Smith v Modern Roof Restoration (Vic) Pty Ltd and VWA
[2013] VCC 66
•14 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-01256
| PATRICIA MEGAN SMITH | Plaintiff |
| v | |
| MODERN ROOF RESTORATION (VIC) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2013 | |
DATE OF JUDGMENT: | 14 February 2013 | |
CASE MAY BE CITED AS: | Smith v Modern Roof Restoration (Vic) Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 66 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Psychiatric impairment – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Mobilio v Balliotis (1998) 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314.
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Dyer with Ms M Pilipasidis | Ryan Carlisle Thomas |
| For the Defendants | Mr C Miles | Thomsons Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment on 26 June 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, the defendants having conceded at the commencement of the hearing that the pain and suffering consequences of the plaintiff’s psychiatric condition are “severe”.
3 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied on an affidavit sworn by Janice Mullens on 3 September 2012 and an affidavit sworn by Julie Smith on 1 July 2012. Ms Nicole Murray, financial controller, employed by the first defendant, swore an affidavit on 19 December 2012.
4 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
5 In this application, the plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
6 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Hayhill Pty Ltd v Hodge[2] in reaching my conclusions.
[1](2005)14 VR 622
[2][2006] VSCA 194
10 As pain and suffering was conceded, I propose to deal with the plaintiff’s evidence as to non-pecuniary loss consequences only insofar as it is relevant to her loss of earning capacity application.
The Plaintiff’s Evidence
11 The plaintiff is presently aged forty nine, having been born in November 1963. For the last eighteen months, she has been living in Edenhope in a Housing Commission unit.
12 The plaintiff attended school to Year 11 and thereafter worked in a wide range of employments, before commencing work with the first defendant on 5 August 1997 as a sales representative. From 2003, the plaintiff worked principally as a demonstrator/spruiker at suburban shopping centres selling the first defendant’s roofing services at a display stand and giving advice to potential clients.
13 Prior to commencing with the first defendant, the plaintiff worked in a variety of jobs. She worked in despatch for four years as a junior and later in this role with Country Road. The plaintiff also worked as a camp cook in the outback, sang in her own band and worked in other spruiking jobs.
14 The plaintiff’s past psychiatric history was limited to five visits to a psychologist, Carmel Moran, between April and June 2007 for counselling in relation to the breakdown of her relationship.
15 Ms Moran confirmed, in a report dated 2 December 2008, that the plaintiff recovered from this episode and it played no part in her current presentation.
16 Prior to the said date, the plaintiff was under the care of Dr Gowans, general practitioner. In cross examination, the plaintiff was asked about the prescription of antidepressants by Dr Gowans at various times during 2007 and once in 2005 and 2006. The plaintiff denied this medication was for depression but that it was to calm her down and reduce her stress in terms of her relationship difficulties. She maintained that whilst antidepressant medication was prescribed, she did not take it.
17 On or about 7 February 2008 (“the first date”), the plaintiff was working at a Centro owned shopping centre in Mulgrave when an old man approached her display stand and started removing brochures, bumped the table and knocked over a lot of advertising material. When asked to stop by the plaintiff, he started messing up the material.
18 The man came into the plaintiff’s space around the table, calling her a “fucking fat slut”. In the end, when he moved towards her, she pushed him away (“the first incident”).
19 Someone called security. Whilst there were representatives of the first defendant present, no one asked the plaintiff if she was all right. The police attended and they suggested she forget the incident. Somehow, the plaintiff seemed to be blamed for the first incident and the next day was not allowed back into the shopping centre.
20 The plaintiff was asked to fill out an incident report form but was not given one and was later informed by Centro that she was not allowed in any of their shopping centres. Although the plaintiff was upset about how she had been treated, over the following week she thought the matter had been cleared up and she was allowed back into Centro stores.
21 On 25 June 2008, the plaintiff was informed that, along with other employees, she was to be made redundant. She believed this was a cost cutting measure. She was given a couple of weeks’ notice.
22 On 26 June 2008 (“the second date”), the plaintiff went to work as usual, looking after a stall at The Glen Shopping Centre. In the early afternoon, she was approached by two security guards who were very intimidating and told her she was not welcome in Centro. They did not give reasons, simply telling her she had to leave the premises immediately and said that she had been banned from shopping centres years ago.
23 The plaintiff had no idea what the guards were talking about and she was a bit frightened, as they were acting in a very intimidating manner. They followed her to the toilet and later escorted her to her car, to her shame and embarrassment in front of a number of onlookers (“the second incident”).
24 The plaintiff was asked to leave by the centre manager who came up close to her, loudly calling out her name and telling her loudly to pack up and leave, otherwise he would have her escorted out of the centre.
25 In cross examination, the plaintiff described how the first defendant “put her life away” when they dragged her out of the shopping centre.[3]
[3]Transcript (“T”) 30
26 The plaintiff’s co worker at the time, Rebecca Hastings, who witnessed this incident and saw the plaintiff was upset, telephoned the plaintiff’s boss, Ms Bellassia, and told her what happened. Ms Bellassia apparently told Ms Hastings to advise the plaintiff to stay calm and do what was asked and she would sort it out.
27 Although the plaintiff understood some contact was made by Ms Bellassia or someone from the first defendant with Expos Plus and Centro, the plaintiff did not know the outcome of the conversation.
28 The first defendant did not provide the plaintiff with any counselling at the time of the first incident. The plaintiff believed that the first defendant did not support her in relation to either incident and certainly, no counselling was offered to her as a result of the extremely humiliating experience on the second date. She was confused there had been no explanation, conciliation or attempt to resolve the situation.
29 On 27 June, the plaintiff attended her general practitioner, Dr Gowans. The plaintiff then felt shattered and thought she would never be able to get a job in shopping centres again. She was confused as to why she was blacklisted. She was suffering from nausea and insomnia and having suicidal thoughts.
30 Dr Gowans prescribed Zoloft and referred the plaintiff to Ms Moran, psychologist.
31 As of November 2011, the plaintiff deposed she was unable to cope with life. At various times she had been living with family members or a friend and sometimes had lived on a camping ground and at other times in a car. Her life had changed within a matter of months of the incidents at work.
32 Previously, the plaintiff had been very proud of employment with the first defendant. She believed she was good at her job and she had supervisory and training roles. She was regarded as a benchmark for the first defendant and in 1999, had been awarded Employee of the Year.
33 In her time with the first defendant, the plaintiff had grossed over $5 million and ended up being the highest paid employee in the promotion division. She was devastated all this seemed to amount to nothing.
34 Since June 2008, the plaintiff had been unable to stop thinking about the second incident and constantly replayed it in her mind, despite her attempts to push thoughts of it out of her mind. She had tried to attend shopping centres again on two occasions. She sort of coped, but not enough to feel she could go back and work.
35 There was a return to work plan and offer of suitable employment of 12 September 2008, where the plaintiff was offered door-to-door selling, four hours a day.
36 In cross examination, whilst the plaintiff agreed this job was below her skill level and experience and she described it as a “kick in the guts” given her eleven years of loyal service,[4] she confirmed repeatedly that she was not well enough to try the job and she was scared of undertaking door-to-door selling. She had thought the first defendant would have been supportive.
[4]T29
37 The plaintiff was sent to Konekt by WorkCover. She told the rehabilitation provider that she was not up to returning to work or retraining, as she was not well enough. She did not find Konekt helpful at all.
38 The plaintiff told Konekt she was too unwell to do an office course. She did a one-day computer course as she had no choice, but could not keep up with it. Whist attending the course, the plaintiff felt “so behind and so out of place”.[5]
[5]T34
39 There were times when the plaintiff felt it hard to get out of bed and a couple of times a week she walked around with the blinds down and wore a dressing gown all day. She often cried without any reason. Whilst she had not actually attempted suicide, there were times she felt that if she had a gun, she would have used it. She was then constantly tired and did not have the energy to take any pride in herself or her domestic situation. She had headaches and often felt nauseated.
40 The plaintiff had lost interest in music, in particular playing the guitar. She no longer socialised. She had lost all her friends and it worried her that she did not really even care. She got no pleasure out of life.
41 The plaintiff had nightmares of being stuck in shopping centres and she continued to have intrusive thoughts of the second incident. She had lapses in memory and concentration and had to think at times what she was doing or she forgot. She was frightened to go out and communicate, because if she started talking to someone, she just drifted off and it was very embarrassing.
42 Previously, the plaintiff felt she was an organised and punctual person and these days was the opposite. She had also suffered from panic attacks and shortness of breath, sweats, an increased heart rate and a feeling of anxiousness.
43 Further, the plaintiff also had angry thoughts towards the first defendant and felt awfully distressed at the way it had let her down. She was eating too much. She had difficulty getting to sleep and other times just could not wake up and she felt tired and lethargic the next day.
44 The plaintiff decided to go back to her home town at Edenhope, a town which had suffered badly in the drought and rural crises. There was not much to do there. She felt a bit more comfortable being away from busy shopping centres and other parts of the Metropolitan Area.
45 As of November 2011, the plaintiff was then continuing to see her general practitioner. She had not seen a psychiatrist for a few months but rang the psychiatrist on occasion and had an appointment coming up. The plaintiff saw Dr Bade, an old family doctor in Edenhope, occasionally and she continued to take Zoloft and Valium.
46 After 130 weeks of compensation, the plaintiff was granted a disability allowance. The plaintiff then did not feel that she could get back to work, having lost confidence in herself and her ability to communicate with other people. In summary, she felt useless, hopeless and helpless.
47 The plaintiff continues to take Zoloft, 150 milligrams in the morning, and Valium, 5 milligrams, one to two tablets a day, when feeling anxious. She does not like taking sleeping tablets.
48 The plaintiff sees her general practitioner, Dr Hafizullah, every two months. She sees a local social worker, Mr O’Donnell, once a month, having previously seen him fortnightly. She finds this helpful as she has been unable to attend a psychologist since moving to Edenhope.
49 An appointment was made by the plaintiff’s current general practitioner, Dr Hafizullah, with a Horsham psychiatrist, Dr Proctor, in January 2012. The plaintiff attended but did not stay to see Dr Proctor, having waited for a number of hours at his clinic.
50 In cross examination, the plaintiff also explained that she had sought counselling from West Vic Mental Health program in early 2012. The plaintiff denied that service refused to help her as she was only seeking a report for this litigation.
51 The plaintiff deposed in October 2010 that there are some days, about two or three days a week, when she does not leave the house or shower and just lies around in a tracksuit for most of the day. On other days she gets up and has a shower but only gets into a tracksuit as she has no reason to dress up. She is slow to get moving in the mornings and takes three to four hours to get wound up. She normally stays in bed until 10.00 am. As she sleeps in, she tends to stay up late and spends most of the day at home watching television or listening to the radio.
52 The plaintiff’s mood is up and down but she is predominantly depressed and at times becomes irritable. She experiences periods of anxiety and has at least two panic attacks a week, especially if in an unknown or crowded area. She still fears going to shopping centres. Luckily there is nothing in Edenhope that resembles a large city shopping centre. She remains preoccupied by the events at work and still feels angry against the first defendant. She often has nightmares about being in a shopping centre.
53 The plaintiff has an increased appetite and finds eating makes her happy. She has grown from a size 18 to a size 24.
54 The plaintiff’s memory and concentration are impaired. She often forgets what she is doing. Her concentration has affected her ability to play the guitar. She has tried and cannot concentrate to read the music and play. She continues to have suicidal thoughts and has become a loner and is detached and not interested in life.
55 The plaintiff would love to return to some form of work; however, she cannot imagine herself back in the workplace and in particular, doing any type of sales work or work that involved interaction with clients, customers and co-workers.
56 In cross examination, the plaintiff agreed the court process was emotionally draining. She agreed it would be good to get on with her life once the case was over if she felt well enough. She felt she had lost her identity as a result of the work incidents. She had lost her livelihood and everything.[6]
[6]T51
57 The plaintiff disagreed she wanted vindication, money and an apology.[7] She denied she was not prepared to admit she had any work capacity whilst the legal proceedings were continuing. She was just not well enough at the moment to do anything.
[7]T54
58 The plaintiff was asked about her capacity to work in the jobs suggested by Konekt. She did not know how she would feel about returning to work because she had no trust in the workforce.[8]
[8]T59
59 The plaintiff explained that she would like to go back to work, but at this point, she is a “wreck”.[9] In answer to all suggested jobs, the plaintiff said that her health at the moment is beyond doing anything because of her depression, anxiety levels and self esteem.[10]
[9]T60
[10]T62
60 The plaintiff just wants the case to be over. She has attended the hearing and also medical appointments with great hardship and with her family’s support. She has driven long distances because she has had to.[11] She is not coping with life – she is ill.
[11]T64
61 When asked about her concern in relation to a recent cardiac scare, the plaintiff said she did not care – she “hoped [she] would die soon to be honest.”[12] Her worry was being escorted from work, not other issues.
[12]T74
Lay evidence
62 Janice Mullens, a friend of the plaintiff for twenty years, swore an affidavit in September 2012.
63 Ms Mullens deposed that prior to suffering injury, the plaintiff had a very outgoing personality and was the life of the party. She was the centre of some friendship groups and had a lot of good friends and acquaintances she liked to socialise with.
64 The plaintiff shared Ms Mullens’ passion for music and was a very talented guitarist and singer, writing her own music and often performing in some of the local pubs and clubs. The plaintiff lived with Ms Mullens for a while and they often sang a lot together. They also went to performances together. Prior to the plaintiff’s injury, they saw each other about once a week and used to talk on the phone almost daily.
65 Since the incidents, the plaintiff is very different, being withdrawn, introverted, nervy and panicky and does not laugh as much as she used to and is much quieter. Now Ms Mullens and the plaintiff talk on the phone about once a week and sometimes on the internet. She does not think the plaintiff likes to be disturbed so she tries not to disturb her. Since the injury, she does not think the plaintiff plays the guitar or writes songs very much. The plaintiff says she does not want to and it is a long time since they went to a show together. The plaintiff has lost contact with a lot of her good friends, especially since living so far away.
66 When the plaintiff comes to town, she often stays with Ms Mullens and she has to work hard to have a conversation with her. The plaintiff cries a lot and seems to have a big weight on her shoulders. They do not really sing together any more. They often eat a meal, try to have a conversation, watch television and then go to bed. The plaintiff is not as lively as she used to be and often seems very tired.
67 The plaintiff is particularly nervous around shopping centres. Ms Mullens has taken her to those places and sometimes they have to go home because of the plaintiff’s nerves. The plaintiff is uncomfortable around security staff and wants to leave immediately when she sees them and she thinks the plaintiff tries to avoid crowds.
68 Prior to suffering injury, the plaintiff had a strong work ethic and loved her job because she enjoyed the interaction with people and the challenges. It seemed to Ms Mullens that the plaintiff had lost her lust for life and was not the same “Trish” as in their early friendship and it feels like her life has been taken from her.
69 Ms Julie Smith, the plaintiff’s aunt, swore an affidavit in July 2012. Since the plaintiff moved back to Edenhope about a year earlier, she had seen her about once or twice a week.
70 Ms Smith confirmed Ms Mullen’s evidence as to the plaintiff’s pre injury personality, social and work life, and interest in music.
71 Ms Smith confirmed that since suffering injury, the plaintiff had become withdrawn and gone into depression. The family encouraged her move back to Edenhope because they were fearful of her safety and wellbeing in Melbourne and thought she would cope better in a small community.
72 The plaintiff is no longer the bubbly, chatty person they used to know. She rarely talks about herself anymore. She seems more comfortable around them because they are family but she is less comfortable around others. The plaintiff is still withdrawn and when she comes over for a meal, she has to be pushed for any information about herself.
73 Since injury, the plaintiff seems to stick to herself and stay at home a lot and Ms Smith did not think she had any hobbies anymore and it had been a very long time since she had seen her play a guitar. She could tell the plaintiff missed her job and loved the role and was very good at it.
Treaters
74 Dr Gowans reported in December 2008 that the plaintiff had been a patient at the Vermont Medical Clinic since November 2005.
75 The plaintiff presented on 29 February 2008 complaining of feeling very stressed after the first incident. She was prescribed Ducene. She was seen again on 28 April 2008 when she reported she was still feeling stressed but improving. She continued to work full time.
76 The plaintiff represented on 27 June 2008 and advised of the second incident. She was experiencing nausea and insomnia and also suicidal thoughts. She mentioned being made redundant earlier that week.
77 The plaintiff was commenced on Zoloft and referred to a psychologist, Ms Moran, and given a certificate for a week off work and reviewed a week later. On 4 July 2008, she was not feeling much better and did not feel emotionally capable of looking for another job.
78 Attendances continued through 2008, and at the end of that year, Dr Gowans thought the plaintiff remained depressed and seemed to be suffering from Post-Traumatic Stress Disorder resulting from the incidents.
79 Dr Gowans considered the plaintiff then had no current capacity for work but noted hopefully that would improve over the ensuing months. She thought the plaintiff would be greatly assisted by getting an apology and would need reassurance it would not happen again.
80 Dr Gowans again referred the plaintiff to Ms Moran in November 2009. Dr Gowans advised Ms Moran the plaintiff still suffered from depression and anxiety attacks as well as difficulty controlling her temper. The plaintiff was then taking Zoloft, 50 milligrams, daily, and Ducene, 5 milligrams.
81 Dr Gowans reported in January 2010 that the plaintiff’s condition remained much the same. The plaintiff was still not working and felt very anxious about the prospect of returning to work. She felt she could not work in a shopping centre again as she had been very fearful of being evicted and would be very stressed.
82 Dr Gowans noted the plaintiff was hoping to get some part-time work in the near future but Dr Gowans thought that would only be possible if she could enter a gradual return to work program where she had support from her employer and could gradually increase her hours when she was confident she could cope.
83 Dr Gowans noted the plaintiff then continued to suffer depression, panic attacks and episodes of anxiety and remained on Zoloft daily and Diazepam as required. She was still seeing Ms Moran.
84 In January 2011, Dr Gowans reported the plaintiff had not changed much in the last year. She thought the plaintiff would then be fit for part-time work in a supportive environment with a very gradual return to work program. She noted the plaintiff had seen a psychiatrist, Dr Tibad, a few times and her antidepressant dosage had been increased.
85 Dr Gowans noted the plaintiff’s recovery had been complicated lately by her mother’s dementia and having to leave the family home and live in rental accommodation in Apsley. The plaintiff could no longer live with her mother because that was untenable due to her mother’s mental state.
86 Dr Gowans concluded the injury suffered by the plaintiff was the emotional abuse and threatening behaviour of the man in the shopping centre where she was working. Then there was her eviction. When she went back there a short time later this compounded the stress reaction. Employment was therefore a significant contributing factor to the injury.
87 Dr Gowans then thought the plaintiff required ongoing psychological and psychiatric counselling and medication. She noted the plaintiff’s Adjustment Disorder had lasted over two years and seemed to be permanent, although she hoped it would gradually improve and that the plaintiff should be able to do some part time work in the right environment, not shopping centres.
88 Ms Moran saw the plaintiff twelve times during 2008. At that early stage, she thought the plaintiff’s symptoms met the DSM-IV diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood and that those symptoms significantly impaired her ability to work.
89 As at December 2008, Ms Moran thought the plaintiff did not have a current capacity for pre injury duties, nor for alternative work offered by the first defendant. Further psychological treatment was recommended.
90 Ms Moran next reported in December 2009, by then having seen the plaintiff twenty seven times. As of that date, Ms Moran thought the plaintiff did not have a capacity for work and it was recommended further psychological treatment continues and that the plaintiff would potentially benefit from vocational support in exploring suitable alternative employment. Ms Moran commented that for a successful return to work, the plaintiff would need to feel safe and supported in her role.
91 Ms Moran reported in June 2010 that the plaintiff had attended eight appointments that year. At the beginning of year, the plaintiff was anxious about beginning vocational rehabilitation services but willing to consider it. Ms Moran noted that the willingness and readiness appeared to be undermined by lack of contact from the WorkCover case manager and rehabilitation provider and that the plaintiff felt bewildered and unsupported in the process. The plaintiff was having difficulty finding secure accommodation. There was also a longstanding dispute about her WorkCover entitlements.
92 As of June 2010, Ms Moran considered the plaintiff was not responsive to cognitive behavioural therapy and her appointments were less regular.
93 When last seen in November 2010, having seen the plaintiff a total of forty six visits, Ms Moran confirmed the plaintiff’s symptoms met the DSM-IV diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood.
94 On that last examination, Ms Moran thought the plaintiff did not appear to have a capacity for employment. Whilst she had periodically experienced improvement in her mental status, she was once again experiencing debilitating symptoms of anxiety and depression, in part related to again experiencing homelessness.
95 Ms Moran thought it was difficult to establish a timeframe in which the plaintiff may develop a work capacity, or whether or not she would develop a capacity for pre injury employment. She considered the plaintiff would not be able to return to work for her former employer. Working in a shopping centre would be very difficult due to the fact she had not had resolution of her injury events. The ban placed on the plaintiff continued to trouble her and contribute to her ongoing experience of acute anxiety when visiting shopping centres.
96 Ms Moran repeated details of the plaintiff’s difficulties with the rehabilitation provider and noted that when she did attend appointments, the plaintiff had difficulty in engaging in the process due to anxiety and depression.
97 Ms Moran thought if the plaintiff’s health improved enough to allow for employment capacity, she had proven skills that may be best utilised in a position outside of major shopping centres. Ms Moran then expected the plaintiff would benefit from further treatment which she would undertake when she had secure accommodation.
98 Dr Tibad, consultant psychiatrist, reported in January 2011, having seen the plaintiff five times between 24 July and 7 December 2010 following referral by Dr Gowans. The plaintiff, on the last examination, advised Dr Tibad that she would no longer be able to attend as she was moving to the country.
99 The plaintiff told Dr Tibad that the incidents had completely changed her pre-accident personality and lifestyle. She reported feeling worthless with low energy and diminished concentration. Medication was then 75 milligrams of Zoloft and 5 milligrams of Ducene once or twice a day.
100 Dr Tibad thought the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood in response to the incidents. Dr Tibad noted the plaintiff had found it difficult to move on with life if her distress was not acknowledged and her name was not cleared from any wrongdoing.
101 During the course of treatment, Zoloft was gradually increased to 150 milligrams with improvement of depressive symptoms and anxiety levels. However, the plaintiff continued to complain about mood problems relating to ongoing financial, accommodation and family relationship matters.
102 Dr Tibad noted the plaintiff’s self esteem problems continued and she could not contemplate any form of work, even when her WorkCover payments stopped. Even starting short hours at another organisation filled her with dread and led to increased anxiety levels.
103 Psychological counselling did not seem successful in helping the plaintiff return to the workforce, and Dr Tibad believed her issues had become chronic to the point where it was very difficult to shift.
104 Given the chronic nature of the plaintiff’s psychiatric problems and resistance to appropriate pharmacological and psychological interventions, Dr Tibad believed her prognosis was not favourable and ongoing treatment was required, together with work rehabilitation, with the aim of the plaintiff engaging in a gradual return to work plan.
105 Dr Tibad thought the plaintiff would not be able to return to the same workplace but it was reasonable to work towards returning to work where she would be able to utilise her skills as a sales person.
106 In Dr Tibad’s view, obviously other options could be explored and the plaintiff may undertake further training in the future. Further, the plaintiff’s unstable living and financial circumstances interfered with her ability to focus on overcoming her anxiety and confidence problems to return to work. However, those problems were difficult things to solve.
107 Dr Tibad thought, although the plaintiff had appropriate skills and the theoretical capacity to work in a suitable supported workplace, her lack of confidence and inability to manage her anxiety resulting from exposure to a new workplace and her present unstable living conditions, meant that practically she had no current work capacity for the foreseeable future. Dr Tibad thought, unfortunately, the longer the plaintiff stayed out of the workforce, the harder it would be for her to return.
108 In a letter to Dr Gowans in September 2010, Dr Tibad suggested the plaintiff try some volunteer work.
109 Dr Hafizullah of the Edenhope Medical Clinical reported in January 2013 that the plaintiff had been consulting that clinic since 3 March 2011.
110 In Dr Hafizullah’s opinion, the plaintiff suffered from depression and anxiety. It was noted the plaintiff had been recently referred to a cardiologist for a cardiac event.
111 Dr Hafizullah was not able to comment as to the foreseeable future. She thought the plaintiff would require a psychiatric assessment for employment to make any comment, and could not comment on future employability. She noted that since treating the plaintiff, the plaintiff had decreased social activity and had less energy as a result of her condition. The plaintiff’s medical treatment was currently antidepressant medication for ongoing depression, and Dr Hafizullah could not give a prognosis without specialist advice.
112 Dr Hafizullah noted that she made a referral to psychiatrist, Dr Robert Proctor, in January 2012, but due to a misunderstanding, the plaintiff had not seen him.
113 Tim O’Donnell, social worker, commenced seeing the plaintiff in February 2012.
114 Discussion and counselling revolved around the plaintiff’s employment and the issues in 2008. In his early work with the plaintiff, he identified her withdrawn nature, lack of motivation and lack of confidence.
115 Mr O’Donnell noted in his initial report of May 2012 that he had worked in the disability employment sector as a consultant assisting people getting back to work after long-term unemployment. In his opinion, from discussions with the plaintiff about her previous work and current capacity, he believed her ability to return to pre-employment duties was non existent in the foreseeable future, noting she was barely maintaining her own basic living skills.
116 In January 2013, Mr O’Donnell reported the plaintiff’s mental state continued to be poor and recent events, such as the passing of her godfather and godmother and issues with a family member and general health issues, had not been kind to her. He worked with the plaintiff on improving self esteem and re-engaging in community activities.
Medico-Legal Examinations
117 The plaintiff was first seen by Dr Louise Seward, consultant psychiatrist, in November 2011.
118 The plaintiff then reported a period of counselling in the setting of a difficult relationship in 2005 and 2006 and advised she had never previously taken antidepressant medication.
119 On mental state examination, the plaintiff’s affect was anxious and depressed and she communicated despondency and was at times tearful. Her thought stream was slow and thought content was focussed on the way she had been treated. She was bitter and angry, having been a loyal, high functioning employee in the past. She described chronic symptoms of depression and anxiety that had persisted despite treatment. Tests of higher cognitive functioning were normal except there was mild impairment of concentration. There was no evidence of delusions or hallucinations.
120 Dr Seward thought the plaintiff was well stabilised, since it was three-and-a-half years since the injury. She noted the plaintiff had not worked since June 2008 and had made no attempts in alternative employment or undertaken rehabilitation or retraining. She noted the plaintiff struggled to cope financially and spent a significant time homeless. She tended to avoid large shopping centres. She had given up music and other hobbies.
121 Dr Seward then thought the plaintiff had developed a Major Depressive Disorder following the two incidents.
122 As a consequence of her psychiatric condition, Dr Seward considered the plaintiff did not have the capacity to perform her pre injury work. She thought, given the persistence of symptoms, the plaintiff was permanently incapacitated for pre injury employment and could not return to her old job as she had been profoundly traumatised and disappointed by the way she had been treated.
123 Dr Seward then thought the plaintiff did not have a capacity to perform suitable employment, being troubled by significant symptoms of depression, anxiety, impaired concentration, insomnia, loss of energy and motivation, social withdrawal and loss of self confidence. She was also troubled by recurrent fleeting suicidal ideation.
124 Noting the plaintiff’s age and that she lived in a relatively isolated country town, and lack of skills and absence from the workforce for three years, and not having participated in any rehabilitation, Dr Seward considered the plaintiff’s incapacity for suitable employment was permanent.
125 Dr Seward thought the plaintiff’s prognosis remained guarded, given there had been little improvement in the past three years, she had been out of the workforce for three-and-a-half years and continued to have a Major Depressive Disorder.
126 Dr Seward made similar findings on re-examination in August 2012 and confirmed her earlier views.
127 In June 2010, the Medical Panel concluded the plaintiff had a 20 per cent whole person psychiatric impairment.
The Defendants’ Medical Evidence
128 Dr Entwisle, psychiatrist, examined the plaintiff in August 2009. He then diagnosed an Adjustment Disorder with Anxiety.
129 Dr Entwisle believed, at that stage, the plaintiff would be fit for suitable employment. Having been asked to comment on the plaintiff’s capacity for field customer service duties, he noted, given her presentation and his inability to question her about that job, he was not able to provide an answer, noting the plaintiff left the appointment early before he could explore that with her.
130 Dr Entwisle reported that the plaintiff remained aggrieved and unhappy and she appeared not to be able to move on from that. As such, he could not provide a timeframe that could be expected before her being fit to return to work or fill a new position.
131 Dr Entwisle thought, until such time as the plaintiff was able to deal with the issue involved and clarify it in her own mind and work through the process of moving on with her life and seeking other work, no particular treatment was likely to be successful in her case. He remained of the opinion that provided the plaintiff was prepared to work, her various symptoms would resolve accordingly.
132 Dr Chris Grant, psychiatrist, examined the plaintiff initially in August 2008 and later in August 2012.
133 On the latter examination, the plaintiff’s manner was expressive and animated and she displayed a good range of affect, well modulated and congruent with her thinking. She became angry when talking about the circumstances of ending her work and about her dissatisfaction with any explanation from the first defendant. The major factor was anger. Thought tempo, form and possession were normal and there were no bizarre themes, delusions or suicidal thinking.
134 Based on her account of the symptoms, Dr Grant thought the plaintiff still appeared to have a severe ongoing Adjustment Disorder with Depressed and Anxious Mood of moderate severity related to events at work.
135 Dr Grant noted the dilemma in the plaintiff’s case was that, while she described symptoms of depression, she presented mainly as angry. He thought the current treatment was appropriate and that the plaintiff’s condition was likely to change once litigation is finalised.
136 Dr Grant thought the plaintiff did have a current work capacity and was fit for work three hours a day, three times a week initially, in any of the jobs identified by Konekt.
137 In the absence of any new injury or mishap, Dr Grant thought the plaintiff would be able to steadily increase her hours to full time over the next six months. He thought she was not fit for any work with the first defendant or at the shopping centres where the incidents occurred. She was not fit for equivalent pre injury duties with a different employer or different workplace because of the need to restrict her work hours initially.
138 Dr Stern, psychiatrist, examined the plaintiff in April 2010 and re-examined her in January 2013.
139 As of June 2012, Dr Stern thought the plaintiff, from a psychiatric aspect alone, was fit for work identified by Konekt as long as the jobs were not with her previous employer or at the relevant shopping centres.
140 On the most recent examination, Dr Stern thought there had been no significant change in the plaintiff’s psychiatric history since previous examinations. She was still suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood related to the work incidents, with no pre-existing or unrelated psychiatric disorder.
141 Dr Stern noted the plaintiff had stopped psychological treatment and still took Zoloft, 150 milligrams per day, and he thought that needed to continue. He also thought Diazepam needed to be monitored because of the risk of dependence.
142 Dr Stern considered the plaintiff was psychiatrically incapacitated for her pre injury work places or with her pre injury employer. He thought that she was psychiatrically fit for alternative suitable duties in the Konekt report. In his view, she was fit to return to work on suitable duties on a part time basis but not full time, and could gradually increase her hours to full time over a period of six to twelve months. He thought her condition had stabilised.
143 In a supplementary report of 18 January 2013, Dr Stern confirmed the January 2013 examination, noting that when he finished examining the plaintiff, the plaintiff informed him that she had secretly recorded the interview. Dr Stern explained to her that he did not allow recording of his assessments, and she stated she had been told that she was allowed to do this. He then informed her, as a result of her recording the interview, he would not be providing any medical report.
144 Dr Triggs, consultant psychiatrist, first saw the plaintiff in July 2010.
145 Dr Triggs noted the plaintiff arrived nearly twenty minutes late in a very agitated and angry frame of mind. She was loud and frustrated and irritated, but that soon settled and she was happy to keep going with the interview.
146 Dr Triggs thought the plaintiff was suffering with a Chronic Adjustment Disorder with Depressed and Anxious Mood.
147 Dr Triggs did not believe the plaintiff had a capacity for pre injury employment, but thought the plaintiff would currently have a work capacity for maybe three mornings a week in a job that was supportive, and suggested to her she did some volunteer work to start with.
148 Dr Triggs did not believe the plaintiff could return to her old job and may be able to go to an alternative employer if only doing three mornings a week and that a graded return to work as described would be useful. She did not believe the plaintiff was indefinitely incapacitated.
149 Dr Triggs re-examined the plaintiff in January 2012.
150 On mental state examination, she thought the plaintiff had clearly improved from the last time she saw her. She believed the plaintiff was not totally incapacitated and would have a capacity to perform part time duties with another employer.
151 Having been forwarded the Konekt report in June 2012, Dr Triggs advised she was unable make a current assessment of employment given it was six months since she had seen the plaintiff. She referred to comments in her earlier report that the plaintiff was not totally incapacitated and would have a capacity to perform part time work.
Vocational Evidence
152 Katrine Green provided a vocational assessment report in December 2012.
153 Ms Green concluded, because of her psychological/psychiatric state, the plaintiff was unable to perform the inherent duties of her previous occupation or those of other suitable employment, namely, retail sales assistant, sales representative, merchandiser, sales clerk and courier driver within the foreseeable future.
154 Further, Ms Green considered the plaintiff was not a suitable candidate for retraining courses within the foreseeable future. Also that due to the geographical region in which the plaintiff resided, the likelihood of her securing employment was highly unlikely.
155 There was an NES vocational assessment report in February 2010 in which the following jobs were identified as suitable employment options in order of priority: sales – outdoor equipment; clerk; warehouse assistant; marketing assistant, and call centre operator (further training may be required).
156 There was an NES eight-week jobseeker plan in July 2010.
157 Konekt provided a 130-week vocational assessment on 18 August 2010 in which the suitable jobs were identified as sales representative; sales assistant; sales demonstrator; stock and purchasing logistics clerk and courier.
158 There was a re-education assessment report dated 30 August 2010 from Konekt and a jobseeker plan dated 16 November 2010.
159 A further vocational assessment by Konekt in June 2012 identified suitable jobs as sales assistant ($740 per week); customer service officer ($880 per week); inventory and supply officer ($950 per week); cook ($740 per week) and therapy aid ($780 per week).
160 Konekt provided a further report on 21 January 2013, commenting on Ms Green’s report and her view that the identified jobs were not suitable. Konekt went through each job, stressing the plaintiff’s work experience in that area and making reference to Dr Triggs’ view that the plaintiff was fit for the respective jobs.
Lay Evidence
161 Ms Nicole Murray, financial controller, from the first defendant, swore an affidavit on 19 December 2012. She deposed the plaintiff commenced work with the first defendant on 5 August 1997 and in the financial year ending 30 June 2008, she earned $40,258.
162 Ms Murray deposed that the first defendant realised, prior to the plaintiff’s alleged injuries, that the work being performed at shopping centres had a running cost that was too high; thus the plaintiff’s job was made redundant. It was during her last couple of weeks of employment that the alleged incident occurred.
163 Ms Murray deposed the plaintiff would not have been employed by the first defendant after employment was terminated effective 30 May 2008 due to her role being made redundant.
164 The first defendant had attempted to run similar programs involving the plaintiff’s role again in 2011. However, it was unsuccessful.
165 Prior to the plaintiff’s position being no longer available, the person who has undertaken the same duties earned $20.48 per hour.
166 If the plaintiff continued to be employed in the financial years ending 30 June 2009, 2010 and 2012, her earnings would have been approximately $40,468 based on a 38-hour week. However, the role is no longer available and the plaintiff was made redundant in 2008.
Overview
167 In this matter, the defendants have conceded that the plaintiff has a severe psychiatric impairment in terms of pain and suffering consequences.
168 It has been held that “severe” is a word of stronger force than more than serious – see Court of Appeal in Mobilio v Balliotis,[13] Brooking JA at 846, referring to Turner v Love & Transport Accident Commission.[14] Winneke P, in Mobilio,[15] agreed with Brooking JA’s reasons (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[13][1998] 3 VR 833
[14](1995) 21 MVR 314
[15]Mobilio v Balliotis (supra)
169 The consensus of medical opinion is that the plaintiff suffers from an Adjustment Disorder with Anxiety and Depression. Dr Seward, who last saw the plaintiff in August 2012, thought the plaintiff’s condition met the diagnosis of Major Depressive Disorder.
170 Having conceded pain and suffering, the issue of permanency is not in dispute. Whilst some practitioners thought there may be improvement in the plaintiff’s condition on resolution of her claim, Dr Entwisle was the only doctor who thought that if the plaintiff was prepared to work, her various symptoms would resolve accordingly.
Credit
171 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[16] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[16](2010) 31 VR 1
172 Although there were credit issues raised by counsel for the defendants and it was ultimately submitted the plaintiff was maximising the extent of her disability for financial gain and that she was on a crusade to clear her name, I found the plaintiff to be a truthful witness who continues to be genuinely distressed by the work incidents and their effect on her life.
173 Whilst the plaintiff told a number of examiners that she had not had any previous psychiatric history, the only relevant issue in this regard was five attendances with a psychologist in mid 2007 for counselling in relation to a relationship breakdown. At the end of that treatment, the treating psychologist reported to the plaintiff’s general practitioner that the plaintiff found counselling helpful and responded well and had recovered. The stress resolved and played no part in the plaintiff’s psychological condition and treatment after the incidents.
174 I accept the plaintiff’s explanation that she did not consider that her relationship issues amounted to a psychiatric or psychological problem and that that issue had resolved in 2007.
175 While the plaintiff thought she had not had any antidepressants until prescribed Zoloft by her general practitioner after the incidents, there were several earlier prescriptions by Dr Gowans, mainly to assist in coping with relationship issues, and the plaintiff explained that she did not take what was prescribed.
176 I am not concerned about any suggested reticence on the plaintiff’s part to divulge details as to her sister’s health as I consider the plaintiff’s reluctance was based on her query as to the relevance of that issue to her own claim.
177 Further, the plaintiff’s apparent ignorance of the fact that she was being certified fit for modified duties throughout 2010, rather than totally unfit as she maintained, does not change my overall view that the plaintiff was a credible, reliable witness.
178 I am satisfied that the plaintiff has been compliant with the medication prescribed and whilst there was improvement to a certain degree when the dosage of Zoloft was increased to 150 milligrams, her problems remain. Dr Stern confirmed that this treatment should continue.
179 There has been no suggestion to the plaintiff by a treating practitioner, as Dr Seward’s opined, that there be an increase in Zoloft to 300 milligrams or there be a change in medication.
180 Although reference was made to the lack of ongoing significant medical treatment and there being no specialist psychiatric treatment since the end of 2010, I accept that the plaintiff has taken steps of recent times, although to date unsuccessfully, to access local mental health services.
181 Having dealt with these preliminary matters and bearing in mind pain and suffering has been conceded, I will now consider the issues relevant to the loss of earning capacity claim.
182 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
183 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
184 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
185 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
186 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
187 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[17]
[17]Barwon Spinners Pty Ltd (supra) at 70
188 I am therefore required to determine a “without injury” earnings figure. Limited submissions were made by counsel in this regard.
Summary of the Plaintiff’s Taxable Earnings
Financial Year Ending June
Gross Income
2004
$33,842
2005
$39,955
2006
$42,844
2007
$40,311
2008
$40,258
2009
$28,836
2010
$17,592
2011
$17,394
189 The parties agreed that an appropriate starting point was the plaintiff’s gross earnings in the 2005-2006 financial year of $42,844 or $823 per week. This was the highest sum in the years before the incident and represented the plaintiff’s weekly base of 30 hours per week, together with extra earnings for home shows and incentives related to her sales performance.
190 Having undertaken the approach required under the Act, I accept this is a reasonable “without injury” earnings figure in this case.
191 On a weekly basis, the figure is $823, sixty per cent of which is $494.
192 The consensus of medical opinion is that because of her psychiatric condition, the plaintiff is unfit for her pre injury employment as a spruiker/sales representative working in a shopping centre with either the first defendant or a similar employer.
193 What then is her capacity for suitable employment?
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre‑injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.”
194 At various times, a number of jobs have been suggested by Konekt as suitable employment options for the plaintiff.
195 Most recently in June 2012, Konekt identified suitable jobs as sales assistant; customer service officer; inventory and supply officer; cook and therapy aid.
196 Medical opinion relied upon by the defendants is generally supportive of the plaintiff’s fitness for these suggested roles but not initially on a full time basis.
197 In August 2009, Dr Entwisle thought the plaintiff had a capacity for suitable employment, not commenting on the appropriate hours. He was somewhat suspicious about her presentation and did not take a very detailed history as to the level of the plaintiff’s day-to-day functioning.
198 Dr Grant, in August 2012, thought the plaintiff had a capacity for the type of work suggested by Konekt, initially for 3 hours a day, three days a week, progressing to full-time hours over the following six months.
199 Dr Grant did not record the level of depression and anxiety as deposed to by the plaintiff, noting simply that she got up late and then “pottered” around the house.
200 Following examination in January 2013, and taking a detailed history, Dr Stern reported that the plaintiff was fit for jobs suggested by Konekt but not with the first defendant. He considered the plaintiff should start part time gradually, increasing to full-time hours over the next six to twelve months.
201 In January 2012, Dr Triggs thought the plaintiff had a capacity for part-time employment, not specifying the hours, with another employer. The history recorded by her lacked detail as to the plaintiff’s inability to function on a daily basis.
202 In her earlier report following examination in mid 2010, Dr Triggs thought the plaintiff had the capacity to work three mornings a week in a supportive environment.
203 There is little up-to-date opinion from the plaintiff’s treaters as to her employment capacity. In her report of January 2013, save for diagnosing anxiety and depression, the plaintiff’s general practitioner, Dr Hafizullah, reported she could not comment on the plaintiff’s future employability and deferred to specialist opinion in this regard.
204 Dr Gowans last saw the plaintiff in 2010 and thought at that time she should be able to do some part-time work, certifying her throughout that year as fit for modified duties for two to three half days per week in a supportive environment, and no shopping centre work.
205 When she last saw the plaintiff in November 2010, Ms Moran thought she did not appear to have a capacity for suitable employment. She considered the plaintiff’s employment future was difficult to predict.
206 Dr Tibad thought, when the plaintiff was last seen last in December 2010, that although she had appropriate skills and the theoretical capacity to work in a suitable supported workplace, the plaintiff’s lack of confidence and inability to manage her anxiety resulting from exposure to a new workplace and her present unstable living conditions, meant that practically she had no current work capacity for the foreseeable future.
207 Dr Tibad thought, unfortunately, the longer the plaintiff stayed out of the workforce, the harder it would be for her to return.
208 In a letter to Dr Gowans in September 2010, Dr Tibad suggested the plaintiff attend puppy school and also do a few hours of volunteer work in the local area, but noted the plaintiff was unable to commit to the latter course.
209 Whilst I do not place significant reliance on the view of a social worker when considering psychiatric capacity for work, as Mr O’Donnell continues to see the plaintiff regularly, his opinion offers some insight into the plaintiff’s ongoing difficulties.
210 Whilst he hoped once litigation concluded there would be some improvement in the plaintiff’s condition, given that the plaintiff barely maintained basic living skills, Mr O’Donnell thought she would find it incredibly difficult to return to pre injury employment. He suggested voluntary work as a starting point and the identification of casual employment, but otherwise did not comment as to the plaintiff’s employment future.
211 Dr Seward, who conducted the only medico-legal assessment on the plaintiff’s behalf, took a more pessimistic view in terms of the plaintiff’s employment capacity. Dr Seward thought, as of her August 2012 examination, the plaintiff had no capacity for suitable employment as she was suffering from a Major Depressive Disorder.
212 Noting the plaintiff had been profoundly traumatised and disappointed by the way she had been treated by the first defendant, Dr Seward thought, given the persistence of symptoms, the plaintiff was permanently incapacitated for pre injury employment. Further, Dr Seward was of the view the plaintiff did not have a capacity for suitable employment because of significant symptoms of depression, anxiety, impaired concentration, insomnia, loss of confidence and social withdrawal, noting the plaintiff was also troubled by suicidal ideation.
213 Taking into account this medical opinion, Mr O’Donnell’s description of the plaintiff’s level of functioning and my observations of the plaintiff, I prefer the views of former treater, Dr Tibad, and medico-legal examiner, Dr Seward’s view, as to the plaintiff’s employment future.
214 The plaintiff’s evidence as to pre-incident work and social life and how she is at present as a result of her psychiatric condition, now just able to look after herself, was particularly dramatic.
215 I accept the unchallenged evidence of the plaintiff and the lay evidence upon which she relies, that prior to the incident, she was a bubbly, confident sociable person who had a wide range of friends and a particular interest in music, including performing.
216 The plaintiff performed well in her pre-injury employment and was respected in her field. She loved her job.
217 Since the second date, the plaintiff has not worked for nearly five years. Her life has been on a downward spiral since that time, including a period where she had no address of her own and slept on friends’ couches. Whilst some stability was achieved in recent times when she obtained her own Ministry of Housing accommodation, that is the only post-injury problem that has been effectively dealt with.
218 I accept that the plaintiff’s daily life in the small country town of Edenhope, nearly 400 kilometres from Melbourne, where she moved for family support, is one devoid of any significant social contact and one with which she has great difficulty coping.
219 I accept the plaintiff continues to experience nightmares and upset sleep. She frequently cannot even get out of bed in the morning and when she does, she does not bother to get dressed or make an effort to go out, having lost all self esteem and confidence. She is always exhausted. She is anxious and depressed. At times she experiences panic attacks.
220 The plaintiff has not even been capable of doing volunteer work, as has been suggested, or attend a stress free, enjoyable activity such as puppy school.
221 I do not accept, in these circumstances, which have persisted for many years, the plaintiff would have the capacity to get dressed, go to work and function on any reliable basis even working a couple of mornings a week.
222 The plaintiff might have skills and work experience, as Konekt suggests in its December report, and also in response to Ms Green’s report, together with some basic computer skills, but she has to be able to get out of the house to use them and do so consistently to exercise any employment capacity. Further, she has problems with memory and concentration affecting her organisational skills.[18]
[18]T79
223 I am not satisfied this situation has been improved to any significant extent by the plaintiff now having secure accommodation. Housing is now just one less problem for her to worry about.
224 Whilst there are some shops and businesses in Edenhope, it is still a small country town where employment opportunities are limited. The nearest larger regional centres are a distance away.
225 Taking into account all the evidence, I am not satisfied that the plaintiff would have the capacity to do the work set out in the Konekt report or other similar work given her inability to function effectively even on a day-to-day basis at home.
226 Accordingly, I am satisfied the plaintiff has a loss of earning capacity of 40 per cent, not being able to earn more than $494 per week. Further, I am satisfied that this loss is permanent.
227 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
228 I am satisfied that the plaintiff has taken the appropriate steps in terms of rehabilitation and retraining and tried to co-operate with what has been offered to her with limited success due to her ill health.
229 The job that was suggested to the plaintiff in September 2008, albeit demeaning as she described and far below her level of skills, was one that did not receive support from her treater and the plaintiff was unfit to carry out and scared to embark upon.
230 As the plaintiff had great difficulty doing even a simple one-day computer course, I accept she would be unable to attempt the more extensive study that was suggested.
231 I do not accept the plaintiff has put her life on hold until her litigation is resolved. I accept her evidence, having found her to be a straightforward and truthful witness, that she would like to return to work, as evidenced by her history of work and her enjoyment of it prior to these incidents, rather than continue on a Disability Support Pension. I accept that she is presently not embarking upon even voluntary work because she does not feel well enough to do so.
232 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
233 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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