Russo v Carpentaria Transport Pty Ltd
[2000] QSC 83
•17 April 2000
SUPREME COURT OF QUEENSLAND
CITATION: Russo v Carpentaria Transport Pty Ltd [2000] QSC 083 PARTIES: PHILLIP RUSSO
(plaintiff)
v
CARPENTARIA TRANSPORT PTY LTD
ACN 009 683 452(defendant)
FILE NO/S: SC No 10094 of 1999
DC No 156 of 1996
DIVISION: Trial Division PROCEEDING: Damages for Personal Injuries ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 17 April 2000 DELIVERED AT: Brisbane HEARING DATE: 9 February 2000 JUDGE: Williams J ORDER: Plaintiff’s action dismissed with costs CATCHWORDS: TORTS - THE LAW OF TORTS GENERALLY - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - COMMON LAW - plaintiff developed a psychiatric illness - whether plaintiff’s working conditions caused or aggravated the illness or whether problems experienced by plaintiff in workplace were a manifestation of a pre-existing psychiatric illness - whether defendant negligent in requiring plaintiff to work under such conditions or failing to take steps to alleviate stresses on plaintiff in workplace
TORTS - THE LAW OF TORTS GENERALLY - NEGLIGENCE - PROOF OF NEGLIGENCE - SUFFICIENCY OF EVIDENCE - insufficient evidence to establish all facts on which medical opinion relied on by plaintiff based - evidence on whole can not support conclusion that illness attributable to or aggravated by work environment
Midwest Radio Ltd v Arnold (No 4010 of 1998, judgment 12 February 1999), considered
COUNSEL: C Newton for the plaintiff
R Stenson for the defendantSOLICITORS: Tutt & Quinlan for the plaintiff
Bradley & Co for the defendant
WILLIAMS J: There is no doubt that the plaintiff, Phillip Russo, is now, and has been for some time, suffering from a major psychiatric illness. Whilst there is some dispute amongst the medical specialists as to the precise weight to be given to the various factors influencing that illness, all agree that he has a condition which will be long standing and which will severely impact on his future life. Having considered all the medical evidence I prefer the opinion that he has a bipolar affective disorder (manic depressive disorder) which has a biological base.
Whilst he may be capable in the future of performing work generating income from time to time, the reality is that his future earning capacity has been diminished because of that medical condition. Dr Varghese has expressed the view that provided a manic depressive adheres to treatment then the prognosis can be good and the person can work normally.
By the statement of claim he sought $750,000 damages from the defendant who was his employer from about November 1991 until early June 1995 on the ground that negligence on the part of his employer caused, or at least aggravated, his condition. By the stage of final addresses the claim was for approximately $300,000 for past and future economic loss, $50,000 for pain suffering and loss of amenities, and for somewhat over $100,000 under other heads. The statement of claim nominated on or about 12 August 1993 as the date on which he suffered psychiatric or psychological injuries.
The plaintiff was born on 10 April 1958 which means he was approximately 37 when he ceased work with the defendant and going on age 42 as at date of trial. After completing year 10 at High School he commenced a glazing apprenticeship in 1974. Then in October 1979 he joined Queensland Railways as a porter and ultimately became a shunter. He married in September 1983. In September 1986 he suffered a knee injury whilst working as a railway shunter. Treatment involved some two operations over a period of about 3 years and ultimately on medical advice in about May 1988 he moved to a clerical position with the Railways. He remained there until November 1991 when he obtained casual employment with the defendant, Carpentaria Transport Pty Ltd, which traded under the name QRX. Apart from the consequences of the knee injury, the plaintiff had been in regular employment between leaving school and commencing work with the defendant.
The plaintiff became a permanent manifest clerk with the defendant and was so employed from February 1992 until March 1992; thereafter he worked in the pick-ups division, apparently without any problem, until January 1993. The case for the plaintiff is that his working conditions in the pick-up division between 1 January 1993 and 12 August 1993 caused (or alternatively aggravated) a psychiatric condition. The allegation is that his work during that period involved “repetitive answering of the telephone” and “dealing with customer complaints such as delayed pick-ups and non pick-ups”. It is also said that during that period the plaintiff was “overworked in that … there were too many telephone calls for him to answer … (and) … he was not able to attend to the non-phone answering duties such as the paperwork associated with his other duties without working excessive overtime, in the order of a fifty-five (55) hour week or longer”. It is asserted that in requiring the plaintiff to assume that workload, in failing to supply assistance to the plaintiff in the performance of those tasks and/or in failing to switch the plaintiff to a different position, the defendant was guilty of negligence which caused psychiatric decompensation and an ongoing psychiatric condition.
In about July 1993 the plaintiff was transferred to administration and then in September 1993 into customer service. From about November 1993 until 22 June 1995 he was a truck checkpoint operator. The defendant decided upon those transfers with a view to accommodate the plaintiff’s complaints that his work in pick-ups was too stressful. The plaintiff’s case is that the psychiatric illness caused during the period 1 January to 12 August 1993 was aggravated by his periods of employment in customer service and at the checkpoint.
The plaintiff and his wife separated in about August 1995. He said in evidence the separation occurred because: “She couldn’t take it anymore. She asked me to leave and I did.” There was a reconciliation in 1997, but a further separation occurred in about June 1999. On the medical evidence such separation is likely to be an aggravating factor given his condition because he is deprived of family therapy and support. To the extent that stress is a relevant consideration, the stress associated with family breakup would be just as relevant as stresses in the work environment.
In evidence the plaintiff said that he first became aware that there was “something going on” in August 1993; apparently a neighbour advised he should seek professional help. The plaintiff said: “I didn’t realise how bad I was”. Immediately after giving that evidence the plaintiff referred to two incidents at work. The first was in June 1993 when his employer placed “two fleet controllers’ phones in the pick-up office” and the second was later in that month when a new computer system was installed. The plaintiff’s complaint about the “controllers’ phones” appears to be that they would “continually ring” while he was talking on another telephone to customers. The complaint about the new computer system appears to be that when it was heavily in use “it would slow right down, and the idea of pick-ups was to keep the pick-ups flowing”. That was allegedly due at least in part to the fact that the screen was not changing fast enough. All of that apparently resulted in the plaintiff and others having to write down details of some pick-ups and insert the detail in the computer later. He complained that “you just never stopped. It was just go, go, go, …”. Summary figures had to be given to management each morning relating to the previous day’s activities.
In his evidence the plaintiff spoke of the likely number of telephone calls on an average day being around 500.
According to the plaintiff matters came to a head on 12 August 1993. His relevant evidence was as follows:
“That was the day that – it was the day after the public holiday Wednesday for the Exhibition Show as after a public holiday in our – in that job it was normally a very busy day because you missed a day out of trading. On that particular day the phones were – I turned them on just before 8 o’clock. Dave, my other assistant wasn’t due in until 11 or 10. At 9.05 that morning the computer recorded 95 pick-ups and management – I asked them to get me some help and they come over and they told me not to worry about it and walked out the door and just slid the door closed and the rage I felt from then – 95 calls in 65 minutes is really pumping the calls out. It really is pumping the calls out. … Darryl Beckwith and Ron Camilleri stood behind me and Darryl Beckwith tapped me on the left shoulder and said, “Don’t worry about it Phil” and they both just walked out and slid the door closed and I had 8 phone calls banked up. There were just – it was just going off and they told me not to worry about it.
August 12 1993 I recorded 595 on the computer. There would have been at least 30 to 40 complaint calls that day. It was a helluva day. At the end of the day I just – I just crawled into a ball. The next day was a Friday. I didn’t go to work that Friday. I just couldn’t. I rang them up and told them I was sick.”
In about September 1993 the plaintiff asked his employer for referral to counselling and the defendant made the necessary arrangements for him to see Dr Cotton, a clinical psychologist. At that time he was “crying for no reason … I was just breaking down … my kids were scared of me. My wife was scared of me. I’d bring the job home and never realised I was bringing it home.”
It was after seeing Dr Cotton that he was transferred to “customer service”. Again he was using the telephone, mainly fielding complaints from customers whose freight had not been delivered. Then followed the transfer to the checkpoint; the plaintiff agreed with the proposition that he stayed there until he “finally broke down” in June 1995. When asked to describe his feelings when he broke down he replied: “At that stage I was really scared. I didn’t know what was going on. I was a totally different person on the outside looking at myself. Couldn’t really believe what I was doing and saying and it affected my whole family and myself very greatly”.
It is difficult to follow the plaintiff’s evidence in chief chronologically, even given the assistance provided by his statements (exhibits 13, 14 and 15) which he verified whilst in the witness box. For example, the plaintiff on occasions appears to jump from about August 1993 to about August 1995 as if nothing happened in between. It is obvious from perusing the various medical reports which were prepared from time to time throughout the relevant period that the plaintiff’s evidence in chief is significantly different to the account of his employment and symptoms given contemporaneously to the doctors. It is worth observing that though there were relatively brief references to “cranky Frankie” in exhibits 14 and 15 there was no mention at all by the plaintiff in evidence in chief of the conduct attributed to that person during the approximate 18 month period he was employed at the checkpoint. Yet one of the allegations made against the defendant is that it was negligent in transferring the plaintiff, knowing of his health problems, to an environment where he had to work with cranky Frankie when the defendant knew of that person’s attitude to fellow workers.
The plaintiff cannot be regarded as a reliable historian. It may well be, as contended for by counsel for the plaintiff in his final address, that that is due to the plaintiff’s medical condition rather than to any deliberate selectivity on his part in recounting relevant events and symptoms. But that does not facilitate the task of the court in making the findings of fact necessary before the plaintiff can succeed. As will be discussed later, particularly in dealing with Dr Webster, the failure of the plaintiff to disclose relevant conduct partly explains why doctors have had difficulty in diagnosing his condition and determining its causes.
In cases of this type it is important that the plaintiff establish in evidence before the court all the facts on which the doctors are asked to base their opinion. The reasoning of the Court of Appeal in Midwest Radio Ltd v Arnold (No 4010 of 1998, judgment 12 February 1999) affords a good example of the consequences of the evidence not establishing the facts on which medical opinion was based.
Further, the weight to be attached to medical opinion is decreased where relevant matters are established by the evidence and such matters were not disclosed to the doctor.
A number of fellow workers were called to give evidence in support of the plaintiff’s case. In general they were critical of the work environment, and complained of the attitude of management. But overall there was a degree of exaggeration and generalisation with respect to most of the complaints, and a lack of specificity about issues directly relevant to the plaintiff’s claim. There is no doubt that the telephones in the pick-up division rang fairly constantly, but that is what was supposed to happen. The plaintiff tended to give the impression that he was the only person available to answer all calls, but I am satisfied on the whole of the evidence that that was not so. There may have been occasions throughout the day when he alone was there, but more often than not there were a number of people who could handle incoming calls at a busy time. Further, the evidence from the plaintiff’s side as to the number of calls per day was no more than a “guesstimate”. I am not satisfied of the accuracy of the plaintiff’s evidence when he says that more than 500 calls were received on 12 August 1993. Witnesses made varying estimates of the average number of calls per day, and around 300 was the most frequently quoted figure. But even that is no more than an inaccurate estimate made many years after the event. The witness Chaffey highlighted the deficiencies of the evidence in this regard when giving his answer as to his recollection of the number of phone calls per day: “I couldn’t honestly say but it would be – there would be thousands, I reckon. I’ve never actually counted them.”
The evidence does not enable findings to be made as to the pattern of work for the plaintiff over the relevant period of time, or even on a particular day such as 12 August 1993 highlighted in his evidence. The evidence looked at overall strongly suggests that each day there were some busy periods, but then periods (probably later in the day) when the phones were much quieter. Further, the evidence does not permit the making of any finding as to the overtime worked by the plaintiff. There is an allegation that he regularly worked up to about 55 hours per week, but that is not supported by the evidence looked at overall. He may have worked that number of hours in some particular weeks but the evidence does not support a finding that that was a general pattern.
I do not find the evidence of Wilson-Evered of assistance. Many of the facts on which her opinion was based were not supported by the evidence, and her opinion is based almost entirely on the uncritical acceptance of the plaintiff’s account of the work environment. She took no steps, either by contacting management or visiting the workplace, to ascertain whether or not she had been given a fair picture of the conditions in which the plaintiff worked.
It is, of course, not sufficient for the plaintiff to prove that stresses associated with his employment aggravated his condition. Virtually every job will from time to time place stress on an employee. An employer is not negligent simply because there is stress associated with the task the employee is required to perform. In order to recover damages at common law negligence by the employer must be established and that, in very broad terms, must involve some unreasonable conduct on the employer’s part and some foreseeability of the consequences of acting in that way.
Ultimately the real issue to be decided in this case, as was identified in the opening of counsel for the plaintiff, is whether the plaintiff’s work environment caused (or contributed to) his condition, or whether the problems the plaintiff experienced in the course of his employment were a manifestation of a pre-existing psychiatric condition.
Essentially Dr Varghese concluded that the problems at work were a manifestation of the biological illness (bipolar affective disorder) from which the plaintiff was suffering.
The plaintiff relied on evidence from Dr Cotton, the psychologist, and two psychiatrists, Dr Webster and Dr Apel, to refute that contention, but after giving their evidence consideration I have concluded that the opinion of Dr Varghese is to be preferred. Indeed, when all the relevant facts were made known, each of the three specialists called by the plaintiff could not exclude bipolar affective disorder as the correct diagnosis.
Cotton first saw the plaintiff in September 1993 and there were some 8 subsequent consultations until November 1993. In his reports of those visits he noted complaint that the plaintiff was “experiencing stress symptoms … which he considered to have been precipitated by excessive workload pressures in his role as a dispatch clerk”. Then he reported that an examination in July 1995 was “suggestive of an acute agitated depressive state”. Between then and the report of 12 October 1995 (exhibit 2) the plaintiff “developed a manic episode”. In that report Cotton noted that the plaintiff’s condition was not stabilised “and I am liaising with his general medical practitioner with a view to commencing a trial of lithium”. All the medical evidence agreed that lithium was the classic treatment for bipolar affective disorder, and such a disorder was an obvious possibility given the episodes of acute depression and mania.
It is worthwhile digressing at this point to elaborate on the manic episode in the period August - October 1995. On 3 August 1995 the plaintiff’s claim against Queensland Rail arising from the shunting accident was settled; he received a payment of approximately $80,000. On 31 August 1995 he separated from his wife and thereafter moved to the Gold Coast. In a short period of time he gambled away all of the $80,000 at the Casino and in associating with another woman. There is also evidence of marijuana use during that period. No challenge was made on behalf of the plaintiff to the more detailed accounts of those events which are recorded in the medical reports.
It should also be noted that in about July 1995 the plaintiff’s general practitioner had prescribed Prozac for his depression, but the plaintiff stopped taking that drug in about August.
In Cotton’s opinion the plaintiff’s manic symptoms resolved by about January 1996 (exhibit 3). He spoke in that report of the plaintiff having “residual symptoms of an Adjustment Disorder with Mixed Anxious and Depressed Mood”. At that stage Cotton considered the plaintiff capable of returning to work. In his report of 25 November 1996 (exhibit 5) Cotton recorded that as at that date the plaintiff had “residual symptoms of mood fluctuation”. In his various reports, including that of 8 April 1999 (exhibit 6) he recorded “no indications of any recurrence of his previously reported manic symptoms”. In that report he concluded that “it seems likely that his manic symptoms may have been triggered by medication changes, as suggested by Dr Apel”.
In the course of his oral evidence Dr Cotton was asked about the nature of the plaintiff’s condition. In the course of evidence in chief he said: “… it is difficult often to make a definite diagnosis of a bipolar illness. In retrospect some symptoms appear to be more consistent with that pattern but at that time prior to 1995 I perceived nothing to lead me to suspect the presence of a bipolar disorder.” He conceded that he could not give a “definite opinion” that the manic depression was triggered by the drug regime the plaintiff had been on. Under cross-examination the following exchange took place:
“Dr Cotton, in retrospect, you would agree that, I presume, with the psychiatrists that this man has a bipolar disorder? – I accept that that certainly seems a likely diagnosis but I – I wouldn’t say its definitive, no.”
Dr Webster examined the plaintiff on 22 November 1995 which is very shortly after the manic episode in which the plaintiff frittered away the $80,000 he had received as damages. The doctor’s report in relation to that consultation was exhibit 9. In that report the doctor expressed the opinion that the plaintiff was “suffering from an Adjustment Disorder with mixed emotional response”. He considered that the plaintiff had a vulnerable, obsessional personality and that he had “sustained a work related injury” resulting from the stress to which he was subjected. It is interesting to note that in that report he also said that a diagnosis of bipolar affective disorder “cannot be entirely ruled out”.
Under cross-examination it became clear that Dr Webster had been given a very incomplete history of the plaintiff’s illness. Though the episode of frittering away the money and associating with another woman had occurred only a matter of months before there was no mention of it in the history obtained by the doctor. In evidence in chief he stated that the reason he tended to rule out bipolar affective disorder was that there was no prior episode of manic highs.
But at the conclusion of cross-examination I put some matters to the doctor which resulted in the following evidence being given:
“Apparently in July or August he received about $80,000 compensation, a payout for an earlier work related injury and apparently at about that time he had separated from his wife. He went to the Gold Coast, gambled away most or all of that money and there is some suggestion that during that period, contrary to his normal lifestyle, there had been some consumption of alcohol and some association with another woman. How would that conduct fit into the pattern that you’ve mentioned and the diagnosis that you’ve made as to his condition? – Well it doesn’t fit in very well, actually, in the sense he didn’t reveal that. That was prior to November 1995, was it?
That’s what I’m saying, its in the 3 or 4 months immediately prior to your examination? – Yes, well this gentleman didn’t reveal that information to me at that time and certainly its a typical description of hypomanic behaviour.
Well now also you would have noted, in Dr Varghese’s first report, that when he saw him on 27 September 1997 he was, clearly, in a hypomanic state? – Yep.
Now, I am just wondering if you accept Dr Varghese’s assessment and you also accept what you have just said that the incident in the latter half of 95 was an illustration of hypomania whether that would cause you to express a different opinion in relation to the question of a bipolar disorder? – Oh definitely, yes. I would certainly consider that he had an episode of hypomania prior to me seeing him. But that was not revealed on that particular occasion. He was concerned that, as people often are, with their – with particular problems in which they have – they are suffering and he may well not have had any insight in the relationship between the two.”
My impression of those answers is that in the light of the additional information Dr Webster would not rule out bipolar affective disorder and if anything he impliedly acknowledged that the pattern of mood swings was consistent with that condition.
Three reports from Dr Apel were admitted into evidence. Exhibit 10, dated 4 April 1997, covered consultations on 31 December 1996, 11 February 1997 and 11 March 1997. Exhibit 35, dated 6 January 1997, was a letter he wrote to the plaintiff’s general practitioner consequent upon his referral. Finally exhibit 11, dated 3 June 1998, dealt specifically with issues raised by Dr Varghese.
I have real difficulty in reconciling the opinions stated by Dr Apel in exhibits 10 and 35, which were written at about the same time. In exhibit 10, written to the plaintiff’s solicitors, he speaks of a diagnosis of “substance induced mood disorder (manic type)”. He expressed the view that that disorder “has rendered him incapable of employment since his first depressive episode around the time of leaving work in mid 1995”.
It is difficult to give weight to that conclusion when the evidence establishes that the plaintiff’s first depressive episode was (at least) in mid 1993 and not mid 1995.
But what is more significant is that in exhibit 35, written to the general practitioner, Dr Apel stated: “I feel there is enough evidence for a diagnosis of a bipolar illness and I have started him on some lithium, 250 mg, three times a day.” As already noted all doctors agreed lithium was the classical treatment for a bipolar disorder. That report also details episodes of depressive mood swings and quite clear hypomanic behaviour; on the whole of the medical evidence classical signs of a bipolar disorder.
In his report of exhibit 11 Dr Apel canvasses his earlier reports and the opinions of the other doctors, but extraordinarily he makes no mention of his diagnosis of bipolar illness referred to in his letter of 6 January 1997. It is significant in my view that in that report Dr Apel says that he “put considerable weight on the view of Dr Webster in November, 1995, as the psychiatrist who gave an opinion nearest the events in question. I would note his diagnosis of adjustment disorder and mixed emotional response which he felt to be work related”. As Dr Webster has now resiled to a large extent from that view because he was not properly acquainted with all relevant facts, the opinion of Dr Apel based thereon loses much of its force.
A number of answers given by Dr Apel under cross-examination should also be noted. He was asked, “Do you agree that he has a bipolar disorder” and he replied: “No. There’s certainly – there’s evidence that he has a mood disorder with both manic and depressive aspects to it. A concept of bipolar disorder suggests something that much more leans towards inherent vulnerability in an individual and less so on environmental triggers whereas the diagnosis I made at the time was of a substance induced mood disorder, which puts more weight on environmental triggers. I see these things as a spectrum and not really totally discrete entities by any means.” A little later he agreed with the proposition that “his condition could be bipolar disorder”.
Again, that first answer highlights the reliance Dr Apel placed on Dr Webster’s opinion expressed in his report. When the validity of that opinion is questioned, for the reasons advanced above, Dr Apel’s first answer quoted must be treated with reserve. That then tends to give greater significance to his answer that the plaintiff’s condition “could be bipolar disorder”.
The defendant’s solicitors referred the plaintiff to Dr Varghese for examination and that took place on 27 September 1997. At the time of that interview the plaintiff was “in a hypomanic state although there were some depressive features present intermittently”. In consequence the doctor was not then able to get a proper history of events relating to the illness. The doctor was so concerned about the plaintiff’s mental state that he took the liberty of contacting Dr Apel, the treating doctor, to inform him that he considered his patient to be hypomanic and in need of urgent medical intervention.
However in the report dealing with that interview (exhibit 24) Dr Varghese indicated that his “impression” was that the plaintiff was suffering from “manic depressive illness” which was essentially a biological disorder and that it was not caused by work related experiences. However, he did not wish to make a definitive diagnosis without a more coherent history.
His second report (exhibit 25) deals with a consultation on 28 February 1998 at which the plaintiff’s wife was also present. She made statements to the doctor which influenced him to some extent in arriving at his conclusion. Undoubtedly because of the further separation which occurred in June 1999 the wife did not give evidence at the trial. However, questions were asked of Dr Varghese and the other psychiatrists as to the significance of statements alleged by Dr Varghese to have been made by the wife. The written reports were admitted into evidence and the statements recorded therein as the basis on which the opinions were expressed became evidence at least for that limited purpose. I have had regard to the wife’s statements for the purpose of evaluating Dr Varghese’s evidence, but I have not given it any particular weight in determining the ultimate issue. Even without the statements by the wife the evidence establishes the facts necessary to support a finding that the plaintiff has at all material times been suffering from a bipolar affective disorder which has a biological base. That was clearly the opinion of Dr Varghese expressed in exhibit 25.
Dr Varghese makes the following comments on that condition in that report:
“As to the cause of the disorder, Bipolar Disorder, is essentially a biological illness. It is not caused by psychological factors and the totality of the illness is not brought about by environmental factors. Thus I do not consider that problems at work could account for Mr Russo having Bipolar Disorder. Having said this it also needs to be stated that while the illness is essentially biological, each individual episode in an illness can well be precipitated or worsened by psychological stresses and the overall psychosocial situation is important in the prognosis. As to whether the stresses at work that have been mentioned by Mr Russo, could have precipitated an episode or episodes seems unlikely to me unless there was some major trauma. Rather I am inclined to the view that the problems that he was experiencing at work were a result of him developing firstly depression and later hypomania. In other words, the so called stresses at work are symptomatic of his illness in the same way as the stresses at home are symptomatic of the illness.”
It should also be recorded that Dr Varghese’s review of the various other medical reports confirmed his diagnosis of Bipolar Disorder. In particular he considered that the plaintiff’s “behaviour following court settlement with respect to injury sustained in the Railway was symptomatic of Bipolar Disorder”.
Dr Varghese also expressed the opinion that an adult in average health would not be likely to suffer such a condition in consequence of the work related circumstances in which the plaintiff found himself.
In his oral evidence Dr Varghese stressed that bipolar disorder is essentially a biological disorder that is not brought on by stress. He did concede that stress in the nature of a bereavement may trigger a bipolar disorder, but, in his opinion, whilst workplace stresses of the type being put to him in cross-examination might produce adjustment disorder and anxiety, they would not produce a bipolar disorder. Further, a person with a bipolar disorder was “no more or less vulnerable to the ordinary stresses of life than anybody else”. His position was probably summed up in an answer given under cross-examination where he again denied that some precipitating event such as stress was necessary to cause the onset of bipolar disorder; he went on: “I would think that it is essentially a biological illness that emerges at particular times. It may emerge in response to stress if there is overwhelming stress, and I have seen people where the episode has emerged at a time of major bereavement. … If there is some horrendous event that has occurred at the workplace then it may cause the emergence of the depressive phase of the illness, and sometimes of the hypomanic phase of the illness.” At best for the plaintiff Dr Varghese conceded that a social situation may have some impact on the timing and severity of a particular episode. But in most cases there was “no identifiable precipitant”.
Having considered all of the medical evidence I accept that the findings and opinion of Dr Varghese in preference to the others, though it would appear that in the end there was not a great deal of variance between the doctors. When all relevant facts were made known even the doctors called on behalf of the plaintiff could not rule out bipolar disorder and even conceded that it was a likely diagnosis.
In the circumstances I find that the plaintiff is suffering from a bipolar affective disorder which has biological origins. On the whole of the evidence I am satisfied that the stresses associated with the plaintiff’s employment with the defendant, particularly in the period 1 January to 12 August 1993, did not cause that illness. Those stresses did however make the manifestations of that illness more obvious during that period. Further, the plaintiff’s responses to those stresses were to a significant extent manifestations of that illness.
When it became obvious that the plaintiff had some medical problem the defendant co-operated, and acted reasonably, in arranging medical assessment and treatment by Dr Cotton. Further, the defendant acted reasonably thereafter in transferring the plaintiff to what was regarded as a less stressful position. The evidence does not satisfy me that the defendant was made aware that the plaintiff’s employment at the checkpoint was aggravating his condition so that the defendant was negligent in failing to take some steps to alleviate the position. Whilst there were stresses associated with the plaintiff’s employment from November 1991 until June 1995, in particular whilst he was working in pick-ups, I am not satisfied that the evidence establishes that the defendant was negligent in requiring the plaintiff to work in those conditions.
Finally, I am not satisfied that the conditions under which the plaintiff was obliged to work caused the bipolar affective disorder from which he suffers. Further, I am not satisfied that the evidence establishes any identifiable aggravation of that condition brought about by the conditions under which he had to work.
It follows that I am not satisfied that the plaintiff has established negligence in his employer which would entitle him to recover common law damages, and further, I am not satisfied that the medical condition from which he suffers was attributable to his work environment.
In those circumstances it appears to me that there is no basis on which I could assess damages in any event. Any assessment must be predicated on a finding that some particular medical condition from which the plaintiff suffers was caused by work related factors. I cannot identify on the evidence any such condition.
It follows that the plaintiff’s action must be dismissed with costs.
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