Taouk v State of Victoria
[2013] VCC 84
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06032
| JOSEPH TAOUK | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 February 2013 | |
DATE OF JUDGMENT: | 22 February 2013 | |
CASE MAY BE CITED AS: | Taouk v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 84 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(c)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Mobilio v Balliotis & Ors [1998] 3 VR 833; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Fleming v Hutchinson (1991) 66 ALJR 211
Judgment: Leave granted to the plaintiff to bring a proceeding for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Clark Toop & Taylor |
| For the Defendant | Mr S Smith | Herbert Geer |
HIS HONOUR:
1 This is an application for leave to bring proceedings which relies on part (c) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act; that is, “permanent severe mental or permanent severe behavioural disturbance or disorder”.
2 The plaintiff seeks leave to commence proceedings for the recovery of damages for pain and suffering.
3 It is conceded by the defendant that the plaintiff suffered a compensable injury on or after 20 October 1999 arising out of or in the course of his employment.[1]
[1]Transcript (“T”) 72
4 It is conceded by the defendant that the plaintiff suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[2] The defendant contests, however, whether or not the psychiatric injury includes a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). No argument was put before me as to the permanence of the condition, that is, “likely to last for the foreseeable future”.[3] I find that the condition suffered by the plaintiff since 2004-2005 is permanent.
[2]T72
[3]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at paragraph [33]
5 While it is not a matter of contest, it is worth referring briefly to what the doctors say in relation to the diagnoses.
6 The general practitioner, Dr M Georgy,[4] gives a diagnosis of “stress, anxiety and depression”.
[4]Plaintiff’s Court Book (“PCB”) 142
7 The treating consultant psychiatrist, Dr D S Kochar, diagnosed “severe Chronic Adjustment Disorder” but he would now include part PTSD in addition to that diagnosis.[5]
[5]PCB 139
8 Dr M Epstein, psychiatrist, who is a medico-legal expert retained by the plaintiff in this case, diagnosed a “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood”. He also went on to describe a Panic Disorder with mild agoraphobia and some claustrophobia.[6]
[6]PCB 143k
9 The defendant’s doctors diagnosed the problem in similar terms. Firstly, Dr Gregory White, psychiatrist, on 17 August 2009, diagnosed:
“Adjustment Disorder with Mixed Anxiety and Depressed Mood, characterised by anxiety, depression and other biological and psychological symptoms of anxiety and depression.”[7]
[7]Defendant’s Court Book (“DCB”) 7
and he said further, in a supplementary report dated 28 August 2009:
“Adjustment Disorder with Mixed Anxiety and Depressed Mood. This is a disease. At the time of interview, the worker currently was suffering from the disease.”[8]
[8]DCB 10
10 Dr David Weissman, psychiatrist, reported on 11 February 2010 to the defendant’s solicitors that the plaintiff is –
“… suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood currently of mild severity”.[9]
[9]DCB 22
11 Accordingly, counsel for the defendant conceded at the outset of the application that this was a range case and that the test, with respect to paragraph (c), is “severe” rather than “serious”. Thus, the only issue that was raised before me is whether or not the consequences that the plaintiff alleges he suffers from meet the test of “severe”.
12 This involves the test of s134AB(38)(d):
“ … a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe … .”
13 Apart from “severe” being a higher or stricter test than “serious”, the section does not give much assistance as to what “severe” means in any adjectival way.
14 In Humphries & Anor v Poljak,[10] McGarvie J stated, at page 159:
“There could be little argument that, as was submitted for the commission, the word ‘severe’ means ‘grievous’ or ‘extreme’. That adjective is used in the meaning given in s93(17) by para(c) while para(a) and para(b) use the adjective ‘serious’. That tends to indicate that the notion conveyed by ‘serious’ is different from that conveyed by ‘severe’ without indicating the extent of the difference.”
[10][1992] 2 VR 129
15 In Turner v Love& Transport Accident Commission[11] and in Mobilio v Balliotis & Ors,[12] there was some further discussion on this aspect; however, apart from Brooking J pointing out that it would be an error to equate “severe” with “serious”, there was no adjectival assistance given. In Mobilio,[13] Brooking J said as follows:
“… I do not, with respect, find the considerations mentioned in Turner v Love sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from ‘serious’ to ‘severe’ betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’. I refer to what was said in this regard by McGarvie J. in his dissenting judgment in Humphries v Poljak at 159, without, as I say, adopting any particular adjective to mark the distinction.”
[11](1995) 21 MVR 314
[12][1998] 3 VR 833
[13](ibid) at page 846
16 Accordingly, it involves degree and value judgment by the Court on all of the evidence, and, to some limited extent, the plaintiff’s demeanour and presentation in the witness box. The consequences for the plaintiff must meet the test of “severe” and that is a higher standard than the “very considerable” test that is commonly referred to in paragraph (a) applications.
17 There has been no attack on the plaintiff’s credit in this case and I find that he was accurate, reliable and in some ways guilty of understating his problems. It is worth noting also that doctors engaged by the defendant, such as Dr Gregory White, found the plaintiff to be “co-operative and pleasant”.[14] Dr David Weissman found him to be “a very pleasant, polite, punctual and co-operative 48 year old man”.[15]
[14]DCB 5
[15]DCB 20
18 I find, as a witness, that the plaintiff is a motivated man who is keen to continue working and I find him entirely credible in terms of the complaints he makes about the consequences of his psychiatric injury. It was conceded that the plaintiff’s credit was not in issue.[16]
[16]T78
19 The plaintiff and Dr Kochar were required to give oral evidence and attended for cross-examination.
20 The plaintiff tendered three affidavits, sworn respectively on 5 September 2011,[17] 5 April 2012[18] and 17 December 2012,[19] and an affidavit from his wife, Rochelle Marie Taouk, sworn 17 December 2012.[20]
[17]PCB 8-30
[18]PCB 117-119
[19]PCB 120-122
[20]PCB 123
21 Medical material tendered consisted of Dr Kochar’s reports found at pages 125B-140 of the PCB, Dr Georgy at pages 141-143 of the PCB and Dr Epstein at pages 143A-145 of the PCB.
22 The defendant tendered from its Court Book reports of Dr Gregory White at pages 1-13 and Dr David Weissman at pages 14-23.
The plaintiff’s evidence
23 Most of the plaintiff’s evidence was not contested in this case. He is a man who has been dedicated to working with mostly troubled and disadvantaged youth in various roles for nearly thirty years – 1984 to the present. From about 2004 and into 2005, workplace issues led to his requiring medical treatment for the admitted compensable injury from his general practitioner, Dr Georgy, in September 2005:
“Because of the stress and anxiety that I was suffering, I began to suffer palpations, shortness of breath, tearfulness and poor sleeping patterns. Then in approximately the middle part of 2005, certainly by September 2005, began to attend my regular practitioner, Dr Georgy, in Thornbury in relation to these matters.
I continued to consult Dr Georgy on a regular basis after that initial attendance with ongoing symptoms and he has remained my treating practitioner down to the present time. My belief is that at that time Dr Georgy preferred to manage my condition conservatively and I do not believe that I was prescribed anti-anxiety or anti-depressant medications. It was only about six months after I initially consulted him that I recall being prescribed medications including Valium as a relaxant.”[21]
[21]PCB 13
24 The plaintiff’s workplace stressors and problems continued through 2005 into 2006 when he put in the first formal written report by way of a disease/injury/near miss/accident (DINMA) document. This was the first of a series of about ten such reports commencing on 23 October 2006 and into 2007.
25 The plaintiff continued to consult Dr Georgy on a regular basis and was then referred to a treating psychiatrist, Dr Kochar, who he first saw on 13 September 2006. He was hopeful that with the ingestion of anti-anxiety medications that his condition would gradually improve, but he states:
“In fact, with the passage of time that did not occur and I continue to suffer ongoing symptoms of stress and anxiety including, palpitations, shortness of breath and interfered sleep patterns and eventually I was referred back to Dr Cochar by Dr Georgy on 27 July 2009 and from that time I continued to be treated by the psychiatrist on a regular basis which continued to the present time, presently on a monthly basis.”[22]
[22]PCB 20
26 It was Dr Kochar who diagnosed the Adjustment Disorder with Anxiety and Depression and has prescribed both daily anti-depressant and anti-anxiety medication up to the present time.
27 In the course of oral evidence, Dr Kochar described having seen the plaintiff for treatment purposes on something like sixty occasions and the prescription is presently Aropax and Valium to deal with the plaintiff’s depression and anxiety as being a continuous pattern of treatment. I find as a fact that the plaintiff has endured a constant treatment regime in an attempt to deal with his severe symptoms.
28 His condition was such that he was required to take a period of some twelve months off work entirely in 2009 and 2010, returning to work in December 2010.
29 The plaintiff refers in his affidavit material[23] to panic attack and crying, with significant palpitations, shortness of breath and sweats, and on one occasion attended the Emergency Department of the Austin Hospital as he thought he was having a heart attack. He was admitted there for 24 hours and his concerns about a heart attack were not well founded as it was his stress apparently that was causing the chest pains and other symptoms.
[23]PCB 27
30 While it is only limited use the Court should make of demeanour in court, the plaintiff did visibly demonstrate what could have been heightened anxiety but that could well be just the stress of the court process.[24]
[24]T28, L11-13
31 The plaintiff’s principal affidavit, in particular paragraphs 74 through to 76,[25] describe that while there has been some improvement, there is an ongoing picture of very consistent symptomology that includes palpitations, chest pains and anxiety, and he alludes to a number of consequences in relation to same. He describes some of those consequences in these terms:
“I continue to be anxious at work and my condition has also affected my social, recreational and domestic life. My social activities are very much reduced from what they formerly were, particularly with community organisations interested in refugees and also Lebanese cultural activities. I am easily upset and tend to cry. My sleeping is disturbed on a regular basis and I suffer flashbacks and nightmares. My disturbed sleep patterns leave me feeling tired and lethargic and I often find it hard to get up in the morning. My sexual relations with my wife have been significantly affected and there has been a considerable loss of libido. More generally my family life has been adversely impacted by reason of the injuries which I have sustained, the symptoms of those injuries and my attempts to deal with those symptoms. My concentration and memory have been adversely affected.”[26]
[25]PCB 28-29
[26]PCB 28
32 The plaintiff goes on later to describe these problems had manifested themselves in worries about his future with finances, his marriage and his career, and these worries persist on a constant basis. He finds that he is very vigilant at work and at home and he and his wife had plans to build a new house, a plan that has been persistently delayed. He gives evidence about the interruption of his career advancement and how he resorted to gambling, both on the poker machines and at the TAB, in an attempt to release the stress and strain. The gambling certainly at one stage had been a problem, but is now more controlled.[27]
[27]PCB 29
33 In the plaintiff’s second and third affidavits, he describes a continuation of the symptoms to the present time about which there was really no dispute. Without quoting these further affidavits in detail, I accept what he says in paragraphs 4, 5, 6 and 7 of his second affidavit and in paragraphs 3, 4, 5, 6 and 7 of his third affidavit.
34 The affidavit of the plaintiff’s wife[28] describes a continuation of the plaintiff’s complaints of anxiety and depressive symptoms, and in paragraph 5, she describes in her own terms the impact of the plaintiff’s condition on his social, recreational and domestic activities. Amongst other things, she describes that:
“Our sexual relationship has virtually collapsed and the plaintiff has virtually no libido. This has impacted upon our intimate relationship. Our family life has been impacted by the change in the plaintiff’s personality.”
[28]PCB 123
35 Mrs Taouk also describes the disturbance of the plaintiff’s sleep and how the family plans to rebuild a house have been put back. In describing the personality changes, she said:[29]
“The plaintiff is a very significantly changed person from the man he was before he sustained the injuries the subject of this application.”
[29]PCB 125
36 In cross-examination, the plaintiff made concessions about improvement that I considered consistent with an honest witness doing his best to maintain function and to continue in his work. Concessions include the help he has obtained from medications[30] as well as other matters.[31] Further, when asked a series of questions in cross examination,[32] the plaintiff gave candid answers that indicated no hint of exaggeration in my opinion, when describing the impact of his injury on a range of activities.
[30]T13, L24
[31]T27, L13-16
[32]T23, 24 and 25
37 Matters of significance that he did describe in more expansive terms than his affidavits were his problems with sleep.[33] He described an inability to both get to sleep before 2.00am and then waking up two or three times during the night. He also describes difficulties with sleep again[34] and how that is interfered with by his medical condition.[35] He describes having to shut the office door and cry at work and generally how at work he has difficulty concentrating.[36]
[33]T21 and 22
[34]T33
[35]T30, L10-30
[36]T 30
38 He alluded in viva voce evidence also to a couple of other matters that are of significance in my opinion.[37] Problems with concentration I find as an important consequence of his condition. He speaks about how his capacity to read has been impacted because of his lack of concentration, and for a man who describes himself as an “avid reader”, it is a loss he explained in these terms:
“[I] usually read a novel or something to do about work. Since this all happened, I don’t think I’ve read anything. I might have read the newspaper, but I haven’t read a novel. I haven’t read anything about work, any technical documents. I struggle to read our reports at work, let along anything else.”[38]
[37]T32
[38]T32
39 He does not do any extra curricular reading because “I find it hard to concentrate”.[39]
[39]T32
40 When asked further, he stated, in terms of reading, “I just don’t do it”.[40]
[40]T32
41 For a man who has a tertiary education, and indeed indicated in evidence that he planned to go on to further studies, the impact the loss of concentration has had on his ability to read is, in my opinion, a severe consequence.[41]
[41]T35, L20-30
42 He indicated an intention to do a Masters Degree in either social work or business, and that he would not be able to entertain that now because of the concentration difficulties.[42] To be prevented from pursuing postgraduate studies is a severe consequence.
[42]T35
43 His plans to build a new home have been dashed by his inability to cope with the added stress that this would create.[43]
[43]PCB 118
44 His viva voce evidence was consistent, in my view, with the thrust of his affidavit material and with the evidence in the affidavit his wife presents.
Medical Evidence
45 The general practitioner, Dr Georgy, describes a man who has two degrees in his field of human services work and a man who had worked very hard according to the general practitioner’s records which go back to 1986. Since June 2005, there have been many attendances in relation to matters that are the subject of these proceedings and the plaintiff had required counselling at the clinic, as well as Ducene, an anti-anxiety medication, to deal with the diagnosis of the general practitioner, which was stress, anxiety and depression.
46 Dr Georgy referred the plaintiff to Dr Kochar for counselling, psychotherapy, progression muscle relaxation and deep breathing exercises, as well as other medications, Alprazolam and Paroxetine. In his latest report of 6 February 2013,[44] Dr Georgy really defers both the treatment to the specialist, Dr Kochar, with respect to the stress and depression the plaintiff suffers.
[44]PCB 143
47 Dr Kochar’s report requires some quoting, as he has been treating the plaintiff now over a number of years and has seen him on sixty or so occasions.
48 In his first report of 3 September 2009,[45] Dr Kochar describes the plaintiff as hardworking, and in that same report, that he has been experiencing a high degree of tension and anxiety, and has also suffered pain in the chest, and his condition was described as a severe adjustment reaction of anxiety and depression.
[45]PCB 125B
49 In the report of 7 June 2010,[46] Dr Kochar relates improvements in the plaintiff’s symptoms of tension, anxiety, stress and depression, which followed a good deal of specialist treatment at the hands of Dr Kochar. The diagnosis is described in the same terms as quoted.
[46]PCB 130
50 Dr Kochar’s final report of 5 February 2013[47] paints the present picture in these terms:[48]
“The diagnosis was a severe Chronic Adjustment Disorder and there was now a part PTSD in the diagnosis.”
[47]PCB 139
[48]PCB 139
51 The plaintiff is still struggling with his symptoms, although there had been a partial response to treatment but there was still significant disruption to his work life, personal, family and social life. The prognosis was guarded and “any conflict at work triggers off exacerbation of his symptoms”.
52 Dr Kochar finishes that report with several statements that could only be described as severe consequences for a hardworking, functioning professional man:
“His marital, personal, family, social and recreational life was significantly compromised.”
53 And further:
“It has changed his personality permanently and some symptoms are likely to linger on forever. He sees his future pessimistically and fears recurrence of similar issues jeopardising his prospect of working happily.”
54 In terms of describing his return to work, which I accept did indicate some improvement, Dr Kochar puts this rider on the plaintiff’s capacity:[49]
“He is already working but peruses every duty or any changes with great caution and fear of relapse or a trigger for worsening his state of mind.”
[49]PCB 140
55 In his viva voce evidence,[50] Dr Kochar comments further on the plaintiff’s vulnerability to relapse, and stated:
“His underlying condition is still the same and if a threat increased at work he would deteriorate very quickly and he would become worse very quickly.”[51]
[50]T40, L19-30
[51]T41
56 The plaintiff concedes[52] that the stressors of work have greatly minimised over time but he keeps mentioning to his doctor the problems at work.[53]
[52]T63
[53]T63, L28-31
57 Dr Kochar considered that, in terms of the probabilities, it was likely, or there was a sixty to seventy per cent chance, that the plaintiff’s current situation would continue for the foreseeable future. I accept that evidence as indicating that the problems the plaintiff currently endures are consequences that are permanent. I accept that there has been some variation in the level of his symptoms with some demonstrated improvement at times but that his current situation is likely to remain permanently.
58 Dr Kochar comments[54] on the chances of relapses or exacerbations or aggravations in work circumstances, but I do not read from that, and from the entirely of the evidence, that Dr Kochar was saying, as a matter of probability, that the plaintiff would not be able to work at all.
[54]T65
59 I do not place any reliance on the “part PTSD” diagnosis as it does not seem to add anything in terms of the symptoms suffered.
60 Turning to the medico-legal opinions, Dr Michael Epstein, psychiatrist, reported on 12 December 2012 and he found a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, but also found a Panic Disorder with mild agoraphobia and some claustrophobia. I do not find that the plaintiff is suffering from a Panic Disorder, nor from claustrophobia, but consistent with Dr Kochar’s evidence, he does suffer some agoraphobia symptoms. Dr Epstein thought the prognosis for improvement appeared limited but his report does not really take this case any further in assisting me to judge the consequences and their severity in the range of other cases.
61 Similarly, with the medical reports the defendant has tendered of Dr White and Dr Weissman, they do not really assist me in February 2013 in determining the severity or otherwise of the consequences, but I do note their acceptance of the essential diagnosis and the acceptance of the plaintiff as a witness. I am required to assess the plaintiff now and the defendant’s medical reports are now over three years old. They do not even cover the plaintiff’s state after he returned to work in December 2010.
62 Dr Weissman gives the fuller of the reports. He noted improvement, and the plaintiff was taken in some detail through pages 18 and 19 of the DCB, and the plaintiff by and large accepted in evidence the improvement in 2010 that Dr Weissman records.
63 In my opinion, the picture that is painted of the consequences by the plaintiff is one of a very disturbed work and personal life that has continued over a period now of seven or eight years. Virtually none of the consequences that I have referred to above were the subject of any cross-examination, and I accept the passages I have quoted and the evidence of the plaintiff about these consequences as reliable and accurate reflections of what he has endured to the present time, is still enduring and will for the foreseeable future.
64 I take into account that while he has got back to work, to his credit, the plaintiff has only done so with the very regular and repeated visits to his treating psychiatrist, and with the daily ingestion of medication.
65 I take into account what the Court of Appeal said in relation to the relevance of medication that is required to be taken on a permanent daily basis in the case of Kelso v Tatiara Meat Company Pty Ltd[55] and in the second Kelso Case, Tatiara Meat Company Pty Ltd v Kelso,[56] and again referred to in Sutton v Laminex Group Pty Ltd.[57]
[55](2007) 17 VR 592 at paragraph [199]
[56][2010] VSCA 12
[57][2011] VSCA 52 at paragraph [91]
66 I was referred in submissions to further cases in relation to medication and what account I could take of that, and they were Stijepic v One Force Group Aust Pty Ltd,[58] Sabo v George Weston Foods[59] and Tatiara Meat Company Pty Ltd v Kelso.[60] A number of those cases dealt with plaintiffs who were taking medication on an “as required” basis.[61]
[58][2009] VSCA 181
[59][2009] VSCA 242
[60]supra
[61]See Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [27] and Sabo v George Weston Foods (supra) at paragraph [72]
67 In the current case, the plaintiff is taking anti-depressant and anti-anxiety medication every day, and has done so for a number of years. The principles I have quoted allow me to take this into account in reaching a judgment about the severity of consequences.
68 A suggestion was made in cross-examination and submissions that the dosages of anti-anxiety and anti-depression medication that the plaintiff was taking were at the lower end, but I am not attracted to this argument in view of Dr Kochar’s evidence in cross-examination that the dosages do not really reflect the severity of one’s symptoms. Apparently from patient to patient the effect of a certain dosage level can vary and it does not, in my opinion, diminish the significance of a man being required every day to take medication to deal with the anxiety and depression that he must overcome in order to be able to go to work and function in life outside of his employment.
69 I find that the plaintiff has suffered a number of consequences that I would consider in the range of impairments to be severe.
70 I find that in relation to his work, he has stayed at more or less than same level in the public service over recent years but does not cope easily. I find that he has been frustrated in his ambition to proceed onto a Masters Degree. I find also at work he is continually under a level of stress and only accommodates his job with ongoing consultations every few weeks with his psychiatrist and daily medication. I find that his intentions of being involved in community work for refugees and in the Lebanese community have been thwarted by his injury. For a man working for years with disadvantaged people this is a loss to him. I find that his capacity to read and enjoy reading, which, in my opinion, is not to be underestimated in an intelligent and educated person, is a consequence that is severe. I further find the interference with his sleep is a very severe interference with his capacity to function to the extent that he could previously after a good night’s rest. To be suffering nightmares that he describes and flashbacks is also of significance. All of these consequences severely impact on his enjoyment of life.
71 I find also that what the plaintiff says and what his wife says in the affidavit material, none of which was challenged, about the effect on their personal and sexual life is a severe consequence. For a man of his age to have lost his libido in the terms that his wife describes,[62] as having put pressure on their relationship since these problems began, which is now some seven or eight years ago, means that since his early to mid-forties the intimate side of their relationship has, to quote her, “virtually collapsed”. That consequence alone, in my opinion, is severe.
[62]PCB 124
72 The defendant made a number of arguments in support of the overall contention that in the range of impairments, this case did not meet the test of “severe” when it came to consequences. Those arguments included pointing out that there are more severe forms of mental or behavioural illness, such as psychosis and other conditions, and that there are more invasive and dramatic forms of treatment than the medication dosages that the plaintiff has been taking for some time. The improvement that obviously has occurred as a result of treatment to date which allowed the plaintiff to get back to work after a considerable absence in 2010 was also emphasised as indicating the consequences were not severe.
73 I do not accept that these arguments make out a case that the plaintiff has failed to prove the consequences are severe.
74 The fact that he was back at work in a job involving considerable responsibility and demands was also advanced as supporting the defendant’s contention, but again, this does not convince me that the consequences for him in relation to the impact on work and his enjoyment of life outside of his work, are anything other than “severe”.
75 As has been cited often, including in Humphries v Poljak,[63] where the High Court was cited with approval from the leave application in Fleming v Hutchinson,[64] the serious injury test is couched in the language of impression and “elements of fact, degree and value judgment are involved”.[65]
[63]supra
[64](1991 66 ALJR 211
[65]Humphries v Poljak (supra) at 167
76 I have come to the conclusion that when this case is judged by a comparison with other cases in the range of possible paragraph (c) applications, the consequences for the plaintiff in terms of enjoyment of life, can be fairly described as “severe”.
77 I grant leave to the plaintiff to commence proceedings for the recovery of damages for pain and suffering.
78 I will hear the parties with respect to the formal orders.
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