Roussety v Castricum Brothers Australia Pty Ltd
[2012] VCC 978
•14 June 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01558
| JOSEPH ROUSSETY | Plaintiff |
| v | |
| CASTRICUM BROTHERS AUSTRALIA PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 6 June 2012 | |
DATE OF JUDGMENT: | 14 June 2012 (Revised) | |
CASE MAY BE CITED AS: | Roussety v Castricum Brothers Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 978 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – psychiatric injury – pain and suffering damages – loss of earning capacity – whether the serious injury threshold is satisfied – whether injury is caused at work.
LEGISLATION CITED - Accident Compensation Act 1985, s134AB(16), s134AB(37), s134AB(38)(d) and s134AB(38)(g).
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833, Ansett Australia Ltd v Taylor [2006] VSCA 171 and O'Donnell v Reichard [1975] VR 916
JUDGMENT – Application granted for pain and suffering damages and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G Wicks | Maurice Blackburn Lawyers |
| For the Defendant | Mr D McWilliams | Herbert Geer |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 8 April 2011, by which the plaintiff seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant. The plaintiff alleges that during the course of his employment, and in particular between 2004 and 2007, he suffered permanent severe mental or permanent severe behavioural disturbance or disorder.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The following evidence was adduced or tendered during the hearing of this application:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following documents:
§Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 13-107 inclusive.
· The defendant tendered the following documents:
§Exhibit 1 – nine surveillance DVD discs for dates between 2 March 2008 and 15 May 2012.
§Exhibit 2 – the Defendant’s Court Book (“DCB”) pages 1-73, 98, 104, 117-125, 146, 153 and 162-277.
4 At the commencement of the application, Mr McWilliams, on behalf of the defendant, stated that the issues for consideration in this hearing were:
(a) whether a compensable injury has been sustained as alleged by the plaintiff;
(b) if the plaintiff did suffer a compensable injury as alleged, then does the plaintiff continue to suffer any mental or behavioural disturbance or disorder to the requisite standard required under the Act;
(c) the plaintiff’s complaints in relation to his behavioural disturbance or disorder are reliable and/or exaggerated;
(d) the plaintiff’s psychiatric condition does not constitute a permanent severe mental or permanent severe behavioural disturbance or disorder; and
(e) the plaintiff is capable of performing duties in alternative employment and, if the plaintiff exercised that capacity, he would earn an income comparable to his pre-injury income.
5 Whilst Mr McWilliams did not nominate directly that the credit of the plaintiff was an issue in this application, it was clear from the cross-examination that the plaintiff’s credit was very much in issue beyond the description of unreliable or exaggerated complaints.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
[1]S134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(d) provides that a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of ss(16) unless the pain and suffering consequences or 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.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “severe” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required by s134AE of the Act to give detailed reasons which are extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 15 February 1965 and is now aged forty-seven years.[3] He was born in Mauritius and came to Australia in 1984 as a nineteen-year-old man.[4] The plaintiff is a married man and has two grown-up children from a previous marriage and a young child of five years.[5]
[3]PCB 13
[4]PCB 14
[5]PCB 17 at paragraph [22]
10 The plaintiff was educated in Mauritius. He was trained as a marine carpenter. The plaintiff was able to give evidence without the assistance of an interpreter and fully understood the proceedings.[6]
[6]PCB 14 at paragraph [2]
11 The plaintiff first commenced work in 1985 with Phillips as a process worker. He remained in that employment for some eight years. He then moved to Boral as a storeman and remained in that employment for a further two years. After ceasing work at Boral, the plaintiff then moved to Telspec as a supervisor, where he remained in employment for five years.[7]
[7]PCB 14 at paragraph [3]
12 The plaintiff commenced employment with the defendant company in 2000. In 2004, the plaintiff was promoted to supervisor/manager of the rendering plant at the defendant’s premises. The plaintiff remained as the manager of the rendering plant until he ceased employment on 10 July 2007.[8] The plaintiff was made redundant on 5 September 2007 which coincided with the date he made a claim for workers’ compensation in this case.[9] The plaintiff has not worked since 10 July 2007, when he collapsed at work.[10]
[8]PCB 14 at paragraph [6]
[9]PCB 107
[10]PCB 16 at paragraph[12]
Injury with the Defendant
13 The plaintiff worked as a supervisor/manager of the rendering plant for the defendant. His role involved the organisation of sales of animal products, maintenance of the plant, supervision and instruction of staff, and working on the plant himself. The plaintiff was required by he defendant to work very long hours, sometimes as much as 90 hours per week.
14 On 28 February 2007, the plaintiff collapsed at work. The plaintiff’s evidence was that he had been working excessive hours and he simply collapsed.[11] The plaintiff was given a month off work as a result of that collapse. The defendant required the plaintiff to return to work before the month of certification had expired. He returned to work and continued, on his evidence, working extremely long hours. On 10 July 2007, the plaintiff again collapsed at work. He was taken by ambulance to the Dandenong Hospital. The plaintiff has not worked since that day.[12]
[11]PCB 15 at paragraph10
[12]PCB 16 at paragraph12
15 From 10 July 2007 until 5 September 2007, when the plaintiff submitted his WorkCover claim form, the defendant treated that period of time off work as sick leave. In his application, the defendant did not concede the work was the cause of his psychiatric injury. In the course of this application, the plaintiff tendered a document in relation to s98C of the Act where the defendant has accepted liability for the psychiatric condition claimed by the plaintiff.[13] The plaintiff relies upon the authority of Ansett v Taylor[14] to establish that the defendant has admitted liability for the claimed psychiatric injury.
[13]PCB 110-114
[14][2006] VSCA 171
16 Mr McWilliams, on behalf of the defendant, challenged the plaintiff on the basis that the reason for his collapses at work was to do with his performance in the job and the administering of a verbal “first and final warning” by Gary Castricum.
17 The following evidence was given by the plaintiff:
Q:“You didn’t make any comments to your doctors, did you, about the complaints that you had received about your performance at Castricum Brothers, had you?---
A:About my performance, I never received any complaints.[15]
Q:So you would deny, would you, that in early 2007 you had a meeting with Gary Castricum about your performance?---
A:I’ve never had any appointment with Gary Castricum in regard to my performance.”[16]
[15]T 21, L5-8
[16]T 21, L28-31
18 The plaintiff was clearly giving evidence that he had never received any performance complaint from the management of the defendant company.
19 The plaintiff was then challenged about over-committing to particular sales orders on behalf of the defendant. The plaintiff explained the process as follows:
“To the one that you’re talking about, to cut a long story short, we do sales by tender every month and if we don’t meet the amount you bought, we have to honour it in the following month until we complete that order. These meetings take place every month and every week of every week and date and year. For them to tell me – to say that they didn’t know, it was never overcommitted, they knew. We sold, example, 100 tonne and it wasn’t $100. They knew we had to do – to complete that, because a meeting goes on every week and every month due to sales and how the plant went for how much sales, and we pay as we did for the week. So I’ve never overcommitted anything without their knowledge. It is not an overcommitment. It was a sale that wasn’t completed.”[17]
[17]T 22, L17-31
20 The plaintiff, in his evidence, continually repeated that he had never received any warning from the defendant about his performance or in relation to the supply of tallow drums at a reduced price.[18]
[18]T 23, L13-23
21 The plaintiff was challenged on the basis of a statement made by Mandi Bryant, an operations manager for the defendant company. In her statement, which was dated 26 September 2007 but not signed, Ms Bryant alleged:
“When this situation was discovered, Joe was called to a meeting with the Managing Director, Gary Castricum and was warned that if his performance did not improve, then he would be dismissed. He was told that that was his first and final warning.”[19]
[19]DCB 179
22 The defendant’s documents had been subpoenaed to Court for this application. Both the defendant and the plaintiff had access to the subpoenaed documents of the defendant. There was no documentation tendered or referred to to support the allegation that the plaintiff had been warned by Mr Castricum in relation to his performance or dealings with the supplier of tallow drums. In his evidence on this issue of the meetings for tallow drums, the plaintiff said as follows:
“No, those meetings never happened. It was [a] normal weekly meeting. Everything was discussed in front of them. Minutes was(sic) taken. I never receive any warning from them.”[20]
[20]T 24, L27-30
23 In her statement, Ms Bryant suggested that the reason the plaintiff fainted in February 2007 was that he was required to deliver a speech to a small group of his colleagues as part of his management development skills program.[21] The plaintiff rejected this proposition and said that he was not even thinking of it when he collapsed.
[21]DCB 180
24 The plaintiff was also challenged about his supervision of an employee by the name of Denis Boone. The plaintiff was accused of allowing Mr Boone to have a week off work when the company had only authorised a day off work for Mr Boone. The plaintiff’s evidence on this matter was as follows:
Q:“So you can’t recall a discussion at the time with Ms Bryant where she raised with you an issue that you had in fact overridden her decision to only give him one day off and in fact you’d given him one week off? Do you recall that?---
A:I remember giving him – he took more time off, but that was about it. I can’t remember much more about the whole thing that went on.
Q:Was Mr Boon (sic) a particularly difficult staff member for you to manage?---
A:He was not difficult as such, but very demanding.
Q:Did you find it difficult to cope with him at work?---
A:At times, yes, because he used to call – because he was so sick, he was a sick man, he made a lot of phone calls to my mobile.
Q:Is it the fact that you cannot recall any situation where Ms Bryant was angry with you about the fact that you had given Mr Boon(sic) too much time off?---
A:I can’t recall the actual – what went before and prior to it along the line or when it happens. I can’t remember.”[22]
[22]T 26, L14 – T 27, L1
25 The plaintiff was also challenged about falsifying records and providing false samples to suppliers. This allegation arose from the statement of Mandi Bryant.[23] The plaintiff denied any such allegations were made to him.
[23]DCB 181
26 I accept the plaintiff’s evidence in relation to these alleged breaches by him of his employment duties. I accept that no complaint was made to him directly about his performance either in relation to falsification of records, supplying false samples or failing to do his work properly. These allegations have all arisen subsequent to the termination of the plaintiff’s employment with the defendant. The plaintiff was not challenged by being presented with proper documentation to support the allegations made against him. I accept the plaintiff’s evidence on those issues.
27 I accept the plaintiff’s evidence that he worked very long hours. I accept his evidence that he was required to come in to work at times that were either during the course of his holidays or when he was not on duty at work. I accept the evidence of the plaintiff that he was a person who was able to perform and supervise the maintenance works at the plant when it broke down. The defendant company had relied upon his skill and commitment to run its operation.
The Plaintiff’s Medical Treatment
28 The plaintiff initially collapsed at work on 28 February 2007. He was certified as unfit to return to work and initially certified until 5 March 2007. The plaintiff had consulted Dr Whiteside on the day after he had fainted; that is, 1 March 2007. He consulted with Dr Whiteside on a number of occasions until he was referred to Dr Monica O’Kelly by Dr Whiteside on 13 March 2007. At that stage, the plaintiff was using Panadol for his headaches and had been prescribed Stilnox to assist with his sleeping difficulties.
29 On 21 March 2007, the plaintiff attended Dr Whiteside again. Dr Whiteside wrote a letter to the defendant, setting out that the plaintiff was fit for 45 hours of work per week, but no more.[24]
[24]PCB 20
30 The plaintiff continued to see Dr Whiteside on a regular basis up until he attended on 11 July 2007, the day after he had been taken to the Dandenong Hospital after collapsing at work.[25]
[25]PCB 21
31 On 20 July 2007, Dr Whiteside organised for the psychiatric triage nurse at the Casey Hospital to contact the plaintiff. On that day, a CAT team (Crisis Assessment Team) visited the plaintiff at home.[26]
[26]PCB 22
32 The plaintiff continued to attend Dr Whiteside for the months of July, August, September and October 2007. In October 2007, he was prescribed Imovane and Lexapro. He continued to see Dr Monica O’Kelly, psychologist.[27]
[27]PCB 23
33 On 7 May 2008, Dr Whiteside referred the plaintiff to Dr Kothari, psychiatrist, at Pine Lodge Clinic.[28] Dr Whiteside weaned the plaintiff off Stilnox on the advice of Dr Kothari in June 2008.[29]
[28]PCB 25
[29]PCB 26
34 On 20 October 2008, Dr Whiteside noted that the plaintiff’s dosage of Lexapro had increased from 10 milligrams to 20 milligrams per day on the advice of Dr Kothari.[30] By this time, Dr Kothari had also prescribed the anti-depressant, Escitilopram, 15 milligrams per day for the plaintiff.[31]
[30]PCB 26
[31]PCB 46
35 Dr Kothari, psychiatrist, continued to see the plaintiff on approximately a monthly basis until 11 April 2011. At that time, Dr Hogan took over the management of the plaintiff at the Pine Lodge Clinic. He continues to see the plaintiff on a monthly basis up until the present time. Dr Hogan, on taking over the care of the plaintiff, changed the plaintiff’s medication from Avanza to Pristiq.[32] The plaintiff currently takes 200 milligrams per day of Pristiq.[33] The plaintiff is also prescribed Endep, Imovane, Zyprexa and Paxam.[34] The plaintiff also continues to see Dr O’Kelly, psychologist, on a monthly basis. The psychological services are not paid for by the WorkCover insurer, but are currently funded by Medicare.
[32]PCB 56
[33]T 8, L5
[34]PCB 31 and 99
36 In summary, the plaintiff is continually under the care of his general practitioner, psychiatrist and psychologist on a monthly basis. The plaintiff is prescribed medication to treat his psychiatric conditions.
The Medical Opinions
Dr Stephen Whiteside/Dr Nadesh Pakkiyathurai, General Practitioners
37 Dr Whiteside was the plaintiff’s general practitioner. In his report dated 17 January 2008, Dr Whiteside sets out in a very detailed manner the full treatment provided by him to the plaintiff. He outlines his diagnosis as follows at the end of that report:
“There is no doubt in my mind that Mr Roussety has been suffering from severe anxiety and depression as a result of his work situation. I do not feel that his former employer treated him well, nor do I believe they demonstrated any ability to respond to his obvious suffering as it became more obvious.”[35]
[35]PCB 24
38 Dr Whiteside, in a later report dated 29 October 2008, gave his opinion as follows:
“As you can see, Joseph has been suffering from anxiety and depression to a greater or lesser degree for most of this year. On a number of occasions he appears to have been in the situation of contemplating suicide. He has also been hearing voices from time to time, the exact significance of which I am not sure.”[36]
[36]PCB 27
39 Dr Whiteside left the Narre Warren Clinic and Dr Nadesh Pakkiyathurai took over the care of the plaintiff at that clinic. Dr Nadesh, as the plaintiff refers to him, gave his opinion in a report dated 14 December 2011. Dr Nadesh states as follows:
“Currently he is attending to Dr Geoff Hogan, Psychiatrist, and Dr Monica O’Kelly for counselling. He has no identified problem in physical health. He is able to do normal activities of daily living. He has Currrently[sic] taking Pristiq tablets for anxiety depression Endep for headache and Imovene[sic] sleep. He has reported having problem with easily get irritated and angry, difficult to expose to new places and work.”[37]
(sic)
[37]PCB 29
40 In a later report dated 4 April 2012, Dr Nadesh noted that the plaintiff’s symptoms of anxiety have not changed much but are under control with medication and counselling. Dr Nadesh noted:
“Mr Joseph Roussety continue seeing a psychiatrist regularly, currently he is taking Imovane, Endep, Pristiq (New medication), Zyprexa (new medication). He also attending to psychologist for counselling.”
(sic)
41 Dr Nadesh noted that he was leaving the Narre Warren clinic in April 2012 to pursue his career in New South Wales.[38]
[38]PCB 31
Dr Monica O’Kelly, Psychologist
42 The plaintiff first attended Dr O’Kelly, psychologist, on 16 August 2007. The plaintiff had been referred to Dr O’Kelly by Dr Whiteside. Dr O’Kelly, along with psycho-education regarding anxiety and panic and teaching the plaintiff skills of relaxation and controlled breathing, also advised the plaintiff to increase his exercise and increase his involvement in pleasant and rewarding activities. She encouraged him to increase his social contact.[39] At that early stage, Dr O’Kelly was of the view that psychological intervention was sufficient and that he would not need any other forms of treatment.
[39]PCB 35
43 Dr O’Kelly reported on 26 November 2008 that the plaintiff stated:
“… he had been sitting around the house with the curtains closed and the doors closed. He had not been shaving. In general he felt like a zombie and was not well motivated.”[40]
[40]PCB 38
44 Dr O’Kelly also took a history from the plaintiff that he had frequently thought about suicide but he did not have a plan to follow it through. He had resumed taking anti-depressants.[41] Dr O’Kelly notes that the plaintiff was aware that he had been under surveillance at this stage. I note at this point that the assessment on 30 April 2008 was approximately two months after the video (referred to as No. 1) of the plaintiff attending a barbeque on 2 March 2008. The plaintiff described himself as having panic attacks and Dr O’Kelly encouraged him to take part in fishing. Dr O’Kelly noted on 21 October 2008 that the plaintiff had lost confidence and withdrawn after he had become aware that he was under surveillance.[42] In this report, Dr O’Kelly gave her diagnosis as follows:
“It was my impression that he was suffering from Adjustment Disorder with Anxiety and Depression. The severity of his depression was such that he had developed psychotic symptoms.”[43]
[41]PCB 38
[42]PCB 39
[43]PCB 40
45 Dr O’Kelly noted that the plaintiff was incapable of employment in the workforce at that time. She encouraged the plaintiff to take part in increased social contact.
46 In her final report dated 31 May 2012, Dr O’Kelly stated that she had been concerned throughout her treatment about the plaintiff’s depression. Dr O’Kelly said that she had encouraged the plaintiff to be more active and have social contact and that he visited his friends on her directive.[44]
[44]PCB 40A
Dr Virendra Kothari
47 Dr Kothari is a psychiatrist who practises at the Pine Lodge Clinic in Dandenong. Dr Kothari first reviewed the plaintiff in May 2008. The plaintiff had been referred to him by Dr Whiteside. In his report dated 17 December 2008, Dr Kothari gave the following opinion about the plaintiff’s condition:
“In my opinion Mr Roussety suffers from Major Depressive Disorder with possible differential diagnosis of Chronic Adjustment Disorder with anxious and depressed mood in the context of work related stressors as outlined above.”[45]
[45]PCB 47
48 Dr Kothari ceased to treat the plaintiff in about April 2011.
Dr Geoffrey Hogan, Psychiatrist
49 Dr Geoffrey Hogan is a psychiatrist who works at the Pine Lodge Clinic. He took over the care and treatment of the plaintiff from Dr Kothari on 11 April 2011.[46] Dr Hogan had previously been consulted by Dr Kothari to assist in an opinion on 21 December 2009. Dr Hogan, in his report dated 8 June 2011, stated that the plaintiff presented with a Major Depressive Disorder.[47] Dr Hogan said that he had increased the Pristiq medication to 100 milligrams daily in April 2011. Dr Hogan gave a diagnosis as follows:
“Mr Roussety has shown a recent degree of improvement on newly prescribed antidepressant medication. There has been improvement of energy levels in particular and he is now free of suicidal thoughts. I believe he has a major depressive disorder precipitated by work stresses. Once precipitated, a major depressive disorder may remain chronic and is not particularly unusual to see a major depressive disorder persist for four years, after the relief from the original precipitating stresses. At this time, assuming the accuracy of Mr Roussety’s history, I believe that the level of major depressive symptomatology described is such that he is incapable of employment.”[48]
[46]PCB 50
[47]PCB 54
[48]PCB 57
50 Dr Hogan prepared a later report dated 11 July 2011. In that report, Dr Hogan noted that the plaintiff was then on medication of Pristiq, 150 milligrams daily. Dr Hogan noted that he would concur with Dr Jager’s observation that Mr Roussety has commonly appeared at consultations to be in normal mood, despite his level of complaints of symptoms. Dr Hogan then notes:
“I believe that if Mr Roussety’s description of symptoms is accurate despite mental status observation he continues to suffer from symptoms of a major depressive disorder of a severity that precludes employment.”[49]
[49]PCB 59
51 Dr Hogan goes on to say:
“I regard his prognosis as uncertain and at this time cannot given an opinion as to whether his major depressive disorder will continue indefinitely. Assuming the accuracy of his claims of continuing symptoms I do believe that psychiatric treatment may be essential in ensuring that his ability to undertake the activities of daily living does not significantly deteriorate. While it has been argued that employment factors have been superseded by non-work related factors probably of a constitutional nature, I would note that Mr Roussety may never have become ill had it not been for the work stresses that precipitated his major depressive disorder and it seems likely, again assuming the accuracy of his history, that his major depressive disorder has been intractable to this point to treatment.”[50]
[50]PCB 59-60
52 Dr Hogan’s final report is dated 13 November 2011. Dr Hogan notes that the plaintiff is continuing to receive 150 milligrams of Pristiq daily. He diagnoses the plaintiff with Major Depressive Disorder.[51] Dr Hogan expressed the opinion that the level of ongoing depressive symptomatology is such that Mr Roussety is not capable of any employment. He went on to say that it is more probable than not that Mr Roussety’s current degree of impairment is permanent.[52] Dr Hogan gave his prognosis as follows:
“Mr Roussety is likely to require ongoing treatment for the indefinite future. It would be difficult to estimate with any precision what future medical treatment he will require. At this time regarding his prognosis it is more probable than not that he will remain permanently incapacitated with respect to any employment.”[53]
[51]PCB 62
[52]PCB 63
[53]PCB 64
Dr Nigel Strauss, Psychiatrist
53 Dr Nigel Strauss, psychiatrist, reviewed and examined the plaintiff for the purpose of medico-legal reporting. Dr Strauss’s report is dated 9 May 2012. Dr Strauss had seen the DVDs of the surveillance film taken of the plaintiff over a number of years. Dr Strauss took a history that the plaintiff was currently taking the following medications:
·Zyprexa, a major tranquiliser, 5 milligrams a day;
·Paxam, an antidepressant, two tablets a day;
·Pristiq, an antidepressant, 200 milligrams a day;
·Imovane;
·Endep, for headaches; and
·Panadol.
54 Dr Strauss gave his opinion as follows:
“Most of the medical information available to me supports my diagnosis of a major depression in this case.
…
I therefore believe that this man remains psychologically decompensated and his major depression is only being partially assisted by treatment and the elapse of time. He remains a very vulnerable individual and even now he can easily decompensate or in other words his condition worsen when he is faced with perceived stressful circumstances such as events related to his compensation process.
…
I cannot state at this stage that he is totally and permanently incapacitated but I can understand why he has not worked since 2007. I can only state that once his claim has been finalised there is a chance, probably a fifty per cent chance that he might find alternative work but not demanding or stressful work. There is also a fifty per cent chance that he may never work again and he may remain quite significantly and permanently decompensated.
He has a major depressive disorder and the injuries consistent with the stated cause.[54]
…
I believe that currently he cannot work. There is a possibility as I have stated above that when his claim has been finalised and his mental state improves, hopefully he can get off some of his medication and he may be able to go back to at least part time alternative work which is not too demanding or stressful. I have given him a fifty per cent chance of doing this but there is also a fifty per cent chance that he may never work again. I do not believe that I can be anymore absolute than this.”[55]
[54]PCB 102
[55]PCB 103
55 Dr Strauss was of the opinion that the plaintiff would require psychological or psychiatric treatment indefinitely and psychotropic medication indefinitely. He was guarded about the prognosis. Dr Strauss was of the opinion that, on the balance of probabilities, the plaintiff would suffer from Depression and Anxiety in the future, but his condition would improve once the compensation process had been completed.
The Defendant’s Medical Opinions
56 The defendant had arranged for the plaintiff to be examined by Professor Ivor Jones, Dr Michael Duke and Dr Chris Grant. In submission on behalf of the defendant, Mr McWilliams did not refer to those practitioners. The defendant’s case relied upon the opinion of Dr Alan Jager and Professor George Mendelson.
57 I will briefly deal with the opinions and reports of Professor Jones, Dr Duke and Dr Grant.
Professor Ivor Jones
58 Professor Ivor Jones, psychiatrist, prepared three reports dated 4 October 2007, 18 January 2008 and 8 December 2009.
59 In his report dated 4 October 2007, Professor Jones gave the following opinion:
“From Mr Roussety’s account, he has been subject to considerable and prolonged work stress over some years which has escalated prior to his going off work. The symptoms he developed prior to going off work do appear to be anxiety-related, but later a depressive component with suicide attempt was evident. The symptoms at the time he went off appear to have been severe and required attention of the psychiatric CAT team.”[56]
[56]DCB 18
60 Professor Jones went on to state:
“The worker is suffering from generalised anxiety with panic attacks. There has been a depressive component of moderately severe degree which has included suicidal ideation. The appropriate diagnosis is adjustment disorder with anxiety and depression.”[57]
[57]DCB 19
61 In his report dated 18 January 2008, Professor Jones noted:
“Overall, I can reiterate that he denied any prior performance management supervision suggesting that, if in fact there was no performance review, that issue of over-ordering was not relevant to his present state. In general, I found him significantly psychiatrically disturbed but sincere in his presentation and well-motivated to obtaining work elsewhere as soon as possible.”[58]
[58]DCB 23
62 In his final report dated 8 December 2009, Professor Jones gave his opinion as follows:
“Mr Roussety has developed symptoms of anxiety and depression, best diagnosed as an adjustment disorder with anxiety and depression, in which the features of anxiety are probably more prominent than those of depression.[59]
…
Mr Roussety suffers from an adjustment disorder with anxiety and depression, of moderate to severe degree. The condition has not resolved. Indeed, no major improvement seems to have occurred since I last saw him almost two years ago, and in my view this response is an understandable consequence of the circumstances that he experienced at his place of work.”[60]
[59]DCB 27
[60]DCB 28
63 Professor Jones went on to state that, in his view, the circumstances of the redundancy for the plaintiff was the cause of his psychiatric injury. He went on to state that the principal cause does appear to be his perception of the unreasonable attitude by his employers to the initial injury.
64 In short, Professor Jones was of the opinion that the combination of the long hours and failure by the defendant to rectify the situation, causing the initial injury to the plaintiff, was the principal cause and it was exacerbated by the circumstances of the redundancy for the plaintiff at the end of his employment. That was the last report by Professor Jones.
Dr Michael Duke
65 Dr Michael Duke, psychiatrist, reported for medico-legal purposes on 6 May 2008. Dr Duke diagnosed the plaintiff as suffering from a depressive disorder which could be variously described, but fulfils the criteria for major depression.[61] At that stage, Dr Duke was of the opinion that the plaintiff had no capacity to perform any sort of work because of his psychiatric disorder.[62] Dr Duke was of the opinion that the plaintiff required further energetic efforts at treatment and wanted to review the plaintiff in four months’ time.[63]
[61]DCB 39
[62]DCB 41
[63]DCB 43
66 Dr Duke saw the plaintiff for review on 22 September 2009. In his opinion, at that time, he said the plaintiff was suffering from Major Depression with psychotic features. He thought that some of the symptoms may have been due to the medication, Lexapro, which the plaintiff was then currently taking.[64]
[64]DCB 50
67 Dr Duke gave his prognosis as follows:
“It would appear that the depressive illness has now been present for two years and this in itself is not a good sign. However, there has not been much energetic undertaking of treatment to date and I believe that further vigorous measures should be undertaken to diminish Mr Roussety’s symptoms as soon as possible.”[65]
[65]DCB 54
68 Dr Duke did not see the plaintiff after this report.
Dr Chris Grant
69 The plaintiff was then sent to Dr Chris Grant, psychiatrist, for assessment in March 2009. Dr Grant prepared a report dated 26 March 2009. Dr Grant’s opinion was:
“Mr Roussety appears to have a Chronic Adjustment Disorder with Depressed and Anxious Mood. This still appears to be work related and persists despite appropriate treatment.”[66]
[66]DCB 61
Dr Alan Jager
70 Dr Alan Jager, psychiatrist, prepared three reports in respect of his assessment of the plaintiff dated 31 August 2008, 5 December 2008 and 15 April 2011. Dr Jager had a history from the people instructing him that the plaintiff had been disciplined for performance issues at work. In his first report dated 31 August 2008, Dr Jager gave the following opinion:
“His current alcohol consumption is excessive and constitutes Alcohol Abuse and his emotional distress constitutes Major Depressive Disorder if his reported symptoms are genuine.
…
His condition does not affect his activities of daily living or his ability to travel by public transport or private motor vehicle to and from the workplace or to and from appointments. If his reported symptoms are genuine it affects his capacity for employment due to reduced energy and concentration.
The claimant’s psychiatric condition is related to employment either as a consequence of performance issues about which he was warned or is a consequence of workplace stress from workload.
The claimant perceives workplace stress to be the cause of his presentation and reason for ceasing work.
The employer states that performance issues and warnings were the cause of the claimant’s presentation.”[67]
[67]DCB 68
71 In that report, Dr Jager also states:
“If the claimant’s reported symptoms are genuine he has a current Major Depressive Disorder. I do note however that he presented in a relaxed and calm manner which demonstrated a disjunction between his reported symptoms and his presentation. Given the doubts cast on the claimant’s credit by the circumstance report one wonders if he indeed has reported his symptoms accurately to me.”[68]
[68]DCB 69
72 Dr Jager then prepared a further report on 5 December 2008. Dr Jager was asked the following question:
Q:“In your personal opinion, do you believe Joseph’s symptoms are genuine?---
A:The question can only be answered by a court. I do note however information you provided that the claimant’s employment had been terminated because of dishonest behaviour.”[69]
[69]DCB 72
73 This notation by Dr Jager confirms that he is assessing the plaintiff on the basis that he, the plaintiff, was terminated from his employment because of dishonest behaviour. The evidence in this case does not support such a proposition.
74 In Dr Jager’s final report dated 15 April 2011, he gives his opinion as follows:
“1 The claimant’s presentation is incongruous. Whilst he reported symptoms consistent with a diagnosis of Major Depressive Disorder, he presented as undistressed. On balance I consider he has a Dysthymic Disorder. He no longer fulfils diagnostic criteria for Alcohol Abuse.
2 His condition was caused either by warnings about performance issues at work or excessive workload. He has not been exposed to those stressors for almost 4 years and I consider it more likely than not that employment has been superseded by non work-related factors, probably of a constitutional nature as the cause of his current condition.
3 If one relied upon the history he provided he would be unfit for pre-injury duties but if one relied upon his presentation at interview he would be fit for pre-injury duties. On balance, I therefore consider him fit for pre-injury duties. He expressed a desire to undergo retraining and I consider him fit to do so.”[70]
[70]DCB 72C
75 In this final report, Dr Jager repeats the basis that he accepts that the plaintiff had received warnings about performance issues at work or excessive workload. The evidence supports the allegation of excessive workload. The evidence does not support that the plaintiff had received any warnings about his performance at work.
Professor George Mendelson
76 Professor Mendelson, psychiatrist, examined the plaintiff on behalf of the defendant’s solicitors. Professor Mendelson’s report is dated 22 March 2012. Professor Mendelson sets out his opinion as follows:
“In my opinion the history given to me by Mr Roussety and the information in the reports to which I have referred above indicate that at the time he stopped work in July 2007 Mr Roussety had experienced anxiety symptoms, and that the diagnosis of an Adjustment Disorder With Anxiety would have been appropriate. He subsequently also developed depressive symptoms after his employment was terminated, which he said had been in September 2007, so that the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood would have been appropriate at that time.[71]
…
In my view Mr Roussety’s current emotional symptoms are due to the combination of resentment and sense of grievance over the termination of his employment and what he considers to have been lack of support and excessive demands while he was working, and his current situation. Any specific psychiatric symptoms that Mr Roussety had experienced are currently well controlled with the use of medications and supportive psychotherapy, and in my opinion he is capable of becoming involved in a vocational rehabilitation programme.
…
I am not aware of any evidence that Mr Roussety is exaggerating his symptoms either consciously or unconsciously, or that he is engaged in a deliberate attempt to feign injury for the purposes of his claim.”[72]
[71]DCB 170
[72]DCB 171
Conclusion of Medical Opinions
77 I accept that the plaintiff is suffering from a Major Depressive Disorder as set out by his treating psychiatrist, Dr Hogan. This diagnosis is supported by Dr Kothari, general practitioners, Dr Whiteside and Dr Nadesh, Dr Strauss and Professor Jones, Dr Duke and Dr Grant. I do not accept Dr Jager’s assessment of the plaintiff’s condition because he is relying upon what I have concluded is a false premise that the plaintiff had been subject to performance reviews and finally made redundant as a result of those reviews. I accept that the coincidence of the plaintiff submitting a WorkCover claim and his redundancy being presented on the same day relates those two events together rather than any performance review. I accept that the plaintiff has consistently stated, and his treaters have accepted as such, that his symptoms and conditions relate back to the stress he was placed under by being required to work excessive hours over a long period of time.
78 I accept the opinion of Dr Strauss that the plaintiff has now decompensated and his condition can deteriorate quickly once he is faced with a stressful circumstance.
79 I conclude, based on the medical evidence, that the plaintiff is suffering from a Major Depressive Disorder with Anxiety features that, when judged by comparison with other cases in the range of possible mental or behavioural disturbance or disorders, as the case may be, may be fairly described as being more than serious to the extent of being severe in the case of the plaintiff.
Credit of the Plaintiff
80 The plaintiff was challenged on the basis of his credit or, alternatively, that he was exaggerating his symptoms to the doctors. In particular, the defendant relied upon a statement by the plaintiff to his general practitioner that he was keen on starting up his own business in 2008.[73] The plaintiff had also given a history to his general practitioner of doing some unpaid work for a friend in October 2008.[74] On that issue of doing some work for a friend, the plaintiff’s evidence was clear that he had never done any work for a friend.[75]
[73]PCB 25
[74]PCB 25
[75]T 18, L 5-11
81 The plaintiff’s histories to all of the medical practitioners have been consistent. He has been seen by a large number of doctors and he consistently has given the same set of symptoms and difficulties over the time. He has consistently received and complied with medical treatment from his general practitioner, psychologist and his treating psychiatrist. The treating medical practitioners accept and support the plaintiff.
82 The plaintiff was shown a series of nine DVD surveillance films in this application. In total, there were 31 days of surveillance. On 22 of those days, the plaintiff was shown in surveillance films. Of those 22 days, 15 days the plaintiff attended at Nick’s Tooling. The plaintiff had always given a history and evidence that he had visited his friend, ie Nick, at the direction of his medical practitioners. In particular, the psychologist, Dr O’Kelly, was urging the plaintiff to get out in order to assist in the treatment of his depression.
83 The video surveillance films show the plaintiff driving a number of different motor vehicles. On the days he attends at Nick’s, he is seen buying coffee and newspapers and attending at the factory of Nick’s Tooling. The attendance at the factory is at a regular time, in the morning at approximately 8.00 am on each occasion. There is no video surveillance of the plaintiff performing any work at that place or the plaintiff appearing to be in any particular work clothes. It is to be noted that Nick’s Tooling was a place that made dies or moulds for manufacturers. The other films showed the plaintiff visiting either his mother or attending to pick up his son at the kindergarten. On one occasion, he attended at a Centrelink office to obtain Disability Pension Support.
84 The first of the videos in time showed the plaintiff attending at a barbeque. There were a number of people attending the barbeque and the defendant relied upon this footage to show that the plaintiff could readily and easily socialise with people. The plaintiff never at any stage in his evidence said he could not socialise with people. In fact, he confirmed that he could speak with people and socialise with them on occasions. The plaintiff stated as follows:
Q:“Would you agree, sir, that really the problems that you say you have, they do not stop you at all in interacting with people socially. What do you say to that?---
A:I can talk to people, but I don’t – it’s not about working and, yes, I can talk to people.
Q:But from a social perspective, you could meet someone at a social gathering, couldn’t you, and have a conversation with them. That’s right?---
A:Yes.
Q:It’s not as if you’re a complete recluse?---
A:But there are times when I do withdraw from everything, yes, but not all the time.
Q:But not all the time. That’s right, isn’t it?---
A:Yes.”[76]
[76]T 49, L5-16
85 It is difficult to assess a person’s psychiatric condition by just watching what they do on a video. The fact that the plaintiff can drive a car and go and visit his friend at work do not of themselves display that the plaintiff can operate in a normal way. The plaintiff is just complying with his treaters’ instructions to socialise as much as he can with his friend.
86 I concluded the plaintiff was giving an honest account of his condition and the symptoms that he suffers. The plaintiff’s account is supported by the treatment he receives from his medical practitioners. Professor Mendelson agrees that the plaintiff is not exaggerating his symptoms. I accept the plaintiff as a witness of truth.
Consequences of the Psychiatric Injury to the Plaintiff
(a) Effect on the Plaintiff
87 The plaintiff has given evidence that his memory is poor and that his concentration has been decreased as a result of his current psychiatric condition.[77] The plaintiff has previously worked as a manager/supervisor in the defendant’s premises. It is clear from his evidence, and supported by the evidence of the treating medical practitioners, that the plaintiff is unable to attempt any work of the nature of supervision and responsibility. I find that this is a very significant consequence for the plaintiff. As he deposed in his evidence, he does not feel like a man. In short, he has, as a result of his psychiatric condition, been reduced from being an independent productive person with positions of responsibility to someone who is dependent upon his wife and social security for his financial wellbeing.
[77]PCB 100
(b) Sleep
88 The plaintiff deposes that he has compromised sleep patterns. In his evidence, he stated:
Q:“Currently, what are your sleeping patterns? Do you get a night’s sleep, or what’s the situation?---
A:It is easy for me to doze off, but then I wake up and after that, it’s very hard to get to sleep or broken sleep.
Q:How many hours do you get a night or hour, or whatever?---
A:Pushing it, altogether maybe three hours.”[78]
[78]T 8, L 16-21
89 I find and accept that it is a significant consequence for the plaintiff that his sleep patterns have been broken and have continued for a long period of time since 2007 until the current day. The interruption to sleep for any person on this scale is a significant consequence.
(c) Pain
90 The plaintiff has given evidence that he suffers significant and frequent headaches. He receives medication of Endep, sometimes Panadeine Forte, and Panadol to treat the headaches. In his evidence, he stated:
“Q:You’ve not mentioned headaches so far?---
A:Yes, I getting a lot of headaches, yes.
Q:For how long have you been getting those?---
A:One hour.
Q:Sorry, for how long have you been getting the headaches, how long? How many years?---
A:Four, five, maybe more.
Q:Do you take medication for those?---
A:Yes.
Q:What medication do you take?---
A:Panadol, Endep, some time Panadeine Forte.
Q:Do you alternate the Endep and the Panadeine Forte?---
A:Yes.
Q:What do you most regularly use for the headaches?---
A:Endep and Panadol. Panadol I take a lot.
Q:Can you just tell us firstly in relation to the Endep or Panadeine Forte, how many do you have a week, one or the other?---
A:About six to eight of the Endep or Panadeine Forte.
Q:The Panadol you mentioned, how often do you have those?---
A:I take about ten to twelve a day.”[79]
[79]T 8, L 22-T9, L 7
91 The impact of the headaches on the plaintiff is that he has trouble concentrating and is unable to remember and coordinate his activities. I find that this is a very significant consequence for him.
(d) Medication
92 The plaintiff is currently taking the following medications:
·Imovane;
·Endep;
·Pristiq;
·Zyprexa; and
·Paxam.
93 All of these medications are prescribed by either his psychiatrist or general practitioner. The amount and mixture of medications is significant. I accept that the need for the plaintiff to take these medications is a very significant consequence for him.
(e) Ongoing Treatment
94 The plaintiff continues to receive ongoing treatment from his general practitioner, his psychiatrist, Dr Hogan, and his psychologist, Dr O’Kelly. He attends each of them once a month. It is significant and of considerable consequence that the plaintiff requires to see this combination of medical practitioners some five years after the initial incident causing his psychiatric condition. The medical opinions referred to earlier in these reasons clearly say that the plaintiff requires this treatment.
(f) Activities of Daily Living
95 The plaintiff has given evidence that he can do some gardening, even mow the lawns. The plaintiff states that he cleans the house and does some other housework, but does not do much of the cooking. He delivers his son to primary school, and on occasions picks him after school. In a superficial way, the activities of daily living for the plaintiff have not been impacted by his depressive state.
(g) Sport
96 The plaintiff gave evidence that he still goes fishing once in a while.[80] He stated that he no longer goes to the soccer which was a considerable interest of his. He agrees he played at Dandenong Inter and no longer can attend due to the crowds. The plaintiff stated that he had lost interest in going to the movies and listening to music. The plaintiff’s inability to enjoy either sporting or cultural activities is a significant consequence for him.
[80]T 49, L18-19
(h) Family Outings
97 It is clear that on occasion the plaintiff can attend a barbeque or some family outing. He visits his friend, Nick, who is operating a tooling business. He also visits his mother. The plaintiff readily gave evidence of such visits. The limitation to the plaintiff’s social outings as a result of his psychiatric condition is that he tries to avoid crowds and is limited in the way he can interact with people. This is in contrast to what he describes as an easygoing disposition prior to his injury with the defendant. I find this is a considerable consequence for him and accept his evidence about it.
98 I conclude that, when gathered together and considered as a whole, the consequences outlined above amount to what can be fairly described as being more than serious to the extent of being severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders and are pain and suffering consequences for the plaintiff.
Loss of Earning Capacity
99 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a)at the date of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
100 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
101 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
102 The defendant also relies upon the fact that the plaintiff has not complied with his obligations under s134AB(38)(g) which requires the plaintiff to reasonably participate in rehabilitation retraining in order to obtain alternative employment.
103 The plaintiff and the defendant agree that the “without injury” earnings of the plaintiff were $75,000 gross per annum.[81] In order for the plaintiff to succeed in obtaining leave for loss of earning capacity, he has to prove that his residual or “after injury” earnings do not exceed the sum of $45,000 gross per annum.
[81]T 79, L20-21
104 The plaintiff has not worked since 10 July 2007. He has not applied for any employment since that time.
105 In his evidence, the plaintiff stated as follows:
Q:“But what attempts have you made to get work, Mr Roussety?---
A:No, none.
Q:You haven’t made any attempts?---
A:No, except through that agency that QBE sent me, but my when I walked in there, I said to him that my doctors had advised me not to do any work and he was meant to contact my doctors and then get back to me. None of that ever happened because my doctor says I’m not fit for work, we’re waiting for him to call us and he never did. It was an attempt by QBE to send me there.”[82]
[82]T 57, L 21-30
106 The plaintiff’s general practitioner has not certified him fit for work. The plaintiff’s treating psychiatrist’s opinion is that the plaintiff is not fit for work. Dr Strauss’ opinion is that he currently cannot work.
107 In 2011, the plaintiff was certified for being fit to commence some training and study. The certification was for four hours a day, two days a week, for a period of some sixteen weeks.[83] The plaintiff’s evidence on this issue was as follows:
[83]PCB 29
Q:“Do you recall in 2011 going to see your GP and your GP certifying you as having a capacity to work in 2011?---
A:It wasn’t a capacity for work, it was a capacity for training and study.
Q:You say there was certification for you to be able to undertake training?---
A:Yes, that happened at an actual conference between QBE, my doctor, myself and my psychologist. My doctor says I was improving, let’s try and do training here and there on something that might suit me for four to six or eight hours a week and review it in – I can’t remember how long, and then we’ll review it at a later date. I think Dr Nadesh asked how is he going to word that on his certificate of capacity. It was advised to him by the representative from QBE to say capacity for training and study only. That’s what that certificate says.
Q:Did you undertake any training?---
A:No, I didn’t take any training because nothing was found and a few weeks later, I was seen by Dr Jager and it all fell apart after that.”[84]
[84]T 56, L14 – T 57, L2
108 I accept that the plaintiff is someone who is keen to work but unable to because of his condition. His evidence in this regard was as follows:
Q:“How do you feel about your situation where you’re not working and your wife is working three jobs? How do you feel like that?---
A:I don’t feel like a man at all.
Q:Sorry, you feel like?---
A:I don’t feel like a man.
HIS HONOUR: ‘I don’t feel like a man at all.’ That’s what he said.
A:I feel it’s not worth going – my family’s life will probably be better off without me.
Q:My learned friend, by implication in any event, was suggesting, look there is no reason why you couldn’t go out and get a job and help your family. What do you say to that?---
A:I would say I would love to go and try to find a job if I could, but constant really bad headache, no sleep, concentration level is so poor, you can’t even concentrate on anything. Who’s going to employ me?”[85]
[85]T 61, L20 – T 62, L2
109 I accept that the plaintiff is someone who would honestly want to obtain employment but is unable to due to his psychiatric condition and that his medical practitioners do not support him obtaining employment because he is not fit for work.
110 Mr McWilliams, on behalf of the defendant, submitted that the plaintiff could perform either a job described as a machine operator and production machine operator or product examiner/quality control/quality inspection employment, set out in the NES Vocational Assessment Report dated 1 October 2009. This report was prepared by Ayres Management Services. The job of machine operator had a gross weekly wage of $809.[86] The remuneration for this job does not amount to an income of greater than 60 per cent of the “without injury” earnings. The other job, it was submitted the plaintiff could perform, is product examiner or quality control/quality inspection. The income from that job was said to be an average weekly gross wage of $938. This job, if the plaintiff could perform it, would achieve a figure greater than 60 per cent of the “without injury” earnings figure. On the available medical evidence, which has been extensively reviewed in these reasons, the plaintiff would not be able to perform such a job.
[86]DCB 221
111 The plaintiff relies upon a report prepared by Ms K Angel from Flexi Personnel Pty Ltd dated 29 February 2012. Ms Angel has examined the skill set and medical reports relating to the plaintiff, including interviewing him, and her opinion as a professional recruiter is that the plaintiff, whilst theoretically having some capacity for work, would not be able to currently work to a satisfactory standard in the work environment due to his psychiatric difficulties.[87]
[87]PCB 73
112 The plaintiff was also examined and interviewed by Ms Katrine Green. Ms Green is a psychologist who specialises in organisational and industrial related matters. In her opinion, having examined all of the available forms of employment put forward by Ayres Management Services on behalf of the defendant, concluded that the plaintiff was unable to perform those occupations for the foreseeable future due to his psychiatric condition. Ms Green went further and stated that the plaintiff was not a suitable candidate for retraining within the foreseeable future.[88]
[88]PCB 93
113 I conclude, based on all of the medical evidence and the evidence given by the occupational/employment experts that, as a consequence of the psychiatric condition the plaintiff has suffered from his work with the defendant, he is unable to work and consequently has had his earning capacity reduced by greater than 40 per cent of his “without injury” earnings. I find, based on the medical evidence and the evidence of the plaintiff, that his incapacity for employment is permanent, in the sense that it is for the foreseeable future.
Conclusion
114 After consideration of all the evidence, I find that the plaintiff has satisfied the test for serious injury in respect of a psychiatric injury he received during the course of his employment with the defendant. I am satisfied that the consequences to the plaintiff of that psychiatric injury are more than serious to the extent of being severe in respect of both pain and suffering damages and in respect of loss of earning capacity consequences.
115 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages in respect of the psychiatric injury suffered by him in the course of his employment with the defendant between 2004 and 2007.
- - -
0
2
0