Rowbotham v AHG Services (Vic) Pty Ltd (ABN 50 145 856 328)
[2021] VCC 988
•3 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04196
| BENJAMIN JOHN ROWBOTHAM | Plaintiff |
| v | |
| AHG SERVICES (VIC) PTY LTD (ABN 50 145 856 328) | Defendant |
---
JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2020 | |
DATE OF JUDGMENT: | 3 August 2021 | |
CASE MAY BE CITED AS: | Rowbotham v AHG Services (Vic) Pty Ltd (ABN 50 145 856 328) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 988 | |
JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – upper back – pain and suffering – psychiatric injury – workplace injury
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013, s335
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Kidman v Sefa [1996] 1 VR 86
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Broadfoot QC with Mr D Seeman | Robinson Gill Lawyers |
| For the Defendant | Ms K Gladman | IDP Lawyers |
HER HONOUR:
1The plaintiff, Mr Rowbotham, makes this application pursuant to s335 of the Workplace Injury Rehabilitation Compensation Act 2013 for injuries sustained to his upper back in May 2017 while employed with the defendant, AHG Services (Vic) Pty Ltd.
2Mr Rowbotham is a thirty-year-old man who was born in New Zealand and grew up on a farm in Taupo. He describes himself as an “outdoors kid” and would ride trailbikes and motorbikes with his brothers, go snowboarding and shoot clay pigeons.
3He completed secondary education in New Zealand. He then commenced an aeronautical engineering course with Air New Zealand. This course is akin to a Certificate IV course offered by a TAFE in Australia and would have enabled the plaintiff to work as an aircraft mechanic, with the option to do further study and extend his career. He successfully completed 24 of the 28 subjects but decided not to re-sit the four subjects he had not passed, as the course was not as focused on practical work as he would have liked. Despite not completing the course, he was offered an employment opportunity with Air New Zealand, which he did not pursue.
4Instead, he worked in commercial and residential roofing for about four years, before moving to Australia in 2012. At that time, his father was working as a financial advisor to an indigenous organisation in Alice Springs and Mr Rowbotham joined his father in the Northern Territory. He gave evidence that the day after arriving, he went door knocking at mechanics in Alice Springs, looking for employment, and within a day or two, had secured work as an apprentice mechanic.
5After two years in Alice Springs, his father returned to New Zealand and Mr Rowbotham decided to move to a larger city. He moved to Melbourne and, although he had not finished his mechanic’s apprenticeship, secured employment at a small workshop and then with Chrysler Jeep & Dodge. He then commenced work in July 2016 with the defendant as an unqualified mechanic, with a view to completing his apprenticeship through work and experience rather than through a formal training program.
6Mr Rowbotham gave evidence that, because of his experience and his studies in aeronautical engineering, he “felt [he] could get a little bit more” than an apprentice mechanic and was successful in negotiating a slightly higher pay rate.
7Mr Rowbotham’s responsibilities with the defendant included service work and repair work. The bulk of his work was on repairs. This was heavy labour, consisting of pulling motors out of vehicles, building engines and gearboxes, and carrying heavy tyres. He regularly lifted weights between 5 and 10 kilograms.
8On 26 May 2017, the plaintiff injured his upper back while lying on the ground under a car engine in an attempt to place bolts on a bash plate (“the incident”). As he was reaching out to do so, he felt a severe pain in his mid-spine and neck. He reported the incident to his boss.
9After two months off work, the plaintiff attempted to return to part-time light duties. For about four months, he undertook sedentary work and then attempted light manual work; however, he was taking strong medication and was unable to cope with the side effects of the medication whilst working. He ceased his role with the defendant by the end of 2017 and has not worked since. Had it not been for the injury, the plaintiff says he would have qualified as a mechanic by September 2017.
Medical history
10At the age of twelve, Mr Rowbotham developed necrotising fasciitis in the lumbar/gluteal area of his lower back. This required hospitalisation and intravenous antibiotics for some weeks and was extremely painful. It appears that he made a full recovery from this, though it may have played some role in his current issue, which I will deal with in greater detail later. As a result of this episode, Mr Rowbotham understood that there was permanent damage to the muscle in his gluteal area which would not improve. He would tell employers about this as he wanted to be “safe and cautious” and ensure he was not required to do lifting which might cause him any injury to that vulnerable area of his back.
11He says he had a few “inevitable” accidents on motorbikes growing up in New Zealand, including one where he rolled his ankle and was diagnosed with a sprain. He says he never had a serious motorbike accident in New Zealand.
12He had a motorbike accident in Alice Springs, where he chipped bone in his foot and took the skin off his lower back and buttocks.
13On 15 February 2017, Mr Rowbotham attended his general practitioner, Dr Mark Epstein, who noted a one-month history of intermittent upper back pain, which was not relieved by Voltaren or Nurofen, and was a stabbing type of pain which radiated to his shoulder blades. Dr Epstein noted that Mr Rowbotham had undertaken physiotherapy treatment whilst in New Zealand. Mr Rowbotham says in his affidavit that this pain started after he had finished sanding and cleaning an engine. The pain travelled to his shoulder area and ceased within a week or two. He took Voltaren, which helped, and was able to complete the job.
14At the end of 2016, he had returned to New Zealand as his grandfather had recently died. At some point while he was there, he saw a physiotherapist for pain in his back. He could not recall the details of this attendance and the physiotherapy records are no longer in existence. It was submitted by the defendant that Mr Rowbotham was deliberately vague about his evidence in relation to this attendance and that I should conclude, as a consequence, that he was attempting to minimise or dismiss any question of back pain pre-dating the injury. However, reviewing the evidence, Mr Rowbotham said that he “would have seen” a physiotherapist in Wellington, he thought she may have been his father’s physiotherapist, and her name was Catherine but he could not recall a last name, nor the street in which she practiced. He said it was entirely possible he had seen her and accepted that, if his general practitioner, Dr Epstein, had reported on 15 February 2017 an attendance for physiotherapy in New Zealand in February 2017, then he had attended physiotherapy at that time. I do not find it particularly surprising that he was unable to recall a date, address or surname and do not find that he was deliberately vague in his evidence about this attendance.
15Dr Epstein also notes on 15 February 2017 that Mr Rowbotham was feeling nauseated and had been vomiting in the mornings over the past four months. He used to drink two bottles of whiskey a week but had reduced this to less than a bottle a week. On examination, he was found to be tender on the upper-mid thoracic spine. He was prescribed Nexium for nausea.
16Subsequent attendances at his general practitioner clinic were predominantly for his nausea and abdominal symptoms. His back pain was not mentioned further until 2 June 2017, when he attended Dr Dang following the incident, complaining of left neck and scapular pain, worse on rotation. He reported to her that he had developed pain in the neck, left shoulder and thoracic area shortly after the incident.
17He attempted physiotherapy and Pilates, as well as hydrotherapy for a period, but his back pain was worsening. Although in his affidavit of 26 March 2020 he says that he attended Maroondah Hospital the night of the incident, the Maroondah Hospital records show that it was actually 8 June 2017 when he first attended with complaints of worsening pain, reduced sensation in fingers, transient tingling. Nurofen, Voltaren and Diazepam at home had failed to control his pain. He was given Endone and Panadol in the Emergency Department and noted to be having cramping muscle spasms, worse on rotation. He was diagnosed with musculoskeletal thoracic pain with transient neurological symptoms, not consistent with a specific nerve root. No imaging was undertaken, and he was sent home with analgesia and follow up with his general practitioner and physiotherapist.
18A thoracic x-ray on 4 July 2017 was normal. An MRI scan dated 19 July 2017 showed a “trivial” disc bulge at T8-9 with no central canal or foraminal stenosis in the thoracic spine.
19Notwithstanding the lack of clinical findings, Mr Rowbotham continued to experience significant pain. He was referred to a pain specialist, Dr Michael Vagg, in December 2017 for assessment. During the period between the incident and his referral to Dr Vagg, he had returned to work on light duties, initially sedentary computer work and later, some light mechanic work, but was unable to maintain this work.
20He reported good results from Diazepam, but Dr Vagg considered that this was more likely because of its anxiolytic effect rather than any effect on skeletal muscle. In other words, Dr Vagg thought the impact of the Diazepam was on Mr Rowbotham’s anxiety, which was consequently reducing his pain levels, rather than on any actual impact on the underlying musculoskeletal system.
21Dr Vagg conducted an ultrasound examination, which demonstrated a slightly abnormal area of soft tissue, and he treated the area with anaesthetic infusion (a nerve block). Mr Rowbotham had a good, albeit temporary, alleviation of about 50 per cent of his pain.
22Dr Vagg referred Mr Rowbotham for psychology follow up regarding his anxiety, as well as prescribing doxepin, a tricyclic antidepressant. He recommended Mr Rowbotham have a radiofrequency neurotomy.
23Mr Rowbotham was prescribed a range of analgesic, opioid and anxiolytic medications. He was initially prescribed Tapentadol slow release, which provided good pain relief but to which he developed a tolerance. He required higher doses which then caused cognitive side effects, so he ceased this medication and tried others, including Pregabalin, Targin, OxyContin, Palexia, Escitalopram, lignocaine patches, Valium and Diazepam. Some of these medications worked well for pain relief but caused severe side effects, in particular, on his cognitive functioning. He declined radiofrequency denervation due to concerns about potential complications.
24Dr Vagg referred Mr Rowbotham to psychologist, Dr Arthur Stabolidis, who diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
25In July 2018, he began seeing a pain specialist, Dr Babak Farr. Dr Farr recommended a trial of medial branch blocks as his presentation suggested irritation of the facet joints, and blocking the medial branches could decrease the facetogenic pain.
26In August 2018, he saw pain specialist, Dr Gavin Weekes, who noted he had chronic thoracic pain with possible facetogenic pain, and symptoms of depression. At that time, he was on melatonin, Panadeine Forte and Palexia. Dr Weekes discussed the possibility of radiofrequency denervation, including the small risk of worsening the symptoms, and recommended a multidisciplinary cognitive based pain management program.
27By September 2018, Mr Rowbotham’s psychiatric condition had worsened and he was experiencing anxiety and depression, as well as suicidal ideations. His general practitioner referred him to Dr Mark Schiff, psychiatrist, for assessment and treatment.
28Dr Schiff formed a view that Mr Rowbotham’s experience with necrotising fasciitis as a twelve-year-old may have sensitised him to have an abnormal reaction to his work injury. He opined that there was little doubt –
“… his pain disorder and now ongoing moderate depressive and anxiety disorder with a physical disability has been fully and directly precipitated by the work injury as described.”
29In October 2018, Mr Rowbotham was referred to Dr Clayton Thomas, pain specialist. Dr Thomas formed the following impressions:
“It is not possible to determine what the underlying original nociceptive aspect was with this man. It is not possible to link the MRI abnormality which is subtle and minor, to his ongoing chronic pain. It seemed more likely that he had developed central sensitisation, now called nociplastic pain, and this was the dominant problem.”
30Dr Thomas considered that denervation was not an attractive option, given Mr Rowbotham’s young age and the short-term benefit it would provide. He considered Mr Rowbotham had a work capacity, but not as a motor mechanic.
31Mr Rowbotham has seen numerous pain specialists, psychiatrists and psychologists. Notwithstanding these interventions, and his trial of medial nerve block injections, and various medications, including analgesic and opioid medication, he received no lasting improvement in his physical condition, and his mental state declined.
32By June 2019, his treating psychiatrist, Dr Schiff, noted that Mr Rowbotham was very flat, depressed, dysphoric, not sleeping due to anxiety and pain, ruminating about the past, socially isolating and not talking to his friends. He noted that he had ongoing, almost unceasing pain which was aggravated with strain or movement. His prognosis was “very guarded” and Dr Schiff considered that his pain, anxiety, depressive symptoms and Adjustment Disorder were unlikely to change for better or worse. In Dr Schiff’s opinion, Mr Rowbotham was totally incapacitated from his previous employment and unsuitable for rehabilitation due to the severity of his anxiety, depressive illness and pain levels.
33In August 2019, Mr Rowbotham started seeing Dr Igor Jakubowicz, a general practitioner with a specialist interest in pain and a registered medicinal cannabis prescriber with extensive experience. Both Dr Jakubowicz and Dr Schiff recommended a trial of medicinal cannabis.
34He commenced medicinal cannabis in August 2019 under the supervision of Dr Jakubowicz. He had good results from this, which he described as “… a BIG WIN for me as i have not had any pain relief for over 12 months since i stopped taking opioids due to side effects. … .” (sic).
35He has subsequently altered his medicinal cannabis regime to a vapour product, which provides greater pain relief but also has side effects, including making him feel quite “high”. He takes an anxiolytic medication, buspirone, as needed when he experiences a panic attack, which is about once or twice a month. However, because he has some significant current stressors, including this litigation and the impending birth of his first child, his Anxiety Disorder requires additional medication, and he is currently taking six Diazepam tablets daily to manage his anxiety. He also takes Panadol and Nurofen daily and uses Voltaren and heat patches. He occasionally resorts to Panadeine Forte, but tries wherever possible to avoid opioid medications.
Medical Panel assessment
36On 1 May 2019, a Medical Panel assessed Mr Rowbotham as suffering from persistent pain and dysfunction following a soft tissue injury to the thoracic spine, relevant to the claimed neck, upper back and shoulder injuries. The Medical Panel also concluded that Mr Rowbotham suffered from an Adjustment Disorder with Anxious Mood relevant to the claimed injury, of mild severity. The Medical Panel concluded that Mr Rowbotham had an incapacity for work resulting from, and materially contributed to by, the claimed injuries.
Medico-legal opinion
37Mr Rowbotham was assessed by occupational physician, Dr P D Clark, in June 2018. At that time, Dr Clark formed the view that Mr Rowbotham had sustained a small thoracic disc injury which had been inappropriately managed. He determined that he suffered an iatrogenic condition and was physically fit to resume his pre-injury duties. He considered that multi-disciplinary pain management was unnecessary and inappropriate.
38On 1 October 2019, Mr Rowbotham was assessed by occupational physician, Dr Tim Hwang, who noted a protracted and amplified pain response to the initial injury. He opined that Mr Rowbotham suffers from “chronic pain” which is a –
“… complex matter subject to strong influence by psychosocial factors. I do not consider there to be any clear suggestion of ongoing structural injury to explain his symptoms. As such, treatment options are particularly challenging. I would agree that pain management (non-interventional or procedural) is the most appropriate approach.”
39Dr Hwang considered that long-term use of cannabinoids was not appropriate in the absence of a clearly diagnosable physical injury and that addiction to medication is now one of his major issues. In Dr Hwang’s view, Mr Rowbotham’s capacity for work is limited “purely by symptoms and self-described limitations that are disproportionate to any clearly identifiable pathology”.
40On 25 October 2019, Mr Rowbotham was seen by psychiatrist, Dr Anthony Sheehan. Dr Sheehan diagnosed a Chronic Adjustment Disorder with Anxious Mood of mild severity, secondary to his neck, upper back and shoulder injuries. From a psychiatric point of view, Dr Sheehan considered that Mr Rowbotham has a capacity to work in modified pre-injury duties.
41On 13 January 2021, Mr Rowbotham was assessed by Dr Ash Takyar, psychiatrist. Dr Takyar formed the view that Mr Rowbotham has symptoms consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood which is chronic, with intermittent, moderate grade depressive changes and moderate-to-severe anxiety. His anxiety is pervasive and limits him from returning to any work for which he has skill, training or experience. Dr Takyar considered that, given Mr Rowbotham’s history and trials with various medications, his condition was unlikely to change substantially. He considered it was Mr Rowbotham’s psychiatric, rather than physical, injuries which had caused him to withdraw socially.
42The defendant relied on a vocational assessment report of Nabenet dated 2 August 2019 following an assessment in July 2019. The report concluded that Mr Rowbotham may be suitable in the future for a range of occupations including customer service representative (car industry) – a sedentary position which required no lifting; a workshop controller; a spare parts interpreter; a sales representative and a virtual assistant. However, the report notes that, according to the Medical Panel and Mr Rowbotham’s treating general practitioner, Mr Rowbotham’s current work capacity precluded these as suitable jobs in 2019.
Consequence of the injury for the Plaintiff
43Mr Rowbotham says he suffers pain throughout the day which worsens as the day progresses. It extends across his back and radiates from the mid-spine down towards the lumbar spine and up towards the neck. Sometimes it radiates to the front of his chest. It is a stabbing type of pain.
44He has difficulty sitting for any extended period and estimates that he can only sit for about 30 minutes before he needs to get up. Standing for any extended period of time is also difficult. He tries to go for a walk most days and tries to be as active as possible. He does some shopping but struggles with this.
45His is not a situation where he can alternate between sitting and standing to achieve comfort, he has to actually lie down for periods of time to alleviate the pain. He says he cannot imagine any employer out there who is “going to have a bed lined up for me”.
46He does not drive where he can avoid it but given that his partner is imminently pregnant and they are presently living in New Zealand where she is unfamiliar with the roads, he has been doing the driving recently. He says the car he uses is an automatic, and he uses it only for short trips. He cannot drive every day.
47Taking public transport is also difficult, both because of the length of time involved and the “little bumps in the road bouncing through my thoracic spine” which is one of the worst things for his pain.
48The pain he experiences impacts significantly on his life, including limiting his ability to work, and to participate in the normal activities he used to enjoy, including riding motorcycles, working on cars and socialising.
49He takes medicinal cannabis, which helps with his pain, but this causes him to be “quite high”. He says:
“… I guess I just wanted to raise the point, people say you’ve had an improvement in your pain with medicine or cannabis … but no-one’s really thinking about the fact that you’re actually quite high when you’re on medicine or cannabis. … .”
50He says that currently when he wakes, on a good day his pain might be about a two out of a possible ten. It will progress through the course of the day and the degree to which it worsens depends on his activity level. If he is going to the supermarket and being more active, the pain will be significantly worse and he says it would quite often reach an eight out of ten by night time, without medication. With medicinal cannabis, he says his pain is reduced to around a six out of ten. This is an average day. He says on bad days the pain can be ten out of ten and the cannabis “doesn’t touch it”.
51He struggles with his concentration and short-term memory. He says he has not slept properly for four years, so his memory is affected by that. He describes his short-term memory as “absolutely terrible”. He has headaches every day.
52He describes his anxiety as “a daily problem”. It comes and goes “in waves” throughout the day and towards the night. He has periods where he gets sweaty and has panic attack-like symptoms. He says “I don’t know why I feel so anxious”. The cannabis helps and if he takes it as soon as he begins to feel anxious, it “seems to stop the anxiety in its tracks”.
53He describes his depression as something that “pervades my existence”. His mood is low and he feels sad on a daily basis. He feels deflated and often stays in bed for long periods. He feels that life is not worth living and has had suicidal thoughts in the past. In his affidavit, he noted that he felt very apprehensive about having children, as his partner wanted to do. Now, with the birth of his first child imminent, he feels apprehensive “to be honest I’m extremely worried about it”.
54He says he loved working in the car industry and misses his job tremendously. He cannot see himself ever being able to work on cars again. He feels hopeless about the prospect of any employer “tolerating my unreliability”. He hopes it might be possible in the future to undertake some light, sedentary work, or perhaps even start his own business so that he can work around his injuries. He does not know where to start in this regard. He has an interest and, it appears, a talent with computers, but the sort of work he has been doing, essentially “turbo charging” computers so they go faster, is not particularly sought after and unlikely to represent a realistic employment opportunity.
The Plaintiff’s credit
55The defendant submits that there is no organic basis for the plaintiff’s injury and that his psychiatric condition of an Adjustment Disorder could not meet the test for “severe”. Implicit in the submission is that the plaintiff has a retained work capacity and that his complaints of pain are not credible.
56It was submitted by the defendant that Mr Rowbotham was not straightforward in his answers to questions – for example that he was “completely unwilling” to tell the Court the details of the physiotherapist he saw in New Zealand. I have dealt with my findings in that regard above. It was submitted that the plaintiff was unwilling to admit to having had back pain prior to the incident; however, on examination of the evidence, the plaintiff had filed affidavit material about the relevant episode of back pain caused by changing a car motor and said that it resolved after about two weeks.
57It was submitted that he was able to sit down and answer questions for an hour-and-a-half without a break and it was only when prompted about his ability to sit for extended periods that he “suddenly” said he wanted to move around and lie down, the inference being that the plaintiff has greater capabilities than he admits to and is exaggerating his limitations, or malingering.
58The defendant submitted that the plaintiff had a tendency to downplay his abilities and that he has an unusually high aptitude for mechanical skills. However, he was “taking marijuana again and getting high every day” and this was going to cause him to have no motivation for work. He was noted in his medical records prior to his injury to have been using marijuana, sometimes on a daily basis. In summary, the defendant submitted that the plaintiff had a mild physical injury and a mild psychiatric injury, neither of which would meet the relevant tests. Further, the defendant submitted that Mr Rowbotham was addicted to painkilling medication, and medicinal marijuana was not a suitable medicine for a physical injury, which was really prescribed to treat his anxiety.
59I found the plaintiff to be a credible witness and there were no significant “points” scored against him in cross-examination. To the extent that there were any inconsistencies, I formed the view that he was genuinely attempting to be helpful to the Court and clear and precise in his answers, but that sometimes he was unable to recall, or only recalled matters after prompting. I did not consider him to be disingenuous.
60His work and medical history show a young man who was motivated at work and was always in employment. He sought employment which was enjoyable and meaningful to him and was prepared to turn down opportunities such as the offer of work with Air New Zealand, to pursue something that fitted more closely to his interests.
61He had no pre-existing psychiatric history, although there was a history of significant alcohol and marijuana use. Neither of these things appear to have impacted at all on his ability to work and perform well in his chosen occupation as a motor mechanic. Nor is there any evidence that they impaired his life in other respects, other than possibly contributing to gastric complaints which are irrelevant to this application.
62There was nothing in the medical material or in the plaintiff’s presentation in Court to support a finding that he is malingering. Indeed, several medical reports noted his motivation and desire to return to the employment that he had loved, and his frustration at not being able to do so. It was not put to the plaintiff that he was lying or exaggerating his symptoms, or that he had given exaggerated or inaccurate reports of his symptoms to his treating doctors. It was not squarely put to the plaintiff that he was downplaying his ability in terms of what he could do and the work he was capable of performing. Assessing all the evidence before me, including the medical history and the plaintiff’s affidavit and oral evidence, I accept his evidence as to the level of pain he experiences and the impact of the injury on his life.
Analysis
63The issues in this case are:
(a) whether Mr Rowbotham’s current condition and pain is a result of the injuries he sustained and, if so;
(b) whether Mr Rowbotham satisfies the definition provided in s325(1), sub-paragraph (a), in that he suffers a permanent serious impairment or loss of body function; and
(c) whether Mr Rowbotham satisfies the definition provided in s325(1), sub-paragraph (c), that he suffers from a permanent severe mental or permanent severe behavioural disturbance or disorder.
64The principles in relation to serious injury applications are well known and I will not repeat them here.
65The plaintiff put his case on the basis of both a physical and a psychiatric injury and submits that there is evidence to support a conclusion under sub-paragraph (a). That evidence is the soft tissue abnormality noted by Dr Vagg, as well as the findings of a disc bulge on MRI, and the conclusions of numerous treating doctors that he has a thoracic injury.
66The treatment provided, including median nerve block which provided good, albeit temporary pain relief, and the prescription of strong analgesic and opioid medication, tends to support the conclusion that his treaters considered that there was or is an organic basis for his pain. The Medical Panel made a finding that he had a soft tissue injury.
67On the other hand, there is evidence to suggest that there is no or very little organic basis for Mr Rowbotham’s pain. Dr Clark made a finding in 2018 that there was, essentially, nothing wrong with the plaintiff. Dr Hwang says Mr Rowbotham had “what appeared to be a soft tissue-type injury” but that he was unable to determine the presence of any more significant structural injury and did not consider there to be any evidence of an actual spinal injury.
68Mr Rowbotham describes pain that escalates without medication to eight out of ten every day, worse on some days, and that it hovers around six out of ten with medication. I have accepted that Mr Rowbotham is a credible witness and I accept his account of the degree of pain he experiences. There is no evidence that he is exaggerating, malingering or manufacturing the pain he suffers.
69On any view, pain at this level would have to be considered a serious consequence, especially for a young man. However, pursuant to sub-paragraph (a), I am required to determine whether there is an organic basis for the injury and, if so, it may be necessary to disentangle that from any psychiatric symptoms that may be contributing to his symptoms; that is, to exclude from consideration the psychological or psychiatric consequences of a physical injury.[1] If the pain arises primarily or in part from a psychological or psychiatric sequelae to a physical injury, it must be disregarded for the purposes of an assessment under sub-paragraph (a).
[1] Meadows v Lichmore Pty Ltd [2013] VSCA 201
70Whilst there is some evidence of an organic basis for the initial injury, I accept the preponderance of the evidence, which is that there is no organic basis for the ongoing consequences Mr Rowbotham experiences. The organic soft tissue injury appears to have resolved and, in any event, does not account for the severe pain he experiences. The medical experts are agreed that the trivial disc bulge is not the source of his symptoms. It is the pain, rather than any structural impairment, that causes the restrictions and limitations he experiences. As the pain does not arise from an organic injury, he does not have a physical injury that meets the “serious injury” threshold.
71Although Mr Rowbotham pursued a claim under sub-paragraph (a), he primarily relies on a claim for his psychiatric injury.
72Given that I have found that there is no organic basis for the symptoms from which he suffers, I turn now to consider whether he meets the test for a severe long-term mental or severe long-term behavioural disturbance or disorder pursuant to sub-paragraph (c) of the definition of “serious injury”.
73There is no real dispute between the experts as to Mr Rowbotham’s psychiatric diagnosis, which is a Chronic Adjustment Disorder with Mixed Anxiety and Depression.
74The defendant submits that such a diagnosis simply does not fit within the parameters of a severe consequence for Mr Rowbotham. He has had no hospital admissions for psychiatric treatment, he has maintained his long-term relationship with his partner and has a supportive family. There is no evidence other than that of the plaintiff about the consequences for him, and the defendant submits that I ought to draw an adverse inference as to the lack of corroborating evidence about the plaintiff’s psychiatric state.
75On the other hand, there is a substantial body of evidence from medical treaters, including his treaters who have seen him over many years. The history he has given has remained consistent, which is that, shortly after the incident, he has developed unremitting pain and consequential Anxiety and Depression.
76In assessing a serious injury under sub-paragraph (c) of the definition, there is no question of disentanglement. Disentanglement is a task which arises, if at all, only in relation to sub-paragraph (a) of the definition.[2] In relation to sub-paragraph (c), the Court is able to take into account both the psychological or psychiatric consequences of a physical injury and the physical consequences of a mental or behavioural disturbance.
[2] Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323 at paragraph [5]
77Mr Rowbotham is disabled by the pain he is experiencing. Whilst the defendant inferentially disputed the level of that pain, I have made findings that his evidence is credible. There is no evidence that Mr Rowbotham had any pre-existing psychiatric condition, or that this was an aggravation of such a condition. There is some suggestion that he had a pre-disposition to developing a pain condition given his past history as a child with necrotising fasciitis, which may have caused him to be particularly sensitised to pain and consequently vulnerable. This is mooted by Dr Hwang, but there is little other evidence about this, nor do I consider that it matters. A pre-disposition to the development of a condition is not the same as an aggravation of an existing condition. If Mr Rowbotham’s psychiatric condition was an aggravation of a pre‑existing condition, I would be required to be satisfied that the aggravation was itself severe, but that is not the case here.
78There is agreement between the parties that the plaintiff suffers from a Chronic Adjustment Disorder with Anxiety and Depression. The diagnosis, of itself, is less important than the consequences for the plaintiff. I am required to determine what the injury is and what impairment it has produced in the plaintiff.
79The injury is a mental disturbance, which has caused the plaintiff to suffer Depression and Anxiety and to experience significant physical pain. If he has been medically mismanaged, as argued by the defendant, then that is a foreseeable consequence of the injury.[3] Similarly, developing an addiction to opioid and other medication would be a foreseeable consequence, though there is insufficient evidence for me to make a finding that the plaintiff has such an addiction.
[3] Kidman v Sefa [1996] 1 VR 86
80I accept Mr Rowbotham’s evidence as to the impact of his Anxiety and Depression. The anxiety comes on regularly, often late in the day, like a wave. He does not know why he feels anxious. He cannot control it, except with medication. I accept Mr Rowbotham’s evidence about his depression, that he has felt suicidal, that he feels there is no point to living, that he is worried about the future and how he will manage with a baby. These persistent and pervasive feelings and the impact they have had on Mr Rowbotham would, on their own, have been sufficient to meet the test for serious injury, as I am satisfied that they have had a severe impact on his life.
81In addition to these consequences, Mr Rowbotham experiences pain on a daily basis that increases to eight out of ten without medication. On any view, if I accept this evidence, which I do, this would amount to a severe consequence.
82I conclude that Mr Rowbotham satisfies the test pursuant to sub-paragraph (c) of the definition of “serious injury”, that he has suffered a permanent, severe mental disturbance or disorder.
Loss of earning capacity
83It follows from the fact that I accept Mr Rowbotham’s evidence about the degree of pain he experiences, and the consequences of his Anxiety and Depression, that he would have no capacity to return to his previous employment. The expert who has seen Mr Rowbotham most recently, Dr Takyar, opines that, due to his psychiatric condition, he has no capacity to return to any work for which he has any skills or training.
84The defendant submitted that Mr Rowbotham retains a work capacity and relies on the report of Nabenet as to the sorts of occupations that are suitable. None of those occupations, however, are suitable for Mr Rowbotham, given the degree of pain he suffers and his Anxiety Disorder. On the basis of his evidence and the medical reports, I do not consider that he has any current work capacity. He is presently taking six Diazepam daily for his anxiety, and medicinal cannabis to manage his pain which would have to pose a safety risk were he to work in any workplace.
85I am satisfied that the plaintiff has established that he has a loss of earning capacity, and that he has suffered an actual loss of earnings of more than 40 per cent of his “without injury” earnings. The defendant has failed to establish that there are occupations which he could perform, given his injuries and the medication that he is on.
86Accordingly, the plaintiff is entitled to bring a claim for damages on the basis of both his injuries and his loss of earning capacity.
- - -
0
2
0