Rawlings v Rawlings

[2009] VCC 124

IN THE COUNTY COURT OF VICTORIA	Revised
AT MELBOURNE CIVIL DIVISION

Case No. CI-08-01557

DAVID RAWLINGS	Plaintiff
v
MORRIS JAMES RAWLINGS and JOAN MARIANNE RAWLINGS	Defendants
Trading as M & J RAWLINGS BUILDERS AND CONTRACTORS

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27-29 January 2009
DATE OF JUDGMENT:	3 March 2009
CASE MAY BE CITED AS:	Rawlings v Rawlings
MEDIUM NEUTRAL CITATION:	[2009] VCC 0124

REASONS FOR JUDGMENT

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Catchwords: Application under s.135A of the Accident Compensation Act 1985 – issue of whether the plaintiff’s psychiatric injury is severe – s.135AC – issue of when plaintiff had knowledge of incapacity arising from psychiatric injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Collis QC and	Melbourne Injury Lawyers
Mr A. Ingram	Pty Ltd
For the Defendants	Mr D. Curtain QC and	Herbert Geer
Ms C. Holland

!Und efined Bookm ar k, I

HER HONOUR:

1 The plaintiff, David Rawlings, makes application pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for the recovery of damages. He claims that between 1 January 1994 and April 1994, he suffered a mental or behavioural disturbance or disorder arising out of or in the course of his employment with the defendants. He claims that this is a “serious injury” within the meaning of paragraph (c) of the definition of serious injury in s.135A(19).

2 As the plaintiff’s cause of action is alleged to have arisen before 12 November 1997, the provisions of s.135AC(b) of the Act apply. This states as follows:

“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with s.135 or 135A must not be commenced –

…

(b) if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under s.135A(2B) has been made to the authority or a self-insurer before the expiration of three years after the date the incapacity became known.”

3          It is common ground that the plaintiff made an application for a determination on 21 December 2007.

Issues

4          Mr Collis of senior counsel for the plaintiff identified the period of employment between 1 January 1994 and April 1994 as the period during which the psychiatric injury, the subject of this proceeding, was caused. In the course of the hearing, when clarification of the issues was sought, Mr Curtin, of senior counsel for the defendants made it clear that the defendants conceded that the plaintiff suffers a work-related psychiatric injury by reason of his employment with the defendants’ business (pp54, 101, 114 and 170 of the transcript). The defendants never disputed that the period of employment identified by Mr Collis was a (my emphasis) cause of the plaintiff’s current psychiatric condition, that is, I understand it to be common ground that the plaintiff’s psychiatric injury “arises out of” the specified period of employment in that that employment is a (my emphasis) cause of it, in accordance with the test set out in Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 (7, July 2006).

5          The only issues between the parties are as follows:

(i) Can the plaintiff prove that as at the date of the hearing his condition satisfies the definition of serious injury pursuant to s.135A(19) in paragraph (c), namely, a severe long-term mental or severe long-term behavioural disturbance or disorder?

The law is clear that a mental or behavioural disturbance or disorder shall not be held to be severe unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe: Humphries v Poljak (1992) 2 VR 129; Mobilio v Balliotis & Ors (1998) 3 VR 833.

(ii)      Can the plaintiff prove that the incapacity arising from the injury was not known by him until after 12 November 1997?

It is clear that the requisite knowledge is of “serious injury incapacity”: Hurwood v State of Victoria (2005) VSCA 176 at para 11; Papercorp v Nicolaou [2006] VSCA 143 at para 33.

Thus, the plaintiff must prove that he was unaware of such incapacity prior to 21 December 2004, being three years before he made his application for determination.

Background

6          The plaintiff is presently aged 48 years, having been born on 6 May 1960. After completing Year 11, he commenced employment in a building business run by his parents (the defendants). He undertook a carpentry apprenticeship as part of that employment and, at all relevant times up until 1995, undertook carpentry work and some supervision of building work involving the construction and renovation of domestic dwellings.

7          In January 1994, the defendants’ business collapsed financially and, on 24 March 1994, the business was placed into the hands of receivers. The plaintiff’s father became unwell and was unable to deal with the problems of the business. The plaintiff alleges that it then fell to him to retrieve the financial status of the business, even though he had no training in running the business or organising its financial affairs. The plaintiff alleges that the receivers applied significant pressure to him to complete two outstanding jobs. The attempt to resurrect the business financially was unsuccessful and it ceased to operate in or about April 1994.

8          On 19 April 1994, the plaintiff underwent surgery to his left knee which had been injured in March 1987 and had already been the subject of two arthroscopic procedures. He did not work again for 12 months, after which time he tried to start up his own business in the building industry.

9          The plaintiff appears to have developed symptoms of anxiety and depression for which he saw a Dr R. Colahan at Southend Medical Centre in 1994. His condition apparently deteriorated and, on 17 November 1995, he was admitted to the Albert Road Clinic for 11 days “with symptoms of depression,

alcohol abuse compounded by several important social stresses, a marital

breakdown two years and deterioration in economic status”. The notes record
that “all combined to form the basis of conditions needed for depression”.

10         In the Albert Road Clinic notes, on 18 November 1995, the treating psychiatrist (apparently Dr Kennedy) noted: “Identifies the major stressor as

the failure of the family’s building business two years ago due to his father’s financial mismanagement. Coincided with the separation from his wife and involved the loss of his home and car.”

11         A report from Dr Kennedy to the plaintiff’s general practitioner, Dr Colahan, dated 28 November 1995, confirmed the inpatient stay after the plaintiff

“presented for assessment of a two year history of depressive symptoms

complicated by episodic alcohol abuse and gambling”. It went on to state that:

“His symptoms were linked to the following psycho-social stressors:

(1)	Persisting pain and stiffness of his left knee, due to cruciate ligament, meniscus and chondral pathology.
(2)	The failure of a family-operated building firm.
(3)	Separation from his wife and two sons.”

12         Dr Kennedy stated that inpatient observation suggested that his depressive symptoms were consistent with a diagnosis of an Adjustment Disorder with Depressed Mood and that temazepam had been prescribed. He issued him with a sickness certificate for one month and proposed to liaise with his treating orthopaedic surgeon to ascertain his eligibility for WorkCover payments (presumably relating to the plaintiff’s knee injury).

13         No material is before the court from the plaintiff’s treating general practitioner, Dr Colahan, and no further material is before the court from Dr Kennedy.

14         The plaintiff made a claim for compensation dated 29 January 1996 (although the claim form refers to the plaintiff having returned to work on 20 February 1996). In the claim form the injury or condition is stated as: “Recurrence of

knee problems. Unable to work properly. Stress and depression resulting in

hospitalisation”. The description of what happened to cause the injury or condition is stated to be “continuous pain causing severe depression resulting in hospitalisation”. Mr Curtin, for the defendants, informed me that he was instructed that this claim was settled for $17,000 pursuant to “s.98C” (sic) of the Act. He said “it would seem” that such settlement related to the plaintiff’s left knee condition. Mr Collis of senior counsel for the plaintiff did not take issue with this statement. I thus infer that this claim dated 29 January 1996 was for a left knee injury suffered in 1987 and that the stress and depression were conditions claimed as flowing from or secondary thereto and that the lump sum of $17,000 was paid to the plaintiff pursuant to s.98 and s.98A of the Act (which apply to an injury that arose before 12 November 1997).

15         According to paragraph 16 of the plaintiff’s affidavit, sworn on 20 December 2007, after he started his own building business, he had “problems relating to [his] deteriorating psychiatric condition”. In particular, he attempted suicide by overdosing on medication and was admitted to Monash Medical Centre on 15 February 1996. He says that he was drinking heavily and was addicted to gambling.

16         On 5 January 2001, the plaintiff again attempted suicide by overdosing on tablets and cutting his wrists and was again admitted to Monash Medical Centre. He claims in paragraph 18 of the said affidavit, “At the time I had no insight into the severity of my condition”.

17         Following the plaintiff’s discharge from Monash Medical Centre in January 2001, he underwent alcohol rehabilitation as an in-patient for 28 days at the Warburton Drug and Alcohol Rehabilitation Centre and began attending meetings of Alcoholics Anonymous, which he has continued to do until the present time. He has not consumed alcohol since the suicide attempt of January 2001.

18         From 1996, the plaintiff continued to operate his own business as a builder, albeit that his income fluctuated. He claims in paragraph 20 of his said affidavit that he “had difficulty coping with work because of [his] psychiatric condition”, however, there is no evidence before me that he sought any treatment for it following his discharge from Monash Medical Centre in January 2001 until he ultimately consulted a psychologist, Ms Perrett- Abrahams, on 4 August 2006. He claimed in his oral evidence that he had thought all of his problems were due to his drinking and he could not understand, after being sober for some four years, what was wrong with him. In April 2006, he went to see the former clinical director of the Warburton Drug and Alcohol Rehabilitation Centre, George Thompson, with whom he had had contact in 2001. Mr Thompson suggested that he consult Ms Perrett- Abrahams. The plaintiff says that consulting Ms Perrett-Abrahams was of great significance because it was then, for the first time, that he fully appreciated that his emotional and mental problems stemmed from the stress of the last few months of the business between January and April 1994, that is, what was loosely referred to in evidence and submissions as the “failure” or “closure” of the business.

19         On 15 August 2006, the plaintiff lodged a WorkCover claim form in which he stated his injury to be “left knee and anxiety/depression”. He also described in that same claim form, “Twisted knee when fell from ladder – subsequently anxiety/depression from closure of business”. It is common ground, that is, the defendants concede, as mentioned above, that this claim was accepted because the defendants accept that the plaintiff suffered a primary mental injury arising, inter alia, out of the work-related events of January to April 1994. The defendants commenced to pay to the plaintiff weekly payments of compensation and also undertook the cost of the plaintiff undergoing retraining by completing a Diploma of Community Welfare over the last two years. The latter occurred apparently because there was medical support for the proposition that the plaintiff should not return to work in the building industry as it was likely to adversely affect his depression and anxiety. The plaintiff has now obtained employment for approximately 20 hours per week as a community worker dealing with young persons aged between 12 and 18 years. At the time of the hearing, he was expecting to commence that employment shortly and to receive remuneration of approximately $22 per hour or approximately $500 per week from it.

20         The plaintiff claims that, notwithstanding that his psychiatric condition has improved with treatment, he still suffers recurring symptoms of anxiety and depression which include insomnia and nightmares about the building business, albeit not as frequently as in earlier times. He continues to suffer panic attacks from time to time and his self-esteem and self-confidence remain low and there are times when he has feelings of hopelessness and worthlessness. He continues to consult his general practitioner, Dr Shap, approximately every two months and is prescribed anti-depressant medication, Lovan, which he takes daily. He also takes anti-anxiety medication, Xanax, as needed. In addition, he continues to consult his psychologist, Ms Perrett-Abrahams every three weeks. In his most recent affidavit, sworn on 16 December 2008, and also in his oral evidence, the plaintiff stated that because of his psychiatric condition he does not believe that he would be capable of undertaking full-time work. In particular, he says that when he undertook a seven week placement on a full-time basis as part of his studies, he struggled with headaches caused by stress during that period.

Arguments of the plaintiff

21         Mr Collis, on behalf of the plaintiff, argues that the plaintiff’s work-related psychiatric injury satisfies the definition of serious injury because it has effectively endured since 1994. He argues that it manifested itself in excessive drinking and gambling and suicide attempts, which masked the underlying condition, such that was not diagnosed until 2006, well after the plaintiff had rehabilitated himself in relation to gambling and alcohol problems.

22         Mr Collis submits that, although the plaintiff and most of the doctors are fairly confident that he will be able to do part-time work, earning approximately $500 per week (or $26,000 per annum), this is a large diminution of his earning capacity as fifteen years ago, back in 1994, he was earning $33,157 per annum. The plaintiff relies upon this as a serious consequence of his condition in accordance with the often quoted passage of Ormiston JA in Cropp v Transport Accident Commission & Anor [1998] 3 VR 357 at 360- 361. The plaintiff also relies upon the medical evidence that he is still vulnerable and in need of medication and psychiatric counselling which is a serious consequence as recognised by the Court of Appeal in Hunter v Transport Accident Commission & Anor [2005] VSCA 1 and Turner v Love (1995) 21 MVR 314. Mr Collis submits that the plaintiff has “been to hell and back” over the past 14 years and his ongoing diminution of earning capacity and need for treatment proves that his psychiatric condition is severe and also long-term.

23         Mr Collis submits that it is important to distinguish between knowledge of serious injury incapacity and knowledge of the injury itself. He submits that, although the plaintiff was unable to recall what he told treaters at the Albert Road Clinic, the notes of that clinic made by the psychiatrist, on 24 November 1995, are important. The notes highlight that the plaintiff had made progress whilst an inpatient and note that he “considers that he has

returned to his ‘normal self’ and denies problems abstaining from alcohol.

Hence, has responded to support of care.” Mr Collis submits that this is an indication that the plaintiff did not consider that he had a serious ongoing incapacity at that stage. He also submits that the fact that the plaintiff was discharged from hospital without being prescribed any anti-depressant medication and simply sent back to his treating general practitioner is not consistent with the plaintiff suffering a serious incapacitating depressive illness at this time. Indeed, this point is made by a psychiatrist, Dr Shan, who examined the plaintiff on behalf of the defendants after the plaintiff filed a Workers Compensation Claim, on 29 January 1996. Dr Shan, in his report dated 17 April 1996, states that the plaintiff “displayed no obvious evidence of depression or anxiety” and goes on to state:

“The severity of depression is in some question as it would appear that his psychiatrist did not feel the need to prescribe anti- depressants nor even to continue seeing him and has been happy to transfer his care to his local general practitioner”.

24         Mr Collis submits that the Court should accept the plaintiff’s evidence that he thought that all of his problems were due to drinking and gambling and, when he overcame those problems after rehabilitation in 2001, he could not understand why there was still something “wrong with [his] bloody head and

that’s when [he] got help through [his] friend and put him on to Dianne Perrett-

Abrahams” (page 70 of the transcript).

25         Mr Collis submits that the history given to Ms Perrett-Abrahams by the plaintiff that “he suffered a breakdown when his father’s business went into receivership” should not be interpreted as some sort of acknowledgement that he knew he had an ongoing incapacity relating to that event. He urges the Court to accept the plaintiff’s evidence that he did not have insight into his illness and it was the consultation with Ms Perrett-Abrahams that gave him that insight.

26         Mr Collis submits that paragraphs 16 and 18 of the plaintiff’s affidavit, sworn on 20 December 2007, should be interpreted as the words of someone who is looking at his situation retrospectively once Ms Perrett-Abrahams had diagnosed him as suffering an ongoing incapacity related to depression and anxiety.

27         Mr Collis argues that the Court should accept that, after the plaintiff was discharged from Dr Kennedy’s care without any ongoing medication other than Temazepam, his depressive condition remained undiagnosed and untreated and, in this context, it could not be said that the plaintiff knew that he had a serious long-term incapacity flowing from the stress of dealing with his parents’ failed business. Mr Collis submits that the Court should find that the plaintiff’s actual subjective knowledge of a serious injury incapacity only came into being after seeing Ms Perrett-Abrahams, which was just shortly before he made his claim for compensation in August 2006, at which time Ms Perrett-Abrahams effectively suggested that he undergo retraining and get out of the building business because it would exacerbate his psychiatric condition.

Arguments of the defendant

28         On behalf of the defendant, Mr Curtain submits that the Court should not accept the plaintiff’s version of events that it was not until August 2006 that he became aware that he was suffering from depression related to the collapse of his parents’ business.

29         Mr Curtain relies upon the records of the Albert Road Clinic, particularly the entry on 18 November 1995 which notes the plaintiff’s depression with a history that he identified the major stressor as the failure of the family building business. He also relies upon the history given to Mr Russell, surgeon, in August 1996 to the same effect, which history also acknowledges that he had time off work between November 1995 and February 1996 because of the psychiatric effects of his father’s bankruptcy. Mr Curtin argues that these two sources make it clear that in 1995 and in 1996 the plaintiff knew of his depression and of its relationship to the failure of the family business.

30         Mr Curtain submits that it is not to the point that the plaintiff may have obliterated his memory by abuse of alcohol in the meantime because, in the history to Ms Perrett-Abrahams, he seems to acknowledge that his abuse of alcohol and gambling are related to his psychiatric condition and, in paragraph 16 of his affidavit, he acknowledges that his deteriorating psychiatric condition caused a diminution in his capacity to undertake building work in his own business through until about 2001. Moreover, he argues that the plaintiff’s suicide attempts in February 1996 and January 2001, each of which required hospitalisation, make it clear that he must have known he had ongoing psychiatric problems. Mr Curtain submits that the Court should not accept that the plaintiff’s life was effectively a blur continuously up until 2006 because he was working and also having access to his children.

31 Mr Curtain submits that the Court should reject the plaintiff’s assertion, in paragraph 18 of his affidavit that, in retrospect, he had no insight into the severity of his condition. He submits that the plaintiff has a significant credit problem, namely, claiming that it was Ms Perrett-Abrahams who alerted him to the diagnosis of depression due to the failure of the family business when Ms Perrett-Abrahams’ evidence is that he reported to her that he had a breakdown due to the failure of the family business. Accordingly, Mr Curtin submits that the plaintiff should fail in his application because he cannot satisfy the time limit provisions of s.135AC.

32         In relation to the issue of whether the plaintiff’s injury is a “serious injury” Mr Curtain submits that the evidence cannot satisfy the Court that at the present time the plaintiff suffers from a psychiatric condition which “severe”. Nor can the evidence satisfy the Court that the plaintiff’s psychiatric condition is “long term”. Mr Curtain argues that while there is some evidence that the plaintiff’s condition may have been severe in the past, it is clear that there has been an improvement and the bulk of medical evidence does not support that his present condition is necessarily long-term.

33         Mr Curtain relies upon the fact that the plaintiff has successfully completed a retraining course and the evidence points to him at this stage being able to manage at least a 50 per cent workload. He argues that the medical evidence points to a substantial improvement in the plaintiff’s condition. The plaintiff’s treating psychologist, Ms Perrett-Abrahams, in her most recent report dated 9 November 2008, states that his condition has improved from severe to moderate depression; Dr Epstein, in his most report, dated 13 October 2008, describes the plaintiff’s major depressive disorder as being in partial remission and the tenor of his opinion casts doubt upon whether any impairment could be classified as long-term; Dr Cole expresses optimism that people like the plaintiff, who have suffered emotional problems of their own, often work successfully in the type of community work for which he has now retrained; Ms Burton, neuro-psychologist, in her report dated 15 December 2008, states that the plaintiff’s condition may improve as he establishes himself in another profession; Dr Strauss, psychiatrist, in his report, dated 22 October 2008, describes the plaintiff as “mildly anxious and a little depressed”; and Dr Shan, in his report, dated 16 December 2008, describes the plaintiff as having a chronic major depressive disorder but postulates that his confidence will improve so that he can manage more than two and a half days per week. Thus, Mr Curtain submits, that the plaintiff’s application must fail.

The issue of whether the plaintiff has a serious injury

34         As at the date of the hearing, all of the most recent medical reports indicate that the plaintiff still has a psychiatric condition relating to his work with the defendants. It is described by most doctors as being chronic and involving anxiety and depression and also a panic disorder and gambling addiction. It is variously described as an Adjustment Disorder, a Major Depressive Disorder, and a Dysthymic Disorder. Dr Shap, the plaintiff’s general practitioner, is alone in stating that it “could be classified as a “Post-Traumatic Stress Disorder”. Mr Collis, on behalf of the plaintiff, does not suggest that Dr Shap’s classification should be accepted by the Court.

35         All of the medical practitioners report an improvement in the plaintiff’s symptoms of anxiety and depression, particularly related to his capacity to undertake retraining as a community worker. It is also clear that the plaintiff has re-established himself in a permanent relationship – his marriage having broken up just prior to the failure of the defendants’ business.

36         The majority of doctors agree that the plaintiff would be ill-advised to resume work in the building industry and consider that he would be capable of the 20 hours employment which he was proposing to commence as a community worker shortly after the conclusion of the hearing. Dr Epstein states that the plaintiff may (my emphasis) be able to resume full-time work but also states that he may not because he has difficulty coping with pressure and responsibility and his capacity deteriorates with fatigue. Dr Burton also notes that his psychiatric condition and fatigue after a few hours reduce his effectiveness in the workforce, particularly if put under pressure. Dr Strauss comments that the plaintiff may find future employment difficult and that there is no guarantee that he would be able to work continuously in the future. Dr Shan thought that the plaintiff should try to work possibly two and a half days a week until his confidence improves. Ms Perrett-Abrahams thought that the plaintiff was only capable of part-time work and would need consideration to avoid stressful situations.

37         Although some of the medical reports refer to the plaintiff’s current depression as being moderate (Ms Perrett-Abrahams and Dr Burton) and mild (Dr Shan and Dr Strauss), there are no clear expressions of opinion that the plaintiff is likely (my emphasis) to improve in the future as distinct from expressions of that as a hope or a possibility. (It is important to bear in mind, of course, that the plaintiff is taking anti-depressant medication daily.)

38         My impression of the plaintiff in the witness box was that he was someone who was easily overwhelmed. He seemed anxious and became flustered and found it hard to remember what he had just said in earlier evidence. At times he needed a break from giving evidence. This is consistent with a unified expression of opinion amongst those doctors who have most recently seen the plaintiff, that he reacts adversely to stressful situations. Certainly, the plaintiff himself indicated that he found it difficult to cope with his seven weeks full-time placement as part of his community worker’s course. He continues to take anti-depressant medication, Lovan, and also anti-anxiety medication, Valium, as needed. He commented that he had needed to take a Valium in order to go for his recent job interview and also on the previous weekend when he knew that his partner’s father, whom he finds a difficult person, was coming to visit. It was very apparent to me under intense cross-examination that the plaintiff had difficulty coping and, at times, seemed quite unwell. He stated that when he gets frustrated and anxious he loses his memory.

39         The plaintiff’s own presentation and the medical opinions before me lead me to the conclusion that it would not take very much pressure to destabilise the plaintiff’s psychological condition. I accept that he is dependent upon regular ongoing counselling from a psychologist, and all medical opinions indicate that this, in combination with the anti-depressant medication and anti-anxiety medication, is appropriate treatment which is likely to have to continue.

40         In paragraph 27 of his affidavit, sworn on 20 December 2007, the plaintiff stated that there are still times when he has feelings of hopelessness and worthlessness and that his self-confidence and self-esteem remain low. He also continues to suffer from dreams and nightmares, relating to building work carried on with his father, albeit not as frequent or as severe in earlier times, and to suffer panic attacks requiring the use of Xanax.

41         In paragraph 3 of his more recent affidavit, sworn on 16 December 2008, the plaintiff stated that he continues to suffer from recurring symptoms of anxiety and depression as outlined in his earlier affidavit.

42         Ms Perrett-Abrahams, in her most recent report, dated 9 November 2008, indicated that the plaintiff continues to suffer from an array of distressing symptomology which includes anxiety, loss of concentration, memory impairment, loss of confidence, low self-esteem, episodic sleep dysfunction, excessive fatigue, lowered libido and lowered motivation. In addition, he suffers from panic attacks.

43         Dr Strauss, who observed that during interview the plaintiff appeared mildly anxious and a little depressed, nevertheless went on to describe him as suffering from a Dysthymic Disorder which “involves a depressed mood for

most of the day for more days than not and can involve sleep problems, low

self-esteem and concentration difficulties”. He noted that his anxiety disorder associated with depression and involves panic-related problems. Dr Strauss stated that the plaintiff would always be prone to episodes of anxiety and depression and, for this reason, his prognosis must be guarded.

44         Dr Epstein, in his report dated 13 October 2008, noted:

“He still has periods of depression lasting for two days or so every three weeks, during these times he feels hopeless, helpless, useless and worthless. His self-esteem and self-confidence drops. He becomes irritable, exhausted, agitated and unmotivated”.

45         He went on to note:

“He generally has problems with memory and concentration, especially when fatigued. He becomes overwhelmed at times and feels that he needs to have a break.”

46         Dr Shan in his report dated 18 December 2008 states that the plaintiff “is

largely unsociable and confines himself to interactions with familiar persons.

He leads a quite (sic) life and avoids stressful situations as much as possible”.

47         All of the descriptions of symptoms to which I have referred, to my mind, sound like major intrusions into the plaintiff’s sense of well-being.

48         My analysis of the plaintiff’s situation is that he suffered symptoms of depression and anxiety and panic attacks which fluctuated in severity from 1994 onwards. The plaintiff was hospitalised because of his mental or emotional condition in 1995, 1996 and 2001, but each time he was discharged without the treaters diagnosing a persisting serious condition that required ongoing treatment. It is in the nature of a psychiatric injury that its presence can be difficult to diagnose and its prognosis difficult to predict. It is easy to understand that drinking or gambling will be seen by many as causes rather than symptoms or that they otherwise mask the presence of other causes. What is plain is that Ms Perrett-Abrahams diagnosed a work-related primary psychiatric injury in 2006 and the plaintiff has been under constant psychological counselling and drug therapy since that time. Moreover, upon being told the cause, the plaintiff claimed the injury for the first time and the defendants recognised and accepted the injury for the first time in 2006. This recognition by the defendants in 2006 may have arisen because of the changed view of the consultant psychiatrist, Dr Shan, who reported to them in 1996 and 2006. In 1996 Dr Shan considered that the plaintiff displayed “no obvious evidence of depression or anxiety” and “the severity of depression [was] in some question”. However, by 2006 he considered that a diagnosis of chronic major depressive disorder was warranted and that the collapse of the business in 1994 was a significant contributing factor.

49         I find it likely that the lack of consistent specialist treatment by a psychologist or psychiatrist has resulted in the plaintiff’s symptoms of depression and anxiety becoming entrenched so that nearly 15 years later he still has intrusive symptoms which do seriously impact upon his daily well-being and his capacity to work and which will require ongoing psychological counselling and medication and that he is vulnerable to worsening of his condition if exposed to stressful situations. Although Dr Epstein says that he is not able to make a decision as to whether the plaintiff’s condition is permanent, it is clear that the plaintiff does not need to prove permanency. I am satisfied on the basis of the opinions expressed by Ms Perrett-Abrahams, Dr Burton, Dr Strauss and Associate Professor Saling, and upon the evidence of the plaintiff himself, that the impairment resulting from his psychiatric condition is likely to be long-term. Although Dr Shan says the prognosis should (my emphasis) be good and that he is fit to try (my emphasis) to work in his new vocation, he also says that he is not fit for his pre-injury employment and needs to continue counselling and possibly anti-depressants.

50         The plaintiff has had to give away the idea of working in the building industry (which decision is supported by all of the most recent medical reports, that is, those dated in 2007 and 2008). The building industry is the only employment environment the plaintiff has known since leaving school. Although he has managed to retrain as a community worker, my assessment of the evidence is that, given his relatively lengthy history of symptoms and the consensus of medical opinion as to his difficulty dealing with stress and the need for ongoing treatment, it is unlikely that he will ever manage a full-time job again. Accordingly, I find that the combination of circumstances to which I have just referred lead me to the conclusion that the plaintiff’s psychiatric impairment resulting from his work-related injury has given rise to long-term pain and suffering consequences and long-term loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders may be fairly described as being more than serious to the extent of being severe.

The issue of when the plaintiff knew of his incapacity arising from the psychiatric injury (s.135AC(b))

51         The plaintiff’s case is that trying to deal with the financial collapse of the defendant’s business without any training or preparation caused him great stress and he began to drink increasingly large amounts of alcohol and also to gamble, both of which became addictions for him such that he has little recollection of the years that followed.

52         In paragraph 14 of his affidavit sworn on 20 December 2007 the plaintiff states:

“I do know from medical records that I spent 11 days as an inpatient at the Albert Road Clinic at approximately November 1995 by reason of symptoms which I was then suffering, and which I now understand were assessed as being depressive in nature, complicated by alcohol abuse and gambling addiction. I understand that my medical records indicate a diagnosis of adjustment disorder and depressed mood being made at that time and the prescription of Temazepam.”

53         In that affidavit he goes on to refer to his subsequent admission to the Emergency Department of Monash Medical Centre of 15 February 1996 following an overdose and how he was discharged the following day but his life “remained out of control”. He also describes a second suicide attempt for which he was admitted to Monash Medical Centre on 5 January 2001 following an overdose of various tablets.

54         During the course of submissions there was much debate by counsel concerning the content of paragraphs 16 and 18 of this affidavit.

55         Paragraph 16 reads as follows:

“After the collapse of the business and undergoing my knee surgery I did not work for 12 months. I then tried to start up my own business in the building field but with my problems relating to my deteriorating psychiatric condition, I was able to construct only one house and undertake perhaps ten renovation task over the years which followed through until about 2001. During these years my level of alcohol consumption remained enormously high and I was still addicted to gambling.”

56         Paragraph 18 reads as follows:

“In retrospect and looking back over the years I can say that even at this time I lack some insight into the severity of my psychiatric condition. At the time I had no insight into the severity of my condition … ”

57         Mr Curtain, on behalf of the defendants, submits that these paragraphs constituted a clear acknowledgement by the plaintiff that he was aware that he had a deteriorating psychiatric condition which impacted upon his capacity to work and that that condition had been identified by him when he attended the Melbourne Clinic in November 1995 as symptoms of depression. In particular, on 18 November 1995 his treating psychiatrist noted that he

“identifies the major stressor as the failure of the family’s building business
two years ago due to his father’s financial mismanagement”.

58         Mr Curtin submits that I should draw an inference according to the principle enunciated in O’Donnell v Reichard [1957] VR 916 that the evidence of Dr Kennedy and Dr Colahan would not have assisted the plaintiff.

59         Dr Kennedy is a psychiatrist who treated the plaintiff during his hospital admission in 1995. It is plain from his report, dated 28 November 1995, which was tendered by the defendants (see paragraphs 10 and 11 above), that Dr Kennedy was discharging the plaintiff from his care at that time. In these circumstances, I see no reason for drawing any inference adverse to the plaintiff.

60         Dr Colahan was the plaintiff’s treating general practitioner in 1994. She was at the same medical centre as the plaintiff’s current general practitioner, Dr Shap, who has been treating the plaintiff since 2001 and apparently took over her role. Dr Colahan’s name does not appear on the letterhead of that medical centre on which the reports of Dr Shap dated 20 July 2007 and 19 December 2008 are written. The records of that medical centre were subpoenaed. The defendants did not seek to have either Dr Colahan or Dr Shap called for cross-examination. It is clear that the first time the plaintiff claimed the injury which is the subject of this application was 2006 and at that time the plaintiff was being treated by Dr Shap. In all of the circumstances, I can see no room for an adverse inference to be drawn.

61         Mr Curtin submits that an inference adverse to the plaintiff should also be drawn from the lack of evidence from his former wife, Katherine Wilson, and the plaintiff’s sister (with whom he lived after being discharged from the Albert Road Clinic) both of whom would have been in a position to comment about his state of mental health in 1995 and 1996 and his appreciation or lack thereof of such state.

62         Katherine Wilson is a solicitor and she is the instructing solicitor of the plaintiff’s counsel in this application. During the hearing I commented that such a role was inadvisable, but it would explain that Ms Wilson never saw herself as the potential witness. I was told that she and the plaintiff separated in 1993. Neither Ms Wilson nor the plaintiff’s sister are doctors. It is difficult to see how their evidence would have assisted me in the determination of the special issues in this application. Accordingly, I draw no inference adverse to the plaintiff by reason of the lack of evidence from either of them.

63         On 17 November 1995 the admission notes of the Albert Road Clinic record:

“… admission of a 35 year old man with symptoms of depression, alcohol abuse compounded by several important social stressors. A marital breakdown, two years, and deterioration in economic status all combined to form the basis of conditions needed for depression.”

64         It is not clear to me whether the plaintiff himself on admission identified himself as having “symptoms of depression” or whether this is descriptive terminology which has been used by the hospital staff. In the same records under “Identifying Information” it is recorded amongst other things that he has been “self-indulgent” (his terms) in gambling and alcohol. Under a heading “Present Problems” it is stated:

“The depression exhibited is characterised by poor sleep, loss of appetite, increased alcohol intake and gambling. Marital conflict of two years duration is a major precipitant, along with the deterioration of economic status due to less work as a builder and the assistance given to parents regarding a failed business.”

65         The use of such terms as “the depression exhibited is characterised by … ” suggest to me that the writer of the records is interpreting descriptive symptoms given by the plaintiff on presentation. Under cross-examination the plaintiff said he had no recollection of what he had said to the doctors at the Albert Road Clinic back in 1994 and he did not know whether he even knew what depression was at that stage. The causes identified for the “Present Problems” do not clearly include the compensable injury claimed in 2006. the words “the assistance given to parents regarding a failed business” probably refer to the matters deposed to in paragraph 6 of the plaintiff’s affidavit sworn on 20 December 2007, namely, that prior to the collapse of the business the plaintiff worked without salary for six months and made a loan of $20,000 to his parents. These matters are distinct from the stress and anxiety which he suffered in trying to manage the business in 1994.

66         It is relevant that the Albert Road records state that the plaintiff responded well to treatment there and actively participated in groups and also had successful weekend leave without needing to contact the clinic. On 24 November 1994 such progress is noted and it is recorded that the plaintiff

“considers that he has returned to his ‘normal self’ and denies problems

abstaining from alcohol. Hence has responded to supportive care”. This does not suggest to me someone who at that stage had insight that he had a debilitating long-term psychiatric incapacity. Nor is Dr Kennedy’s letter to Dr Colahan, on 28 November 1995, indicative of a serious psychiatric condition. In that letter Dr Kennedy stated that inpatient observation suggested that his depressive symptoms were “consistent with (my emphasis) a diagnosis of an adjustment disorder with depressed mood”. He did not categorically make such a diagnosis. The plaintiff was not prescribed any anti-depressant medication but simply the sleeping tablet, temazepam, to be taken at night and he was given a sickness certificate for one month. Thus, although in November 1995 it would seem that the plaintiff identified the failure of his parent’s building business as a major stressor, the medical evidence does not suggest a mental condition which was severe or long-term at that stage and, hence, I find that the plaintiff could not have known that he had “serious injury incapacity” at that time.

67         The next records of significance are those of the Monash Medical Centre on 16 February 1996. The plaintiff presented there after taking an overdose of various tablets in an attempt to kill himself. Although the plaintiff must have been in a state of despair to have taken such a step, the notes of Tony Catonese, clinical psychologist on that day, specifically state “plaintiff not (my emphasis) reporting depressive symptoms”. Thus, on that occasion, although the plaintiff identified various stress factors over the previous two and half years, including his marital separation, his father’s building business, his knee injury and increase in gambling and drinking, there does not seem to be any acknowledgement of depressive symptoms. The discharge summary describes him as “sad, lonely individual finding it difficult to rebuild life

following collapse of both work and relationship. Appears to need and is

calling out for nurturing by ‘mother’ in the hope this will help him.” The notes under a heading “Insight” state that the plaintiff was aware of the impact of what he had done and the need to get help and wants help and under a heading “Judgment” record “? impaired – particularly if drinks alcohol”. The summary has, as a possible diagnosis “query adjustment disorder, query dependant personality issues, query family issues” but there is no suggestion that the plaintiff was diagnosed with an incapacitating mental disorder at this time and no medication was prescribed for him upon him being discharged home with his parents.

68         I have already referred to the claim form dated 29 January 1996 in paragraph 14 above. At that stage the plaintiff was claiming a knee injury and its sequelae and, significantly, making no claim at all in respect of the injury which is the subject of this application.

69         After the plaintiff made his claim for compensation in early 1996, he was examined by Mr Russell, general surgeon, who provided a report dated 12 August 1996. Obviously, Mr Russell’s focus in the examination was on the plaintiff’s knee injury. However, he took a history that after the knee reconstruction in April 1994:

“He had physiotherapy for three months post-operatively and then took up swimming. At that stage (my emphasis) he was having a lot of depression and was having difficulty getting his own business going as well as the problems of getting over the shock and upset of his father’s problems. He had a lot of depression.”

70         Mr Russell went on to state:

“The patient has had time off work between November 1995 and February 1996. It (sic) said that this is because of the psychiatric effects of his father’s business bankruptcy and he required admission to a psychiatric hospital for depression at that stage (my emphasis). He also said that he had a lot of knee pain. It seems that this time off work was mainly for his depressive illness rather than for his knee.”

71         My reading of the history taken by Mr Russell is that the plaintiff at that point was referring to his depression in the past tense. That is “at that stage”, namely, back in 1995 and early 1996. There is no reference anywhere in the report to the plaintiff indicating that he had an awareness of ongoing depressive symptoms when he saw Mr Russell. Indeed, the tenor of the report in terms of the plaintiff’s thought processes is quite positive in that Mr Russell records “the patient wants to get it all behind him and as soon as this WorkCover process is over he intends to get it all behind him”. In my view this history indicates that although the plaintiff was acknowledging that he had suffered depressive symptoms for which he was hospitalised in the Albert Road Clinic, he gave the impression that he was moving on with his life. He certainly did not give a history that he saw himself as having an ongoing psychiatric impairment at the time that he saw Mr Russell.

72         A report from the plaintiff’s current general practitioner, Dr Shap (who has treated the plaintiff since 2001), dated 20 July 2007, notes that the plaintiff had been a patient of that practice since 1994 under Dr Colahan. It states:

“He suffers from chronic anxiety and depression. These symptoms have been

constantly present since the early 1990s”. It goes on to state:

“His anxiety and depression stem from the collapse of the family building business in 1994. His gambling and alcohol abuse also commenced at that time as a result of financial ruin and inability to cope with insolvency”.

73         The report further states: “Psychologically, his anxiety is aggravated by any

reference to building issues and he could not mentally cope with building

work”. The records of that practice have not been tendered in evidence. It is unclear at what point in time Dr Shap formed the opinion that the plaintiff’s anxiety and depression stem from the collapse of the family building business in 1994 and when, if at all, he communicated such opinion to the plaintiff. In his 2007 report Dr Shap expresses the view that the plaintiff is unfit psychologically to continue working as a builder, however, it is clear that the plaintiff did manage to work in the building industry albeit with a fluctuating income from 1996 to 2006.

74         On 5 January 2001 the plaintiff underwent a third hospital admission. This was at Monash Medical Centre where he was admitted following a suicide attempt where he had cut his wrists whilst under the influence of alcohol. The plaintiff identified his presenting issues as alcohol and gambling addiction and loneliness. He was diagnosed as having an adjustment disorder with depressed mood with a differential diagnosis of depression.

75         Following the plaintiff’s release from Monash Medical Centre, in January 2001, he undertook a rehabilitation program for his alcoholism as an inpatient at Warburton Drug and Alcohol Rehabilitation Centre for 28 days. Thereafter, he commenced attending Alcoholics Anonymous and, as he states in his affidavit sworn on 20 December 2007, “I began to regain some control of my life and managed to give up alcohol use.” He was on a Disability Pension for a period of 12 months which explains his small amount of income from exertion in the financial year ending 30 June 2002, but thereafter, he steadily increased his earnings. He states that he was successful in abstaining from alcohol, but nevertheless had difficulty coping with his work because of his psychiatric condition.

76         Under cross-examination the plaintiff indicated that he could not understand what was wrong with him given that he had successfully rehabilitated himself from alcoholism. It was in this context that he ultimately found his way to Ms Perrett-Abrahams, treating psychologist, in August 2006. In the meantime, from 2001 onwards, he had seen Dr Shap, his general practitioner. Unfortunately neither of Dr Shap’s brief reports detail the chronology of any treatment given to the plaintiff over the period from 2001 August 2006. Certainly, there is no indication on the evidence before me that between 2001 and 2006 the plaintiff was referred to a psychologist or a psychiatrist for treatment and it is not clear on the material when the plaintiff commenced taking the anti-anxiety medication Xanax, or anti-depressant medication (presently Lovan). (I do note that Dr Cole’s report to the defendants, dated 6 September 2006, following an examination on 1 September 2006, states:

“ … I wonder if even now he might benefit from the prescription of an anti-

depressant”. This suggests that it must have been after 1 September 2006
that anti-depressants were prescribed.)

77         If Dr Shap did prescribe any treatment between 2001 and 2006 it would seem that it was ineffective in dealing with the plaintiff’s symptoms of depression and anxiety because Dr Perrett-Abrahams’ report details that he presented to her with “an array of distressing symptoms which included chronic knee pain,

chronic insomnia, mood swings with significant depression and anxiety as

evidenced in psychometric testing results … ”. She went on to note that:

“He had become socially isolated reporting that he rarely went out of the house with the exception of attending AA meetings. He stated that he felt that he had no future and life was not worth living. He had become exhausted by his constant ruminations about his losses, his lack of future, his knee pain and insomnia. He reported difficulty with relationships and suffered significant social isolation.”

78         Much argument focussed upon whether, as the plaintiff claimed, it was Ms Perrett-Abrahams who told him that he had been suffering from depression due to the failure of his father’s business, or whether he gave her that history. Ms Perrett-Abrahams’ evidence under very brief cross- examination was exactly as she had detailed in her report dated 8 April 2007, namely, “Mr Rawlings reported that he suffered a breakdown when his father’s business went into receivership.” Frankly, I do not think that much turns on this point. The plaintiff has never denied that he was in a bad way psychologically following the failure of his father’s business and that this necessitated hospitalisation in the Albert Road Clinic. It seems to me that this is all that he was conveying to Ms Perrett-Abrahams when he gave the history which I have just quoted. He also reported to her that he intended to work for himself but found himself with escalating drinking and gambling addictions which commenced while he was dealing with the stress of liquidating the family business. Ms Perrett-Abrahams states: “He reported that he

commenced drinking and gambling, initially to dull his physical and
psychological pain.”

79         It is clear that the plaintiff was an alcoholic from some time in 1994 or 1995 onwards through to 2001. The material before me indicates that he has had times when he has appreciated that he has been psychologically very low and may have used the term “depression”, particularly when he presented to the Albert Road Clinic in 1995 and did use the term “severe depression” when he made a claim for compensation in early February 1996. However, I find that the plaintiff did not have insight that this was an ongoing and debilitating condition.

80         Just prior to the plaintiff’s discharge from the Albert Road Clinic the records state that he thought he was “back to normal” and in February 1996 at Monash Medical Centre he was not reporting depressive symptoms. In 2001, when he was admitted to Monash Medical Centre he identified his problems as gambling and drinking and being unable to seek help because of these. In the notes of Monash Medical Centre (Southern Health Care Network) at p124 of the Defendant’s Court Book beside a heading “Capacity for Abstract Thought” it is recorded “concrete” and under the heading of “Insight” (explanatory model of illness) it is recorded as “poor grasp”. These notations in the plaintiff’s clinical records lead me to the view that the plaintiff did not have insight that he had an ongoing incapacity relating to the stress he suffered at work between January and April 1994 as distinct from time to time being aware that he was not managing his life well and not working efficiently.

81         If the plaintiff did have, knowledge of a “serious injury” incapacity prior to August 2006 one would have expected intensive treatment from a psychologist or psychiatrist. One would also have expected a claim for that injury to have been made under the Act. Rather, the material before me indicates a dearth of treatment in between his hospitalisation in 1996 and his hospitalisation in 2001. This is consistent with him being in the grip of alcoholism. There is a further dearth of treatment from 2001 to August 2006. As I have previously stated, it seems to me that the most likely scenario is that, in the absence of specialist treatment, the plaintiff’s condition of depression and anxiety became entrenched. When he finally sought the help of Ms Perrett-Abrahams she did, in fact, help him to understand that the ongoing difficulties which he was experiencing were a chronic anxiety condition in the form of an adjustment disorder with continued episodes of depression as a consequence, at least in part, of his employment by the defendants.

82         In my view it is only consistent with the plaintiff’s lack of awareness that no claim for the subject injury was made until August 2006, just shortly after seeing Ms Perrett-Abrahams. He was familiar with the process of making a Worker’s Compensation Claim, having made a claim in early 1996 for what he thought was depression consequent upon his knee injury. If, as the defendants allege, he was at all times aware of an ongoing incapacity referable to the stress of managing the failed business it makes no sense that he would not have made a claim for that prior to August 2006.

83         I find the plaintiff’s explanation as to his lack of insight into his psychiatric condition plausible, particularly in the light of his alcoholism and lack of specialist psychological treatment until his saw Ms Perrett-Abrahams. I thus accept that the contents of paragraphs 16 and 18 of the plaintiff’s affidavit sworn on 20 December 2007 are sworn with knowledge that was retrospective and not an indication that he was conscious through all those years that he had a deteriorating psychiatric condition which was responsible for him not being able to work efficiently.

84         Accordingly, I find that it was not until August 2006, when the plaintiff consulted Ms Perrett-Abrahams that he first knew that he had an ongoing serious injury incapacity (my emphasis) as distinct from being aware from time to time that he did not feel mentally well and was having problems with insomnia and mood swings. This being so, I find that the plaintiff has made an application for determination under s.135A(2B) to the Authority before the expiration of three years after the date the incapacity became known.

85 It may be an interesting argument whether the “knowledge” required under s.135AC refers to both the compensable injury as well as the incapacity arising therefrom. In most circumstances a worker receives knowledge of injury and incapacity simultaneously, for example, asbestosis or mesothelioma or a back which suddenly deteriorates into a serious state. The circumstances of this case raise the prospect of a mentally ill person realising that he is mentally ill but not that the cause of it is a compensable injury. In the absence of authority, I would tentatively suggest that the knowledge referred to in the section is knowledge of both the injury and the incapacity because otherwise the worker does not know that he suffers “incapacity arising from the injury.” I was not addressed on this matter. Fortunately, I do not have to decide it because it is plain, in my view, that the plaintiff was not aware that he had an ongoing incapacity that required ongoing treatment until 2006. His lack of insight, of course, is entirely consistent with the nature of mental injury.

Further argument of the defendants relating to the lack of merit of the plaintiff’s claim relating to negligence

86         Mr Curtain, on behalf of the defendants, submitted that even if the plaintiff were to succeed in this preliminary application he had “a ridiculous case anyway” and his case was so fraught in relation to liability that it would be a pointless exercise for the Court to grant him leave. He urged the court to dismiss the application and relied upon the authority of Alcoa of Australia v McKenna (2003) 8 VR 452.

87         There is no draft statement of claim before me. As I understand it, at least part of the plaintiff’s claim is that he only ever worked as a carpenter and had absolutely no training given to him in relation to the financial management of the business and was effectively “thrown in the deep end”. I do not have any particulars of that claim nor any indication of what evidence might be called to support it. Precisely how it is to be framed in contract or tort or any other basis was not argued before me. Mr Curtin did not insist that Mr Collis should do so. To dismiss a claim prior to pleadings must be extremely rare: Howarth v Adey (1996) 2 VR 535; Naxakis v Western General Hospital (1999) 197 CLR 269; and Puttick v Tenon Ltd [2008] HCA 54 (12 November 2008). It would seem to me a very rash step in the circumstances for a judge to conclude that the plaintiff’s claim on liability was necessarily hopeless and to refuse leave to the plaintiff to bring proceedings.

88         The judgment of Chernov JA in the Alcoa of Australia v McKenna at p460 makes it clear that where a party makes an application such as that made by Mr Curtin on behalf of the defendants then the defendants have an evidentiary onus, “much like a defendant and seeking summary judgment”, to establish that the plaintiff’s case is “absolutely hopeless” or “bound to fail”. No such evidentiary onus has been discharged.

89         As I am satisfied that the plaintiff’s psychiatric condition meets the definition of “serious injury” and that he has overcome the limitations of s.135AC, it is the order of the Court that the plaintiff be granted leave to recover damages for injury arising out of or in the course of or due to the nature of his employment with the defendants between January and April 1994.