Phillip Banks v Andersfurn Pty Ltd - [2014] NTMC 27

CITATION: Phillip Banks v Andersfurn Pty Ltd [2014] NTMC 027
PARTIES:PHILLIP BANKS

v

ANDERSFURN PTY LTD (ACN 122 510 909)

TITLE OF COURT:  Work Health Court
JURISDICTION:  Work Health
FILE NO(s):21126178
DELIVERED ON:  11 November 2014
DELIVERED AT:  Darwin
HEARING DATE(s):  25 February to 1 March 2013, 27 March, 26 April 2013, 8 May, 17 May 2013
JUDGMENT OF:  JMR Neill
CATCHWORDS:
WORK HEALTH – BURDEN AND STANDARD OF PROOF IN RELATION TO
CONSEQUENTIAL INJURIES – ADMISSIBILITY AND WEIGHT OF EXPERT
EVIDENCE - CAUSATION

Newton v Masonic Homes [2009] NTSC 51 applied
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 applied

McLean v Commonwealth (unreported NSW Court of Appeal 31 December 1996) applied

REPRESENTATION:
Counsel:
Worker:Kerry Sibley
Employer:Duncan McConnel
Solicitors:
Worker:Priestleys
Defendant:Hunt & Hunt
Judgment category classification:        B
Judgment ID number:  027
Number of paragraphs:  109

IN THE COURT OF
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21126178
BETWEEN:

PHILLIP BANKS

Worker

AND:

ANDERSFURN PTY LTD

Employer

REASONS FOR JUDGMENT
(Delivered 11 November 2014)
John Neill SM:
Introduction

The Worker Phillip Banks was born on 1 December 1968 and is presently aged 45 years.
It is common ground between the parties that Mr Banks suffered a back injury as the result of a fall in the course of his employment with the Employer on or about 20 May 2008 (“the injury”). He made a claim under the Workers Rehabilitation and Compensation Act (“the Act”). The Employer accepted that claim and commenced making payments of compensation to or on behalf of Mr Banks.
Subsequently the parties found themselves in dispute on a number of issues in the context of the accepted claim for compensation. Only three of those issues remained for determination by the commencement of the hearing of these proceedings on 25 February 2013. Those three issues were identified by me as part of my Orders made at a Directions Hearing on 14 February 2013. They were: (i) identification of the Worker’s physical injuries and their consequences and their effect on him; (ii) whether the Worker suffers from a Major Depressive Disorder because of the work injury on 20 May 2008; and (iii) whether the Employer owes the Worker any arrears of weekly benefits and/or any interest on any such arrears, calculated over the period 21 May 2008 to the date of payment.
The Pleadings
The pleadings at the commencement of the hearing on 25 February 2013 were the Amended Statement of Claim filed 18 February 2013 and the Amended Notice of Defence filed 21 February 2013. These were further amended on the first day of the hearing, with the effect that there was no longer any dispute on the pleadings as to Mr Banks’s physical injury (“the physical injury”). The Employer now admitted that on 20 May 2008 Mr Banks suffered an L4/5 disc prolapse with radicular pain in the right leg, and thereafter suffered severe neuropathic pain in the right leg and pain in the region of the right iliac crest and buttock (paragraph…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NTMC 27
Decision Date: 11 November 2014

CaseChat Overview and Summary

Phillip Banks sought compensation for a Major Depressive Disorder he claimed arose as a consequence of a work-related injury. The matter was heard by the Workers Compensation Magistrate, who had to determine whether the depressive disorder was a consequence of the physical injury. The admissibility and weight of certain medical reports were also in dispute.

The court had to decide whether the depressive disorder was a consequence of the physical injury and assess the weight to be given to late-disclosed medical reports. The court examined whether these reports, despite being disclosed late, should be considered in the determination of the depressive disorder's causation. The court also needed to evaluate the credibility of the expert evidence and the reliability of the reports in light of their late disclosure.

The court found that the depressive disorder was a consequence of the physical injury and that the late-disclosed reports should be given weight, despite their late disclosure. The court accepted the reports as part of the ongoing medical history relevant to the condition. The court found that the depressive disorder arose directly from the severe neuropathic pain experienced by Mr Banks, which materially contributed to the condition. The court also found that Mr Banks's suicide attempt in 2009 was a conscious act, further supporting the link between the physical injury and the depressive disorder.

The court declared that Phillip Banks suffered a Major Depressive Disorder as a consequence of the injury and the physical injury. The court reserved costs for further hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I do not accept Mr McConnel’s related submission in the same paragraph 12 that these late disclosed reports, or at least the four of them from 2012, should be accorded no weight. There would be no point in my having allowed these reports into evidence in the foregoing circumstances only to accord them no evidentiary weight. None of these reports was a medico-legal report. None of them contained the diagnosis of Major Depressive Disorder. Nine of the 10 reports were to rehabilitation specialist Dr Gavin Chin keeping him updated as to Mr Banks’s progress in his treatment by Dr Frost. The remaining one report was to a dietician seeking his input on the issue of Mr Banks’s weight. All of these reports formed part of Mr Banks’s ongoing and relevant medical history. They are an integral part of the history of Mr Banks’s symptoms and treatment as known to Dr Frost on an ongoing basis and as such are relevant to her evidence at the hearing and to her diagnosis of Mr Banks’s psychiatric condition at the time of the hearing. To consider the correctness of that diagnosis in the absence of this material would be artificial and potentially misleading. Evidence as to Mood/Suicide Mr Banks gave evidence that he saw GP Dr Forrest and complained about sleeplessness because of his pain and said words to the effect that “I just want a day off, I don’t want it to go on any more”. Mr Banks believed Dr Forrest took this to mean he was suicidal because Dr Forrest referred him to psychologist Dr Jan Isherwood-Hicks – transcript 25 February 2013 page 26.5 to 26.8. Dr Forrest prescribed sleeping pills. Mr Banks gave evidence he took an overdose of these pills together with wine. He said his words at that time were “I just want to go to sleep and not wake up” – transcript 40.4. Obviously, he eventually did wake up. Mr McConnel cross-examined Mr Banks about this event. Mr Banks said it was a conscious suicide attempt. Mr McConnel suggested the real reason Mr Banks took the extra tablets with the wine was because he was so tired, he really just wanted to sleep. Mr Banks answered “I just wanted a day off, I just wanted it to stop” – transcript pages 80.9 to 81.3. Mrs Tracy Banks in her evidence on 26 February 2013 said her husband told her when he woke up from the effects of the sleeping pills and the wine that he had just wanted to go to sleep “and not wake up” – transcript page 90.9. Neither Mr nor Mrs Banks gave specific evidence of when this event occurred but I note Dr Forrest referred Mr Banks to Dr Isherwood-Hicks by letter dated 31 March 2009 – referred to in letter dated 15 April 2009 from Dr Isherwood-Hicks to Dr Forrest at page106 of the Court Book of Documents. It is likely that it occurred around that time. I am satisfied on the balance of probabilities and I find that this incident involving the sleeping pills and the wine in 2009 was a suicide attempt by Mr Banks. Dr Janette Isherwood-Hicks has been a practising clinical psychologist since 1985 (exhibit W9). She is based in Darwin. Mr Banks first consulted her in relation to his severe neuropathic pain on 8 April 2009. She gave evidence she saw him on 12 or 13 occasions a year over 2009 to 2011. She did not make it clear whether that was over 2 years totalling around 26 consultations or over 3 years totalling around 39 consultations (transcript 27 February 2013 page 173.4), but on the basis of her reports (exhibit W9) I am of the view that around 26 consultations is more likely to be correct. Dr Isherwood-Hicks saw Mr Banks on 3 further occasions in 2012 (report dated 29 January 2013 – part of exhibit W9). Dr Isherwood-Hicks’s reports were addressed to the referring GP Dr Keith Forrest and to claims officers at QBE, the Employer’s Work Health insurer.

Decision

Reasons for decision

I am satisfied on the evidence before me on the balance of probabilities and I find that Mr Banks’s mental injury arose as a consequence of the injury and the physical injury. I find that the severe neuropathic pain experienced by Mr Banks over the years from 2008 directly and materially contributed to the development and persistence of the Major Depressive Disorder – see per Southwood J in Keith Van Dongen vNorthern Territory of Australia [2009] NTSC 1 at paragraph [39].Conclusion and Orders I declare that the Worker Phillip Banks suffered a Major Depressive Disorder as a consequence of the injury and the physical injury. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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