and give appropriate weight to all the evidence, including objective evidence;[10] further, that an adverse finding concerning credibility is not, by itself, sufficient to justify the refusal of the serious injury application.[11]
[10]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
[11]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph[49]
The evidence
22Mr Pfeifer was called to give evidence, and I granted leave for his current treating psychiatrist, Dr Vinit Mathur, to be cross-examined. Extracts from the Court Books of both Mr Pfeifer and the defendant were tendered, comprising various affidavits, medical records, reports from treating health practitioners, medico-legal reports, vocational reports, and other material. I have had regard to all documents tendered in reaching my decision.
Loss of earnings
23Mr Pfeifer has not worked in his pre-injury employment as a consequence of his psychiatric injury since July 2018, or at all since December 2018, and the defendant accepts that Mr Pfeifer cannot return to his pre‑injury employment.
24In my view, that constitutes a “severe” consequence to him, and the narrative test is satisfied. Subject to the question of suitable employment, this would be sufficient to establish the 40 per cent loss of earnings threshold.
25The question of whether Mr Pfeifer has capacity for “suitable employment” is informed by the medical evidence tendered and adduced during the application.
26In addition to reports from his treating doctors, to which I will return shortly, the plaintiff tendered reports of consultant psychiatrist, Dr Justin Lewis, dated 18 June 2020, 8 February 2022 and 18 February 2022.[12] In Dr Lewis’ opinion, Mr Pfeifer:
(a) met the criteria for a Chronic Adjustment Disorder with depressive features of mild severity, with no capacity to undertake pre-injury duties for the foreseeable future. This lack of capacity to undertake pre-injury duties was in the context of lowered mood, poor motivation, eroded confidence and impaired self-esteem;[13]
(b) had maintained a limited capacity for work (up to two days per week) on a self-employed basis, thereby avoiding a traditional employer/employee arrangement which was associated with marked levels of anxiety.
[12]PCB 93, 102 and 113
[13]PCB 102, report of Dr Lewis dated 8 February 2022
27The defendant relied on the reports of Dr Chris Grant, in particular, dated 13 August 2020 and 22 July 2021.[14] In Dr Grant’s opinion, Mr Pfeifer suffered from a recurrent Depressive Disorder (in partial remission with treatment) with no capacity to return to pre-injury duties, but with a current capacity for alternative employment.
[14]Defendant’s Court Book (“DCB”) 15 and 22 respectively
28His opinions included that Mr Pfeifer did not have capacity to return to pre-injury duties with the defendant “because of his phobic anxiety about the workplace”. That capacity was noted to be indefinite, unlikely to change with the passage of time or further treatment.
29On the central issue in the application, Dr Grant opined in his report of 22 July 2021 that, “His obstinacy about returning to work is attitudinal and does not reflect the severity of his depression”.[15]
[15]DCB 26
30In his most recent report of 14 February 2022, Dr Grant stated that employment options (identified in a vocational assessment from Co-Work dated 8 October 2021[16]) of a nursery person, vehicle detailer, gardener, handyperson or mechanic’s assistant were all within Mr Pfeifer’s current capacity, on a full-time basis.[17]
[16]DCB 42
[17]DCB 28
31Whilst concurring with Dr Grant’s opinion that Mr Pfeifer has no capacity to return to pre-injury duties with the defendant, Dr Lewis is in direct conflict with Dr Grant in relation to Mr Pfeifer’s retained work capacity to return to pre-injury duties with a different employer. Dr Lewis’ supplementary report dated 18 February 2022[18] states:
“I do not share Dr Grant’s view that Mr Pfeifer has the capacity to return to pre-injury duties with a different employer. My view is that Mr Pfeifer will simply be unable to return to a traditional employer/employee arrangement so long as he contends with distressing overgeneralised feelings of mistrust and expectations of further workplace harassment. The extent of Mr Pfeifer’s feelings of mistrust was well captured and commented on in the report of Ms McLeod (CoWork report[19]).
I concur with Dr Grant that Mr Pfeifer has a capacity for suitable employment. He has the capacity to undertake work of a self-employed nature up to two days per week. He would be incapable of working in excess of two days per week in the context of ongoing described motivational difficulties and lowered energy.”[20]
[18]PCB 113
[19]Co-Work report dated 8 October 2021, DCB 42
[20]PCB 116
32In an early report to the WorkCover insurer dated 5 December 2018,[21] consultant psychiatrist, Dr Richard Prytula’s, opinion was that:
“The worker needs more time and treatment [for his condition of an Adjustment Disorder with mixed Anxious and Depressed mood and significant features of traumatisation]. He has no capacity currently. His capacity should return but this may take several months at least and potentially around six months.
His prognosis in the future is generally reasonable provided he continues to receive necessary psychiatric treatment.”
[21]PCB 41, 49
33I place little weight on the opinion of Dr Prytula, it being expressed over three years ago. The more recent reports and other evidence are of more assistance in the task of assessing Mr Pfeifer’s current capacity.
34On the critical question of capacity for suitable employment, there were differing opinions in the evidence from Mr Pfeifer’s treating doctors over time. I am required, however, to assess Mr Pfeifer’s capacity for employment as at the date of the hearing of this application.[22]
[22]See s325(2)(e)(i) of the Act
35The relevant opinions included:
(a) Dr Rajiv Siotia, Mr Pfeifer’s treating psychiatrist from 30 November 2018 to 23 June 2020. His report dated 17 August 2020[23] included a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood; and opinions that whilst Mr Pfeifer had no work capacity, this was not permanent, stating:
[23]PCB 64
“For now, Mr Pfeifer is not fit to work. He reports feeling anxious, a lack of energy, lack of concentration and low motivation amongst other symptoms.
...
... I would suggest a review in 2-3 months’ time. He was commenced on a new antidepressant and it remains to be seen if he has any improvement. He was doing well on sertraline but had to stop due to side effects.”[24]
(b) Dr Mathur, Mr Pfeifer’s treating psychiatrist every four twelve weeks, from 4 August 2020 to date. Dr Mathur’s report dated 29 December 2020[25] included his opinion that Mr Pfeifer had no current capacity to perform any type of employment, likely to last for the foreseeable future. His diagnosis was of an Adjustment Disorder with Anxiety and Depression, with a differential diagnosis of Major Depressive Disorder with Anxiety;
(c) In his up-to-date report of 5 March 2022,[26] Dr Mathur noted that Mr Pfeifer’s symptoms of Depression and Anxiety had improved; however, he is still lacking motivation and confidence. In his opinion:
“Mr Pfeifer does not have a current capacity to perform any type of employment and his incapacity is likely to last for the foreseeable future.
…
... In [sic] long term, his psychiatric condition is likely to relapse in response to stressors in his life or anything which triggers his past work related memories.”[27]
[24]PCB 68
[25]PCB 76
[26]PCB 86
[27]PCB 88-89
36There was no up-to-date report from the long-term treating general practitioner, Dr Vinothan Nagarajah. However, the principal treatment of Mr Pfeifer’s psychiatric condition since August 2020 has been provided by Dr Mathur, and I had the benefit of both his up-to-date report, and viva voce evidence.
37Dr Mathur was cross-examined appropriately as to his view of Mr Pfeifer’s residual capacity; whether or not in his opinion Mr Pfeifer’s symptoms of Depression and Anxiety had improved over time, and would likely improve in the future; and whether he could manage full-time employment in a supportive work environment.
38There was no attack made on the credit of Dr Mathur.
39Noting appropriate concessions,[28] Dr Mathur’s evidence overall was clear: even though Mr Pfeifer had stated to Dr Mathur that he would like to return to employment in some capacity, in reality he was very vulnerable to ongoing stress, and did not have the required mental capacity to work for another employer; or conduct a business in a self-employed capacity.
[28]For example: “…as long as he’s not exposed to any kind of stressors he will remain – we can – we can hope he will – he will be stable”.
And, indeed, improve?---“Yes.” Transcript (“T”) 48
40By way of illustration, in cross-examination, Dr Mathur gave the following evidence:
“Counsel:If he were offered work in a supportive environment there’s every reason to think he’d be able to manage that, isn’t there?
Dr Mathur:Number one, his confidence and his motivation to start working should be there, which is not there. Secondly, he needs to have a clinical – he will need to be able to negotiate with the people and also be with the day-to-day stressors at workplace which I doubt he will have.”[29]
[29]T57
41The following exchange also took place between counsel for the defendant and Dr Mathur:
Q:“Doctor, circling back to the attendance on the 15th of February, your last attendance; you obtained the history, did you not, that Mr Pfeifer does not want to return to work for his previous employer?---
A:Yes.
Q:And you regard that as entirely reasonable, don’t you, because that relationship has irretrievably broken down, at least from Mr Pfeifer’s perspective?---
A:Yes.
Q:Did you also obtain the history that Mr Pfeifer would like to work for himself?---
A:Yes.
Q:And that’s something, Doctor, isn’t it, that you’d endorse?---
A:Yes. He – he mentioned that he wanted to work for himself, he wants to start his own business of paint (indistinct) sandblasting industrial business. He did say that.
Q:And did he tell you what steps he’d taken to get the business done?---
A:He had no understanding of that, that how he’s going to start the business and how he’s going to do that because he has reading and writing – he has dyslexia and he’s reading and writing is a learning disability so he has that problem, but he said that he wants to do that business which I understand that his understanding about starting his own business, from the way he – the way he is - the way he is – his mental state is fragile, with a small amount of stress he can go downhill, so even though he was saying that I thought it’s not - probably it’s not going to work out.
Q:I see; and that was a present intention that he expressed to you, wasn’t it, that’s something that he was thinking about doing in the near future, correct?---
A:Yes. He wants to do that, yeah, he did say that he wanted to do that, yeah.
Q:And in the near future, correct?---
A:Yes.
Q:But you’ve got some reservations, you say, Doctor, about Mr Pfeifer operating his own business because of his dyslexia?---
A:Yes, look, I had my doubt looking at his mental state and looking at the way he is, whether he will be able to sustain that – what he mentioned that because of his past experience with his employer the way he was treated over there, he – he now cannot do – cannot work with anyone, and he would rather prefer doing his own business like what he mentions this sandblasting business.”[30]
[30]T53, L11 – T54, L21
42I accept Dr Mathur’s evidence that:
(a) Mr Pfeifer does not have the motivation and confidence required to manage any employment, even in a supportive environment;[31]
(b) any stability in his symptoms was reliant upon there being no stress;[32]
(c) it did not take much for Mr Pfeifer to lapse into increasing symptoms of depression and anxiety,[33] and that his mental state remained fragile,[34] breaking down with any kind of stress;[35]
(d) Mr Pfeifer would not cope with any form of self-employment due to his literacy issues and his psychiatric condition. Dr Mathur could not think of any form of self-employment likely to reduce the level of stress to the extent that it might permit him to work;[36]
(e) he could not confidently predict that Mr Pfeifer could return to work without the risk of aggravation, exacerbation or deterioration in his level of psychiatric symptoms;[37]
(f) his present functioning depended in part on a dosage of mirtazapine (60 milligrams) which causes morning drowsiness perhaps lasting through to midday, a recognised side effect of this treatment;[38]
(g) without medication, regular psychological treatment and supportive psychotherapy, Mr Pfeifer’s functioning and mental state would decline;[39]
(h) Mr Pfeifer would not be able to work in any environment where he might be subjected to work supervision, time constraints or criticism of his performance at work;[40] and
(i) he has no retained capacity to turn up to work reliably.[41]
[31]T57-58
[32]T59
[33]T56
[34]T54-57, 60
[35]T55
[36]T60
[37]T59
[38]T60
[39]T60
[40]T61
[41]T59-61
43In my view, the evidence establishes that Mr Pfeifer would be unable to work on a full-time basis being subject to supervision, direction and control of another employer, let alone establish a new business which he lacks the skills and capacity to do.
44I find that there is no reasonable prospect of Mr Pfeifer obtaining or retaining stable full-time employment having regard to his fragile mental state and the effect of his medication upon him – either in isolation, and certainly both in combination, would prevent him from returning to full-time employment.
45A return to suggested employment that might aggravate, exacerbate or result in a deterioration in Mr Pfeifer’s psychiatric condition supports a finding that he should not be regarded as capable of returning to pre-injury duties.[42] This issue is not addressed by Dr Grant in any of his four reports.
[42]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 at paragraph [69]
46Ultimately, I accept Dr Mathur’s evidence as to Mr Pfeifer’s retained earning capacity over that of Dr Grant.
47Dr Mathur had the benefit of seeing Mr Pfeifer over multiple regular consultations in person over a period of 16 months, encompassing his response to several stressors over time. Dr Mathur saw Mr Pfeifer most recently on 15 February 2022. Dr Grant saw Mr Pfeifer on two occasions, being 13 August 2020 (via videolink) and 22 July 2021 (Telehealth). Dr Grant does not address in terms the question of Mr Pfeifer’s stability, and noted improvement in his symptoms, in the context of his ongoing vulnerability to stress; nor did he have the benefit of the history taken by Dr Mathur of Mr Pfeifer’s episodical responses to stress in his life, and the subsequent increase in his symptoms of anxiety and depression. As Dr Mathur said:
“… here we have a man who has symptoms of depression and anxiety which started after his work-related stress, then we started him on medication, his symptoms are improving, but as I said before, any kind of a stress in his life can tip over his – his symptoms that will lead to increasing his anxiety and depressive symptom, that will last for a variable period of time and then he recovers.”[43]
[43]T48
48Despite the binary manner in which the application was conducted – the defendant putting its case squarely on the basis that Mr Pfeifer had retained capacity for full‑time suitable employment – there is evidence that Mr Pfeifer’s current capacity lies somewhere between no residual capacity for any employment (Dr Mathur), and self-employment in a suitable role for up to two days (the opinion of Dr Lewis).
49I need not resolve this conflict, however, as a retained capacity to work up to two days per week in self-employment would likely represent a notional loss of 60 per cent of pre-injury capacity.
50This approach accords with the observations of J Forrest J in Acir v Frosster Pty Ltd[44] that s134AB of the Accident Compensation Act 1985 is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”
[44][2009] VSC 454 at paragraph [171]
51The parties agreed that Mr Pfeifer has no capacity to return to employment with the defendant. Based on the totality of the evidence of his treating doctors, and Dr Lewis, and having observed Mr Pfeifer in the witness box, I am comfortably satisfied that Mr Pfeifer is unlikely to be able to undertake any form of employment on a reliable basis where he is required to operate under the direction and control of another employer, or interact with other persons, either in the context of setting up and managing his own business, or in an employer-employee relationship.
52I find, on the evidence as a whole, that Mr Pfeifer, by reason of his psychiatric condition and mental fragility, has no realistic capacity to return to full-time employment which might otherwise be suitable, having regard to his age, education and skills, work experience or other matters.[45] Further, that his loss of earning capacity is at least 40 per cent.
[45]Richter v Driscoll (supra) 51 VR 95
Is the loss of earning capacity permanent?
53I accept that although it has improved somewhat over time, Mr Pfeifer’s psychiatric condition is now stable, and permanent. This stability is dependent upon his ongoing treatment and medication, with the reality that his symptoms of depression and anxiety will increase for a variable period of time with any type of stress. I accept Dr Mathur’s evidence that provided Mr Pfeifer is not exposed to any type of stressors, “we can hope he will … be stable”.[46] There is a degree of unreality afflicting any proposition that he is “likely to improve” because this depends upon him not being exposed to any kind of stressors. As Dr Mathur said:
“... he will stay in a – in a good state of mind as long as he’s not subjected to stressors in his life, that would be at his home, that – it could be because of his friends, that could be because at his in the future what you are suggesting is … a supportive workplace. So like any kind of stress what I’m getting [at] is can tip him off.”[47]
[46]T48, Line (“L”) 29
[47]T59, L14
54Accordingly, I am satisfied that Mr Pfeifer ought be granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages for his psychiatric injury sustained in the course of his employment with the defendant.
55It follows that he should also be granted leave to recover damages for non-pecuniary loss.[48]
[48]A plaintiff who satisfies the loss of earning capacity requirements of s325 of the Act is entitled to bring proceedings for the recovery of damages for both pecuniary loss and pain and suffering damages: Advanced Wire & Cable v Abdulle (supra) at paragraph [63]; see also Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494 at 511, paragraph [50]
Pain and suffering
56Whilst the severe consequences to Mr Pfeifer in terms of his loss of earnings entitle him to be granted leave in respect of pain and suffering, I am also satisfied that the consequences of Mr Pfeifer’s psychiatric condition are otherwise severe to him in terms of pain and suffering.
57Mr Pfeifer has been under medical care since he attended his general practitioner, Dr Lewis, on 23 July 2018 for workplace stress, bullying and being unable to concentrate. He was referred to a psychologist and, in turn, for psychiatric assessment. He has been under continuous medical care, including antidepressants, since 23 July 2018.[49] Mr Pfeifer has not worked for Ceres Natural Foods or any other employer since late 2018, and all of his treating doctors certify him as having no current work capacity. The defendant also accepts that the plaintiff cannot return to his pre-injury employment.
[49]Affidavit of Mr Pfeifer sworn 9 February 2021, paragraphs [32]-[43]; further affidavit of Mr Pfeifer sworn 2 March 2022, paragraphs [3]-[7]
58Whilst there was some debate as to the extent to which Mr Pfeifer was unable to perform his activities of daily living, I am satisfied that he continues to receive significant assistance from his wife which, without injury, he would not require. A passionate car enthusiast, he is unable to attend, as he used to do, activities with a car club and is unable to continue with his hobby of car restoration, which has devastated him. He struggles with sleep and has fluctuating mood and libido. The consequences of his treatment, not only relevant to his residual work capacity, severely affect his day-to-day life in that he is often groggy until noon as a consequence of his present medication dosage (mirtazapine, 60 milligrams).
59His evidence, unchallenged, was that he feels alone, lost, anxious, stressed and depressed, and that he does not recognise the man he is today.
The Plaintiff’s credit
60A significant attack was made on the credibility of Mr Pfeifer, particularly in relation to the question of his residual work capacity. It was submitted that his “attitudinal obstinacy” in considering a return to work in suitable duties was not an incident of his psychiatric illness, but rather stubbornness; that this attitude “will change once this case settles”; and, relevantly, that this stubbornness was borne out by Mr Pfeifer’s evidence in the witness box.
61I accept that Mr Pfeifer has a longstanding psychiatric condition and the experience of being cross-examined was a difficult and stressful process for him. At times he was visibly agitated and struggled to understand questions. More generally, he appeared guarded and mistrustful of the process.
62In assessing Mr Pfeifer’s credit, I take into account that under cross-examination, Mr Pfeifer frankly conceded that:
(a) he understood that a return to work might affect his claim for damages for economic loss;
(b) he had ceased his doctor-patient relationship with his treating psychiatrist, Dr Siotia, in June 2020 because Dr Siotia had asked him to consider returning to some form of work, and that this had made him angry. He was concerned that if he returned to work it might affect his court case, which he thought Dr Siotia was undermining;[50]
(c) he had a broad set of skills as a welder, handyman, labourer and farmhand, including performing maintenance on motor vehicles, that he was able to exercise until recently.
[50]T9
63I have also had regard to comments made by the psychologist who treated Mr Pfeifer on a weekly basis from 30 October 2018 until 17 December 2018, who:
“… gained the impression that his intellect would have been in the low average range. He was very softly spoken throughout and some of his responses to my questions suggested a level of naivete.
… Bill did not appear to demonstrate good judgement or insight. I found him to be cautious, possibly even very prudent on occasions and on several topics ... .”[51]
[51]Reports of Charles Huson dated 25 February 2019 (PCB 51) and 20 May 2020 (PCB 58)
64There were times during cross-examination when Mr Pfeifer’s denials of prior statements he had made about returning to work in the future were implausible. For example Mr Pfeifer denied telling Ms Jessica Linnell, a rehabilitation consultant with Nabenet, that he “wanted the court proceedings to be finalised before returning to work in future”[52] in the face of this history recorded in her report.[53] The reason for this denial was not explained. One possibility is that he considered that revealing his intentions regarding a return to work would not assist his case.
[52]T10, L11-12
[53]Vocational Assessment Report of Nabenet dated 5 October 2020, DCB 29 at 30
65The attack on Mr Pfeifer’s credibility did not extend though to a submission that it rendered the histories provided to the various doctors – in particular to Dr Mathur – inaccurate or exaggerated, such that there was no reliable medical evidence about his retained capacity. Rather, the defendant submitted that Mr Pfeifer has retained a capacity for a wide range of full-time employment, and that he has failed to return to work not by reason of his mental state but because of what Dr Grant describes as attitudinal obstinacy, which will change as soon as his case settles.
66I reject those submissions. Dr Mathur’s evidence establishes that the true cause of Mr Pfeifer’s failure to return to work is motivational, in the sense that it is an incident of his psychiatric condition, not stubbornness.
67Although apparent that Mr Pfeifer has struggled in the past to come to terms with the notion of a return to work, more recently he has discussed it with his current psychiatrist, Dr Mathur. I accept Mr Pfeifer’s evidence that he would like to return to employment in the future, in a self-employed capacity, on a limited basis.[54] I accept his evidence that his work was important to him, as was his ability to provide for and support his wife.[55]
[54]T23-25; see also T8-9, 11
[55]Plaintiff’s affidavit sworn 9 February 2021, paragraphs [52], [53] (PCB 9-10)
68I do not accept that Mr Pfeifer was an unsatisfactory witness overall, despite Mr Pfeifer at times seeking to minimise or avoid confronting matters that he perceived as unhelpful to his case; and on occasion being tendentious and combative. The evidence of Dr Mathur, which I accept, is that Mr Pfeifer does not cope with even small amounts of stress, and I accept the submission made on behalf of Mr Pfeifer that his evidence should be seen in that light.
69For the most part, Mr Pfeifer engaged appropriately with the cross-examiner, and his evidence was generally coherent and credible. He was emphatic in denying he would simply return to work as soon as his case settled and he had received compensation, stating (correctly) that his treaters are of the opinion that he will never return to full-time work capacity.[56]
[56]For example T12
70I do not accept, as was submitted by counsel for the defendant, that Mr Pfeifer was evasive or self-serving in his answers concerning his domestic arrangements with his wife, his social contact with friends or attendances at the car club. Overall, I accept his evidence and histories provided to his doctors relating to the consequences of his injury, most of which was not challenged, and was consistent with Mr Pfeifer not having a realistic capacity for suitable employment.
71To the extent that Mr Pfeifer gave evidence as to his assessment of his future capacity to undertake suitable employment,[57] I place little weight on it. I was fortunate in this case to have the benefit of objective medical opinion, referred to above, on the critical question of Mr Pfeifer’s capacity for suitable employment.
[57]For example T10, L24-28
Conclusion and Orders
72For the reasons set out above, I am satisfied that:
(a) Mr Pfeifer’s psychiatric condition will persist for the foreseeable future and consequently is permanent; and
(b) he has a “serious injury” by reference both to his loss of earning capacity and his pain and suffering.
73Accordingly, I grant leave to the plaintiff under s335 of the Act to bring common law proceedings to recover pecuniary and non-pecuniary loss damages for injuries he sustained in the course of his employment with the defendant.
74I shall hear the parties on the question of costs.
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