Saric v Chubb Security Australia Pty Ltd
[2014] VCC 80
•14 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-06383
| DANILO SARIC | Plaintiff |
| v | |
| CHUBB SECURITY AUSTRALIA PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 November 2013 | |
DATE OF JUDGMENT: | 14 February 2014 | |
CASE MAY BE CITED AS: | Saric v Chubb Security Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 80 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – psychiatric injury suffered in the course of employment with the defendant
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Ansett&AnorvTaylor [2006] VSCA 171, Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33, Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Sala | Belleli King & Associates |
| For the Defendant | Mr J. Batten | Minter Ellison Lawyers |
HER HONOUR:
Introduction
1 The plaintiff is 50 years of age. He was born in the former Yugoslavia. He divorced in 2005. His 15-year-old son, now lives with the plaintiff and his partner, Anne Goodban, on her 40 acre property in rural Victoria.[1]
[1] These background matters are largely extracted from the plaintiff's affidavits and oral evidence.
2 The plaintiff’s family of origin history is marred by his father’s depressive illness and eventual death from alcoholism in about 1981 or 1982, the suicides by hanging of two uncles and, in 1992, the death of a brother in the Bosnian war. However, through his evidence the plaintiff indicated that, prior to 9 of May 2003, other than a period of psychological counselling following his brother’s death, he had not undergone psychiatric treatment or taken medication for any mental health issues.[2]
[2] Transcript (TN) TN 32, 39 and 103-108
3 The plaintiff completed some 12 years of schooling in Yugoslavia. This included a three-year carpentry apprenticeship and one year only of a two year course at the Advanced School of Civil Engineering in Belgrade, for which he was granted a building supervisor certificate. Prior to emigrating to Australia in 1988, the plaintiff was employed as a carpenter and later as a builder’s supervisor. [3]
[3] Exhibit P1, Plaintiff's Court Book (PCB) 10 and) 27-31
4 After arriving in Australia the plaintiff continued to work in a range of occupations in the building industry, punctuated by periods during which the plaintiff said he was unable to find work. He worked in Victoria, Perth, Sydney and Adelaide for various employers and for some years the plaintiff was self-employed under the name of “DS Constructions”. The work performed varied - carpentry, plastering, concreting, formwork or steel fixes, forklift driving and working as a machine operator. Some jobs lasted longer than others. For instance, until this company closed, the plaintiff was employed for almost 2 years between October 1991 and May 1993 in Bacchus Marsh by CSR Wood Panels grading, packing, forklift driving and working in the paint shop. He then travelled to Perth.
5 Under cross-examination, the plaintiff told the Court that in about 1991/1992, when living in Victoria, he had embarked on the first stage of registering a Patent for an energy self-sufficient system. Apparently, the plaintiff still has his prototypes and the remnants of the work he last performed on this project some 8 to 9 years ago.[4]
[4] TN 31-32
6 In 1996 the plaintiff was employed as a carpenter and maintenance/fitting officer by Heath Plastics in Adelaide. He suffered lower back injury with right leg pain while moving a compressor shed from one side of the factory to the other. He deposed that he attended a doctor for treatment and took two weeks off work before resuming his normal duties. Despite the circumstances in which the injury occurred and its impact on his capacity to work, the plaintiff said he eventually resigned, without reporting this injury.[5]
[5] PCB 12
7 In the two years until the plaintiff underwent back surgery in 1998 (laminectomy and decompression at the L4/5 level), which he deposed improved his condition, the plaintiff was unemployed. However, within a month of surgery the plaintiff was fit to return to light duties. He commenced working with a construction company in Adelaide, in the course of which the plaintiff said he suffered further injury to his back after losing his footing and jumping some three metres to the floor below.
8 The plaintiff said he again chose not to make a claim and left this job. This further incident and ongoing back pain had, the plaintiff said, convinced him that he was no longer suited to work in the construction industry.[6]
[6] PCB 25 and TN 37-39
9 I understood from the plaintiff’s evidence that lower back pain and disability continue to restrict his physical capacity for work, although the only treatment for some years now has been daily painkilling medication, Panadeine Forte or Panamax. [7]
[7] TN 36, TN 94-95 and TN 104
10 In 1999, the plaintiff returned to Victoria, by which time he was married with a young child. He and his wife received unemployment benefits and, for about a year, they rented and lived on small hobby farm in Tanjil South. The plaintiff deposed he worked on the farm and looked after the animals.
11 In or about 2001 the marriage broke-down. The plaintiff denied that his wife leaving with their son had a traumatic effect on him.[8] Whether or not, their separation was caused by financial stresses and lack of income, the plaintiff’s description of the breakdown of his marriage indicated an agreement to separate to avoid any negative impact on their young son, with whom the plaintiff remained in contact.[9] The plaintiff was adamant that occasional gambling was not a serious problem before or at the time of the failure of his marriage.[10]
[8] TN 106
[9] TN 41-42 and 55
[10] TN 107
12 On referral from the Commonwealth Employment Service, the plaintiff was employed for some weeks in a temporary position driving a forklift for National Forge. This work preceded an application for a licence to work as a security guard in July 2002. Assisted by a Salvation Army employment agency, the plaintiff applied for work as a security guard and, from about October 2002, he was employed by Chubb Security as a casual Security Officer.
The application made and the evidence
13 The plaintiff sought leave under section 134AB of the Accident Compensation Act 1985 (the Act) to bring proceedings to recover damages in respect to psychiatric injury suffered in the course of the plaintiff’s employment with the defendant on or about 9 May 2003.
14 The plaintiff relied on Affidavits (as amended) sworn on 6 October 2011 and 29 April 2013 respectively. He was cross-examined at length. The plaintiff also relied on those parts of the affidavit sworn by his partner, Anne Goodban on 30 April 2013, which were not excised in response to objections raised by the defendant. Ms Goodban was not cross-examined.
15 Both parties tendered multiple reports from their respective Court Books, prepared by treating doctors and medico-legal specialists.[11]
[11] Exhibit P1 and Exhibit D1 (DCB)
16 The defendant’s Court Book also contained extracts from the records kept by his treating general practitioner, Dr McCowan’s clinic in Pakenham commencing from 11 September 2008 (some of which were undated),[12] copy letter of resignation dated 16 June 2003, copy resume and employment application dated 24 July 2002 and copy IRS Total Injury Management initial assessment dated 20 September 2003. The defendant also tendered the WorkCover Workers Claim Form dated 26 June 2003 and the Employer Claim dated 27 June 2003[13] and letter dated 15 April 2004 from treating psychiatrist, Dr Thacore to a treating general practitioner, Dr Christian.[14]
[12] The responses to cross-examination at TN 99 suggest that these clinical notes covered a period at least up to 15 November 2012
[13] Exhibit D2
[14] Exhibit D3
The circumstances of injury, treatment and assessment – 2003 to 2008
17 The circumstances giving rise to the onset of psychiatric symptoms were set out in the plaintiff’s affidavits and, more particularly, in a signed Statement made by the plaintiff to investigators on 11 July 2003 (the Statement). Copies of the Statement and the Incident Report prepared by the Guards Supervisor and dated 13 May 2003 were attached to the first affidavit sworn on 6 october 2011.
18 The plaintiff stated as follows:
“…. On 9 May 2003 I was called by one of the placement officers in the morning and asked to go to the Sofitel Hotel because there had been an accident. I got there at about 8.30. There were a lot of police and barricades and I had trouble making my way to the control room. I got there at about 8:45am. As I signed in the man in control told me that someone had jumped off the 32nd or 33rd floor and had shredded himself to pieces on the plastic bubble ceiling. The plastic and metal beams shattered when the person had hit it. The supervisor showed me through the video monitors where the arm was and instructor me to go there and stop people from coming through. I was sent to the opposite side of the control room, where the escalators and food area was. There was a severed arm and small pieces of body bits, on the tiles on the lower ground floor. I was positioned at the bottom of the escalators that go up to the balcony, and from there to the Sofitel. I was standing about four metres away from the arm and body bits. I was at the scene for nearly 13 hours. The forensics people collected the parts at about 12 pm. The arm was straight and stiff, and the forensics people had to bend it put in the plastic bag. They were behaving as if there was nothing out of the ordinary. The area still had blood bits and pieces on the floor. They brought the cleaners in to clean the whole area so I stayed around while all that was being done. I left at about 9.30 that night. I came home and I could not get to sleep. I thought that I had just seen things that I had not seen before and that this must be how a person reacts to it. I have had trouble sleeping ever since then. Every time I close my eyes I see the arm, and I dream of mass graves. In one dream I fell into the grave. I tried to ignore everything from a few weeks but it was coming to the point that I could not take it any longer. I was struggling after the incident but kept working for a while. I am a strong man working in the security industry you have to be strong but I was hiding how I was affected by the incident from everyone and I felt embarrassed about it. I did not know that there was any trauma counselling. I don’t think anyone mentioned anything to me. But I was hiding my problems from them. So I resigned… (the incident).”[15]
[15] PCB 17-18
19 Both the Statement and the Incident Report concur in reporting that the deceased’s body was removed at about 12:00 or 12:10 pm. The Incident Report further indicated that arrangements were put in place for a counselling session the same afternoon. Evidently all security guards were welcome to attend.
20 Until amended at hearing, in paragraph 7 of his second affidavit, the plaintiff relevantly deposed as follows:[16]
“With respect to the incident that occurred on 9 May 2003…, this was the first occasion that I had ever come into contact with a deceased body in such a mutilated state. I had never seen such a sight before and standing guard for 12 hours over the body and the dismembered arm as well as other parts off the cut body and the brain caused me severe trauma. I tried to constantly avert my eyes away from the body in fear of becoming ill.”
[16] PCB 26
21 At hearing, with the leave of the Court, the second sentence was amended to read: “I had never seen such a sight before and I remained at the scene for 12 hours which caused me severe trauma.”
22 I think it clear from the content of the Statement, the Incident Report and from the changes made to the affidavit, that the plaintiff probably spent less than four hours guarding the area at which the corpse and/or body parts were located (not 12 or 13 hours as suggested to some doctors and in the second affidavit) before these were collected at about 12 pm. However, the plaintiff’s evidence that he had been shown the location of the severed arm on the security monitor before being directed to stand guard and his evidence about the state of the scene before it was cleaned were not challenged.
23 Moreover, regardless of whether counselling was organised for staff, none of the evidence advanced by the defendant contradicted the plaintiff’s claim that he had not known of or attended for counselling during or after completing his 12 hour shift at the scene.
24 The plaintiff last worked on 12 June 2003. On 16 June 2003 he tendered a written resignation. He did not return to work.[17] The reasons given suggest that factors other than the plaintiff’s exposure to the rather gruesome incident in the course of his employment were responsible for the decision to resign. For instance, in the letter of resignation the plaintiff voiced a number of complaints: he had not been paid at the appropriate level, he had not been given the chance to work at main events and he had been offered fewer hours of work despite calling his employer on average three times per week.
[17] DCB 89
25 At hearing the plaintiff recalled working 3 to 4 full days per week before his resignation. He, nevertheless, agreed with the proposition that between October 2002 and 16 June 2003, on average, he worked 23 ½ hours per week (that is, an average of three days work per week). The hours worked, coupled with the complaints articulated in the letter of resignation indicate a worker who, before his resignation, had been keen to increase his hours of work.
26 After resigning, the plaintiff said he mostly stayed in bed at home and found himself: “crying constantly”.[18] The events reported subsequent to resignation are consistent with the plaintiff having suffered a severe psychological decompensation involving symptoms of post-traumatic stress, depression, anxiety and paranoia.
[18] PCB 13
27 Some days after resigning and before the WorkCover Worker’s Claim Form dated 26 June 2003 was submitted, the plaintiff was treated for Post Traumatic Stress Disorder (PTSD) by general practitioner, Dr Mesiha.[19] This evidence accords with the matters set out in the Statement in which, among other things, the plaintiff said the general practitioner referred him to psychologist, Peggy Kardaras, because the plaintiff had trouble obtaining an early appointment with a psychiatrist.
[19] Exhibit D 2
28 The plaintiff is not a man of means. According to the Statement, during their first session the plaintiff was advised by the psychologist that his condition had been caused by work and that she was unable to treat him until his claim was paid by WorkCover. There was no report from this psychologist.
29 At hearing I was told that Dr Mesiha had referred the plaintiff to psychiatrist, Dr Ibrahim, who saw him twice. Again there was no report from this psychiatrist. Nevertheless, correspondence dated 31 December 2003 addressed to psychiatrist, Dr Thacore (the treating private psychiatrist from 6 January 2004) and from the Case Manager appointed by the Casey/Cardinia Continuing Care Team, Ms Goodban[20] (the Care Team correspondence), among other things, reported that on 24 June 2003 the plaintiff saw a doctor due to distress. Without indicating when this occurred, it was also noted that: “(Dr Ibrahim prescribed Aropax 40 mg mane, Seroquel 100mg nocte and Stilnox x 2 tablets)”.[21]
[20] Ms Goodban became the plaintiff’s partner probably during 2004
[21] PCB 60
30 I was told that the WorkCover claim was accepted in October 2003, although the payment of benefits apparently ceased in May 2005. This indicates that when he made the Statement on 11 July 2003, the plaintiff was not funded for specialist treatment, although, as claimed, the general practitioner had by then prescribed sleeping tablets and the anti-depressant, Aropax. The Statement further suggests that, despite medication, at the time the plaintiff remained significantly affected by his symptoms (“When I take the sleeping tablets I get to sleep but I dream a lot and quite often I wake up in a sweat. The other night I was struggling to get my breath. I sleep on my stomach and I thought that someone was pressing my face into my pillow and I was trying to push myself up. I noticed that my pyjamas were wet, so I got up and watch TV. I want all of this to be over. I want to get some work…”[22]).
[22] PCB 18
31 On 17 July 2003 psychiatrist, Dr Dharwadkar examined the plaintiff at the request of the insurer. He provided three reports dated 17 July 2003 and 30 July 2003 and, following re-examination, dated 13 October 2003. [23]
[23] PCB 39-56
32 Among other things, Dr Dharwadkar obtained a history that generally accorded with the history of the incident outlined in the Statement. He diagnosed PTSD to which the “significant stressor and precipitating factor was witnessing the body parts in the course of” the plaintiff’s duties. He advised the plaintiff was then totally incapacitated for employment. Dr Dharwadkar recommended ongoing psychological treatment and referral to a consultant psychiatrist with a view to increasing the dosage of Aropax to a therapeutic level.[24] After reading the Statement in a supplementary report dated 30 July 2003, Dr Dharwadkar relevantly stressed that the plaintiff had been exposed to a work-related traumatic event and had not witnessed any traumatic event in Bosnia.
[24] PCB 45
33 A certificate from the general practitioner dated 9 August 2003, among other things, indicates he too was satisfied that the plaintiff’s work, in which he reported witnessing “body parts in the course of his duties”, was a significant predisposing factor in triggering the psychiatric disorder. The certificate also tells us that the plaintiff had reported an inability to continue working in the same area as the main reason for his resignation.[25] I took this to be a reference to work as a Security Guard.
[25] PCB 57
34 According to the Care Team correspondence, by 19 August 2003, when police attended the plaintiff’s home, with the intention of evicting him for non-payment of rent, they found the plaintiff in a deteriorated mental state. They called in the area CAT Team.[26] PTSD and co-morbid depression were diagnosed, in the treatment of which the plaintiff was prescribed a range of medications: Aropax, Seroquel, Temazepam and Diazepam. The CAT Team helped the plaintiff relocate and transferred the management of his case to the Casey/Cardinia CAT Team.
[26] PCB 14 and 61
35 The history originally obtained by Dr Thacore suggests that, having suffered feelings of depression, nightmares and flashbacks from when the plaintiff returned home, he also reported the onset of paranoia a few days after his resignation. In these circumstances, it is probable that, as recorded, the anti-psychotic drug, Seroquel was prescribed from 24 June 2003.
36 The plaintiff’s relocation prompted a change of doctors. He commenced seeing general practitioner, Dr Christian and he came under the care of CAT Team/Care Team Senior Psychiatric Registrar, Dr Shiff.
37 As at 29 August 2003 prescription of Seroquel had ceased and the dosage of Aropax was increased with ongoing use of Stilnox.
38 After reviewing the plaintiff on 23 October 2003 Dr Dharwadkar diagnosed Major Depressive Disorder with PTSD. In his opinion:
· despite other contributing factors (the plaintiff’s family history, his brother’s death, financial stressors, the plaintiff’s back condition and the breakdown of his marriage) the plaintiff’s exposure to the traumatic suicide at work remained a significant contributing factor;
· the plaintiff remained totally incapacitated for employment;
· the plaintiff required ongoing psychiatric treatment under the CAT Team and referral to a consultant psychiatrist for treatment.
39 As further recorded in the Care Team correspondence, from 20 November 2013, the plaintiff was prescibed the anti-depressant, Efexor in combination with a lower dosage of Seroquel. However, Seroquel was no longer a prescribed medication when the Care Team correspondence was composed on 31 December 2003.
40 Between 12 November 2003 and his discharge from care on 9 March 2004, the plaintiff was under the care of the Continuing Care Team.[27] This team included his Case Manager, Ms Goodban and consultant psychiatrist, Dr Yonchev. On discharge the diagnosis reported was PTSD and Major Depression, in the treatment of which Efexor and Nitrazepam was prescribed, with a recommendation that the plaintiff have “ongoing psychotherapy for traumatic incident and related impact”.[28]
[27] PCB 60 and 65
[28] PCB 67
41 Correspondence sent to the insurer by both Dr Christian and Dr Yonchev prior to discharge indicates that attempts were then made to obtain funding from the insurer for a gym program, which these doctors believed would assist in the plaintiff’s psychological rehabilitation.[29]
[29] PCB 58 and 63 respectively
42 As mentioned, the Care Team correspondence and the reports submitted, indicate that the plaintiff was eventually referred to his own psychiatrist, Dr Thacore, who treated the plaintiff between 6 January 2004 and 31 January 2007.[30] He initially diagnosed symptoms of PTSD with Depression. The plaintiff was treated with medication and underwent psychotherapy, on average, once every four weeks.
[30] PCB 68-77, the rehabilitation consultant’s report at 78-83, Exhibit D3 and DCB 21
43 It appears that subsequent to being discharged by the Care Team in March 2004, the plaintiff developed a relationship with his former Case Manager, Ms Goodban, with whom he now lives.
44 In March 2004 the plaintiff was examined by psychiatrist, Dr Botvinik at the request of the insurer. He submitted five reports, the last following review of the plaintiff’s condition on 29 June 2006.[31]
[31] DCB 1-21
45 Dr Botvinik doubted the veracity of the plaintiff’s claim for PTSD. He argued that no psychiatric injury had arisen from the plaintiff’s employment with the defendant.[32]
[32] DCB 18
46 I found Dr Botnivik’s opinions as reported untenable. In short compass:
· the challenge to the plaintiff’s honesty, in the main reliant on the plaintiff’s failure to make a contemporaneous report of any symptoms, afforded little or no weight to the plaintiff’s explanation for the delay or to the record of the plaintiff’s presentation to a general practitioner and to other treating health professionals in the weeks following the incident;
· the suggestion that, as the plaintiff had not witnessed the suicide, his reaction to the incident had been “totally out of proportion to the events”,[33] ignored the particular vulnerability of this plaintiff, who probably did as he claimed, witness some of the aftermath of this tragic and gruesome event. The background to this vulnerability was mostly consistently reported and (in my view properly) considered by other health professionals, including Dr Thacore who established a close therapeutic relationship with the plaintiff over three years of treatment; and
· I could find no justification for the suggestion that the psychological impact of the incident on other security guards was an appropriate matter to take into consideration. As Associate Professor Paoletti said, this was totally irrelevant.[34]
[33] DCB 11
[34] PCB 129
47 Some doctors did receive reports that suggested the plaintiff stood guard over the corpse or body parts for some 12 or 13 hours before these were removed. I did not, however, form the view that any unreliability in the histories received from a likely mentally ill individual or any variation in the length of time over which the plaintiff was exposed to this spectacle (as mentioned probably less than four hours) undermined their expert opinions.
48 Relevantly, on 6 January 2004 and on 15 April 2004 Dr Thacore advised Ms Goodban and Dr Christian respectively that the plaintiff’s emotional state had improved. In April 2004 he believed the plaintiff was ready to look at work options and he suggested that referral to a gym and pool would benefit the plaintiff both physically and mentally.[35]
[35] Exhibit D3
49 Dr Thacore’s penultimate report dated 4 November 2005 was addressed to the insurer.[36] This indicates that during early 2004 the plaintiff’s anti-depressant medication changed to Cipramil and then to Lovan and he was again prescribed Seroquel, the latter to manage paranoid thinking. However, the plaintiff reported taking Seroquel for only two days because it made him feel sick.
[36] PCB 71-77
50 Unfortunately, having in June 2004 commenced an exercise program at a local gym, in August 2004 the plaintiff was involved in an accident at the gym resulting in injury to his shoulder, chest, rib and right knee.[37] The plaintiff apparently underwent arthroscopy to both knees. In his oral evidence the plaintiff said that his current regime of daily painkilling medication also manages ongoing shoulder and knee pain.[38]
[37] PCB 27
[38] TN 104
51 Under cross-examination, the plaintiff told the Court that the gym accident occurred whilst he was performing calf exercises and lifting weights. He also told the Court that a claim against the proprietor of the gymnasium was settled in 2007 or 2008 for not a great deal of money.[39] The injury suffered was clearly a setback for the plaintiff and, as Dr Thacore recorded, the plaintiff’s rehabilitation was put on hold until his knee surgery.[40] I understood this to mean that the plaintiff’s rehabilitation had been delayed, although he was still undergoing psychiatric treatment. However, by April 2005, all anti-depressant medication ceased, reportedly because the plaintiff believed it made no difference.
[39] TN 23-24
[40] PCB 74
52 I did not form the view that, if, as suggested to him, the plaintiff failed to mention the gym accident to any specialist and specifically to Dr Botnivik, this indicated any evasion on the plaintiff’s part or conscious attempt to mislead. In any event, as his last report in June 2006 shows, Dr Botnivik was well supplied with reports and other material in which there was discussion of the gym accident.
53 Apparently, when seen on 4 November 2005, the plaintiff had been persuaded by Dr Thacore to take small doses of Valium, which he reported had, in the past, helped him feel more settled. However, Dr Thacore advised the insurer that, despite gradual improvement in the plaintiff’s symptoms (the impact of dreams of the incident and flashbacks had lessened), the plaintiff’s condition was a fluctuating one. He remained concerned that ongoing paranoid ideation (reports that from time to time the plaintiff believed an organisation, someone or God were making him deliberately sick and so on) be closely monitored. Dr Thacore recommended psychotherapy (“for some time yet”) and, if the paranoia persisted and the plaintiff accepted the need for this, further medication.
54 In summary then, the evidence (including the plaintiff’s evidence under cross-examination) generally shows that the anti-psychotic medication, Seroquel was prescribed for some months from June 2003 and when later prescribed it was probably discontinued after the plaintiff claimed he suffered adverse side effects.[41]
[41] TN 77-79
55 Dr Thacore’s final report dated 20 April 2007 was submitted to the plaintiff’s then general practitioner, Dr Roth, into whose care the plaintiff was discharged.[42]
[42] PCB 77
56 In this report the treating psychiatrist noted that when last seen on 31 January 2007 the plaintiff had settled emotionally. Dr Thacore advised that the plaintiff’s symptoms of anxiety, depression and PTSD were not then posing any major problems. He felt he had gone as far as he could with his patient. They apparently parted on the basis that the plaintiff would return for treatment if he felt the need.
57 Relevantly, in this final report, among other things, the treating psychiatrist confirmed that his patient had been extremely reluctant to take any anti-depressant medication other than small doses of diazepam to help him cope with periods of anxiety. This evidence accords with the plaintiff’s evidence that he had been reluctant to take medication either due to the side-effects or because he believed medication was not assisting him psychologically.[43] It also helps explain the fluctuations in the plaintiff’s mental state.
[43] PCB 14
58 The plaintiff first attended, general practitioner, Dr Roth at the Southern Cross Medical Centre, Hampton Park, in November 2004. He was still a patient of this clinic when Dr Roth wrote his report dated 3 August 2007.[44] As mentioned, Dr Thacore was mainly responsible for the treatment of the plaintiff’s mental state until January 2007. However, Dr Roth’s report relevantly indicated the following matters:
[44] PCB 91-94
· between 18 November 2004 and the date of the report, the plaintiff was counselled by a number of practitioners at the clinic for work-related PTSD with associated anxiety and depression. The clinical records indicate that his presenting symptoms included generally depressed mood, with features of anxiety and sleep disturbance and on a few occasions some paranoid ideation;
· in February 2005, at the request of the plaintiff, he was referred to psychologist, Ms McIndoe but told Dr Roth that he discontinued this treatment because he had not found it particularly helpful. Under cross-examination, the plaintiff could not recall attending this psychologist;
· on 30 March 2007, some months after the plaintiff ceased psychotherapy with Dr Thacore, the plaintiff presented with significant features of depression, he was counselled and prescribed the anti-depressant, Avanza, in the taking of which the plaintiff was persevering when the report was written;
· in Dr Roth’s opinion the plaintiff had derived significant benefit from counselling and psychotherapy, although his symptoms of PTSD with anxiety and depression were not then resolved and, subject to managing any side-effects of medication, the plaintiff required sustained use of anti-depressant medication and possibly further counselling.
59 Within days of the making of Dr Roth’s report, on 8 August 2007 the plaintiff was examined by psychiatrist, Dr Strauss, at the request of his solicitors.[45] His report bearing the same date relevantly indicated the following matters:
[45] PCB 97-104
· Based on the history obtained, Dr Strauss concluded that the plaintiff had coped reasonably well from a psychiatric point of view up until the incident;
· allowing for background factors, in Dr Strauss’ opinion the incident had precipitated a significant psychological decompensation in a very vulnerable individual, which led to PTSD;
· pathological gambling had developed as part of the plaintiff’s psychiatric spectrum of conditions;
· despite treatment, the plaintiff was no better and his condition had been aggravated by the gym accident in 2004;
· notwithstanding the presence of other stressors, in Dr Strauss’ opinion the primary and significant factor was, and continued to be, the plaintiff’s experience as a result of the incident;
· at the time the plaintiff presented as a suicide risk. He required weekly psychiatric treatment and review of his anti-depressant medication.
60 When reviewed on 26 June 2008 the plaintiff apparently reported no significant change since their last meeting, he was not having any psychiatric or psychological treatment (relevantly the plaintiff consistently told doctors that talking about his problems upset him) and he was not taking psychotropic medication because of its side-effects.[46] On this occasion, Dr Strauss found no improvement in the plaintiff’s condition. He diagnosed significant permanent psychiatric impairment involving PTSD and Major Depression, to which the incident, personal issues and physical factors contributed.[47]
[46] PCB 105-110
[47] PCB 109
61 The plaintiff currently attends a medical clinic closer to his home. He nominated Dr McCowan as his treating general practitioner.[48] The extracts tendered from the clinical records commence from 11 September 2008. As mentioned, many are undated, although cross-examination revealed that one of the later entries was probably made on 15 November 2012.
[48] PCB 26 and TN 65
62 For present purposes, I note that the entries tendered for the year 2008 only relate to treatment of physical conditions. I infer from this record and Dr Strauss’s report that the plaintiff probably had not reported psychiatric symptoms or sought treatment for these from doctors working at the clinic during 2008.
The statutory requirements and the matters in dispute
63 Leave was sought under paragraph (c) of the definition of ‘serious injury’ to recover damages for both pain and suffering and loss of earnings in respect to work-related permanent severe mental or permanent severe behavioural disturbance or disorder.
64 To succeed in this application the plaintiff was required to prove that he suffered compensable injury to his psyche arising out of or in the course of his employment with the defendant on or after 20 October 1999.
65 The acceptance of the WorkCover claim stands as a significant but not conclusive admission by the defendant that compensable injury was sustained in the circumstances alleged.[49] However, as my discussion of the evidence so far indicates, the plaintiff probably suffered compensable mental injury (leading to likely PTSD with anxiety and Major Depressive Disorder) arising out of or in the course of his employment on or about 9 May 2003.
[49]Ansett&AnorvTaylor [2006] VSCA 171, [37]-[40]
66 Under subsection 37(a) of s 134AB of the Act, to establish “serious injury”, the plaintiff was required to prove a “permanent severe mental or permanent severe behavioural disturbance or disorder,” which was to be determined on the balance of probabilities. For the purpose of this application ‘permanent’ refers to a condition that is “likely to persist in the foreseeable future” and “conveys the probability that the condition will not mend or repair – or at least to any significant extent”.[50]
[50]Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33 at paragraphs 18-19.
67 Based in the main on Dr Botnivik’s last report dated 26 June 2006, the defendant submitted the plaintiff was no longer suffering from a diagnosable psychiatric condition.[51] However, other recent specialist evidence, discussed shortly has indicated to the contrary.
[51] DCB 18
68 Alternatively, the defendant submitted the plaintiff’s employment with the defendant was no longer a contributing factor to any mental illness. After examining the plaintiff once on 2 July 2013, Dr Entwisle concluded that, whilst the plaintiff had suffered work-related injury, the traumatising nature of his symptoms had ceased. Without articulating what these were, he blamed other factors for ongoing Major Depressive Illness of mild to moderate severity with PTSD in remission.[52] This assertion was strongly contested by Associate Professor Paoletti, who examined the plaintiff on 10 April 2013 and, having read additional material, including Dr Entwisle’s report, provided a supplementary report dated 28 October 2013.[53] He diagnosed PTSD with anxiety and Major Depressive Disorder. I will summarise the further psychiatric evidence in due course.
[52] DCB 26-27
[53] PCB 134-140
69 Sub-section 38(d) provides that pain and suffering and loss of earning capacity consequences of the injury must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, be fairly described as being more than “serious” to the extent of being “severe”. “Severe” connotes something of stronger force than "serious".[54]
[54]Mobilio v Balliotis [1998] 3 VR 833
70 The defendant submitted that any work-related behavioural disturbance or disorder no longer met this test. The resolution of this issue requires analysis of the evidence of the consequences of any unresolved work-related disturbance or disorder.
71 The plaintiff has not returned to gainful employment since June 2003. To establish a relevant loss of earning capacity he was also required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
72 The defendant accepted that for the purpose of this provision, the plaintiff's without injuries earnings figure, namely the sum that most fairly reflected his earning capacity had the injury not occurred, should be calculated at the rate of $544 gross per week.[55]
[55]TN 138
73 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account his capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he had a capacity for any employment which, if exercised, would result in him earning more than 60% ($326.40 per week) of his without injuries earnings figure.
74 The onus rested on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[56] In this application, the definition of “suitable employment” under the Act relevantly required consideration of the nature of the plaintiff’s incapacity, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence and any occupational rehabilitation services that are or have been provided.[57] As I understood the evidence, when assessed by rehabilitation consultants, Ms Hunt in September 2003 and Mr Carfi in November 2003 the plaintiff was psychiatrically unfit to participate in any rehabilitation program.[58]
[56] Section 134AB(19)(b) of the Act
[57] Section 5 of the Act
[58]DCB 150 and PCB 78
75 The defendant submitted there was a residual earning capacity which, if exercised, would result in him earning more than 60 percent of his without injuries earnings figure.
76 For reasons on which I elaborate in due course, having, as he did in this application, satisfied the loss of earning capacity requirements in s134AB of the Act, the plaintiff became entitled to leave to institute proceedings for both these damages and his pain and suffering damages without further determination of this aspect of the application.
Credit
77 The defendant challenged the plaintiff’s credit arguing that the plaintiff was an unreliable historian (for instance, as mentioned, Dr Botnivik may not have obtained a history from the plaintiff of the gym accident) and an evasive and self-serving witness.[59]
[59] TN133-137
78 The plaintiff presented as an unsophisticated individual, who broke down when first asked to respond to questions about the circumstances of the incident.[60]
[60] TN 20
79 I did not form an adverse impression of the plaintiff as a witness, notwithstanding that, from time to time, he was slow to answer or unresponsive in answering specific questions.[61] Nor was I satisfied that this was a case where serious credit issues arose, such that evidence of the plaintiff’s earlier history called for independent corroboration. This is not to deny that at times there were variations in the accounts given of his history and symptoms.
[61] See for example, TN 82-84
80 The defendant also asked the Court to draw adverse inferences from the unexplained failure to produce evidence from psychologist, Ms Kadaras and psychiatrist, Dr Ibrahim and from the plaintiff’s ex-wife.
81 As to the medical reports, the plaintiff’s earliest treatment history and diagnoses were well documented in the material before the Court, particularly in the reports of the other treating doctors and the Care Team. Moreover, the recorded history suggest that the plaintiff’s engagement with Ms Kadaras and Dr Ibrahim was probably very short-lived.
82 As to the failure to call evidence from the plaintiff’s ex-wife, in effect, the defendant wanted the plaintiff to prove he was not experiencing psychological problems prior to the incident as a result of the family and personal problems reported. Relevantly, there was no evidence that over the eight months of his employment as a security guard prior to the incident the plaintiff’s mental state or other problems, such as gambling were issues in his employment.
83 On any reading of the available evidence, it is clear that from very early on the plaintiff reported a difficult personal history marred by his father’s alcoholism and depressive illness, family suicides, the death of his brother in Bosnia, the breakdown of his own marriage and earlier back injury. This history had helped doctors identify multiple, predisposing factors which indicated the plaintiff’s vulnerability to psychological injury and it helped them assess the contribution, if any, of these factors and unrelated stressors to the plaintiff’s mental state following the incident.
84 The reports of gambling problems were made to Dr Strauss when he first assessed the plaintiff on 8 August 2007. [62] They find some support in Ms Goodban’s evidence that she controls the plaintiff’s finances and limits the amount of cash he takes to play the pokies.[63] Consistent with history obtained by Dr Strauss, the plaintiff’s evidence was to the effect that, whilst he gambled before the incident, one consequence of this condition was that excessive gambling had since become a problem and remained a problem despite some counselling in Dandenong .[64]
[62] PCB 103
[63] PCB 33
[64] TN 85
85 In the circumstances described, I could see no proper basis for drawing an adverse inference against the plaintiff simply because the defendant believed the plaintiff’s evidence of his earlier emotional state and functioning was insufficient.
Compensable injury
86 Save for the evidence of the defendant’s medico-legal psychiatrist, Dr Botvinik, over a ten-year period treating doctors and medico-legal specialists have consistently diagnosed mental disorders to which the incident at work was a significant contributor. These health professionals (including specialists who commented on Dr Botnivik’s opinions[65]) have accepted the plaintiff as genuine. No witness other than the plaintiff was called for cross-examination. The diagnoses reported are summarised as follows:
[65] Dr Thacore, Dr Strauss and Associate Professor Paoletti
· PTSD, by general practitioners, Dr Mesiha and Dr Christian;[66]
[66] PCB 57-58
· Major Depressive Disorder and PTSD, by the defendant’s medico-legal psychiatrists, Dr Dharwadkar and Dr Entwisle and by treating psychiatrists, Dr Yonchev and Dr Thacore;[67]
[67] PCB 54, DCB 26, PCB 67 and PCB 73 respectively
· PTSD with associated anxiety and depression, by general practitioner, Dr Roth;[68]
· PTSD, Major Depression and pathological gambling as part of the psychiatric spectrum of symptoms by Dr Strauss;[69]
· PTSD with anxiety and Major Depressive Disorder, by the plaintiff’s medico-legal and now treating psychiatrist, Associate Professor Paoletti.[70]
[68] PCB 91
[69] PCB 109
[70] PCB 136
87 Allowing for the medical evidence summarised thus far, I was satisfied that the incident probably had triggered psychiatric injury involving PTSD with anxiety and Major Depressive Disorder. I will discuss the medical evidence in more detail shortly.
The plaintiff’s treatment and further expert assessment - 2009 to 2012
88 The extracts tendered from the clinical records of treating general practitioner, Dr McCowan between 2009 and 2012, reveal numerous attendances for treatment of unresolved depression in addition to attendances for treatment of a range of other physical conditions. The latter included prescription of Panadeine Forte in the treatment of chronic pain associated with previous injury.[71]
[71] DCB 30 and 32
89 Notably, on 25 May 2009, the doctor prescribed Cymbalta in the treatment of depression. According to the clinical notes, during June 2009 the plaintiff ceased taking this medication due to adverse side-effects. The notes also show that the plaintiff was referred to psychiatrists, Dr Fernando and Dr Malek.
90 Under cross-examination, the plaintiff agreed he told Associate Professor Paoletti in April 2013 that he did not attend psychiatrists because: “they open the can… and then it’s cats and dogs”.[72] However, as this psychiatrist explained, avoidance of psychiatrists/counselling was not an unusual response by trauma victims. Similarly, the plaintiff was avoidant because he was unable to cope with the re-traumatisation counselling had engendered.[73]
[72] PCB 123 and TN 87
[73] PCB 130
91 The impression I formed after considering all of the evidence, was that the plaintiff probably did not keep any appointment with the first psychiatrist mentioned in the clinical notes and he stopped attending the second psychiatrist because discussion-based treatment, which required him to revisit the circumstances of the trauma, probably upset him.[74]
[74] TN 96-97 and PCB 50
92 However, in February 2010, notwithstanding the plaintiff’s earlier intolerance of anti-depressant medication, Dr McCowan prescribed the anti-depressant, Pristiqu in the treatment of depression. It seems that, with some adjustments in the dosage the plaintiff tolerated this medication for a short period until reporting it caused agitation (this and other entries tendered after 18 March 2010 do not show the date or name of the doctor).[75] The entry shows that on the same date the examining doctor prescribed Avanza to be reviewed in 2 weeks time. The notations made further indicate that the doctor had probably also queried the need for counselling.
[75] DCB 54
93 When the plaintiff presented again for treatment of depression,[76] he reported an adverse response to Avanza, which he had stopped using. Later entries variously refer to the plaintiff trialling Pristiqu,[77] referral to Dr Fernando and the failure to keep the appointment[78] and the persistence of symptoms of depression (“not suicidal at present”, “not keen on intervention at present” and “encourage to take anti-depressant and to see psychiatrist”).[79]
[76] DCB 56
[77] DCB 61
[78] DCB 62 and 65
[79] DCB 67
94 However, another entry, which during cross-examination was said to have been made on 15 November 2012, indicates that when the plaintiff attended for treatment of back pain, among other things a prescription for Avanza was ceased.[80] Nevertheless, in response to the suggestion that the plaintiff had not used anti-depressant or psychotropic medication for a year, the plaintiff explained that, as recently as 2 or 3 months before the hearing he had unsuccessfully trialled another medication, which had interacted badly with his pain killing medication.[81]
[80] DCB 81
[81] TN 100
95 In summary then, as at the date of hearing, the plaintiff was not using medication to treat his mental condition, probably because in the past he had experienced adverse side-effects to a range of medications and he had stopped seeing psychiatrists (or psychologists) probably because as he consistently reported, talking about the issues (I took this to mean his psychological issues) upset the stability he has gained from working and living on the farm with his very supportive partner.[82]
[82] TN 64
96 Further psychiatric assessment was undertaken by Dr Strauss as part of an Impairment Assessment on 11 May 2011. He reported a psychiatric impairment of 16% of which 6% was a primary psychiatric impairment.[83] His report relevantly indicated as follows:
[83] PCB 112
· improvement in the plaintiff’s condition since his last examination (“He denied any nightmares or flashbacks but he still thinks about the incident at work in 2003”[84]), such that he was satisfied that the plaintiff no longer suffered from PTSD but had been left with some mild post-traumatic stress symptoms and a 6% primary psychiatric impairment related to the incident;
[84] PCB 115
· the plaintiff also suffered from pathological gambling.
· allowing for other stressors, the plaintiff had a 10% psychiatric impairment unrelated to the incident;
· with a sympathetic employer the plaintiff may have the capacity to work half time, although the prognosis was guarded because in Dr Strauss’ opinion the plaintiff would always suffer from psychiatric problems.
The plaintiff’s current circumstances and activities
97 It is convenient to summarise the plaintiff’s current circumstances and activities before my discussion of the up-to-date specialist reports.
98 As mentioned, the plaintiff has been in a relationship with Ms Goodban since 2004. They live together on her property and, more recently, the plaintiff’s teenage son has moved in. He is in his father’s direct care because his mother could not manage behaviour, which had involved “wagging school”. [85] Evidently, the son’s arrival has caused some additional strain because the plaintiff’s partner does not get along with him.
[85] TN 39
99 The plaintiff pays $550 fortnightly (this covers rent and food) to Ms Goodban and he performs duties on her farm. Consistent with Ms Goodban’s evidence she controls the plaintiff’s finances and, as claimed, probably does keep the plaintiff on a small allowance, distributed from his own disability support pension.[86]
[86] TN 61
100 In his evidence the plaintiff indicated that his mental health issues made it difficult for him to manage his day-to-day activities (including his finances). The evidence of the plaintiff was to the following effect:[87]
[87] See generally the plaintiff's second affidavit, PCB 26-28 and his re-examination, TN 103-111
· to get through the day he kept busy. This helped him avoid thinking about the incident because thinking about it caused him to cry uncontrollably;
· he experienced “violent and exhausting nightmares”, poor sleep and irregular and poor appetite (according to his partner the plaintiff often does not want to eat at all during the day and needs to be prompted to eat at night), agitation, great anxiety, anger and frustration because he is not coping, thinking negatively and making mistakes (his partner’s evidence was to the effect that the plaintiff presents as easily irritated and given to explosive outbursts “This is in the form of crying sometimes but more often anger, hitting out at objects or throwing things even if there is a risk of injuring himself, he simply appears not to care”[88]);
[88] PCB 33
· a lack of interest, motivation and concentration;
· his mood is depressed and low;
· his self-care is poor. He does not take care of his appearance as he used to;
· his symptoms (ruminating over the incident and constant depression) have impacted on his relationship with his partner. He has thought of leaving his partner only because he wants to relieve the burden on her;
· most days he retires to bed during the day “just to be able to carry on”. His partner’s evidence was to similar effect;
· he has not benefited from the many medications tried in the past, which have caused side-effects and he has not persisted with psychiatric or psychological counselling due to its re-traumatising effect;
· prior to the incident he had not experienced problems in obtaining his earlier qualifications, carrying out his work, sleeping, eating, mixing with people and, whilst he was in his words: “never big on social life” the plaintiff said he went out and mixed with people and loved listening to music which he no longer did (“I’m not a sociable person, I like to be ... with the animals and away from everyday life and struggles….”);
· prior to the incident he stuck to a gambling fund of $20. However, after the incident he started going to the pokies two to three times a week and, until his partner took control of his finances if he had $200 he would lose this.
101 As to his capacity to engage in suitable employment, the plaintiff’s evidence was to the effect that, whilst he made a serious daily effort to be active, he was psychologically unfit to return to the work force for the foreseeable future.[89]
[89] PCB 26 and TN 44 and 59-60
102 The plaintiff agreed that, prior to the incident he was licensed to work as a security guard and drive a motor vehicle, a forklift and a heavy rigid truck. He now runs about 11-12 cattle on his partner’s farm (“It gives me pleasure working around the animals and looking after them. I’m out there in the open, away from the world and it gives me great help to be living on a little rural property”[90]).
[90] TN 54-55
103 Further, for the past 2 to 3 years the plaintiff has also run a small scrap metal business.[91] In his second affidavit, without more, the plaintiff referred to sorting metal and dismantling old machines. His partner’s affidavit did not mention this or any business. However, the plaintiff told the Court this activity had been raised with his solicitors before swearing his affidavit. As is evident from their reports, the activity and business was referenced by the plaintiff when examined by specialists in April and July 2013. In these circumstances, I have accepted that, the failure to elaborate on this business-related activity was likely due to oversight, rather than an attempt by the plaintiff to conceal any work activity.
[91] TN 61-64
104 The plaintiff told the Court that he purchased, disassembled and resold scrap metal in his partner’s business. She owned the 5 tonne truck he drove and the forklift (with a lifting capacity of four tonne). The latter was used by the plaintiff to unload the metal from the truck. Furthermore, his partner paid for the purchase of the scrap metal and, even though the plaintiff did all the work, she retained any profit on resale.
105 Under cross-examination the plaintiff explained that he attended auction sales (probably 6 to 7 sales in the last 12 months). He collected and, at times, worked on the metal with grinder discs and spanners to break down the metal[92] and he sold the metal, sometimes at a loss. In response to specific questions, the plaintiff:
[92] TN 64
· estimated that the most he had spent on buying a piece of scrap metal had been $7000 or $8000;
· denied receiving any benefit from the scrap metal business;
· indicated that he had not sought work as a driver (truck, courier, delivery or work associated with driving light work trucks) because he did not believe himself to be capable of performing this. However, I understood from the answers given during re-examination that the plaintiff coped with the activities described because he was not under the pressure of time constraints and an employer was not relying on him to perform a job within a given time frame.
106 I was left with the impression that the plaintiff’s work in the scrap metal business was irregular and the business was not particularly profitable.
107 In addition to the matters already summarised above, the uncontested evidence of the plaintiff’s partner (that is to say those parts of her affidavit admitted into evidence) generally corroborated the plaintiff’s evidence. Ms Goodban’s evidence was to the effect that:[93]
[93] PCB 31-34
· she resided with and has become the plaintiff’s carer;
· she had observed him to be “constantly in a distressed state” and easily angered and frustrated;
· she often finds the plaintiff crying and recalling the events relating to the incident;
· she had observed the plaintiff to toss and turn his sleep “sometimes telling me about his nightmares fearing they are predictions of what is going to happen. He described seeing dead relatives and bodies mutilated and bodies falling into graves….”;
· without indicating when this occurred, she described an occasion on which the plaintiff fractured his arm because he thrashed out and hit a bedside cabinet whilst experiencing a nightmare;
· the plaintiff had described feeling as if “he was drowning all the time struggling to keep his head above water only to have another wave pushing down. He also talked about himself as “a shattered glass that could not be put back together”. He has described himself as a “broken man”, “in the gutter” and a “dead man walking””’;
· she described another occasion, again without indicating when this occurred, when the plaintiff’s distress was such that she called an ambulance and the police because she believed the plaintiff to be suicidal;
· she had observed an inability to mix socially and participate for any length of time in social contexts.
Specialist evidence - 2013
108 As mentioned, Associate Professor Paoletti examined the plaintiff once on 10 April 2013, at the request of the plaintiff’s solicitors. He submitted two lengthy reports dated 10 April 2013 and 28 October 2013 respectively.[94] These reports show that this psychiatrist had available for his consideration extensive materials, including many of the earliest medical reports (but not initially Dr Strauss’s Impairment Assessment report dated 11 May 2011).
[94] PCB 118-140
109 In opening the plaintiff’s case, I was told that the plaintiff has an appointment to attend this specialist for treatment.[95]
[95] TN 17
110 In summary, Associate Professor Paoletti’s first report relevantly indicated the following:
· a history that incorporated references to the death of his father due to alcohol related problems and associated depression, his mother’s death and a brother’s death due to the troubles in Bosnia. However, when asked the plaintiff apparently described “a happy childhood”;
· poor sleep and sleep apnoea in association with weight gain after he ceased work;
· disturbing dreams especially after a bad day;
· residual flashbacks (when he is more settled he may go one or two weeks without them), although discussion of the incident (as with a psychiatrist) caused resurfacing of disturbing emotions, with which he struggled for a few days;
· major anxiety with avoidance about seeing psychiatrists due to the resurfacing of disturbing emotions;
· the plaintiff was suffering from PTSD with anxiety and from Major Depressive Disorder, Single Episode, Chronic in Partial Remission (“although depressive symptoms are present in post-traumatic stress disorder, Mr Saric has been experiencing symptoms of depression at a level that warrants a separate diagnosis” [96]);
[96] PCB 128
· an earlier period of paranoid ideation, to which the treating psychiatrist’s report referred, was probably related to insecurity and was part of the post-traumatic stress disorder;
· the plaintiff’s employment was a significant contributing factor to the precipitation of the PTSD and depression;
· whilst there were predisposing factors, there was no indication that the plaintiff had a psychiatric illness or psychiatric impairment prior to the incident. This psychiatrist nevertheless attributed 25% of the total psychiatric impairment to factors unrelated to work;
· Associate Professor Paoletti recommended consideration of further, pharmacotherapeutic interventions and psychological assistance, the latter only in relation to coping rather than direct discussion of the trauma to avoid re-traumatisation;
· Associate Professor Paoletti considered the plaintiff at major risk of major exacerbations, given the level and type of psychiatric symptoms from which the plaintiff suffered. In his opinion plaintiff was unfit for work in the open job market for the foreseeable future.
111 Psychiatrist, Dr Entwisle examined the plaintiff at the request of the defendant’s solicitors on 9 July 2013.[97] It is convenient to summarise his findings before I discuss the supplementary report submitted shortly prior to the hearing by Associate Professor Paoletti, where these findings were also considered.
[97] DCB 22-27
112 In summary Dr Entwisle’s evidence relevantly revealed the following:
· a history of a difficult and abusive upbringing and an unhappy childhood as well as a family history of suicide;
· a history of an episode of depression and counselling following his brother’s death in Bosnia from which Dr Entwisle understood the plaintiff had never recovered;
· reported mood fluctuations, struggling with himself, periods of flatness, being easily agitated, recalling the incident and worrying about the future (“These things at times cause increased heart rate and shortness of breath”). However, the plaintiff denied suicidal ideation, general tearfulness, panic attacks and experiencing flashbacks “as such”. The matters recorded by Associate Professor Paoletti in his first report and in the affidavit material of the plaintiff and his partner summarised above suggest that symptoms such as flashbacks continue to be experienced at regular intervals;
· In the category of psychological symptoms the psychiatrist recorded sleep disturbance, which he appeared to relate to other conditions, restless leg syndrome and sleep apnoea because the plaintiff denied experiencing dreams or nightmares (this evidence is at odds with the information obtained by Associate Professor Paoletti and the affidavit evidence of the plaintiff and his partner, which indicated likely ongoing sleep disturbance to which the incident contributed).
· the plaintiff presented with Major Depressive Illness of mild to moderate severity and PTSD in remission (“His current symptoms can be understood as a combination of his pre-existing vulnerabilities, proneness to depression, a previous back injury, more recent shoulder and knee injuries requiring surgery, the effect of the incident, alcohol and pathological gambling problems, financial issues, problems with his son and partner and chronic pain”[98]);
[98] DCB 26
· the plaintiff suffered a work-related injury as alleged;
· his condition was stabilised and the traumatising nature of his symptoms, in Dr Entwisle’s opinion have ceased and been overtaken by the other issues as described above;
· there was no psychiatric incapacity for work (the plaintiff was actively involved in scrap metal activities and worked most days);
· in Dr Entwisle’s opinion the plaintiff was not likely to respond to further forms of psychiatric treatment and the current level of his treatment, that is attendance on his general practitioner was sufficient. Notably, despite having a copy of Associate Professor Paoletti’s report from April 2013, Dr Entwistle did not address the claim that the plaintiff had for many years avoided counselling (psychiatric or psychological) because discussion of the incident brought disturbing emotions to the surface;
· there was an underlying disposition to depression given the strong family history.
113 Accordingly, as at July 2013 the defendant’s specialist accepted the causative relationship between the incident and the onset of PTSD and depression. However, he considered the PTSD was in remission and the ongoing depressive illness was a product of other factors in the plaintiff’s life.
114 Armed with additional information which included Dr Entwisle’s report and, in particular, the information concerning his likely difficult childhood and the likely episode of depression in association with his brother’s death in the Bosnian war, Associate Professor Paoletti said his opinion was essentially unchanged. He reported as follows:[99]
[99] PCB 134-140
· the plaintiff suffered from PTSD with anxiety and, due to the earlier depressive episode in association with his brother’s death, the code for depression probably should read Major Depressive Disorder, Recurrent Episode, Chronic In Partial Remission (but still linked to the work-related traumatic event);
· employment was a significant contributing factor to the precipitation of the PTSD and the current episode of depression;
· the earlier family history and work-related back injury were probably predisposing factors but the plaintiff had remained functional in his working life and in the community after his brother’s death and prior to the incident;
· the plaintiff’s mental state was clearly one of a post-traumatic state and the persistence of symptoms over many years is often seen in post-traumatic stress disorder;
· when examined by him in April 2013 Associate Professor Paoletti had already allowed for psychiatric impairment the bulk of which (he attributed the incident;
· in Associate Professor Paoletti’s opinion (and this accords with the plaintiff’s evidence as to his lifestyle and engagement in treatment) the plaintiff’s level of psychiatric impairment would probably quickly escalate with normal social exposure and normal function if he were removed from his comfort zone;
· the suggestion by Dr Entwisle that the traumatising nature of the earlier symptoms have ceased was unacceptable because most of the issues to which Dr Entwisle referred were pre-existing and the plaintiff’s current psychosocial difficulties related to his reduced coping capacity. The psychiatrist considered the plaintiff to be in “a state of defensive withdrawal”, which he believed affects the plaintiff’s life pervasively and impacts on his capacity for recreational pursuits, socialisation and his quality of life;
· it is not unusual for victims of trauma to avoid psychiatric treatment because they cannot cope with the re-traumatising. In this instance Associate Professor Paoletti has recommended and offered the plaintiff treatment that does not involve direct discussion of the trauma;
· he remained concerned that the plaintiff was at risk of major exacerbations and his prognosis remained guarded or poor;
· the low key hobby type work in which the plaintiff currently engaged (on the farm and in a small scrap metal business) where there were no pressures on the plaintiff was probably therapeutic;
· the plaintiff was permanently incapacitated for work in his pre-injury occupation and for the foreseeable future he has no work capacity on the open job market due to the level and type of psychiatric symptoms.
115 In my view, Associate Professor Paoletti’s conclusions, when understood in the context of all of the evidence provided a cogent and very persuasive argument for accepting, firstly, that the effects of the work-related psychiatric injury are probably not resolved; secondly, that the plaintiff probably requires ongoing psychiatric interventions which accommodate the reasons for his avoidance of treatment in the past and, lastly, that the plaintiff probably is suffering from permanent, work-related psychiatric impairment which renders him mentally unfit for suitable employment for the foreseeable future.
116 This is not a case where the applicant lacks the physical capacity to work. The plaintiff’s impaired mental state has not prevented him from performing the labouring work associated with his partner’s hobby farm or the additional work involved in buying, disassembling and selling scrap metal. However, accepting, as I have, the accuracy of Associate Professor Paoletti’s analysis, the plaintiff’s trauma-related state of defensive withdrawal probably does constrain participation in occupational rehabilitation or retraining for and in the performance of alternative work outside the protected and therapeutic environment in which he currently functions for the foreseeable future.
117 Accordingly, I find:
· the plaintiff has a loss of earning capacity of 40% or more and this is likely permanent;
· for the foreseeable future the plaintiff is mentally unfit to undergo occupational rehabilitation or retraining and that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment;
· when judged by comparison with other cases in the range of possible mental disorders, the plaintiff’s loss of earning capacity is fairly described as being more than serious to the extent of being severe.
118 For the reasons outlined, leave is granted to the plaintiff to bring proceedings for damages in respect to the pain and suffering and loss of earning capacity consequences of injury to his psyche, suffered in the course of his employment with the defendant on or about 9 May 2003.
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