Small v Victorian WorkCover Authority
[2022] VCC 14
•24 January 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02475
| WILLIAM SMALL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2022 | |
DATE OF JUDGMENT: | 24 January 2022 | |
CASE MAY BE CITED AS: | Small v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 14 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Serious injury – psychiatric injury – impairment consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Hooley v Transport Accident Commission [2019] VSCA 263; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] SCA 181; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Carbone Lawyers |
| For the Defendant | Ms S Manova | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Mr William Small, was born in Scotland in 1961. In 1965, he migrated with his family to Australia. After completing Form 5, he enlisted in the Australian Defence Force (“ADF”) and trained as a cook. After leaving the ADF in 1984, he commenced employment in a hotel as a chef. Thereafter, his working life has either involved employment as a chef or related employment within the hospitality industry. The plaintiff is a married man. He has an adult daughter and an adult son, and three small grandchildren.
2In approximately mid-2012, the plaintiff commenced employment with PNF Management Pty Ltd (“PNF”) originally as an operations consultant and later on as the national operations manager. PNF was part of an organisation running a franchised hospitality business under the franchise names Sandwich Chef and Pure and Natural. The plaintiff had responsibility for providing support relevant to his area of expertise as a chef to a number of those stores. In his first affidavit,[1] he describes his employment with PNF and the role as national operations manager. In his second affidavit,[2] he provides further detail regarding that employment, including that he gained immense satisfaction in assisting franchisees and PNF.[3]
[1]Sworn 8 February 2021, Plaintiff’s Court Book (“PCB”) 9
[2]Sworn 22 December 2021, PCB 20
[3]PCB 22
3The plaintiff claims that because of behaviour to which he was subjected to by a general manager employed by PNF, he developed a diagnosed psychiatric condition by way of an Adjustment Disorder, which caused him to cease employment with PNF in approximately August 2018. He claims to have ongoing impairment consequences from that psychiatric condition in respect to his ability to engage in more stressful employments and some impact on day-to-day activity.
4It is in that setting that the plaintiff claims to have suffered a “serious injury” within the meaning of the definition contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), namely a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
5The plaintiff initially sought the leave of the Court to commence a common law proceeding for both pain and suffering consequences and loss of earning capacity consequences. However, at the completion of his oral evidence, via his counsel, the plaintiff abandoned the application insofar as it related to loss of earning capacity consequences.
6The proceeding was otherwise conducted in the “usual manner”. The plaintiff tendered the two affidavits sworn by him and gave oral evidence in respect to the contents of the affidavits and broadly in respect to relevant matters. In addition, the plaintiff tendered relevant medical reports. Similarly, the defendant tendered relevant medical and other material as contained in its Court Book. I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I will refer to it only to the extent necessary.
7This proceeding does not otherwise raise any novel legal principles. The resolution of this proceeding involves the application of well-known legal principles to the facts as determined.
8The defendant accepts that the plaintiff suffered injury with PNF, namely as identified by Dr Justin Lewis, consultant psychiatrist, in a report dated 9 May 2021, as a “partially remitted Adjustment Disorder with mixed anxiety and depressive symptoms”.[4] It does not accept that the psychiatric injury has produced “very considerable” consequences for the plaintiff. The defendant submitted that the frequency and severity of the symptoms that the plaintiff complains of do not meet the “severe” threshold for a number of reasons.[5] On the other hand, it is perhaps no surprise that the plaintiff contends the opposite. Via his counsel, the plaintiff submitted that the impairment consequences to him were such as to demonstrate a “very considerable” consequence.
[4]Defendant’s Court Book (“DCB”) 17
[5]Transcript (“T”) 56, Lines (“L”) 16-18
Credit
9Before turning to the evidence in more detail, it is convenient to mention the credit of the plaintiff. Having seen the plaintiff in the witness box, he presented to the Court as a thoroughly decent, honest, and credible witness. He made concessions as appropriate. Indeed, it was his candour during his oral evidence that crystalised the fact that the claim for economic loss could not be pursued. After ceasing work with the defendant, the plaintiff, within a matter of some weeks, obtained casual employment with an organisation called “I need a Chef”. He continues to undertake casual employment with that company. It is employment as a chef at hospitals, functions, and the like. Because it is casual employment, he has the flexibility to accept or reject shifts offered to him.
10The tendered payslips record that in his current casual employment his hours have fluctuated. His case was opened by his counsel on the basis that he is now fit for twenty-four hours of casual work as a chef,[6] but in his oral evidence, and in circumstances where at times he has worked five days a week and for thirty hours or more, he was tested in cross examination as to what his residual or “after injury” capacity might be. But most strikingly, when asked in re-examination about the payslips and his residual capacity as a chef, he said:
“Look, my capacity is where it’s at, and that is – and I will say it is getting stronger. And that is – you know, the 25 to – to 28, around there, is about what I’ve always being doing, and I’m comfortable doing that … .”[7]
[6]T4, L12
[7]T48, L21-25
11In short, the plaintiff struck me as a refreshingly candid witness. His credit is relevant to the determination of this proceeding.[8] As has been said many times in assessing the “seriousness” of the claimed injury, the credit of the plaintiff is an important starting point. I have no hesitation in accepting his evidence as credible.
[8]See, as an example, Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
The evidence of the Plaintiff
12The plaintiff’s evidence of injury, impairment, and consequences were initially set out in the two affidavits. In his first affidavit, he set out the attendances on general practitioners from approximately July 2018, in respect to his psychiatric condition. He also set out the referral to psychologists, including Mr Victor Iacobucci. In respect to relevant pain and suffering consequences he said, in that affidavit:
“As a consequence of my work-related injuries, I feel lost. As a result of the bullying I experienced while working for the Employer I have no faith in my ability to operate in a professional environment. I am unable to deal with stress, pressure and responsibility. Whenever I have attempted to push myself to return to the work that I enjoyed, I experience a renewed exacerbation of my stress, anxiety, and depression symptoms.
Due to my workplace injuries, I have lost confidence in myself. I have found that my memory and ability to concentrate has decreased. I find myself easily flustered and that I worry whenever I have any level of responsibility. Prior to my work-related injuries, I was a capable, confident and driven person. Now I feel like a shell of my former self.
Due to my workplace injuries, I experience broken, inconsistent, and poor-quality sleep. I find that my mind races which prevents me from sleeping. I struggle to relax and calm myself at night which interrupts my sleep. I often dream about how I was treated at the Employer.
Due to the stress, anxiety, and depression that I suffer from due to the workplace bullying, my libido has declined. My symptoms have caused some strain on my relationship with my wife which causes me to become even more irritable and frustrated. Additionally, I am annoyed that the deterioration of my mental health has burdened my wife at a time when she is having to deal with the loss of her mother.
Due to my workplace injuries, I am irritable and easily agitated. I am frustrated by how much the bullying has affected me and I am angry that it has had such a life changing effect on me. I have struggled to find motivation to deal with normal daily tasks which often trigger unnecessary angry outbursts due to the frustration.
As a consequence of my workplace injuries, I began to increasingly isolate myself even prior to the COVID-19 restrictions. I am often snappy and take out my stresses on those around me. Due to my feelings of anger towards the Employer, I have become very irritable around other people. I am concerned about my outbursts of anger. I am increasingly worried about the impact that my workplace injuries have on those around me.”[9]
[9]PCB 18-19
13In the second affidavit, the plaintiff set out further detail regarding his employment and ongoing economic loss consequences, notwithstanding that this proceeding ultimately was confined to pain and suffering, the economic loss consequences are a relevant pain and suffering consideration. As already mentioned, the plaintiff described immense satisfaction from his role with PNF. He described his ongoing work as an agency chef but described continuing to feel mentally vulnerable and lacking confidence, and unable to now cope with the type of duties that he did with PNF. Pausing here, the defendant accepts that the plaintiff could not return to the employment with PNF or similar employment. In any event, in respect to pain and suffering consequences, in the second affidavit he said:
“I refer to paragraphs 59 to 64 of my first Affidavit. Since February of this year, there has been a marked improvement in my sleep. I am now able to relax into sleep and no longer have sleep interrupted by dreams of my treatment by Chris Ferguson.
I also believe that I am learning to accept what happened to me at work and am no longer as angry or irritable with others as I was in February of this year.
Despite this, the other symptoms referred to in paragraphs 59 to 64 of my first affidavit remain largely unabated. My libido is non-existent. I continue to be socially avoidant but I do go out occasionally. For example, I play recreational pool in a pool hall about once a month usually by myself, but I remain anxious of getting into a social situation I cannot control.
Most significantly is my continuing loss of confidence in myself, marked particularly by difficulties with memory and concentration on tasks and anxiety when I feel any responsibility is placed on me. With my ongoing mental difficulties, I feel quite changed and diminished as a person.
I also grieve the loss of my career. The job I had at PNF, or similar job at another food outlet franchise, was my ideal job. I really enjoyed the work. Prior to my injury, I had no intention whatsoever of retiring and would happily have worked in a similar role until the end of my days.”[10]
[10]PCB 24-25
14The plaintiff was cross-examined about his ongoing work as a chef and any ongoing consequences from his psychiatric condition. The defendant put to the plaintiff that he had effectively retired in mid-2018 because he could access his superannuation and it would lead to a simpler, easier lifestyle, working less and enjoying life more. The plaintiff disagreed with that.[11] He was cross-examined on the medical records of the psychologist, Mr Kendrick Hsu, and what he had told Mr Hsu about his decision to cease work with PNF. He agreed with some of what was recorded in those notes, disagreed with some other parts and in particular disagreed that he retired so he would be better off financially. He explained the benefit from retiring in mid-2018 as follows:
Q: “…
A:It gave me a sense of – of easement, if I can say it like that, where – I had no idea I could access my super, it was a friend who told me that I'd come to preservation age. And it gave me a sense of everything was going to be okay for that period.
Q: Yes?---
A:And I was able to pay off my house and you know, I didn't have to worry about anything like that. And it just gave me that – that feeling of okay, everything's going to be okay.”[12]
[11]T17, L26-29
[12]T19, L22-30
15A substantial thrust of the defendant’s case was that it was for financial and lifestyle reasons that the plaintiff ceased work with PNF, accessed his superannuation and then took up less demanding work as a casual chef. I do not accept that submission. The evidence of the plaintiff was clear that by mid-2018 he felt mentally unable to cope with the work with PNF – which is consistent with the acceptance by the defendant that he remains disabled for such work – and in those circumstances he decided to access his superannuation and to take up less demanding casual work as a chef, noting that he has never worked full time in that less demanding employment. The evidence, in my view, tends to the conclusion that the plaintiff’s psychiatric condition caused him to give up the more demanding employment with PNF and he has remained unable to return to that employment.
16Pausing here, the inability to engage in the more demanding employment, which provided the plaintiff with immense gratification, is, in my view, a significant pain and suffering consequence. I reject the defendant’s submission that the pain and suffering consequences are ameliorated by the fact that the plaintiff could fall back to apply his trade as a chef. I accept the plaintiff’s evidence that his ability to work as a chef fluctuates and there are times when he needs to pull back to manage his mental health.[13] This is not a situation in which the plaintiff’s career prospects had been speculative. The evidence suggests that he had pursued a career as a chef through to a “back of house” position, which was a mixture of management and hands-on hospitality skills. That career is now gone. The plaintiff was in his late fifties when he ceased work with PNF but, in the modern world, he still had open to him many years to pursue a career, even if it was at times difficult and challenging, but one that gave him immense gratitude.
[13]T48, L15-16
17Of course, I cannot consider the pecuniary loss consequences of the inability to engage in the type of employment that the plaintiff performed for PNF. There is no dispute that the pain and suffering consequences are required to be considered separately from loss of earning capacity consequences but, equally, the loss of the plaintiff’s pre-injury employment is a loss that can be considered as a pain and suffering consequence, albeit in a more limited manner than a consequence which takes into account the actual loss of earnings.[14]
[14]Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [41]
18Next, the plaintiff was cross-examined about the impairment consequences more broadly. He accepted that, in more recent times, there had been an improvement in his sleep. He accepted he was now no longer as angry and as irritable as he had been in the past and that his mood had improved over the year 2021. He accepted that in his personal time he was able to enjoy time with his family and was comfortable engaging in a close circle of friends.[15]
[15]T12, L18-31
19It is fair to say that in re-examination the plaintiff made no effort to “over egg the custard” insofar as it came to his evidence of impairment consequences. I have already mentioned his evidence about his residual capacity for work. In re-examination, he was asked whether he enjoyed personal time with his family and he said “[a]bsolutely”. He was asked whether enjoyment of time with his family was impacted by his mental condition and he said “[n]o”. In re-examination, he also accepted that his mental condition did not cause any problems insofar as relationships with close friends.
Does the Plaintiff have a serious injury?
20The starting point is the identification of compensable injury. In this case there is no dispute that the plaintiff has an Adjustment Disorder. It is unnecessary to deal with the medical material in any detail, as it is largely ad idem and it is limited. Briefly, the limited material from the plaintiff’s treating general practitioner, Dr Peter Louis, confirms a diagnosis of an Adjustment Disorder and the prescription of Lexapro.[16] The treating psychologist, Mr Iacobucci, has provided a report dated 11 October 2021.[17] He said that the plaintiff’s reported symptoms meet the criteria of an Adjustment Disorder. He described the criteria upon which that diagnosis is made, but most of his report deals with the plaintiff’s incapacity and capacity for employment.
[16]PCB 50
[17]PCB 59
21Dr Leon Turnbull is a consultant psychiatrist who has provided a medico-legal report dated 29 November 2021 at the request of the plaintiff solicitors. He assessed the plaintiff via video link. He took a history and conducted a mental state examination, describing the plaintiff as polite and cooperative, but appearing a bit anxious and depressed. He recorded that:
“One of the most noticeable experiences was a loss of confidence and a deviation from enjoying decision making, to now avoiding it and lacking confidence in his self-belief.”[18]
[18]PCB 67
22Dr Turnbull agreed with the diagnosis of an Adjustment Disorder. He said that the plaintiff remained anxious and that ongoing antidepressant and psychological therapy at current intervals was reasonable. He said that there was a complete incapacity for the plaintiff’s previous employment with PNF which would be permanent.[19]
[19]PCB 67
23The only other relevant medical opinion is contained in reports from Dr Justin Lewis, a consultant psychiatrist, who examined the plaintiff on 29 April 2021 at the request of the defendant. In his substantive report dated 9 May 2021,[20] Dr Lewis set out the relevant history, symptoms, treatment, and mental state examination. He described the plaintiff as an open and cooperative historian. He found that the plaintiff was mildly flat in his affect and his mood was mildly depressed.[21] Dr Lewis described the plaintiff’s psychiatric condition as being characterised “by a marked erosion in confidence and self-esteem”[22] and that the plaintiff continued to struggle with reduced stress, tolerance, impaired confidence and remained conflict avoidant.[23] Dr Lewis opined that the plaintiff’s diagnosis was a “partially remitted Adjustment Disorder with mixed anxiety and depressive symptoms” and that the plaintiff presented with a marked erosion in confidence, self-esteem and reduced stress tolerance”.[24] Dr Lewis noted that the plaintiff continued to take an antidepressant, but that consideration could be given to increasing the dose, and that the plaintiff would benefit from ongoing psychological therapy on a monthly basis.[25] Dr Lewis described the plaintiff’s psychiatric prognosis as fair, which, it should be noted, is the prognosis given by Mr Iocabucci.[26]
[20]DCB 9
[21]DCB 15
[22]DCB 16
[23]DCB 17
[24]DCB 17
[25]DCB 17
[26]PCB 62
24In final submission, the defendant highlighted the activities that the plaintiff is still able to engage in with friends and family and his ability to work and enjoy work as a chef. In considering whether an injury is serious, the defendant submitted that regard must be had to what is retained, as well as what is lost.[27] In addition, the defendant submitted that the assessment of “severe” is a more stringent test than that which applies to a “serious” physical injury.[28]
[27]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] SCA 181 at paragraph [44]
[28]Mobilio v Balliotis [1998] 3 VR 833
25I must take into account the range of possible impairments and consequences and not just those that come before the Court. In that context, there will be occasions where the claimed psychiatric injury and impairment is obviously “severe”, together with occasions which are obviously not “severe”, and a range of psychiatric conditions that fall somewhere in-between. The plaintiff’s situation, in my view, can be described as such a psychiatric condition that does fall somewhere in-between.
26I accept the submissions of the defendant that it is relevant the plaintiff is still able to work as a chef, can enjoy time with friends and family, and has had an improvement in his sleep and his mood.
27But, balanced against what is retained, there is the ongoing regular psychological treatment. It is striking that both Dr Lewis and Dr Turnbull regard that treatment as necessary, without any suggestion that it should be withdrawn or limited. In addition, the plaintiff continues to be prescribed antidepressant medication and, again, neither consultant psychiatrist suggests that the medication should be withdrawn. Indeed, Dr Lewis advocates for a trial of an increased dose in conjunction with ECT treatment.
28In a similar vein of agreement, I accept the plaintiff’s evidence, as also accepted by the consultant psychiatrists, that the plaintiff’s confidence continues to be affected by his Adjustment Disorder, with resultant impairment for his ability to undertake more stressful daily activity. As already discussed, that means he is unable to return to the more senior employment which gave him immense gratitude. I have set out the plaintiff’s affidavit evidence of the impact on his social life which I accept, albeit to the extent that it was qualified in cross-examination. He is still able to socialise but not in an unrestricted manner and in circumstances where he avoids stressful social situations. He still enjoys time with his wife. But that does not mean he does not have some impairment for social and personal activities. In particular, I take into account the impact of his Adjustment Disorder on the personal aspect of his relationship with his wife, which evidence was unchallenged and is, in my view, of some significance.
29The plaintiff has now suffered from the diagnosed psychiatric illness for approximately three-and-a-half years. He is only in his early sixties and in circumstances where the doctors agree that the Adjustment Disorder will persist he will obviously now be stuck with that condition for many years, as well as the impairment consequences from the psychiatric condition.
30Bearing in mind the nature of my task, namely a value judgement as to the “seriousness” of the injury to this particular plaintiff, in what might be considered a finally balanced judgement, in my view, taken in combination the inability to engage in the pre-injury employment that gave him immense gratitude, the ongoing need for psychological and pharmaceutical treatment, together with impairment for stressful daily and employment-related activities, his ongoing symptoms of anxiety, depression, loss of confidence and the impact on aspects of his marriage, is sufficient to tip the scales in favour of the plaintiff. In my view, the impairment consequences to him can fairly be described as “severe”.
31Accordingly, leave shall be granted to commence a proceeding for pain and suffering damages.
32I shall hear from the parties as to the formal orders and cost orders sought upon such determination.
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