Power v VWA
[2020] VCC 473
•23 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03681
| DAVID POWER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 28-30 January 2020 | |
DATE OF JUDGMENT: | 23 April 2020 | |
CASE MAY BE CITED AS: | Power v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 473 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Accident Compensation Act 1985; Road Safety Act 1986;
Cases Cited:Etta v Taverner Hotel Group Pty Ltd [2019] VSCA 209; Yilmaz v Specialty Fashion Group Pty Ltd [2019] VSCA 100; Paric v John Holland Pty Ltd [1984] 2 NSWLR 505; Ansett v Taylor [2006] VSCA 171; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Mobilio v Balliotis [1998] 3 VR 833; De Bono v VWA [2019] VSCA 85;
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr G Worth | Verduci Lawyers |
| For the Defendant | Mr P Elliott QC with Ms F A Crock | Russell Kennedy |
HIS HONOUR:
Introduction
1 David Power seeks leave to start a claim for damages for injuries he suffered in an accident occurring on 15 June 2012. He applies under s134AB(16)(b) of the Accident Compensation Act 1985 and seeks to establish he has suffered a “serious injury” as defined in paragraphs (a) and (c) of s134AB(37). For the purposes of paragraph (a), the injury is said to be a Complex Regional Pain Syndrome or Chronic Pain Syndrome affecting his left arm. For paragraph (c), the injury is a Post-Traumatic Stress Disorder and adjustment disorder with anxious and depressed mood.
2 Mr Power relies on the consequences regarding pain and suffering and loss of earning capacity.
3 Only Mr Power gave oral evidence. He swore six affidavits[1] and relied upon affidavits from four others. Both parties tendered the contents of court books containing many medical and other reports.
[1]Sworn 6 April 2017, 8 January 2018, 12 February 2019, 12 March 2019 and 30 September 2019.
Circumstances
4 Mr Power is now 35.[2] He is the youngest of two, having an older sister. Having finished Year 11, he worked for an import and export business as a warehouse manager, completing a one-year apprenticeship in store warehouse managing.
[2]Born on 3 January 1985.
5 In his youth, he played tennis, competitively from the age of 12. In 2005, he completed a Development Coaching Course with Tennis Victoria, gained accreditation as a tennis coach and worked as a coach. For several years, he played tennis professionally. Apparently, he was a very good player. When he was about 20, he started a five-year apprenticeship as an electrician with his father. His father ran a company designing and making LED light globes. After completing his required training, he did not finish his examinations. He is not a fully licensed electrician. He is a B rather than an A grade electrician. He continued working with his father’s company which was contracted to Visy Recycling. In December 2010, his father’s company ended its contract with Visy Recycling, but he stayed on to work at its premises in Laverton with the new contractor, the employer in this case, Roadside Care & Maintenance Pty Ltd (Roadside). He was a general maintenance worker and fitter working exclusively at the premises of Visy Recycling in Laverton.
6 Mr Power was hardworking. While employed by his father’s company and Roadside, between 2006 and 2009, he worked as a personal trainer at the Sunbury Gym and, between 2006 and 2012, as a tennis coach. In 2012, he started his own maintenance and renovation business under the name of “Develema” where he carried out most aspects of that business which was mainly maintenance.
7 This application arises out of an accident in June 2012. Mr Power described what happened:[3]
“On Friday 15 June 2012, I returned home from work and was supposed to attend a birthday when I was called by my employer to attend Visy once again as they had a problem with Scadia, (computer system which controls all factory equipment) their program was not working.
I attended work as normal and had a discussion with the company’s electrical engineer, and went to the main switch board. At approximately 8.00 pm, I was in the control room on level two and was going to work on the fuse box. I recall opening the door of the fuse box and I attempted to operate the overload switch with my left hand when I was electrocuted. The voltage passed through my body to my right hand and came back out of my left hand, causing a flash flame. The current was 846 amps. Upon seeing the explosion I recall turning my face to my right and holding up both my arms to shield my face.
….
I recall my face being on fire and my hands and arms. The supervisor was close by and came to my aid and put the fire out with the extinguisher. I tried to put water on my face but I couldn’t see and an Ambulance was called.”
[3]Affidavit sworn 6 April 2017 at [11], [12] and [14].
8 He told practitioners he thought he would die. In his second affidavit, Mr Power said the current entered through left index and middle fingers, travelled through his body before exiting through his left thumb.[4]
[4]Affidavit sworn 8 January 2018 at [6].
9 He was taken by ambulance to the burns unit of the Alfred Hospital. He had burns to his face and arms, affecting about 6 per cent of his total body area. He was placed into an induced coma until 19 June and required intubation and mechanical ventilation. He developed an infection, treated by antibiotics. On 16 June, a bronchoscopy revealed burns to the left bronchus. On 26 June, his burns were debrided and split skin grafts applied to the hands. With his right eye, he was thought to have mild left corneal oedema. He was moved out of the burns unit, underwent physiotherapy and occupational therapy. On 10 July, he was discharged. Regular dressings of his burns were supervised by the hospital’s nurses, who attended him daily. On 31 July, Mr Power attended the hospital’s ENT clinic complaining of an intermittent feeling of a blocked ear, tinnitus and hearing loss. The cause of the hearing loss puzzled the specialist, Vincent Cousins.
10 How long Mr Power remained off work varies. From what he told various practitioners, it varies from about a year to two and a half years. However, in the majority of instances, he said about a year or over a year. For the purposes of this application, I will treat his period of absence as about a year. After returning, he remained for a short period. Again, what he told practitioners varied between about a month to about a year with the majority of about a month. On any view of what he told these practitioners, his duties were light. Finally, he is reasonably clear these duties ceased because they were not available for him.
11 In December 2014, due to a family connection, Mr Power was engaged to manage a newly established car washing business.
12 On 14 December 2015, Mr Power was seen riding a stolen motorcycle and tampering with a parked motor vehicle. He was arrested, interviewed and charged with six offences, including theft of the motorcycle, dishonest retention of the motorcycle, dealing with property suspected of being the proceeds of crime (being the motorcycle) and unlicensed driving. The police bailed him to appear at the Magistrates’ Court at Broadmeadows on 30 January 2017. He did not answer his undertaking of bail on 30 January and an arrest warrant was issued. He was re-arrested and, presumably, bailed. Subsequently, in 2017, these charges were withdrawn and struck out, mainly due to doubts about the reliability of the identification evidence.
13 For some time, his marriage was in trouble. It broke down in about September 2017 when his wife and children left the matrimonial home. In October, they returned to the home after he left. During 2018, he and wife were divorced. During the year, he became bankrupt.
14 In late 2017, Mr Power took a break from his carwash employment at the request of his father-in-law, as he was not coping with the work. Even though taking a break, he continued to be paid until October 2018. The payments stopped when he and his wife reached a financial settlement.
15 On 18 June 2018, Mr Power was involved in a car accident. In his words:[5]
“…I was involved in a serious motor vehicle accident on 18 June 2018, the day before the trial commenced. In fact I had deliberately driven my car into an embankment under a bridge on the Calder Freeway at high speed. I had done this in an attempt at suicide.”
[5]Affidavit sworn on 12 February 2019 at [24].
16 On the next day, Mr Power’s serious injury application came for hearing in this Court.[6] During the opening of the case by his senior counsel, the judge raised, first, the question of permanency of his psychiatric condition and the failure of Mr Power to disclose his separation from his wife the previous year. Counsel found out during the hearing that Mr Power had seen the psychiatrist, Sunil Datta, once. Mr Power sought an adjournment to enable treatment to occur. The next day, the application was adjourned to 19 November 2018.
[6]Transcript of the hearing before his Honour Judge Jordan on 19 and 20 June 2018.
17 On 10 July 2018, Mr Power received a letter from VicRoads suspending his driver licence from 17 July 2018. This was due to the crash on 18 June 2018. Presumably, his licence was suspended because he was psychologically unfit to drive a motor vehicle.
18 Pausing there. As at 31 October 2018, Mr Power had three sets of traffic offences.[7] On 23 May 2013 at the Magistrates’ Court at Broadmeadows, he was convicted of driving while his licence was suspended, fined $750 and any licence or permit to drive a motor car or cycle was suspended for 21 days. On 10 November 2016, he received a traffic infringement notice for exceeding the speed limit by 25 kilometres per hour or more but less than 30 kilometres per hour. I do not know the amount of the fine imposed, but any licence or permit to drive a motor car or bike was suspended for one month. Finally, on 22 June 2017, again at Broadmeadows, he was fined $800 for driving while his licence was suspended. Apparently, his licence was not suspended.
[7]Defendant’s Court Book at p 352: a certificate under s84 of the Road Safety Act 1986.
19 On 3 October 2018, a member of Victoria Police, Leading Senior Constable Mel Squire, charged Mr Power with 31 offences covering 10 separate incidents. The charges alleged offences committed between 12 May and 2 October 2018 involving theft, attempted theft, criminal damage and going equipped to steal. These offences occurred in Ferntree Gully, Wollert, Gisborne and Doncaster. Usually, the value of the damage done in breaking into money receptacles far exceeded the amount stolen. Mr Power used a drill and pop rivet gun. In a police summary of the alleged offences, the technique is described for some of the incidents:[8]
“…the accused [Mr Power] used a pop rivet tool to open the metal cover of the vacuum bay to access the vault to steal money by using the vacuum to suck the coins out of the vault into the retrieval bucket & replaced the cover with new rivets to make it appear untouched before leaving the car wash facility.”
[8]Defendant’s Court Book at p 167: the commentary for Charges 13, 14 and 15.
20 Another person was also charged, Samantha Bootlis, who was then, and is now, Mr Power’s girlfriend. That day, the police bailed Mr Power and Ms Bootlis[9] to appear at the Magistrates’ Court at Ringwood on 7 March 2019. There were conditions of bail as to reporting to police, a curfew and residing at a fixed address. The curfew was imposed because each of the incidents was alleged to have occurred very late at night or in the early hours of the morning.
[9]Plaintiff’s Court Book at p 205(e).
21 Prior to these charges, Mr Power had been convicted and fined twice for driving while his licence was suspended and, on the first of those occasions, his licence was suspended for 21 days. Between these court appearances, he was fined and his licence suspended for one month for speeding.[10] He exceeded the speed limit by 25 kilometres per hour or more but less than 30 kilometres per hour.
[10]Defendant’s Court Book at p 312: they knew about the six charges which were struck out at the Court at Broadmeadows on 18 May 2017.
22 On 27 October 2018, Constable Mark Stapleton charged Mr Power with another 10 charges, including possession of methylamphetamine, possession of the drug while on bail, driving at a speed dangerous, several charges of speeding, careless driving, entering an intersection against a signal and driving while his licence was suspended. All of these charges arose out of events occurring on 27 October 2018. Reading the police summary, the main driving charge was driving at a speed dangerous. The other traffic charges are subsumed into it. At face value, it was a serious charge. Although occurring in the early hours of the morning, the speeds were alleged to be 120 kilometres per hour in 60 kilometres per hour zones. Mr Power denied knowingly possessing the white crystal substance, believed to be methylamphetamine, claiming it could belong to his mates. Mr Power was again bailed, this time to appear at the Magistrates’ Court at Ringwood on 7 March 2019. The conditions of his bail included reporting to a police station three times a week, residing at a fixed address in Strathmore and a curfew between 9.00pm and 6.00am the next day. The police granted bail because they believed Mr Power had no criminal history and there were no other charges pending hearing.[11] Clearly, they were unaware of the charges laid 24 days earlier.
[11]Defendant’s Court Book at p 335.
23 In his fourth affidavit, he said of these offences:[12]
“…and I have no explanation for engaging in these offences, other than that I have had enough of everything and don’t care any more about myself as I believe that my life has been destroyed following my accident of the 15th June 2012.
I have lost my self respect and the willpower to live. I feel that my life is worthless and I don’t care any more whether I live or die or whatever else happens to me as I now lack a purpose in life.” (sic)
[12]At [3].
24 That affidavit was sworn while Mr Power was on remand awaiting his trial.
25 Notwithstanding the two grants of bail, between 3 January and 27 February 2019, Mr Power and Ms Bootlis attended 11 car washing businesses, stole monies from receptacles while using an oxyacetylene torch. These businesses were situated in various suburbs of Melbourne, but also as far afield as Bendigo and Geelong. The amounts stolen were larger than those stolen earlier. Detective Senior Constable David Blake charged Mr Power with 80 offences. They involved charges of theft, attempted theft, criminal damage, going equipped to steal, driving while disqualified and suspended, committing indictable offences while on bail and breach of a conduct condition of his bail. Naturally enough, the police did not grant him bail and he was remanded in custody.
26 In April 2019, a magistrate granted Mr Power bail and he started working for his father’s company and living at his parents’ home.
27 On 10 December 2019, at the Magistrates’ Court at Sunshine, Mr Power pleaded guilty to charges. (I do not know how many.) They were drawn from three files in the Magistrates’ Court (J1266706, K100490022 and K10524419): the first contained offences in 2016; the second, offences in 2018; and third, in 2019. An exhibit to Mr Power’s last affidavit is the first page of his Community Correction Order. It sets out five charges. It refers to an attached schedule which would have set out the remaining charges of which he was found guilty. Reflecting the magnitude of his offending, the order’s duration is 24 months and the other conditions are onerous. He must perform 400 hours of unpaid community work, undertake, as directed, assessment and treatment for drug abuse or dependency and, as directed, undergo mental health assessment and treatment. The onerous nature of these conditions is lessened by allowing 100 hours of the assessment and treatment to be counted as unpaid community work.
Surveillance
28 Admitted into evidence were three DVDs containing films of the activities of Mr Power on 10 June, 14 June, 3 July, and 13 and 16 October 2017. In all, the DVDs run for slightly less than two hours. Much of the DVDs were shown in the courtroom during the hearing and Mr Power was questioned about what they depicted. It shows Mr Power using one or both hands to do a variety of things including: lifting and securing a tarpaulin; driving a motor vehicle; removing items from the boot and interior of motor vehicles; sweeping with a broom; holding items in either hand; using pliers; using a sander with the right hand and both hands; and pulling down a garage door with both hands. It was not suggested there were other DVDs of other occasions of surveillance or even other surveillance without any filming.
Vocational reports
29 On 15 January 2018, Robyn Willett and Janette Ash of Recovre reported to the defendant’s solicitors. Recovre had been engaged to prepare a vocational assessment report. Ms Willett, an employment placement consultant, interviewed Mr Power on 10 October 2017. She noted that, since December 2014, Mr Power has managed a self-service car wash operation. He works about 40 hours a week, has a staff of two, counts stock and engages in general maintenance. He has good computer skills. The authors relied upon the reports of Mr Ireland (7 June 2017) and Dr Barton (12 September 2017) as to capacity for work. In effect, she understood them to say there was no physical incapacity for work. The authors identified six jobs as suitable for Mr Power: electrical distribution trades worker; facilities manager; sales representative; sales representative (building and plumbing supplies); forklift driver; and despatch clerk.
30 Glen Dwyer is an occupational therapist. Engaged by Evidex, he interviewed Mr Power on 17 April 2018 for a vocational assessment. Possessed of a copy of the Recovre report, he disagreed with its finding of suitability for five of the six jobs except a despatch clerk. As to it, he considered Mr Power had a limited functional capacity for the job because of the high percentage of computer-based tasks. He could do the job five hours per day for three non-consecutive days per week. There was another job, trade sales assistant, which he considered suitable for Mr Power and on full-time hours.
Affidavits of family members
31 There are four affidavits of members of Mr Power’s family or his wife’s family.
Tarah Kavanagh
32 Tarah Kavanagh is Mr Power’s elder sister. On 9 May 2018, she swore an affidavit. In 2005, she left the family home. Till then, her brother was “active, fun loving, social, confident, and spirited”. When she left, her brother was working in her business as an assistant tennis coach and did so until about 2012. She maintained weekly contact with him. He left her business to pursue his career as an electrician, involving long hours and leaving no time for coaching. As an assistant coach, her brother was “reliable and punctual, full of energy and positivity, and he performed his duties to a high standard”.
33 After the accident, Ms Kavanagh visited her brother in hospital but then lost contact for about five years. Their contact restarted in October 2017 and now they communicate weekly. Ms Kavanagh commented on the physical and mental impact of the accident on her brother:[13]
“Physically, he now appears restricted by the pain and deficit in his left arm, his poor eyesight and hearing, breathlessness, scars, and regular migraines. I know, from my own personal knowledge, that these physical deficits are significantly impacting his daily mood and sleep, his capacity to perform physical tasks, his ability to engage in hobbies and an active lifestyle, and complete domestic duties.
Psychologically, David now presents as agitated, sad and angry. He rarely arrives to meet his obligations on time, and he finds it hard to maintain his focus and complete tasks. When I talk to him, his thoughts are anxious and scattered, and he sees the world through a hopeless lens. He constantly mentions that he is deeply concerned about his future functioning and earning capacity, and that he is afraid of working with tools again. When I observe him, I note that he has lost his social confidence, and he has completely withdrawn from his social circles and hobbies. He doesn’t appear to take as much pride in his appearance. I know, from my personal knowledge, that his mental state is having a tremendous impact on his young family, and is impeding his ability and desire to function in domestic, social and work areas of life.”
[13][7] and [8].
34 Ms Kavanagh describes her occupation as a sports psychologist, which explains some of her comments.
Frances Power
35 On 6 March 2019, Frances Power, the wife of Mr Power swore an affidavit. They met in about 2010 and lived together before marrying in 2013, and separating in about September 2017. Plainly, she knew him intimately before and after the accident and is in the best position to say what he was like before and after. She believes the major reason for their separation was the “ongoing and worsening change in David’s personality after the workplace injury”. Although using the adjective “major”, she describes no other reason:
“In the years following the workplace injury, I observed David to struggle greatly both physically and mentally. Mentally his decline has, in my observation, gotten worse and worse, to the point where his personality has now totally changed.
The effect on our marriage has been devastating. It got to the point where David was so depressed and anxious he was providing me with little support for our two children and he was frequently very hostile, angry and upset. He was not the same person that I married and this led to the breakdown of our relationship.
I tried to support David emotionally after the accident, and particularly in more recent years as his mood has gotten worse, but nothing I did seemed to help him. The accident changed him and he has become a very negative person.”
36 Ms Power saw his difficulties with his left shoulder and arm, particularly, holding things and their children for prolonged periods. The last had an unexpected consequence: “I observed that he had difficulty holding our children for prolonged periods and this, to my observation, really affected his confidence in his parenting”. She saw the after effects of nightmares: “he would frequently awake at night sweating and shaking”. He regarded his tattoos on his arms as works of art. The scarring has affected the tattoos and he is now conscious of their presence and upset by their effect.
37 Pausing briefly, although Mr Power was seen in the company of Ms Bootlis in June 2017, there is no suggestion from Ms Power that she was aware of any friendship between them before their separation or that it was a factor in their marriage breakdown.
Charlie Lastrina
38 Charlie Lastrina is the father of Frances Power. On 9 October 2018, he swore an affidavit. Having first met Mr Power in 2011, he commented on how he was before the accident and after. The contrast is startling:[14]
“I am able to say, from my observations, that since the accident there has been a complete change in the behaviour and attitude of David. He has become a very difficult person to converse with. He makes no eye contact. He is very much withdrawn to himself. He has a poor concentration span and his behaviour is not at all normal and he has become totally unreliable. This was not the case before his accident as he was quite pleasant with a normal attitude and normal approach to life and easy to get along with. His accident has changed all this.”
[14]At [20].
39 Mr Lastrina and his brother owned carwash businesses. They purchased another carwash business in Briar Hill. Since Mr Power was unemployed, Mr Lastrina asked him to supervise the business and promote it by developing a new logo and organise tradesmen to carry out some improving and maintenance works. Although Mr Power took on the role, Mr Lastrina found him wanting:
“I noticed that he had difficulty concentrating on the task at hand and he was not able to complete any particular project. He was not able to attend work on a regular time and would often turn up at work at 10.00 am. At times I drove past his residence and would see that he was still sleeping at a time when he should be at work.
I also attempted to introduce a booking system but he was not able to do this successfully.”
40 Despite giving this job to his son-in-law, Mr Lastrina:
“It was after this that I was able to notice that the car wash was not operating at all properly while David was in charge and I then asked David to find himself another job and I would continue to pay his wages until then in order to assist him financially.”
Peter Power
41 Mr Power worked at his father’s company for several years. He completed five years of his apprenticeship there as well as another year afterwards. Of his time as an apprentice, his father, Peter, said:
“During the whole period of his apprenticeship, David was an exemplary apprentice and worker, attending work regularly and performing his work carefully and diligently and had a friendly and cordial relationship with the staff and clients….
His present behaviour is in total contrast to the way he was prior to his accident when he was reliable, conscientious, high achiever, friendly and dependable”.
42 Peter Power described what his son had become:
“David’s behaviour, since the accident, has totally altered. He is not able to keep a proper job and his mood alters with his medication. He is withdrawn, does not communicate with people and has been very moody. David becomes easily aggressive and has problems concentrating on issues at hand. He has trouble getting up in the morning….
He has difficulty concentrating with issues at hand and can only work 2-3 hours per day on 2 or 3 [days?] per [week?]. I am helping him with a job because I want to help with his rehabilitation but am sure that nobody else would employ him because of his lack of concentration and erratic behaviour.
David has a habit of forgetting to attend appointments and does not socialise.”
43 His father re-employed him following his release from custody. In effect, he has created work for him. He works 15 hours each week selling goods, whether face-to-face or over the phone, packing orders, preparing invoices, stacking deliveries and testing electrical products for faults. He is paid $250.05 each week, apparently after tax, and receives a Newstart benefit of about $530 each fortnight.
Current situation
44 I will deal with the current position of Mr Power under a series of headings.
Pain
45 Mr Power experiences constant low-grade pain and cramps in his left forearm. Both extend into his hand. He feels pins and needles along his forearm and into the tips of his fingers. There is almost constant numbness on the outside of his forearm. The pain extends up his arm to the side of his neck. The pain worsens if he over or strenuously uses the arm. There is the significant weakness in the strength of his grip of his left hand.
Mood
46 He is withdrawn and, generally, avoids socialising. He has difficulty facing each day. His motivation and energy are reduced. He is anxious around people if they are not known. He avoids crowds. He is anxious in public. He has difficulty making decisions, has a diminished libido with occasional suicidal thoughts but no plans to commit suicide.
Concentration and memory
47 Working with his father has improved his memory and concentration but they remain impaired. He still finds it difficult to finish a task.
Sleep
48 Mr Power has great difficulty getting regular restful sleep. He has difficulty going to sleep because he thinks a lot and it usually takes him an hour to go to sleep. Once asleep, the quality of his sleep is better than before. He now wakes up every three hours, previously every hour. He has dreams, but not nightmares, without much dreaming presently. He fears working as an electrician. Often he is anxious using electrical appliances. He is short-tempered, leading to altercations.
Hobbies, etc
49 His state of mind stops him playing the sports he once played, including tennis, surfing and snowboarding. He now watches television and Netflix.
Treatment
50 He sees a psychologist and a psychiatrist every four weeks. He has changed his general practitioner from Dr Lee to Dr Sheriff, whom he attends to obtain certificates of capacity. He takes three medicines daily including the anti-depressant, Duloxetine or Cymbalta, each morning and Vyvanse for ADHD.
Former wife and children
51 Mr Power and his wife separated in 2017 and are now divorced. He does not see his children at present.
Ms Bootlis
52 At least in 2017, he started seeing Samantha Bootlis. They are now in a relationship, living together in his grandmother’s home in Sunshine. He cares for his grandmother. He assists in household chores with Ms Bootlis. They share the shopping. She makes most of the meals.
Work
53 Mr Power continues working for his father’s company. He said about this job:[15]
“Since my release from the Remand Centre, I have obtained work with AusPower LEDs. This is a business operated by my father. I am employed as a sales assistant on a part-time basis. Demonstrating that I had a job to go to assisted me in my application to be released on bail.
The position has been created for me. It is sheltered employment. In effect, I work where needed in the business. I do some sales work, both in person and on the telephone. I otherwise go where needed in the business. This might be packing orders for delivery, preparing invoices, stacking shelves in the factory, and testing the products for faults.
….
My dad is very understanding of my psychiatric condition and is very lenient at work. I work 15 hours per week, but I work the hours as and when I can. My dad does not hold me to certain hours…”
[15]Affidavit sworn 30 September 2019 at [4], [5] and [10].
54 From his cross-examination, apparently, he did not actually test products. That was done by his father with his task writing down the results of the tests.[16]
[16]Transcript at 69.
55 He works no more than 15 hours a week, receiving $250.05 gross per week. He works two days a week. He receives about $530.00 per fortnight through a Newstart allowance. On other days, he cares for his grandmother.
His family
56 His contact with his family broke down after the incident and he had none for seven years. Plainly, he now gets on well with his father but apparently not with his mother. He gets on well with his sister.
Driver licence
57 I do not know whether the suspension of his driver licence by VicRoads was ever lifted. Whether it was or not, he believes part of the sentence imposed on 10 December 2019 was a “suspension” of his licence for four and a half years. More likely, given the nature of the offending, his licence was cancelled and he was disqualified from obtaining a licence for that period.
Medical and other evidence
58 Mr Power has been treated by a variety of practitioners. I will deal with them in chronological order with separating them into treating practitioners and medico-legal practitioners.
Hand therapy
59 On 20 August 2012, Mr Power attended a hand therapy clinic called “Melbourne Hand Rehab”.[17] He attended regularly until 10 December 2014. Initially, among other things, he presented with pain, scarring, numbness, tingling and weakness of the arms particularly his left arm. By at least 18 April 2013, he was complaining of pain, numbness/tingling, muscle tightness/trigger points and weakness of the left arm.[18] Mr Power returned there in 2017. On 29 November 2017, he complained of ongoing numbness of the left arm and tightness into his neck with his symptoms worsening. There was neural tension of his radial, ulnar and median nerves. The diagnosis of the occupational therapists was general neural sensitivity and deconditioning and myofascial pain in his arms.[19]
[17]Report dated 23 January 2018.
[18]Letter of Ms Konstantinidis dated 18 April 2013.
[19]Report dated 23 January 2018.
Ms Morrisey
60 Tarryn Morrissey is a chiropractor. She first examined Mr Power on 3 October 2013. He told her of the electrocution and complained of headache, neck pain, pain and tingling extending down his left arm to his hand and thumb. There was “motor” weakness in left hand, arm and shoulder. He complained of other matters. It is unclear how long she treated Mr Power. She diagnosed a Complex Regional Pain Syndrome, caused by the electrocution.
Dr Lee
61 Robert Lee, a general practitioner, has cared for Mr Power off and on since 10 April 2013. On that day, Mr Power sought from him medical certificates to support his claim under a policy of disability insurance. Dr Lee proceeded carefully, obtaining information from the Alfred Hospital and other sources. Mr Power stopped seeing Dr Lee in April 2014 but returned in May 2016.
62 On 11 May 2016, Dr Lee found the grip strength of the left hand weaker than the right. He complained of a burning, shooting and aching pain in his left forearm and hand, suggesting a neuropathic origin. He still complained of double vision and reduced hearing in his left ear.
63 When seen on 31 May 2017, again the grip in his left hand was weaker than the right. He complained of tingling in his fourth and fifth fingers of his left hand. There was tenderness in two areas of his neck and abduction greater than 90 degrees and internal rotation of the left shoulder caused pain.
64 On 18 November 2017, Dr Lee again examined him and found his left hand grip was “definitely” weaker than the right as “I could easily break his grip”. His eyesight was weaker but corrected with glasses. He complained of tingling and numbness in his left hand, particularly over his ring and little fingers. His sight in his left eye had fallen away. He was tender in the areas of the left trapezius and paracervical but neck movements were normal. There was shoulder pain with abduction.
65 On 14 February 2018, Dr Lee referred Mr Power to a psychiatrist, Sunil Datta:[20]
“…I gave him a referral to see Dr Sunil Datta, a local psychiatrist to treat his anxiety and depression related to his post traumatic stress disorder. I am not sure if he has seen the psychiatrist despite me encouraging him to get psychiatric help on many of his recent appointments.”
[20]Report dated 6 June 2018.
66 Mr Power’s solicitors arranged for a psychiatrist, Albert Kaplan, to examine him. He did so on 22 August 2018 and reported six days later. The report was given to Dr Lee. It contained this revelation[21]:
“Prior to his hearing in February, he attempted suicide by driving up an embankment under a bridge towards a concrete pillar. He was travelling at approximately 150 km/h, and the car rolled a number of times. He did not wait for emergency services, and he walked home.”
[21]Report dated 28 August 2018 at p 3.
67 On 4 September 2018, Dr Lee became aware of this accident. On the night of 5 September, he read Dr Kaplan’s report. On the morning of 6 September, he discussed the matter with Dr Datta and then Mr Power. Although he denied attempting suicide, Dr Lee worked hard to get him to see a psychiatrist, having encouraged him to do so before the attempt.
68 From his last report, it appears Dr Lee adopts Associate Professor Behan’s diagnosis of a Complex Regional Pain Syndrome (Type 1) and the possibility of neuritis of an electrical origin. He also adopts the diagnosis of a Post-Traumatic Stress Disorder with anxiety and depression.
69 The medical records of Dr Lee’s clinic during 2017 and 2018 were admitted into evidence. In the main, they reveal the vigorous attempts by Dr Lee to get psychiatric help for Mr Power triggered by reading Dr Kaplan’s report and culminating in a conversation with Mr Karamanos. A constant refrain in the clinical entries is the weakness of his left hand grip.
Associate Professor Behan
70 Felix Behan is a surgeon specialising in plastic, reconstructive and hand surgery. On 31 March 2014, he examined Mr Power at his solicitor’s request.[22] As is usual with reports from Associate Professor Behan, they are highly detailed, accompanied by many coloured digital photographs and a commentary on each photograph. On examination, he found the left hand was restricted in fine movements, abduction and adduction which he believed was due to ulnar nerve dysfunction. There was pain in the ulnar half of the hand radiating proximally along the nerve towards the medial epicondyle at the elbow. There were some sensory changes/dysthaesia in the median distribution which indicated possible complications relating to the median nerve.
[22]Report dated 31 March 2014.
71 Associate Professor Behan re-examined Mr Power on 11 December 2017.[23] Then, there were changes to the ulnar nerve in the left forearm and hand with an area of anaesthesia. These changes extended into the hand affecting the ulnar nerve more than the median nerve. The strength of his left grip was reduced: 20 kilograms as against 35 kilograms on the right. There was a reduction of ulnar power grip on the ulnar side, noting such grip is important in heavy manual tasks (for example, holding a screwdriver, pliers or hammer). Summarising his views then and previously:[24]
“His ongoing symptoms of neural nerve dysfunction of the (L) forearm and hand precludes him going back into the building trade which is aggravated by the pain constantly in the (L) forearm radiating up to the (L) neck possibly consistent with the diagnosis of Neuritis of electrical origin but clinically similar in effect to what one experiences with Radiation Neuritis over the brachial plexus.”
[23]Report dated 14 December 2017.
[24]Report dated 14 December 2017 at p 2.
72 He noted a recent medical examination revealed a five degree temperature difference between the left and right arms. The ulnar nerve dysfunction remained insofar as there had been no basic improvement in his overall manual capacity. The grafting to the left wrist and hand will give concern, possibly Marjolin’s degeneration.
73 Among the documents provided for his second examination was a copy of Dr Blombery’s second report (dated 6 May 2017). He agreed with Dr Blombery’s views on diagnosis, prognosis and the cause of continuing pain as being due to pain pathway sensitisation:[25]
“He discusses as a vascular and pain specialist the changes of autonomic activity affecting vascularity and concurrently he is diagnosed as a CRPS or as it used to be known Reflex Sympathetic Dystrophy. CRPS is commonly associate (sic.) with electrocution injuries and offers a poor prognosis and the patient is unlikely to experience improvement in a change of the disability. He makes the point that the pain is due to Pain Pathway Sensitisation due to electrical stimulus. FCB comment: I agree entirely with the concepts detailed in this IME.”
[25]At p 14.
Professor Helme
74 Robert Helme is a neurologist. He examined Mr Power at his solicitor’s request on 23 May 2014.
75 Professor Helme summarised his findings and opinions:[26]
“…His major symptom is of on-going pain in the left arm, neck and head which is associated with some intermittent numbness and paraesthesia, mild visual blurriness which has been responsive to correction of refraction, continuing left sided tinnitus, mild intermittent nonspecific dizziness which is hard to characterise, clumsiness and mild weakness of the left hand, and mood disturbance characterised by depression and symptoms highly suggestive of post-traumatic stress disorder. Autonomic symptoms in the left hand are intermittently present and taken together with patchy neurologic impairment, are suggestive of, but insufficient to make a firm diagnosis of Complex Regional Pain Syndrome Type 2 (CPRS). However, all the symptomatology in the left arm, including his chronic pain disorder, is a consequence of his electrocution injury. His major impairment for work is the minimal weakness and sensory loss in the left hand manifest mostly as diminished dexterity and present in a non-anatomic distribution. It has not progressed over recent months but may still do so.”
[26]At p 5.
76 Based on his physical examination, Professor Helme considered the most prominent impairment was Mr Power’s Post-Traumatic Stress Disorder rather than his physical problems:
“His left arm and hand are mildly impaired functionally but there is only patchy motor and sensory loss which does not follow clear anatomical boundaries and no evidence of CRPS today”.
Dr Stockman
77 On 16 September 2014, Alex Stockman, a rheumatologist, examined Mr Power at the request of his solicitors.[27] Mr Power told him of pins and needles in the fingers of his left hand. The pain in his left arm and hand was usually precipitated by physical work. He had weakness in the left arm especially in the forearm and fingers. At times, his left hand feels cold, blue in colour with reduced sweating in the hand. On examination, there was no wasting in the left arm or hand, no colour change in the fingers and generalised weakness in the left hand, especially on abduction of the fingers. Using what he described as a “rolled up sphygmomanometer cuff”, he found the grip strength was 130/50 on the left and 260/50 on the right. Because he was making an impairment assessment, Dr Stockman concluded there was a loss of strength in the left arm of almost 50 per cent. Based on what Mr Power told him, his examination and the treatment, Dr Stockman thought the weakness in the left arm was neurological, not musculoskeletal. The symptoms of coldness, colour discolouration and lack of sweating suggested a Complex Regional Pain Syndrome. The loss of strength in the left arm could be due to peripheral nerve damage in combination with the Regional Pain Syndrome. His condition had not stabilised and expected some improvement in the next 12 months.
[27]Report dated 16 September 2014.
78 On 6 December 2017, Dr Stockman re-examined Mr Power.[28] Mr Power said his condition had not changed since the 2014 examination. He complained of constant numbness in his left hand and forearm and recurrent pain in that arm and neck leading to migraine-type headache. He had difficulty feeling objects placed in his hand and, in combination with the weakness in his grip, he would often drop them. He has pins and needles and cramping pain with the hand and forearm several times a week. These symptoms can radiate to his arm and left side of his neck and is associated with occipital and frontal headaches. The cramping sensation and pain comes from lifting more than 10 kilograms. His examination did not reveal obvious muscle wasting in the hands. Again, the grip strength in the left hand was reduced. There was a loss of sensation to pin prick over the entire left hand and forearm. There was some weakness of abduction of the fingers of the left hand. Mr Power told him nerve conduction studies showed an ulna nerve lesion at the elbow. If so, decompression of the nerve at the elbow could improve the numbness and weakness in the hand. He now considered Mr Power’s condition as stabilised apart from the possibility of decompression surgery. He said nothing about a diagnosis in the context of an impairment assessment.
[28]6 December 2017.
Medical Panel
79 During January and February 2016, Mr Power was examined by eight members of a Medical Panel and the reasons for its Opinion appeared in the Defendant’s Court Book.[29] The members conducted five examinations of Mr Power and organised tests. It was a searching examination covering both the physical and the psychological for the purposes of an impairment assessment. The Panel examined his eyes, hearing, scarring and his left arm.
[29]Reasons dated 10 May 2016.
80 The Panel noted it is accepted [by the parties] Mr Power had suffered various injuries including “nerve damage to upper limb”. Regarding the left arm, the Panel noted the report of Murray Stapleton, dated 3 August 2015, who made a whole person impairment assessment for sensory loss affecting the left forearm and reduction in grip power. It said of the left arm:
“The Panel found no clinical evidence of any motor nerve deficit affecting grip strength and no sensory nerve deficit to support the worker’s complaint of intermittent painful tingling and numbness in the left forearm and hand.”
81 The Panel attempted to gauge grip strength but found the significant variation in grip strength on repeated measurements meant the results could not be used for impairment purposes, adding:
“The Panel noted no evidence of forearm or upper arm wasting and no evidence of any motor or sensory nerve deficit that would account for an organic cause for reduced grip strength.”
82 The Panel concluded he suffered from a Post-Traumatic Stress Disorder and a mild adjustment disorder with anxiety and depressive features. These conditions had stabilised and were permanent.
Dr Rowe
83 James Rowe is an occupational physician. He examined Mr Power at his solicitor’s request on 15 March 2017.[30] Mr Power told him of his current symptoms including tingling and numbness, particularly about the left hand, poor grip strength and the left hand tends to swell, change colour and intermittently sweats. On examination, Dr Rowe found a substantially weak left hand grip compared with the right, which he attributed to the accident. Mr Power could not oppose his thumb and fifth finger. There was reduced sensation about the fourth and fifth fingers. These were the findings regarding the left hand. There were other findings about burn scars and cervical spine. He concluded Mr Power suffered mainly from an electrical injury to his left arm. Having made an impairment assessment based on grip strength and scarring, Dr Rowe added: “He has had symptoms and signs of Complex Regional Pain Syndrome or Reflex Sympathetic Dystrophy in the left arm and hand and there were signs of that today”. Dr Rowe read the reasons of the Medical Panel and disagreed with its impairment assessment.
[30]Report dated 15 March 2017.
Dr Blombery
84 On 24 April 2017, Peter Blombery, a physician specialising in vascular disease, examined Mr Peters at the request of his solicitors.[31] Mr Peters complained of constant pain in his left arm, radiating up to his neck and shoulder. The pain worsened after using the arm. This arm became cold and could go blue or pale and the left hand sweated excessively. There was numbness and tingling in the left arm. It was difficult to use this arm for heavy activities including heavy lifting. It restricted his activities about the home. He slept poorly. He had mild shortness of breath on exertion but could not run up a flight of stairs without becoming short of breath There was occasional tinnitus in the left ear and his long-sighted vision was poor.
[31]Report dated 6 May 2017.
85 Dr Blombery’s examination of the left hand was unremarkable. The left hand was not tender with a full range of movement of all joints. The hands had the same colour and temperature. There was a reasonable movement of the joints of the hands and wrists. Dr Blombery diagnosed a Complex Regional Pain Syndrome Type 1 affecting the left arm because the symptoms satisfied the basic criteria for such a diagnosis of the International Association of the Study of Pain as there was no autonomic disturbance during the examination. He added:
“Electrocution injuries are quite commonly associated with the development of complex regional pain syndrome type 1 and I personally have several patients who have had electrocution accidents which has been complicated by CRPS.”
86 Presumably as part of the syndrome, Dr Blombery said the pain was due to pain pathway sensitisation secondary to the electrocution injury. Mr Power had significant limitations in using his left arm. Owing to the age of the injury, he considered the prognosis to be poor with future treatment comprising analgesics only.
87 On 7 December 2017, Dr Blombery re-examined Mr Peters. His complaints remained the same as the previous examination except Dr Blombery detected a degree difference in temperature between the hands with the left 1 degree cooler and minor tenderness over the left hand. Dr Blombery maintained his diagnosis of Complex Regional Pain Syndrome Type 1, although noting the symptoms did not satisfy the “Budapest” criteria due to the absence of very marked changes at examination.[32] Nevertheless, Dr Blombery did not doubt his diagnosis. The syndrome was a consequence of the physical injuries suffered in the electrocution. He maintained a very poor prognosis with no significant change in the level of disability for the foreseeable future.
[32]Report dated 6 September 2019.
Dr Ireland
88 On 7 June 2017, Damian Ireland, hand surgeon, examined Mr Power at the request of the defendant’s solicitors. After a thorough examination of the arms, Mr Ireland concluded there was left hand dysfunction with residual neurological symptoms. The impairment was sensory and neurological. He suggested a neurological examination which might give an explanation for the grip strength issue. Attempting to measure sensation, he found the results unreliable and indeterminate. The ulnar nerve was not involved. Although the strength of the grip of the left hand was reduced, Mr Ireland suspected Mr Power voluntarily inhibited his true performance. He offered no prognosis.
89 In January 2018, Mr Ireland commented on the suitability of potential jobs. He discounted an electrical distribution trades worker because of residual radial nerve sensory injury. Apart from that, he had the physical capacity to undertake the jobs of facilities manager, sales representative, sales representative in building and plumbing supplies, forklift driver (conditionally), and transport and despatch clerk.
90 On 11 April 2018, Mr Ireland re-examined Mr Power, who maintained his symptoms had not changed: circumferential pain in his left hand, spreading circumferentially to his entire arm, shoulder and left side of the neck; the pain lasts for about four minutes and occurs three to four times a week at the end of a day’s work; and the entire hand and forearm are numb. Given only 10 months had passed from his last examination, both the results of his examination and his diagnosis were unchanged. With the former, there was again no evidence of motor or sensory compromise of any of the three peripheral nerves innervating the left arm below the elbow and no compromise of sensation in the finger pulp.
Professor Davis
91 On about 3 August 2017, Stephen Davis, a neurologist, examined Mr Power at the request of the defendant’s solicitors.[33] Mr Power complained of numbness in the whole of his left hand, chiefly on the palm, and going up the forearm to the elbow region. The arm above the elbow was fine. There was more severe numbness on the volar aspect of the forearm and particularly affecting the third, fourth and fifth fingers. The thumb and index fingers were affected but to a lesser extent. There was numbness over the back of the hand. He said there was excessive sweating in the palm. After a long day at work, the hand can look “rather pasty” or white. In winter, it might appear blue. He did not describe dysaesthesia/allodynia.
[33]Report dated 3 August 2017.
92 His examination revealed no excessive sweating or colour change, no dysaesthesia to touch. There was no wasting of the small muscles of the left hand or forearm musculature. There was a juddering-type, variable and somewhat ‘give-way’ weakness of all muscle groups of the left hand and wrist. This was considerably variable and appeared to be functional rather than organic. There was a diffuse loss of sensation which extended from the fingertips to the left elbow region or proximal forearm, both volar and extensor aspects. There were no features of sympathetic overactivity, no evident dysaesthesia when examining the left hand. There was no excessive sweating, colour or trophic changes. He had some scarring over the left hand consistent with the previous burns injuries.
93 Professor Davis presumed there had been an electrocution injury. Despite complaints of pain, weakness and numbness, there were no objective features of a specific nerve palsy or brachial plexopathy. There were prominent functional features and no clear-cut evidence of specific neurological injury to explain the pain, numbness and subjective weakness in the left hand. There were no objective signs of any neurological deficit. Although Mr Power might have a chronic regional pain syndrome, there were no objective signs. Professor Davis was interested in seeing the results of nerve conduction studies.
94 On about 3 December 2017, Professor Davis re-examined Mr Power. He noted the results of the studies were not supplied. Given the short time since his first examination, the complaints, findings and opinions were unaltered. Notwithstanding the lack of objective signs of sympathetic overactivity, Professor Davis left open the possibility of a Chronic Regional Pain Syndrome.
Dr Barton
95 On 22 September 2017, David Barton, an occupational physician, examined Mr Power at the defendant’s request.[34] Although Mr Power told him he had been electrocuted, Dr Barton queried that, based on the ambulance notes. Mr Power complained of numbness and pins and needles extending from the left elbow into the forearm. These symptoms worsen with repetitive use of the arm and holding things and, at times, he dropped things. There was an ache and pain extending from the left shoulder towards the neck with associated headaches.
[34]Report dated 25 September 2017.
96 On examination, he found muscle power was slightly reduced for all groups in the left arm with sensation globally reduced throughout that arm below the elbow. The state of his hands suggested greater physical activity than that involved in managing a self-serve car wash. Dr Barton was sceptical of Mr Power:
“There were several findings that were not completely consistent with the history that he advised. The state of his hands would suggest that he is exceedingly physically active undertaking fairly extensive chores that seem well beyond what would be expected in managing a self-serve wash. He does some chores at home but I do not believe the normal household chores would be sufficient to account for the state of his hands. Also the global weakness throughout the left arm and the global sensory loss below the left elbow do not fit with any recognised physical problem.”
97 Discounting the complaints of weakness and sensory, Dr Barton could find no clear evidence of impairment to his left arm other than that due to skin scarring and burns. Overall, there was residual dysfunction to his arms, chest and neck areas following treatment for the burns. Asked about the physical capacity to work as an electrical assistant, he could see none. Nor was there any physical restrictions on his capacity for employment generally. Mr Power’s prognosis was excellent.
98 On 19 January 2018, Dr Barton answered “yes” to this question “From a physical point of view, does the worker have the capacity to perform on a full time basis the duties of the employment roles identified as suitable alternative employment options in the enclosed report?”. The report was a “Vocational Assessment Report” dated 15 January 2018.
Dr Sheriff
99 Mr Power changed his general practitioner to Dr A.A. Sheriff, whom he first saw on 11 October 2019. Apart from noting his complaints, Dr Sheriff’s report to Mr Power’s solicitors adds little.
Psychiatric and psychological evidence
Shan
100 On 8 July 2013, Dush Shan, a psychiatrist, interviewed Mr Power at the request of an authorised agent.[35] There is no mention of electrocution but he noted Mr Power had developed a fear of any kind of electrical equipment. Dr Shan divided his mental state examination under seven headings. With “Affect”, he noted Mr Power seemed predominantly anxious and guarded but not apparently depressed or emotional. Under “Thought”, Mr Power believed he had sustained a number of injuries. He was anxious about the advice he received about nerve damage. He described fears, avoidance and some re-experiencing. Under “Insight/Judgement”, his judgement of his injuries seemed affected by an anxious disposition. In view of how Mr Power puts his case to this Court, Dr Shan said:
“His background indicates that he has been quite hard working and enterprising until the accident. He seems to have some obsessive and anxious personality traits by nature. The accident seems to have been the first major physical injury he has ever had. It seems to have occurred in a background of some pre-existing family tensions that became worse after the accident so that he is presently estranged from his own family but is quite close to his wife and in-laws.
Presently he is quite preoccupied with the residual physical symptoms that he believes he has, as well as psychological issues and he has no plans to seek work. It is not unlikely that his outlook is being influenced by pending litigation regarding his accident that is reportedly being pursued by Worksafe.”
[35]Report dated 8 July 2013.
101 Dr Shan diagnosed a Post-Traumatic Stress Disorder caused by the accident and Mr Power’s anxious disposition. Psychiatrically, he could not return to his pre-injury duties and hours but had a current work capacity. He could not work with power tools or as an electrician. As to future treatment, Dr Shan raised psychological counselling, the possibility of psychotropic medicine, psychiatric opinion and referral to a pain management program.
102 On 30 June 2014, Dr Shan re-examined Mr Power. He maintained his diagnosis and its causes. The condition was not in remission or resolved. He did not think psychological counselling would achieve much and medicines were not required. Mr Power could return to full-time work in alternate duties except “electrician related positions”. Since none required working with electrical equipment, he endorsed as suitable the positions described in a vocational assessment of Resolutions RTK: project manager; sales representative; building manager; facilities officer; event co-ordinator; office administrator; and store person.
Stern
103 Stephen Stern is a psychiatrist. He saw Mr Power on 22 June 2015 at the defendant’s request for an impairment assessment. Dr Stern took a history of the incident which, initially, focussed on the explosion and burns but picked up the electrocution when Mr Power spoke about his left arm, such that this became the principal injury. He observed a casually dressed man with a “fed up” demeanour. He was tense and unable to relax. He avoided eye contact. The content of his answers was angry and depressive. His confidence was lowered with uncertainty about his future, saying he would never return to being an electrician. To Dr Stern, Mr Power suffered an electric shock with constant pain in the left arm. He had not returned to work as an electrician but returned after a year to office duties. After a month, these were withdrawn. He was then managing a carwash business.
104 Dr Stern diagnosed a Chronic Post-Traumatic Stress Disorder and a Major Depressive Disorder. The past history of ADHD was not currently relevant. He said Mr Power’s psychiatric state was related to the accident and the resultant injuries. His psychological state was stable. Asked, in part, about future treatment, Dr Stern noted Mr Power had not received psychological or psychiatric treatment because he did not want any and was not taking anti-depressant medicines. In his impairment assessment, Dr Stern assigned mild deficits to thinking and judgement and moderate deficits to mood and behaviour.
Kaplan
105 On 12 December 2017, Albert Kaplan, psychiatrist, saw Mr Power at the request of his solicitors.[36] He explored Mr Power’s pre-morbid personality. diagnosed a Post-Traumatic Stress Disorder based on his fear for his life and being blinded in the accident coupled with a range of symptoms including intrusive thoughts, flashbacks, recurring nightmares, increased arousal, avoidance features and phobic anxiety over working as an electrician and anxiety working with electrical tools. He also diagnosed an adjustment disorder with mixed anxiety and depressed mood. This disorder relates directly to the chronic pain and the physical limitations caused by his injuries. Dr Kaplan described depression and anxiety aspect of the disorder:
“He was devastated by the impact the accident and its consequences have had upon his financial situation and which forced him into bankruptcy and this has further demoralised him and further undermined his already damaged self-esteem. He describes sleep and appetite disturbance, a reduction in libido, social withdrawal, difficulties with his concentration and fleeting thoughts of suicide. He has developed a low frustration tolerance, is easily provoked and his intense anger has resulted in him being charged with assault. His depression and anxiety are probably also partly related to his Post-Traumatic Stress Disorder.”
[36]Report dated 18 December 2017.
106 His prognosis for the Post-Traumatic Stress Disorder was unfavourable because of its duration and Mr Power’s physical condition largely determines the future of his adjustment disorder.
107 As to capacity for work:
“Mr Power’s psychiatric condition, and in particular his low frustration tolerance, difficulties with his concentration and damaged self-esteem, is likely to have an impact on his capacity for employment although this capacity will be largely determined by his physical condition. However, he has no capacity to work in his trade as an electrician or any other work which would involve work of that nature.”
108 Dr Kaplan re-examined him on 22 August 2018. He maintained his earlier diagnoses and their prognoses.
Krapivensky
109 On 10 April 2018, Natalie Krapivensky, a consultant psychiatrist, interviewed Mr Power at the request of the defendant’s solicitors.[37] She thought she had reasonable rapport with him as he told her of his family conflict, including his separation from his wife. She believed he worked as a carwash attendant. He told her of his thrill seeking activities such as motor bike racing and car racing. Apparently, he told her of an indefinite loss of licence, which was plainly incorrect at the time. Based on his description of his symptoms, her mental statement examination and various documents including four psychiatric reports, she diagnosed two concurrent disorders, a Post-Traumatic Stress Disorder and an adjustment disorder. Both were chronic and of moderate severity. Each condition could improve, especially with psychological or psychiatric treatment. Excepting the field of electrical trades and forklift driving, there was no current psychiatric incapacity for work.
[37]Report dated 18 April 2018.
110 On 4 September 2019, Dr Krapivensky re-interviewed Mr Power.[38] She sought to clarify inconsistencies between what Mr Power told her previously and his “affidavit”. He clarified he was not working at the carwash but had been on paid leave until mid-2018. That is an euphemistic way of describing his situation. She maintained her previous diagnoses but noted a 30-40 per cent improvement. In relation to the question whether his offending stemmed directly from the effects of his injury, she said it did because without prior criminal history, it was out of keeping with his underlying personality and lifestyle:
“People who become depressed, have recurrent flashbacks and nightmares of events that transpired in their lives, often lose the will to live and do not care what happens to them. Mr Power sustained significant losses in his life and became despondent, desperate and exercised poor judgement.”
[38]Report dated 6 September 2019.
111 On 7 October 2019, Dr Krapivensky provided a supplementary report.[39] The solicitors again gave her an extraordinary number of documents including surveillance reports and documents obtained from Victoria Police. Referring to a document entitled “Electronic Patient Care Report”, which stated “nil electrocution”, she said:[40]
“Despite this clear evidence from the source document many examiners continue to describe the injury as an ‘electrocution injury’, which is clearly incorrect. This is important as carries implications for subsequent development of reported symptoms. 6% partial thickness burns are relatively minor burns injury.”
[39]Report dated 7 October 2019.
[40]At p 4 of the report.
112 She then noted that on the day of his injury, Mr Power lost his licence for driving at 210 kilometres per hour on the freeway. There is nothing to say it is correct. It is unclear where this information came from. She is critical of Dr Lee’s diagnosis of a Post-Traumatic Stress Disorder. She notes Dr Shan made this diagnosis twice. She raises non-disclosure to other psychiatrists.
113 Dr Krapivensky considered Mr Power lacked credit, which underpinned her diagnosis:[41]
“1. It is difficult to make a psychiatric diagnosis based on the information provided by Mr Power because he has repeatedly demonstrated to be an unreliable, inaccurate and inconsistent historian and I find it difficult to consider his self-reported symptoms as valid.
2. Based on the facts, rather than his self-reported symptoms, I diagnose attention deficit disorder, pre-existing, currently in treatment and antisocial personality disorder. I also consider substance abuse disorder, methamphetamine given history of possession.”
[41]At p 9 of the report.
114 She retreated from her earlier view of his criminal behaviour, saying it was inconsistent with impulsive behaviour stemming from poor frustration tolerance and disturbed judgement which may be seen in those suffering from Post-Traumatic Stress Disorder. It was simply criminal behaviour without remorse or regret. Psychiatrically, he had full work capacity because of his ability to plan and execute these offences. Because of his lack of credibility, asking her for a prognosis was pointless. However, she offered one of recidivism and “chronicity” unless he changed his behaviour.
115 On 2 December 2019, Dr Krapivensky provided another supplementary report after receiving a copy of Dr Tipirneni’s report dated 25 November 2019. She also noted a comment by a police member about Mr Power’s possession of a substance believed to be methylamphetamine and commented: “This suggests current history of methamphetamine abuse which is of relevance in explaining his criminal behaviour”. She did not say what was the relevance but one can guess.
Karamanos
116 On 19 July 2018, John Karamanos, a psychologist, first saw Mr Power on referral from Dr Lee. By 16 September 2018, Mr Karamanos had seen Mr Power seven times. He reported to Mr Power’s solicitors on that day. The report is very detailed. He was told of the electrocution. He thought Mr Power was honest and reliable. However, in keeping with Mr Power’s inability to face reality, he said of his employment in the carwash: “He stated that from time to time he had difficulties in coping with the work and the customers coming through the carwash”. He did not tell him about his pending criminal charges or the fact of his then current criminal offending. Although the psychological treatment yielded short-term gains, they did not persist in the long term:
“…as a result of his impaired concentration, diminished motivation, slowed thinking, impaired decision-making and judgement faculties, his ongoing dependence on opioid medications to manage his pain and generally, his poor psychological functioning.”
117 Relying on DSM-V, he diagnosed a Post-Traumatic Stress Disorder and Major Depressive Disorder: single episode, moderate. Both disorders were directly related to the accident. The former disorder is the primary component of the psychological injury while the latter is reactive. These disorders were not due to the recurrence, et cetera, of a pre-existing psychological injury. He is totally incapacitated for his pre-injury job as an electrician because “of the heightened anxiety and panic symptoms [he] experiences when he is near electrical wiring, electrical appliances, switchboards and electrical tools”. Incapacity for this type of work would continue into the foreseeable future. At present, he is totally incapacitated for all work because of impaired concentration, slowed thinking, poor decision-making, demotivated state and moderately severe depressive and anxiety symptoms. But Mr Karamanos anticipated Mr Power would become psychologically fit to perform a variety of other duties. Mr Karamanos commenced trauma-focussed cognitive behaviour therapy, systematic desensitisation training, motivational interviewing, activity scheduling and anxiety management techniques. For improvement, these, and any psychiatric, treatments needed to be long-term. Even so, his prognosis was guarded.
118 On 18 February 2019, Mr Karamanos wrote to Mr Power’s solicitors. They gave him copies of Mr Power’s affidavit, sworn on 12 March 2019, that of his father-in-law and a report from Dr Tipirneni and sought his comments. By then, Mr Karamanos had been seeing Mr Power monthly. He maintained his previous diagnoses although aware Dr Tipirneni diagnosed an adjustment disorder and ADHD. He maintained his view on capacity for work. He saw the possibility of psychological improvement with intensive psychological and psychiatric treatments. Moreover:
“He suffered constant symptoms of severe depression with suicidal thoughts, constant sadness and feelings of demoralisation. [He] experienced impaired concentration with slowed thinking and difficulty making decisions, suffered from sleeping difficulties as a result of regular bad dreams flashbacks of his accident, constant flashbacks and intrusive stressful recollections of his accident on a daily basis, felt useless, lost confidence in himself, in life’s social and pleasurable activities and lost interest in living.”
119 On 12 March 2019, Mr Karamanos wrote a third report, responding to an email from Mr Power’s solicitors which enclosed a copy of his affidavit sworn that day. Apart from reiterating much of what he said in his earlier reports, he noted a progressive deterioration in Mr Power’s mental health since the electrocution, including erratic and impulsive behaviours, a suicide attempt in 2018 and the total breakdown of his relationship with his wife, children and his parents. The criminal offending is briefly described in paragraph 2 and his motivation in paragraph 3. Mr Karamanos commented:
“It is my opinion that the offending, as he outlined in his affidavit, stems directly from the effects of his injury that included the loss of his marriage and his relationship with his children, parents and his erratic and impulsive behaviours and generally, his demoralised state.
He has been a vulnerable individual since the time of his accident as a result of continued significant losses and devastation since the time of his injury.”
120 On 7 September 2019, Mr Karamanos provided another report to Mr Power’s solicitors. To do so, he re-assessed Mr Power on 28 August. Mr Power’s complaints remained the same except, interestingly:
“Hypervigilance and heightened anxiety when he is near power tools, power appliances, switchboards and exposed electrical wiring. He stated that he can now cope a little better when he is near power tools and power appliances.
He stated that he attempted to use a sander with very limited success.
Power tools, backfiring car exhausts or appliances that makes sudden ‘banging’ noises startle him and increases his anxiety. As examples, he used the backfiring of a car exhaust and the firing of nail guns.”
121 At that stage, he was living with his parents. He continued his denial of using illicit drugs in the past or at present. Mr Karamanos saw Mr Power monthly. His treatment has remained unchanged: trauma-focussed cognitive behaviour therapy; coping skills training; motivational interviewing; and behavioural activation and imaginal exposure techniques. The treatment had resulted in minor gains in that Mr Power was using the cognitive behavioural skills to cope with depressive and anxiety symptoms and increase his social activities. He noted:
“He is working 10 to 15 hours in his father’s electrical workshop in Tullamarine and he is involved in testing of power equipment. Although he becomes hypervigilant when he is now [using?] power equipment, he has been able to slowly apply himself to the work with the encouragement of his father.”
122 Mr Karamanos maintained his diagnoses and his assessment of Mr Power’s capacity for work: psychologically unfit for work as an electrician but fit to continue working his limited hours and duties with his father. His prognosis remained guarded.
Tipirneni
123 Surya Tipirneni is a psychiatrist. He has treated Mr Power since 9 October 2018. He knew about the electrocution. He commenced psychotherapy to help with his grief, loss, pain and depression issues. He also started Mr Power on Cymbalta, initially at 30 milligrams daily and slowly rising to 60 milligrams. Bearing in mind the pending criminal offences, by February 2019, Mr Power told the psychiatrist:
“In terms of forensic history, he had a history of road rage and assaulting a police officer who intervened at the age of 18 or 19 and he was given a suspended sentence with a good behaviour bond for twelve months. He reported more recently he had issues with speeding car and intentionally causing accident on the 18 June 2018, one day before his court, he was driving at the speed of 180 kms and hit the embankment on the Calder Freeway, Keilor Park Drive and apparently the car was completely written off. He walked home and the car was not insured and nobody was injured. Vic Roads took his licence off him and ordered a medical review which he is awaiting.”
124 He appeared:
“.. he presented as a young Caucasian man with tattoos on his right upper arm. He appeared anxious and tense and has ongoing low mood and depressive ideas of hopelessness and worthlessness. He described some vague suicidal ideas but no plans or intent. He has ongoing chronic pain on the left upper limb and numbness with no sensations. He reported significant ongoing flashbacks and nightmares. His current weight is 101 kgs, height is 182 cms. He put on over 25 kgs.”
125 Dr Tipirneni diagnosed a chronic Post-Traumatic Stress Disorder; a chronic adjustment disorder, depressive type; chronic pain issues following the electrocution; and co-morbid Attention Deficit Disorder. He prescribed Cymbalta, 60 milligrams daily, Vyvanse 50 milligrams and 2 milligrams Minipress for flashbacks and nightmares.
126 On 13 March 2019, he reported again to Mr Power’s solicitors.[42] They had given him an affidavit, presumably dealing with his offending. Mr Power was now prescribed Cymbalta, 120 milligrams, Prazosin 4 milligrams and Circadin, 2 milligrams, all daily. Dr Tipirneni sought to explain what he knew of the offending:
“Mr David Power reported marked deterioration in all aspects of his life. He broke up with his wife, lost contact with his children and lost contact with his parents and siblings. He has been predominantly relying on payments from WorkCover and when they stopped paying him, he reported that he no longer had money to even survive, to pay rent or to buy food etc. He reported that in that context, he tried to find a job in a carwash briefly and in that context and he broke into a carwash and stole approximately $8000 to support his basic needs like paying rent & his living costs. From perusing his affidavit & speaking to his lawyer, he seemed to have committed the crime within the context of his injury with multiple losses and being demoralised and felt ashamed ask for help from family or friends and he might have felt that this was the way he could manage his situation.”
[42]Report dated 13 March 2019.
127 He maintained his diagnoses, their link to the accident and said:
“…and he definitely remains a quite vulnerable person in the context of the accident, resulting in multiple losses which is having a devastating effect on all aspects of his life. This was the major contributing factor for his recent offending in carwash.”
128 On 3 September 2019, Dr Tipirneni again reported to Mr Power’s solicitors. He repeated much of what he had reported previously. He did not mention ADHD. To Dr Tipirneni, he appeared anxious, tense, ongoing low mood, depressive ideas of hopelessness and worthlessness. Mr Power spoke of anxiety, flashbacks and nightmares with depressive ideas on and off. He had vague suicidal ideas without intent or plan. The medicines were now Cymbalta 60 milligrams, Vyvanse 50 milligrams and Circadin 2 milligrams. His injuries affect his capacity for work, social and domestic life. The prognosis was poor. It is unlikely he will return to work as an electrician. He could work 10 to 15 hours a week now and for the foreseeable future in sales or other non-electrician jobs.
129 Finally, on 25 November 2019, Dr Tipirneni confirmed his previous diagnoses, adding Mr Power had Cluster B traits and diagnosing Attention Deficit Disorder and noting a history of amphetamine abuse in the past. Asked to comment on certain paragraphs in the report of Dr Krapivensky dated 7 October 2019 showing, perhaps, exasperation, he said he had nothing more to add to his opinion which was stated clearly in previous reports.[43] He maintained his view as to capacity for work and prognosis.
[43]Report dated 25 November 2019.
Dr Doherty
130 On 16 December 2019, Peter Doherty, a psychiatrist, saw Mr Power on behalf of an authorised agent. He was given a number of reports. He took a very detailed history, including current complaints and treatment. On examination, he found Mr Power’s affect was subdued with a mild reduction in quality but within normal range and reactivity. There were very mild features of traumatisation with recollection and avoidance of electrical work. Otherwise, the examination was normal. He diagnosed Post-Traumatic Stress Disorder but not any mood-related condition, including a major depressive illness or an adjustment disorder. Nor did he diagnose a pain-related psychiatric condition. He considered his current psychological and psychiatric treatment should end. He should continue his antidepressants with a review in six months’ time. Mr Power could not return to his pre-injury duties or hours. There is a current work capacity which could increase to full hours. In fact, he could return to fulltime work now. He could do the jobs in the Vocational Assessment Report, dated 16 January 2018.
Discussion
Credit
131 The importance of creditable and reliable applicants has been stressed in two recent judgments of the Court of Appeal. In Etta v Taverner Hotel Group Pty Ltd:[44]
“Like so many personal injury proceedings, this was a case where the credibility and reliability of the applicant’s accounts, both to doctors before trial and in evidence, were of critical importance to the success of his proceeding. Moreover, as is also very often the case in litigation of the present kind, the opinions of the medical experts (and the question of whether those opinions should be accepted) were heavily dependent upon the acceptance of the applicant’s account. This was not the case where the applicant could have succeeded merely on the basis of the acceptance of an opinion of a medical expert without first establishing the existence of the facts in the underlying history upon which it was based.”
[44][2019] VSCA 209 at [32].
132 And in Yilmaz v Specialty Fashion Group Pty Ltd:[45]
“The judge provided detailed and comprehensive reasons why he did not accept the applicant’s evidence that she suffered a compensable injury in the course of her employment with the respondent. In those reasons, the judge correctly observed that in serious injury trials the credit of the plaintiff will often be critically important.[46] The judge went on, however, to observe (again, correctly) that despite the importance of credibility or reliability, it was incumbent upon the Court not to disregard reliable medical evidence merely due to concerns about the applicant’s credibility. The case had to be decided on the whole of the evidence.”
[45][2019] VSCA 100 at [73].
[46]Citations of cases in footnote 50.
133 As I noted earlier, what he told practitioners about the length of his absence from work following the incident and the time he was given light duties varied considerably. This points to his unreliability as an historian. In 2017, Dr Kaplan was the first to record Mr Power assaulting a member of a police force, apparently after the incident. It is taken up by other practitioners. In his affidavit sworn 20 December 2019, Mr Power denies it ever occurred. I cannot see how Dr Kaplan gained this information except through Mr Power. Dr Krapivensky is the only practitioner to mention Mr Power drove at high speed on the day of the incident. She could have obtained that detail from Mr Power.
134 By his convictions for a large number of criminal offences involving dishonesty, Mr Power has proven his dishonest character. For whatever reason, he committed a series of planned thefts from carwash businesses using equipment to do so. It is easy in this case to translate dishonesty in act to untrustworthiness in word, even that given on oath. Contrary to the respondent’s submission, I did not form this view of Mr Power from his cross-examination, even though he was somewhat combative, rude and apparently prevaricated. From experience, the behaviour of traumatised persons under cross-examination resembles the behaviour of Mr Power. However, it is rare to see an affidavit like that sworn on 12 February 2019 where so many changes are made to his previous affidavits. To a lesser extent, this observation applies to some of his earlier affidavits. Tracing his trustworthiness as a witness to a psychological problem does not make his evidence trustworthy, it merely explains the untrustworthiness. Overall, Mr Power is an untrustworthy witness, seen from the perspective of truthfulness and reliability.
135 Mr Power’s counsel submitted I should treat his evidence cautiously, not because he is dishonest but due to his psychiatric condition. For reasons given below, I agree there is a link between his offending and the incident. However, the offences are dishonest ones and some of the driving offences imply defiance of specific prohibitions. I would treat his evidence with great caution. As the Court said in Yilmaz, and Mr Power’s counsel submitted, I must decide this application on the whole of the evidence.
136 Of the deponents only Mr Power was cross-examined. None of the family members was cross-examined. That is unsurprising given paragraph 65.3 of the Court’s Practice Note PNCLD 2-2018. The absence of cross-examination does not involve acceptance of the evidence, it may enable the court to have greater confidence in the evidence of a particular witness.[47] Given the Practice Note, that absence cannot give me greater confidence. The evidence of the deponents are confined to their affidavits and I have no reason not to accept their contents without reservation.
[47]Paric v John Holland Pty Ltd [1984] 2 NSWLR 505 at 507.
Before and after the incident
137 15 June 2012 was a turning point for Mr Power. He was 27. His life since then contrasts markedly with that before. Before, he had been employed continuously since leaving school. At times, he worked two jobs, in personal training and tennis coaching. In 2012, he even established his own business. He was a hard-working person, keen to get on with his life. He invested in rental property. He formed a relationship, married and fathered two children. He and his wife were buying their own home. They led an active social life. Psychologically, he was normal. He had a temper, which got him into trouble when he was young, But that was something in the past. He had matured with age and responsibility. I accept what he told Dr Kaplan about his personality before the accident as accurate. It accords with the evidence of his family members:[48]
“Mr Power described himself as having previously been ‘Pretty fun. I had a lot of friends. I had 90 people rock up to the hospital when I had my accident’. He was happy with his life, was confident and he commented: ‘I was very determined’. He was energetic and ambitious and commented: ‘I was happy…I wanted to make money’. He stated that he had been fiery in his youth however he had matured and had not been involved in any physical confrontation for some years prior to the accident…”
[48]At p 7 of the report dated 18 December 2017.
138 Since 15 June 2012, a stunning effect has been the change in his personality. This change led to the collapse of his happy marriage and his estrangement from his children. The change in personality is graphically described by his former wife: so depressed and anxious; and very hostile, angry and upset. Given her description of his decline, it is surprising their separation did not come sooner. His father and sister describe him in somewhat similar terms.
139 Since the accident, Mr Power has had discontinuous employment. There was about a year incapacitated because of his injuries. There was about a month on light duties. Then, there was employment at his father-in-law’s business, which he could not do properly and was told to find another job. It is incorrect to describe this job as “sheltered employment” His father-in-law had expectations of his son-in-law. He may have extended some leeway but at the end he decided Mr Power could not do the job. There was a period of unemployment until rescued by his parents following his release from custody. He is now employed by his father’s company for 15 hours a week, spread over five days. Since his father believes no one else would employ him, this work sounds very much like an artificial job: a job which does not exist normally but is created for a family member for emotional, not commercial, reasons.
140 Since the accident, Mr Power formed a relationship with a woman who joined him in a crime wave involving carwash businesses. The clear implication from the affidavits of his former wife, father, sister and father-in-law is that he was a law-abiding person before the incident. Apart from the traffic offences in 2013, 2016 and 2017, as far as the Victorian police were concerned, Mr Power had no other prior convictions or findings of guilt. The offences, alleged to have occurred in 2016, were withdrawn. There is mention of an assault on police. If it occurred, it did not happen in Victoria. I have someone who has not offended before 2012 but has done so comprehensively since. Before the accident, he was a normal functioning person and law abiding. Since then, he committed offences which entail disobedience of sanctions (driving while suspended). That is, he has disobeyed the law in circumstances where he is specifically told not to do something, namely, drive. Notwithstanding these warnings, he has embarked on a crime wave with his girlfriend. The link between his offending and the psychological injuries suffered is strong.
141 Before the incident, he was psychologically sound and unsound since. Psychological counselling started late due to his unwise resistance. He is now treated by a psychiatrist and psychologist which should continue for the foreseeable future.
Physical injury
142 Mr Power relies on the impairment or loss of a body function, being his left arm. The injury to that arm is described as a Complex Regional Pain Syndrome or a Chronic Pain Syndrome. Underlying this injury is the assumption Mr Power was electrocuted in the incident. As far as I am aware, the first person to query an electrocution was Dr Barton. Using the language of doubt, it is clear he did not accept it occurred. He relied on the entry of an unidentified ambulance officer. Dr Krapivensky went further by explicitly denying its occurrence. I must say this entry is a slender basis to doubt the fact of an electrocution. Since the ambulance officer or officers were not present at the time of the accident, the information came from someone else. Mr Power was conscious when the ambulance arrived. If he was the source, he was hardly reliable, suffering as he was from significant injury. If it was his supervisor, it is unlikely that person witnessed the actual incident. Mr Power has consistently spoken of an electrocution. The Melbourne Hand Rehab records the fact of electrocution. Dr Lee also recorded the fact. Throughout his histories, the underlying event was the electrocution. He deposed of it in his affidavits. The defendant did not deny it or put it in issue, whether through submissions or cross-examination of Mr Power. I am satisfied he was electrocuted in the incident.
Injury
143 Starting in August 2012 with Melbourne Hand Rehab, Mr Power has persistently complained about the pain, loss of sensation and weakness of his left arm. To explain these symptoms, the nerves of the arm were suspected or implicated. Neurologists, starting with Professor Helme, have doubted or discounted neurological impairment. For example, Professor Davis found no clear-cut evidence of specific neurological injury or any sign of neurological deficit. Complaints of symptoms and some objective evidence of impairment, and in the absence of nerve involvement, raised the very issue which Dr Blombery sought to address and did so through his diagnosis of Complex Regional Pain Syndrome (Type 1). It had been raised before by the chiropractor, Ms Morrissey, in 2014. In the same year, Dr Stockman suggested the diagnosis based on the history given to him in his first examination. Professor Helme suggested its existence, lacking sufficient evidence to make the diagnosis. Dr Rowe found some objective signs of the syndrome at his examination. Dr Blombery diagnosed the condition and maintained his diagnosis even though the symptoms were sufficient on one recognised test, and not on another. He referred to pain pathway sensitisation, without explaining what he meant. Discovering Dr Blombery’s diagnosis, Associate Professor Behan completely agreed with it. Professor Davis raises the possibility of a Chronic Regional Pain Syndrome, which I assume is his way of expressing CPRS (Type 1), but did not diagnose it because there were no objective signs.[49]
[49]There are two kinds of this syndrome, Type 1 and Type 2. They are discussed in DSM-V at [16.5e].
144 The Type 1 syndrome does not require neurological impairment or deficit, hence the word “regional” its name. It requires other signs. The fact that along the way someone on the defendant’s side has accepted there was nerve damage is immaterial. Reliance upon Ansett v Taylor[50] is unnecessary. In diagnosing the syndrome, Dr Blombery and Associate Professor Behan explain what would otherwise be a group of puzzling symptoms. As a physician specialising in vascular disease, Dr Blombery is in an good position to make this diagnosis as are the hand specialists and the neurologists. I accept the views of Dr Blombery and Associate Professor Behan and am satisfied the injury is Complex Regional Pain Syndrome (Type 1) affecting the left arm. I also accept the permanency of the injury based on the views of Dr Blombery and Associate Professor Behan of a very poor prognosis with no significant change in the level of disability for the foreseeable future.
[50][2006] VSCA 171 at [40].
Serious injury
145 The fact of a frightening incident, leading to hospitalisation, extensive treatment, and an extended stay in hospital is of marginal relevance in the context of an organic impairment or loss of a body function. There is, however, a considerable body of evidence to establish the effect of the physical injury to the left arm apart from Mr Power’s own evidence. In her affidavit, his former wife, Frances Power, described his difficulty with left shoulder and arm through an inability to hold things, including their children, for prolonged periods. She does not specify when, but one infers she speaks of the period after the incident until their separation, some five years later. There are persistent complaints of pain, tingling, numbness and weakness in the arm.
146 For example, Dr Lee started treating Mr Power in 2013. In his reports, there are repeated references to the weakness in the left hand. In his report dated 6 June 2014, Dr Lee said:
“He mentioned more recently that the grip in his left hand has improved but not enough for him to return to his previous employment. He complained of the pain on the ulnar aspect of his forearm and hand.”
147 Mr Power did not see Dr Lee between April 2014 and 11 May 2016 and it is hard to say how often Dr Lee saw him afterwards. But, at least, on 11 May 2016, 31 May 2017 and 18 November 2017, Dr Lee found marked weakness in the grip of his left hand compared with the right. Given Dr Lee’s role as his general practitioner, I would treat these findings as genuine. It is unlikely Mr Power could deceive Dr Lee over time in that regard.
148 To be considered “serious”, the impairment or loss of the body function involved with the injured left arm with respect to pain and suffering consequence must be judged by comparison with other cases in the range of possible impairments or losses of a body function and when so judged must be fairly described as being more than significant or marked or as being at least very considerable.
149 At 35, Mr Power experiences constant pain and numbness in his left arm including the hand. The pain is relatively low level unless aggravated by overuse or strenuous use. He experiences pins and needles. A defining feature is the persistent weakness in the grip of his left hand. Although right hand dominant, this does restrict his use of certain tools which require both hands. With a poor prognosis. he can expect this state of affairs to be permanent, having already existed for nearly eight years. Its state restricts his activities, sporting and domestic. However, some of these activities are not attempted for psychological reasons. The state of his arm prevents his return to his pre-injury duties but, again, the major factor inhibiting the return is psychological. Although it is borderline, I consider the injury to his left arm is “serious”.
Psychological injury
150 Until the second last report of Dr Krapivensky, all of the psychologists and psychiatrists were diagnosing Post-Traumatic Stress Disorder. The treating psychiatrist, Dr Tipirneni and Dr Kaplan diagnosed an adjustment disorder. Initially, Dr Krapivensky diagnosed an adjustment disorder but changed her mind later. Dr Stern diagnosed a Major Depressive Disorder while the treating psychologist, Mr Karamanos persisted with Major Depressive Disorder: single episode, moderate. If I had to choose between mood disorders, I would prefer the view of Dr Tipirneni as the treating psychiatrist. He is in the best position to judge, having seen him regularly since October 2018 and, apart from the effect of his psychotherapy, has prescribed medicines and watched their effect. Mr Power has suffered a mental injury, which is described as a Post-Traumatic Stress Disorder and an adjustment disorder.
Consequences
151 The consequences of his mental injury are very significant. I have set out his current state under various headings. Although the plaintiff’s counsel submitted 120 milligrams of Cymbalta daily was a high dose, there is no evidence to support his submission. Again, the actual impairment assessment of the Medical Panel and of Dr Stern are interesting but of little assistance in deciding the issue of “seriousness”. It is the findings sitting behind the assessments which are material. There are three areas which require special attention. First, it is startling to learn of his attempted suicide on the eve of the 2018 hearing in this Court. Although he suggested to Dr Lee it was not an attempt at suicide, he maintains that it was. It appears the defendant accepts there was an attempt. There was no cross-examination on the issue. There was no denial in the submissions except counsel’s description of “the so-called suicide attempt” in the context of discussing a report of Dr Tipirneni.[51] There is corroboration of the traffic accident and, perhaps, the circumstances in VicRoads suspending his driver licence indefinitely from 17 July 2018. I presume this was done on psychological grounds using s24(3) of the Road Safety Act 1986.[52] I am satisfied he attempted to commit suicide on 17 June 2018. Attempting to kill oneself is a very sad consequence of a mental disorder. Apart from actually succeeding, there are few consequences more important.
[51]Transcript at p 123.
[52]Section 24(3) enables suspension of a licence on the ground it would be dangerous for the person to drive a motor vehicle because of illness or disability, medical condition or injury or because of the effects of treatment for any of those things.
152 Second, prior to the incident, Mr Power enjoyed a happy, prosperous life. He was happily married with two young children. As his former wife spells out in her affidavit, this disappeared in the years following the accident. To her, his personality changed completely over time. He became very hostile, angry and upset. This change caused the breakdown of their marriage. This change is the effect of the psychological change wrought by the accident. The loss of a happy family is a serious consequence.
153 Third, this same psychological change led to the crime wave he engaged in with Ms Bootlis. Before the incident, he had no criminal or quasi-criminal record. The earliest offence appears in May 2013. There is no substance in his assaulting a police officer when 18 or 19 and receiving a suspended sentence and a 12 month bond. He denies it in his last affidavit. More importantly, Victoria Police do not allege this as a crime committed in Victoria. Save for the traffic offences, when he came up for sentence in December 2019, there were no prior convictions or findings of guilt alleged. As with the views of the members of his family, this spate of criminality stands in marked contrast to the pre-accident person. I accept the views of Mr Karamanos and Dr Tipirneni of the connection between these wholesale criminal acts and his psychological state. This, again, is a serious consequence.
154 In her last report, Dr Krapivensky disowned her previous diagnoses. Disregarding what he told her, she diagnosed an attention deficit disorder and an antisocial personality disorder, neither of which had any connexion with the incident. She does not specify what facts led to the diagnosis of an antisocial personality disorder:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.”[53]
[53]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [64] per Heydon JA.
155 She went further than Dr Barton by denying the fact of electrocution. As I said earlier, I accept the electrocution as a fact. There are other aspects. I do not know where she got Mr Power driving at 210 kph on a freeway. Driving at 110 kph over a speed limit would merit, at least, the serious charge of driving at a speed dangerous. However, he has never faced that charge or anything like it. His first appearance in court is at the Magistrates’ Court at Broadmeadows on 23 May 2013 on a charge of driving while suspended. In her last report, she quoted from a police summary where Mr Power was alleged to possess a white crystal substance, alleged to be methylamphetamine. The amount was relatively large at 10.6 grams. He denied knowledge of it. Even if he pleaded guilty to a charge of possession, it is a slender basis upon which to imply his criminality is due to a drug addiction coupled with a personality disorder. Overall, I do not accept the opinions she expressed in her last two reports.
156 Associate Professor Doherty diagnosed Post-Traumatic Stress Disorder but no other disorder. Even though he did not say it, he clearly considered the extent of the disorder as relatively mild. Even though he took a detailed history, some aspects of it did not apparently weigh heavily with him. First, I have treated the suicide attempt as genuine. Associate Professor Doherty devotes three paragraphs to it under the heading “Subsequent history”:
“He told me there was a court case in June 2018. He told me that mentally he broke down under the stress. He told me he was suicidal and depressed. He told me that the business was not the issue.
He told me he broke into a carwash facility. He told me he was disqualified from driving a vehicle, after he rolled a car doing 200 km/hr trying to kill himself the day before the court case. He told me the court case was about a serious injury certificate, and he tried to kill himself the day before. He told me he had had enough and there was a build up over a few months and he said ‘I gave up’. He told me his girlfriend and ex-wife were surprised by his behaviour.
He told me he was not admitted to an inpatient psychiatry ward following the suicide attempt. He told me he was able to walk away from the transport accident. He decided that he needed help and went to see the psychologist John Karamanos.”
157 The details of the attempt are somewhat sketchy. Apparently, he did not ask Mr Power whether he thought about suicide now. There is no discussion of the significance of the attempt. It may be based on the history he received coupled with other information Associate Professor Doherty considered the attempt as something of no significance now. He has not had a chance to explain but that is the way these applications are conducted. The point is he apparently does not consider important something which I do in this case.
158 Associate Professor Doherty apparently saw no significance in Mr Power’s criminal behaviour. Apart from the excerpts quoted above, there are three other mentions:[54]
“He told me he does have a criminal history and he has been convicted for stealing and driving while disqualified. He told me he recalls nineteen traffic charges over the years.
She [Dr Krapivensky] noted that the worker had been charged with assault on two occasions. He has been charged with assaulting a police officer and he received a suspended sentence and a good behaviour bond.
He stated he was currently in custody due to various offences allegedly committed by him between October 2018 and February 2019. He will attend a Magistrates’ Court on 3 April 2019.
There have been conduct problems during his teenage years and criminal behaviour during his adult years. He has been incarcerated for fifty days due to stealing and traffic offences. There are convictions for stealing and driving whilst disqualified and other traffic offences.”
[54]Report dated 18 December 2019 at pp 5, 7.and 10.
159 Mr Power was sentenced for the 2018 and 2019 offending on 10 December 2019. Associate Professor Doherty saw him the next day. There is no mention of what happened the day before. Each of Dr Tipirneni and Mr Karamanos see a connection between the criminal offences and his psychological state, it is unclear whether Associate Professor Doherty does.
160 Preceding these offences was the breakdown of Mr Power’s marriage and his separation from his wife and children. The circumstances of the breakdown are described in the affidavit of Frances Power. She describes, in a tone of sadness, the transformation of her husband following the incident. Since I accept her evidence, the circumstances of the breakdown of this marriage is of importance. Although there are mentions of the breakdown in his report, unfortunately, Associate Professor Doherty does not explore the significance of what occurred.
161 It would be unfair to criticise a practitioner without hearing from him or her. No doubt, for good reason, generally, the oral evidence in these applications is confined to the applicant. Since I am presented with conflicting opinions, it becomes a matter of evaluation on what is presented in the context of the other evidence without hearing from others. In this case, the treating psychologist and psychiatrist enjoy the considerable advantage of regular contact with Mr Power over several years. They have been asked to address issues of interest to the lawyers and have answered. I prefer the opinions of Dr Tipirneni and Mr Karamanos over those of Dr Krapivensky and Associate Professor Doherty.
162 The word “severe” in paragraph (c) of the definition of “serious injury” is of stronger force than the meaning given to “serious”.[55] Again, adopting the test described above, but bearing in mind the critical word is “severe”, and not the lesser “serious”, I am satisfied Mr Power has suffered a permanent severe mental disorder due to the incident.
[55]Mobilio v Balliotis [1998] 3 VR 833 at 846.
Loss of earning capacity consequence
Injury to left arm
163 There are three aspects to establishing loss of earning capacity consequence for the purposes of leave to start a proceeding claiming pecuniary loss damages, Mr Power must establish:[56]
[56]De Bono v VWA [2019] VSCA 85 at [47].
(a) his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked and as being at least very considerable;
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s134AB(38)(f); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
164 I have already noted the effect of the injury. The increase in pain after strenuous use does place a limitation upon the use of the arm. On its own, the injury to the arm does not prevent him from undertaking many activities. These are described in the Recovre report and supported by the views of Drs Ireland and Barton. Even the basal view of Mr Dwyer assesses Mr Power from a physical perspective as suitable for full-time employment as a trade sales assistant. The surveillance film showed a reasonable use of the arm in somewhat limited industrial circumstances, especially the sander. Reliance upon the injury to that arm for the purposes of loss of earning capacity consequence does not satisfy the first of the three things he must establish. Insofar as the injury to the left arm is concerned, I would not grant leave to seek pecuniary loss damages.
Psychological disorder
165 I agree with the defendant there was nothing “protected” about Mr Power’s employment at the carwash business. It was a real job. He was “sacked” because he could not do the job. No doubt, this was a difficult decision for Mr Lastrina for he subsidised him afterwards until he found something else. There was nothing else until after he was released from custody and that job was the creation of his father. It is not a job in the accepted sense. Its creation supported his application for bail as did his parents’ offer of accommodation. Having been granted bail and even after the completion of his criminal proceedings, Mr Power continued working in the job. His father was trying to rescue his son. It gave his father plenty of opportunity to assess his son’s capacity for work. He emerges poorly. I have earlier quoted from the father’s affidavit. It is the inability to concentrate and erratic behaviour which causes his father to say he is, in effect, unemployable. “Erratic behaviour” encompasses moodiness, withdrawn and lack of communication. Even though he does sell product, pack orders, prepare invoices and stack deliveries and records the results of testing electrical equipment, he does not work more than 15 hours per week. Sitting at a distance of 5 metres from where his father tests equipment does not show any improvement in his condition. The use of an electric sander in 2017 does not undermine the view, variously expressed, that he cannot return to his pre-injury duties or as a B grade electrician or in electrical work. He uses a small sander, on and off, for about 11 minutes, removing paint or stain from a side of a wooden wall of a small garden bed. The wall is about 15 centimetres high and 2 metres long.
166 Dr Tipirneni says Mr Power can work 10 to 15 hours a week now and into the foreseeable future in sales or other non-electrician jobs. Mr Karamanos is slightly less optimistic. He sees no capacity for work outside his job with his father on the limited hours he works. Of those two views, that of Mr Karamanos is the better. It recognises a capacity for work in the unusual circumstances of his current job but no other. This is the view of his father. For the reasons I gave earlier, I do not accept the views expressed by Dr Krapivensky and Associate Professor Doherty on Mr Power’s capacity for work. I speak of these views because they are current. Because of their age, the views of the other psychiatrists are of less significance on this issue, especially since Mr Power has undertaken counselling and treatment in 2018.
167 Applying the test set above, Mr Power satisfies paragraph (a). Turning to paragraph (b), Mr Power’s gross income on an annualised basis is $13,002.26. This is what he earns now. The employment is hardly suitable as that word is understood but that does not matter. He is incapable of earning more in “suitable employment”. His gross earnings over the seven years between 1 July 2008–30 June 2009 and 1 July 2014–30 June 2015 fluctuated between $34,283.00 in 1 July 2008–30 June 2009 and $121,817.00 in the year 1 July 2012–30 June 2013. Mr Power’s counsel submitted annual gross figures for without injury of $193,050 or $121,817. The defendant’s counsel submitted $80,496. Even if I chose the defendant’s figure or, even, the lowest figure of his annual salary of $34,283.00 as most fairly reflecting his earning capacity had the injury not occurred, then he has suffered a loss of earning capacity of 40 per cent or more.
168 Again, the views of Dr Tipirneni and Mr Karamanos as to the future satisfy me that Mr Power will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
Conclusion
169 I will grant leave to Mr Power to commence a proceeding seeking pain and suffering and pecuniary loss damages.
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