Taal Joshua Johannsen v Buslink Vivo Pty Ltd - [2021] NTLC 26

CITATION:TAAL JOSHUA JOHANNSEN V BUSLINK VIVO PTY LTD [2021] NTLC 026
PARTIES:TAAL JOSHUA JOHANNSEN
V
BUSLINK VIVO PTY LTD (ABN 63 159 640 972)

TITLE OF COURT:  WORK HEALTH COURT
JURISDICTION:  WORK HEALTH
FILE NO(s):2021-01683-LC
DELIVERED ON:  30 September 2021
DELIVERED AT:  DARWIN
HEARING DATE(s):  1 September 2021
JUDGMENT OF:  JR Gordon
CATCHWORDS:

Interim Determination – Balance of convenience – Requirement for full and frank disclosure

Return to Work Act 1986

NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd & Ors [2016] NTSC 44

Jenkinson v CMA Recycling Pty Ltd [2009] NTMC 064 at 25

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

McGuiness v Chubb Security Holdings Australia (Unreported, Work Health Court Northern Territory, Lowndes SM, 23 March 2006)

Wormald (Australia) Pty Ltd v Aherne [1994] NTSC 54

REPRESENTATION:
Counsel:
Worker:Ms Spurr
Employer:Mr Baird

Solicitors:
Worker:Halfpennys
Employer:Minter Ellison

Judgment category classification:  B
Judgment ID number:  026
Number of paragraphs:  79

IN THE WORK HEALTH court

AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 2021-01683-LC

BETWEEN:

TAAL JOSHUA JOHANNSEN

Worker

AND:

BUSLINK VIVO PTY LTD (ABN 63 159 640 972)

Employer

DECISION OF L GORDON JR
(Delivered 30 September 2021)

This an Application by the Worker in the Work Health Court for an interim determination pursuant to section 107 of the Return to Work Act 1986.
The Worker relies upon his Affidavit and Application filed 20 August 2021 together with the Affidavit of Catherine Louise Spurr filed 1 September 2021.
The Application is opposed by the Employer who relies on the Affidavit of Lachlan Baird filed 1 September 2021 which annexes the report of Dr Ghazala Watt, consultant psychiatrist.
The Worker had an accepted claim following a motor vehicle accident on 12 December 2015 in which the empty bus he was driving collided with a sedan, severing the sedan in two and killing its three occupants. Although the Worker’s physical injuries were minor in nature, the Worker also suffered an psychological injury following the incident.
The Worker’s benefits were cancelled by way of Notice of Decision dated 27 May 2021. The Worker commenced proceedings seeking that the Notice be set aside on 2 July 2021.
In relation to the Interlocutory Application, the Employer has conceded there is a serious question to be tried. Being likewise satisfied, particularly in relation to the medical dispute, details of which are discussed below, I do not intend the traverse the well-established principles relevant to a serious question to be tried in detail.
The two key disputes in the application are first, the medical evidence and the degree to which it speaks to the strength of each parties case and secondly the requirement for full and frank disclosure.

The Medical Evidence

It is not disputed that the Worker has suffered a mental injury as a result of the workplace incident and has ongoing symptomology. It is the cause of those ongoing symptoms which is disputed.
The Employer relies upon the Report of Dr Ghazala Watt, consultant psychiatrist dated 1 March 2021[1] and the accompanying final medical certificate of capacity.
Dr Watt concludes[2]:
“Mr Johannsen’s reported symptomatology is highly likely to be related to his borderline personality structure, pre-existing depressive symptomatology and a degree of abnormal illness behaviour in order to maintain a sick role, in order to seek care and Respite”
And further[3]:
“I confirm that his current reported signs and symptoms are inconsistent and are not linked to the incident that occurred on 12.12.2015”…
“Mr Johannsen reported no improvement in his symptomatology however his symptoms are inconsistent with activities of daily living and his functioning and are inconsistent with diagnosis of major depressive disorder, post-traumatic stress disorder or any other psychiatric condition. His reported symptomatology is highly likely to be linked to borderline personality structure and abnormal illness behaviour.”
The Employer argues that the Workers accepted psychological injury is in remission and that ongoing symptomology relates to a pre-existing and related co-morbidities.
Psychologist Tanja Hironen[4] stated in 2016 “Mr. Johannsen reported a past diagnosis of bipolar disorder and feels that he has had Asperger's his entire life. Whilst the bipolar condition may have been pre-existing, this is not causal to Mr. Johannsen's current condition.”
In 2017 Ms Hironen[5] described the pre-existing contributors as follows: “Mr. Johannsen has reported having a mental health concern of bipolar disorder, not formally diagnosed. Mr Johannsen reported that this concern was stable prior to the workplace injury on 12 December 2015.”
Before concluding: “[t]o the best of my knowledge, there is minimal impact of pre-existing conditions on Mr. Johannsen's work related injury.”[6]
Elsewhere, consultant psychiatrist Dr Jane Hay[7] provided the following observations on the discharge of the Worker from the Townsville Private Clinic after an inpatient stay of a number of months:
“Taal reports he suffered an episode of depression after the birth of his second son… He denies any history suggestive of a manic episode or any psychotic features. He has not been on any psychiatric medications for many years prior to the accident and is adamant that these episodes only occurred after the MVA. From his history, it does not appear that he has any enduring adverse personality traits… I do wonder if he has some low grade features of ASD.”
It seems clear that, while the Worker’s mental health has not been unblemished prior to the workplace incident, a conclusive diagnosis or comprehensive understanding of same is limited.
In contrast to the Employers reliance on Dr Watt and her findings of remission or resolution of the workplace injury, the Worker relies on the consistency of symptomology and the ongoing and significant incapacity the Worker experiences. Arguing that they are more readily and rationally attributable to the traumatic events of 2015, than any previous, largely asymptomatic mental health issues.
In particular, since the workplace incident the Worker has been admitted to mental health facilities on 3 occasions, the first in 2016 following a suicide attempt in Townsville and most recently in early 2019 in Darwin[8]. The Worker denies mental health related hospitalisation or suicide attempts prior to the motor vehicle accident in December 2015.
Prior to his suicide attempt and admission to the Townsville Private Clinic the Worker reported the following symptoms to Dr Hay[9]:
“…episodic bouts of severe depression, often associated with prominent physical symptoms including vertigo, nausea and vomiting. He also complains of food smelling and tasting bad. These episodes started within weeks of the accident. During these episodes he can develop sudden, severe "rage" associated with impulsive suicidal intent.”
In 2019 Psychologist Edward Graham reported[10], having met with the Worker on around fourteen prior occasions; suicidal ideation recurrent subsequent to his admissions in Townsville, drinking to forget and facilitate sleep, nil appearance of psychosis, some possibility of melancholic depression with depression remaining evident.
The Worker has also been assessed by Associate Professor Dr Das who made the following observations:
In his Report dated 13 November 2020[11];
“His mental health issues began after a very major accident that happened on 15 December 2015… His depressive symptoms continued with a baseline of mild to moderate depressive symptoms, with periods of severe depressive symptoms. [Medication] has helped with his anger outbursts, severity of his depressive symptoms, overall clinical improvement and his depressive symptoms has got better. However, every few weeks he has periods where he is intensely depressed and withdraws and sleeps all the time and self-neglects…
He also reported features consistent with PTSD which included reliving of the accident of 2015, avoidant behaviours such as difficulty driving or cues of the accident. He reports emotional numbing, difficulty experiencing positive feelings, irritable mood. He reported hyper arousal symptoms such as being easily startled, difficulty concentrating. Mr Johannsen presents with a Post Traumatic Stress Disorder following a life changing motor vehicle accident in 2015. This has been associated with a depressive illness which has been chronic-dysthymic and with recurrent and severe depressive episodes. A number of diagnoses would apply in his case. Post Traumatic Stress disorder. Major depressive disorder in the background of Dysthymia (Persistent Depressive Disorder).”
And in his Report dated 4 January 2021[12]:
“Whilst his depressive symptoms has (sic) improved in severity, it appears that he has a baseline of moderate depressive symptoms most of the time. This is interspersed by severe depressive episodes occurring every few weeks lasting a few days. During the severe depressive phases, he is extremely tired, tearful, despondent, has fleeting suicidal ideas, self-neglects, does not go out of the house and socially withdraws.”
Conversely, just over one month later on 9 February 2021, Dr Watt[13] concludes that the motor vehicle accident in which the Worker was involved was not experienced as trauma. Dr Watt opines it was not experienced with significant horror or helplessness and that there was no evidence of re-experiencing or avoidant phenomena or hyper arousal.
The report of Dr Das of 13 November 2021 provides a detailed description of the accident[14];
a.     The accident took place in the early morning when the Worker was the driver and sole occupant of a bus on its way to collect passengers in Darwin City;
b.   The bus was impacted without warning, in rainy conditions by a vehicle travelling on the wrong side of the road at approximately 120kms per hour;
c.    The other vehicle was split into 2, with the front portion of the vehicle becoming imbedded into the front of the bus;
d.   As a result of the impact the bus’s windshield was shattered and covered the Worker with glass. The Worker could smell petrol, had formed a belief he had petrol on himself and was concerned the vehicles would implode. Whilst initially trapped, he was able to free himself;
e.    On exiting the bus he observed the other half of the vehicle containing the 3 occupants, all of whom had been killed instantly.
Ms Spurr for the Worker submitted that is it inconceivable that this incident could be experienced without trauma, horror or helplessness. I am minded to agree.
In my view, the preponderance of the medical evidence of post injury symptomology outweighs the findings of the recent report of Dr Watt. Although I accept that there is likely some co-morbidity at play for the Worker, the degree to which that is causative of the current and ongoing symptomology, which appears to have remained largely consistent in the almost 6 years post-accident, is debateable.
On balance and at this interlocutory stage where the conclusions of Dr Watt (and indeed the treaters and specialists relied upon by the Worker) cannot be tested under cross-examination, I have preferred the evidence of the Worker, the volume of which stands in stark contradiction to the views of Dr Watt.

Full & Frank Disclosure

Wormald (Australia) Pty Ltd v Aherne[15] provides the balance of convenience factors that are considered in Interlocutory Applications seeking an interim determination. The factors have stood the test of time, first established by the Supreme Court in 1994 and formally adopted in the Work Health Court by Dr Lowndes Stipendiary Magistrate (as he then was) in the unreported decision of McGuiness v Chubb Security Holdings Australia[16]
The factors continue to be relied upon and applied despite the passage of time and the substantial changes in the Work Health Court some 15 years since their adoption.
For instance, in my view, there is often limited utility in weighing the length of time until final hearing, unless such a hearing is imminent. The reality of the Work Health Court listing calendar is such that a final hearing is often some 18 months away, particularly if an application for an interim determination is brought early in the proceedings. Additionally, this is a factor over which neither party in the normal course has any control and accordingly, in my view, often limited determinative weight can be applied to this balance of convenience factor.
One of the most frequently challenged and still relevant balance of convenience factors is the requirement for full and frank disclosure. A failure to provide full and frank disclosure can result in an unsuccessful application.[17]
“Full and frank disclosure” is given its ordinary meaning however dispute can arise as to the period of time the disclosure should cover, the nature of the evidence relied on in support and the ability to correlate matters deposed to by the Worker together with the evidence filed in support.
By way of disclosure of his financial circumstances in the current matter, the Worker provided bank statements for the period 1 January 2021 to 30 June 2021[18]. In addition, the Worker provided a series of supermarket and chemist receipts for the period 29 June to 9 August[19], essentially closing the gap between the bank statements and the filing of the application.
The Worker further deposed to his weekly household expenses[20], estimating weekly expenses of $1,190.13.
In relation to same, the Employer was critical of the estimation of a weekly food expenditure of $412.00 which Mr Baird submitted was excessive, for a household primarily consisting of 2 adults.
The receipts provided at annexure “TJJ-5” showed a total expenditure of $195.20 over the 6 week period. This is clearly far short of the deposed estimate of $412.00 per week or $2,472.00 over six weeks. While I accept the submission made on behalf of the Worker that weekly expenses are subject to fluctuation and one snapshot cannot be extrapolated to represent an annual figure without the risk of error, in my view, this discrepancy goes significantly further than what would be expected in normal variances to weekly expenses.
Herein lies the challenge of satisfying the requirement of full and frank disclosure. For the Worker, Ms Spurr submitted that bank statements are proof of expenditure and that it would be undesirable to litter an Affidavit with 12 months worth of individual receipts. I agree.
For the Employer Mr Baird noted the difficulty of properly testing the Worker’s evidence when only bank statements are provided. He argued that bank statements were not the primary documents and accordingly their evidentiary value and the Employers ability to scrutinise and test the evidence is compromised. I agree.
Indeed in previous interim determination hearings relevant submissions have been made regarding frivolous spending and its relevance to the question of hardship, following an analysis of receipts. Such an analysis cannot be conducted with bank statements only.
And it is the case, although I make no such allegation or finding in regards to the Worker in the current matter, that supermarket, department store and chemist purchases might be related to genuine household expenditure, however, equally they may be indicative of what might be considered discretionary purchases in the nature of cigarettes, perfumes, beauty products, magazines and the like. This level of detail cannot be distilled from bank statements alone.
The Employer argues that a rigorous examination of the evidence is important, particularly in matter such as this where the Employer alleges the bank statements reveal a pattern of spending which is incongruous with the Workers self-reported symptomology, potentially calling into question both his full and frank disclosure and credibility.
The evidence of the Worker is[21]:
“I continue to suffer:
(a) Regular episodes of chronic depression,
11. These depressive episodes range in severity. Sometimes they are so severe I need to be admitted to hospital. During a depressive episode, if I am not admitted to hospital, I am unable to leave my bedroom or my house. I am not able to care for myself at all.
12. I experience a depressive episode every week to fortnight, although sometimes there is longer between.”
The Employer however notes that for the six month period that bank statements have been provided, there are only 5 dates; 4 January, 13 March and 12, 21 and 28 June on which a transaction was not made.
Such spending habits seem to be in clear contrast to the picture painted by the Worker and the level of debilitation he suffers on a weekly to fortnightly basis. The Employer argues that this supports Dr Watt’s findings of abnormal illness behaviour[22], that the Worker is catastrophising his symptomology and not being frank about his activities of daily living.
For the Worker it was argued that card use alone does not necessarily mean the Worker has left his house, arguing that purchases could have been made by phone and further that takeaway food purchases may have been delivered, potentially verifying a depressive period where the Worker is confined to home, unable to shop or cook.
Ultimately, while I accept that the regularity of the purchases, being 176 days out of 181 in the period perplexing, I am not of the view that I can form any conclusive assumptions as to whether this establishes that the Worker out and about in the community personally for each purchase.
The Cambridge Dictionary[23] considers a frank person to be one who is ‘telling the truth and able to be trusted’. While Miriam Webster[24] references the following:
i.marked by free, forthright, and sincere expression;
ii.unmistakably evident;
iii.clinically evident and unmistakable.
I find that these descriptors provide helpful guidance when assessing whether a Worker’s full and frank disclosure is satisfactory.
The Supreme Court of the Northern Territory has also considered the threshold of full and frank disclosure, in the context of an application for security for costs, in the matter of NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd & Ors[25].
Master Luppino (as he then was) noted (my emphasis)[26]:
It is generally recognised that a plaintiff defending an application for security for costs should make full and frank disclosure of its financial position, at least to the extent that it is relevant to the application.
A Court will not undertake as thorough an examination of a plaintiff’s finances as it would if the plaintiff’s finances were an issue at trial.14
A balance needs to be struck as to the extent of the evidence required. Not every aspect of the Plaintiff’s accounts needs to be the subject of evidence provided that overall the evidence is sufficient to enable the Court to determine the primary question.
In my view this test has utility to applications for an Interim Determination.
It would be unhelpful for the Court to prescribe with precision the level of disclosure required for such applications. I accept that the provision of, for instance, 12 months of receipts would be unwieldy, costly, burdensome on a Worker who may not have foreshadowed the need for an interim determination and fraught with risk that an inadvertent inability to comply with a mandated timeframe would result in negative findings and unsuccessful applications.
Disclosure must be pertinent to the circumstances of each individual matter. In some circumstances, for instance in the event of cancellation of long held weekly benefits, a lengthier period of disclosure may be warranted in order to establish the status quo, the period of reliance and the hardship resulting from cancellation.
In the event where hardship is sought to be shown in circumstances where no weekly benefits have been received, that a briefer period, potentially limited to that of the alleged incapacity, will suffice.

It will be a matter for the Worker pressing their claim to form a view as to the depth and period of relevant disclosure that will be required by the Court when determining the primary question.
In an Interim Determination, this will most often be whether hardship has been proven to the requisite degree. Although, as has been seen in the current application, full and frank disclosure is required in all aspects of the application be it financial, medical or other questions to be considered by the Court, lest the credibility of the Worker be called into doubt.
In the current matter I have formed a view that the Worker has failed to adequately correlate his documentary evidence with his Affidavit evidence. The receipts provided clearly fail to verify the assertion of weekly expenditure of $412.00. They are not unmistakably evident of the evidence of the Worker nor clinically evident and unmistakable.
It is, in my view, imperative for the Worker that when providing estimates and annexing primary documentation in support of such estimates, that they can withstand reality testing. Here they have failed to do so, even with a generous allowance for fluctuations.
Further, while the bank statements provide a helpful marco view of expenditure over a six month period their evidentiary value is problematic, as discussed above.
Over reliance on bank statements was discouraged by Acting Judicial Registrar Smyth in Jenkinson v CMA Recycling Pty Ltd[27]
“Where household expenditure is declared, the Court requires full supporting documentation of expenses where reasonably possible. That normally includes provision of sufficient receipts, bills, invoices and the like, including historical receipts where necessary… Where such receipts are unavailable bank records may be used, although they are less reliable than primary receipts (as often expenses are not itemised or described on bank statements). If bank records are relied upon a full explanation is required. It is not particularly helpful to attach reams of bank statements with hundreds of transactions without making specific references to which particular transactions support which expenses.”
He relevantly concludes:
“It is not the task of the Court to engage in a forensic accounting exercise to match up or justify the worker’s claims. That is a matter for the worker in the prosecution of his application.”[28]
In my view, the provision of primary evidence of the Workers expenditure has fallen short of what the Court requires for full and frank disclosure. Likewise, I accept the submission that the disclosure is insufficient for the Employer to adequately scrutinise the Worker’s financial assertions, an undertaking which is often of significant assistance to the Court in such applications.

Additional Considerations

The remaining balance of convenience factors as set out in Aherne[29] which are relevant to the current application are hardship to the Worker, delay, ability to repay and the status quo.
With regard to hardship the Worker deposes that he remains currently certified totally unfit for work[30]. Although he is able to perform some voluntary work for St Vincent de Paul, he is currently not in receipt of any income[31].
The Worker lives with his adult son who, with high functioning autism, works part time earning $20,000 per annum and provides care for the Worker during his depressive episodes. The Worker has a younger son, aged 9 who regularly lives in the household on the weekend[32].
The Workers evidence is that the household weekly expenses total $1,190.13. The deficiencies in the Workers estimations with respect to weekly expenditures is traversed above. Nonetheless it is self-evident that this, or any similar level of expenditure cannot be sustained in the absence of income. Further, it far exceeds any contribution the Worker’s adult son would be able to make to the expenses, even if his annual income of $20,000 was applied 100% to the household.
I am satisfied the Worker will suffer hardship in the event an interim determination is not made in his favour.
There has been no appreciable delay in the Worker bringing the proceedings and current application before the Court, the cancellation of benefits occurring in mid-June, mediation on 26 June, filing in the Work Health Court on 2 July and the current application being filed on 20 August and heard on 1 September 2021.
The Worker concedes he has limited assets[33] and would be unable to repay any interim determination payments made if his substantive proceedings are otherwise unsuccessful.
The final consideration in this interlocutory application is the relevance of the status quo. In this instance the prevailing status quo would be for weekly benefits to continue, the Worker having been in receipt of same since his injury was accepted sin December 2015. Thus for the past 5 ½ years the Worker has received benefits.
As noted by the High Court in Australian Broadcasting Corporation v O’Neill[34]:
“it is sufficient that the plaintiff show a sufficient likelihood of success to justifying the circumstances the preservation of the status quo pending the trial.”
In my view, in the current matter the strength of the Workers medical evidence and the hardship arising should be status quo not be maintained justifies the making of an interim determination in the Workers favour.
I have reached this conclusion even having been satisfied that the Worker has failed to discharge his obligations for full and frank disclosure.
The balance of convenience factors are just that, a balance. No one factor automatically predicts a certain outcome, although I do acknowledge that certain factors, most notably hardship, strength and disclosure often have a greater utility than others in the ordinary course.
Orders will issue in terms of the Workers application.
Parties are at liberty at apply in relation to costs.

ORDERS:

That the Employer pay the Worker interim payments of arrears of weekly compensation as for total incapacity pursuant to the provisions of the Return to Work Act 1986 (NT) for a period of 10 weeks prior to the date of the hearing of this application.
That the Employer pay the Worker interim payments of weekly compensation as for total incapacity pursuant to the provisions of the Return to Work Act 1986 (NT) for a period of 12 weeks.
Parties are at liberty to apply in relation to costs.

Dated this 30^th day of September 2021
_________________________
LEANNE GORDON
JUDICIAL REGISTRAR

[1] Affidavit of Lachlan Baird filed 1 September 2021, Annexure “A”

[2] Ibid at p 22

[3] Ibid at p 24

[4] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-1’ at p 21

[5] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-1’ at p 17

[6] Ibid

[7] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-1’ at p 14-15

[8] Affidavit of Lachlan Baird filed 1 September 2021, Annexure “A” at p 11

[9] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-1’ at p 13

[10] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-1’ at p 8

[11] Affidavit of Catherine Louise Spurr filed, Annexure ‘CLS-1’ at p 4 - 7

[12] Affidavit of Catherine Louise Spurr filed, Annexure ‘CLS-1’ at p 9

[13] Affidavit of Lachlan Baird filed 1 September 2021 at Annexure “A” at 11

[14] Affidavit of Catherine Louise Spurr filed, Annexure ‘CLS-1’ at p 4 -5

[15] Wormald (Australia) Pty Ltd v Aherne [1994] NTSC 54

[16] (Unreported, Work Health Court Northern Territory, Lowndes SM, 23 March 2006)

[17] For instance Baldock v Venita Pty Ltd (unreported, Work Health Court Northern Territory, JR Gordon, 22 April 2020); Catford v Laminex Group (unreported, Work Health Court Northern Territory, JR Gordon, 16 December 2018) at paras 16 - 28; Gregory v Eziquip Hire (unreported, Work Health Court Northern Territory, JR Gordon, 16 May 2019); Hayton v Reardon (unreported, Work Health Court Northern Territory, JR Johnson, 21 October 2019).

[18] Affidavit of Taal Joshua Johnson filed 24 August 2021, at Annexure “TJJ-6”

[19] Affidavit of Taal Joshua Johnson filed 24 August 2021, at Annexure “TJJ-5”

[20] Affidavit of Taal Joshua Johnson filed 24 August 2021, at para 18

[21] Affidavit of Taal Joshua Johnson filed 24 August 2021, at paras 10-12

[22] Affidavit of Lachlan Baird filed 1 September 2021, Annexure “A” at p 25

[23]

[24]

[25] [2016] NTSC 44

[26] Ibid at 18

[27] [2009] NTMC 064 at 25

[28] Ibid

[29] Wormald (Australia) Pty Ltd v Aherne [1994] NTSC 54

[30] Affidavit of Taal Joshua Johnson filed 24 August 2021, Annexure ‘TJJ-2’

[31] Affidavit of Taal Joshua Johnson filed 24 August 2021 at para 18

[32] Affidavit of Taal Joshua Johnson filed 24 August 2021 at para 16-17

[33] Being a vehicle, boat and personal effects totalling $12,800 at para 19 of the Affidavit of Taal Joshua Johnson filed 24 August 2021.

[34] (2006) 227 CLR 57 at 65