Trifunovski v Smorgan Steel Group Services Pty Ltd &
[2010] VCC 170
•10 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00159
| MILE TRIFUNOVSKI | Plaintiff |
| v | |
| SMORGAN STEEL GROUP SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 March 2010 |
| DATE OF JUDGMENT: | 10 March 2010 |
| CASE MAY BE CITED AS: | Trifunovski v Smorgan Steel Group Services Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0170 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered an injury to his lower back and a secondary psychiatric reaction – whether the consequences of both injuries were at least very considerable for pain and suffering and loss of earning capacity – proof of loss of earning capacity does not necessitate an independent analysis of pain and suffering – Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 – leave granted: section 134AB(38)(c) and (d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC and | Vincent Verduci & Associates |
| Mr A Ingram | ||
| For the Defendant | Mr J Batten | Thomson Playford Cutlers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 15 January 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr B Collis QC appeared with Mr A Ingram of Counsel for the plaintiff and Mr J Batten of Counsel appeared for the defendants.
4 The plaintiff applies for leave with respect to an injury to his lower back and a mental disturbance or disorder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 20-24; 31-57 and 62- 114, and from the defendant's Court Book ("DCB") pages 19d-23 and 65- 68: Exhibit A;
• The defendant tendered its Court Book and the following:
ƒ A claim for total and permanent disability benefit made by the plaintiff
dated 9 July 2003: Exhibit 1ƒ video film taken of the plaintiff on 15, 16 and 17 February 2009:
Exhibit 2
ƒ video film taken of the plaintiff on 18, 23 and 24 June 2009: Exhibit 3 ƒ the defendant’s Court Book pages 1-5; 5a-19c; 23a-23f.5; 24-47.10
and 130-150: Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born in Macedonia on 12 September 1954. He completed the equivalent of Year 12. He then qualified as a motor mechanic.
10 The plaintiff migrated to Australia in 1989. He was then thirty-five years of age. He is married. He has two adult sons.
11 Between 1989 and 1999, the plaintiff worked for Containers Packaging as a mechanic. He developed bilateral carpal tunnel syndrome which required extensive medical treatment.
12 The plaintiff commenced employment with the first defendant in about August 2004 as a casual employee. On 9 May 2005, he was made a permanent employee. He worked as a machine operator on a steel bending machine.
13 On 11 December 2006, the plaintiff lifted a heavy roll of metal strapping which resulted in him suffering severe pain in his lower back.[5]
[5] PCB 22
The Containers Packaging Injury
14 Mr Batten tendered a number of medical reports and clinical notes which demonstrated that the plaintiff was actively treated for the bilateral carpal tunnel syndrome and a left rotator cuff injury which he suffered in the course of his employment with Containers Packaging.[6]
[6] DCB 5a-5q
15 The plaintiff was initially treated by Dr McGowan, general practitioner, and later by Dr Hampton, general practitioner.
16 Further investigation was by way of nerve conduction studies demonstrating bilateral carpal tunnel syndrome.
17 The plaintiff was referred to Mr Nottle, orthopaedic surgeon, who operated on the plaintiff's left carpal tunnel in November 1999. Mr Salmon, orthopaedic surgeon, operated on the plaintiff's right carpal tunnel on 3 August 2000. Mr Salmon also treated the plaintiff for an injury to his left shoulder. An ultrasound demonstrated a tear of the left supraspinatus tendon.
18 Dr Hampton, general practitioner, took over the plaintiff's treatment from 25 June 2002 after Dr McGowan retired.
19 Mr Batten submitted that up until about July 2004, the plaintiff was complaining of being significantly incapacitated by the injuries to his left shoulder and wrists.
20 In particular, Mr Batten referred to an entry in the clinical notes of Dr Hampton dated 24 July 2004 where Dr Hampton recorded:
"Has been told by solicitors that his case is colsed [closed].
wants to try working again."[7](sic)[7] DCB 141
21 Mr Batten cross-examined the plaintiff that it was because his compensation rights against Containers Packaging were no longer available to him that he decided to return to work despite maintaining that he was significantly incapacitated.
22 Mr Batten demonstrated that point by reference to the report of Dr Horsley, occupational physician, who saw the plaintiff on 8 October 2003. Dr Horsley was of the opinion that significant work restrictions needed to be imposed upon the plaintiff, and that he was unlikely to be able to engage in work for reward either in his own right or in any occupation for which he was reasonably qualified by education, training or experience since he ceased work on 12 November 1999.[8]
[8] DCB 5l-5q, and particularly at 5q
23 Mr Batten referred to a number of earlier entries in Dr Hampton's clinical notes which he submitted demonstrated persisting complaints by the plaintiff of symptoms arising from the bilateral carpal tunnel and both shoulders.[9]
[9] DCB 135-141
24 Mr Batten also submitted that before the plaintiff commenced employment with the first defendant, he was in receipt of prescriptions for a significant quantity of medication to treat the symptoms arising from the bilateral carpal tunnel syndrome and both shoulders. For example, the entry dated 9 February 2004 refers to Astrix, Panadeine, Panamax, Prothiaden, Tegretol, Tramal, Vioxx and Voltaren Emulgel.[10]
[10] DCB 140
25 Mr Batten submitted that the foregoing demonstrated that the plaintiff was keen to remain off work and be on compensation payments until he had no choice but to return to work when his compensation rights came to an end.
26 Mr Batten submitted that this went to the credit of the plaintiff. At first he stopped short of submitting that the alleged conduct was in some way similar fact evidence, but in his address he described the comparison between the injuries the plaintiff suffered with Containers Packaging and the injuries he suffered with the first defendant as being a case of "here we go again".[11]
[11] Transcript 66
27 Mr Batten's reference to "here we go again" can only be interpreted by me to mean that whether the plaintiff suffered an injury with Containers Packaging or not, that when it was accepted as a compensable injury he feigned a high level of incapacity to maintain his receipt of compensation payments for as long as he could.
28 And further, that he has done the same with respect to the injury he suffered with the first defendant.
29 The serious flaw in the submission made by Mr Batten is that the medical evidence discloses that the plaintiff did suffer a compensable injury in the course of his employment with the first defendant. He lodged a claim which was accepted, and he subsequently received no fault payments by way of payment of medical and like expenses and weekly payments of compensation.
30 Mr Collis relied upon Ansett Australia Ltd v Taylor[12] and the observations of Ashley JA that the acceptance of a claim for compensation can stand as an admission by an employer that an injury had been sustained by the worker. Ashley JA added that such an admission should ordinarily be regarded as significant, albeit, not conclusive.[13]
[12] [2006] VSCA 171
[13] at paragraph 40
31 Although the admission might not be conclusive, the first defendant has not attempted satisfactorily explain its conduct. Contrary to the thrust of the submission made by Mr Batten on this issue, he submitted that an incident did occur which caused a compensable injury.[14]
[14] Transcript 55
32 Mr Collis submitted that an examination of the clinical notes of Dr Hampton disclosed that on 7 July 2006, all of the plaintiff's previously prescribed medication ceased. Mr Collis submitted that it was clear that the plaintiff no longer had any significant impairment with the shoulders or wrists and no longer needed painkilling medication.[15]
[15] DCB 144
33 Furthermore, Mr Collis submitted that the date upon which the medication ceased was before the incident which the plaintiff says led to the occurrence of his lower back injury and secondary psychiatric injury.
34 I have concluded that there is nothing in the submissions made by Mr Batten. It cannot be a case of "here we go again" if there is an admission of liability and an admission that the plaintiff suffered a compensable injury.
35 The furthest the submissions can really be taken is that the plaintiff may be someone who has evidenced the characteristics of exploiting the WorkCover system, however, the evidence in this case falls light years short of proof of that.
The Plaintiff's Medical Treatment
36 The plaintiff's team leader took him to the Epworth Hospital where he was given some medication. He was then discharged.
37 The plaintiff was absent from work until 14 December 2006. He then undertook a graduated return to work. Initially, he returned to work on four hours per day on modified duties. By 11 June 2007, he was undertaking normal hours on modified duties until 12 February 2008, when he was informed that there was no suitable work available for him. He has not worked since.
38 The plaintiff next saw a Dr Henderson, general practitioner, probably on 13 December 2006. He was referred to him by the first defendant. Dr Henderson referred the plaintiff to a medical clinic where he saw Dr Wilkinson and later Dr Boothby. The plaintiff was first seen at that clinic on 13 December 2006.
39 It would appear that Dr Wilkinson and/or Dr Boothby gave advice to the first defendant and the plaintiff regarding the plaintiff's return to work. It would appear that Dr Boothby last saw the plaintiff on 18 December 2007.
40 Dr Boothby found loss of right ankle reflex and marked reduction of straight leg raising on the right side which he considered was consistent with right L5 nerve root compression and perhaps an intervertebral disc prolapse. He referred the plaintiff to have an MRI scan which did not reveal a disc prolapse or nerve root compression. It revealed mild facet joint osteoarthritis at L4-5 and L5-S1.
41 Dr Boothby reassured the plaintiff that there was no evidence of a major bank abnormality.[16]
[16] DCB 80-81
42 Dr Hampton referred the plaintiff to a number of specialists. The first was Mr Kavar, neurosurgeon. The plaintiff saw him on 29 March 2007 and again on 4 October 2007.
43 Mr Kavar was of the opinion that the lifting incident resulted in the plaintiff suffering significant lumbar spondylitic pain which he considered may well have been muscular, ligamentous or facetal in origin. He also considered that there might have been a mild disc injury, but no significant tear to a disc causing any nerve root compression.
44 He recommended that the plaintiff continue with his modified duties. He referred the plaintiff to a pain clinic at the Western Hospital in Footscray.[17]
[17] PCB 77-79
45 The plaintiff was next seen by Dr Courtney, rehabilitation specialist. The plaintiff first saw Dr Courtney on 23 January 2008 and again on 15 April 2008.[18]
[18] PCB 103-104
46 Dr Courtney then referred the plaintiff to Dr Clayton Thomas, consultant in rehabilitation and pain medicine. The plaintiff first saw Dr Thomas on 13 June 2008 and 17 September 2008. He was seen on a medico-legal basis by him on 13 March 2009 and 14 December 2009.
47 Dr Thomas was of the opinion that the plaintiff was suffering from symptomatic spondylosis, and pain arising from degenerative disc disease. He was of the opinion that the plaintiff had a work capacity. He considered that he could work at bench height, with the lifting restrictions of 7.5 kilograms and with an ability to alter his posture. He also considered that if such work was available the plaintiff could undertake it full-time.[19]
[19] PCB 92 (a)-92 (c)
48 Dr Thomas referred the plaintiff to a rehabilitation program at the Dorset Rehabilitation Centre which the plaintiff commenced in March 2009. He was treated with a variety of medication to treat both the pain he was experiencing and an emerging depressive disorder.[20]
[20] PCB 91-92 and 92 (b)
49 Dr Hampton referred the plaintiff to Dr Jensen, musculoskeletal physician. The plaintiff saw Dr Jensen on 14 April 2009. He was of the opinion that the plaintiff was suffering from mechanical lumbosacral spine dysfunction causing referred and neuropathic quality pain into both legs. He observed evidence of significant psychosocial stress in the plaintiff’s presentation.[21]
[21] PCB 83-84
50 Dr Hampton referred the plaintiff to Dr Herur, psychiatrist. The plaintiff first saw Dr Herur on 15 October 2008. Dr Herur continues to treat the plaintiff. He was of the opinion that the plaintiff was suffering from depressive symptoms which he considered were chronic and causing a moderate to severe impairment. He considered that he was unlikely to return to his pre- injury employment and that he was not fit for any employment.
51 Dr Herur prescribed the plaintiff a number of types of medication. He was of the opinion that the plaintiff would require ongoing use of antidepressants and mood stabilising medication. He suggested that the plaintiff also required monitoring of his mental state and support from a psychologist on a regular basis.[22]
[22] PCB 94 (a)-94 (b)
52 The plaintiff continues to see Dr Hampton. His treatment regime involves painkilling medication and antidepressants. He is prescribed Tramal, Panadeine Forte, Epilim, Effexor and he also uses Panadol and Panadeine.[23] He sees Dr Herur once a month and Dr Hampton about twice a month.
[23] Transcript 14
53 Dr Hampton was of the opinion that the plaintiff’s lower back injury prevented him from engaging in any manual labour and would do so for the foreseeable future. He was also of the opinion that the plaintiff's psychiatric injury also rendered him unfit for manual work.[24]
[24] PCB 68(c)
The Other Medical Opinions
54 The plaintiff was referred to Mr Khan, orthopaedic surgeon, on 10 March 2009 and 30 November 2009. On the last occasion he examined the plaintiff Mr Kahn was of the opinion that the plaintiff had flared-up pre-existing mild facet joint arthropathy in his lower back bilaterally at L4-5 and L5-S1. He noted that the plaintiff had developed non-organic symptoms.
55 Mr Khan was of the opinion that, from a physical point of view, the plaintiff was capable of non strenuous work, avoiding excessive bending, twisting and turning of his spine, not keeping his back bent for too long, not working in confined spaces, not lifting weights of more than 5 kilograms at a time and not being required to sit or stand in one position for long periods of time.[25]
[25] PCB 102 (e)-102 (f)
56 Dr Kaplan, psychiatrist, examined the plaintiff on 2 November 2009. He was of the opinion that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed mood. He was of the opinion that the plaintiff’s psychiatric condition would be determined by the outcome of his physical condition, but that he was likely to remain prone to depression and anxiety as long as his pain persists.
57 Dr Kaplan was of the opinion that the plaintiff's capacity for work was largely to be determined by his physical condition. He was also of the opinion that the plaintiff was likely to require treatment from a psychiatrist for as long as he suffered from significant symptoms.[26]
[26] PCB 113 (g)-113 (h)
58 Dr Miller, occupational health consultant, examined the plaintiff for the defendants on 1 March 2007 and 23 August 2007. He also conducted a worksite assessment on 3 April 2007. He was of the opinion that the plaintiff had suffered a musculo-ligamentous strain of his lower back and also aggravation of degenerative changes in his lower back.
59 Dr Miller was of the opinion that the plaintiff was capable of returning to work with restrictions avoiding lifting in excess of 5 kilograms; back movements beyond one third of normal range; forceful pushing or pulling activities and occupying prolonged static positions for more than 45 minutes at a time.[27]
[27] DCB 18-19
60 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendants on 20 August 2009 and 9 February 2010. He was of the opinion that the plaintiff had suffered a soft tissue injury to his lower back involving the aggravation of underlying degenerative disc disease, and maybe some musculo-ligamentous damage as well.
61 Mr Dooley made a number of observations which appear to be a trenchant criticism of the medical practitioners who have treated the plaintiff. At one point he described that a passive approach to his treatment should be abandoned and that those treating him should "get the metaphorical whip cracking". Despite having that view, he does not appear to have been critical of the plaintiff.
62 Mr Dooley was of the opinion that the plaintiff had a capacity for work in light physical work or clerical duties, however, he was of the opinion that the plaintiff’s psychological condition would make it very difficult for him to be employed in those positions. He considered the psychological impairment would be temporary if his approach to getting the whip cracking was followed by those treating the plaintiff.[28]
[28] DCB 23c-23d and 23e.2-23e.3
63 However, if Mr Dooley’s approach was adopted, there is no guarantee that it would have succeeded, and the plaintiff may well be in the same position now despite his view of the necessity for whip cracking medicine and the positive results that might have been gained from it.
64 Dr Stern, psychiatrist, examined the plaintiff on 4 July 2008 and 3 August 2009. He was of the opinion that the plaintiff was suffering from a Chronic Major Depressive Disorder with Anxiety. He was of the opinion that the plaintiff was fit for work. He did not qualify that opinion by reference to any limitations on the nature of the work the plaintiff could undertake.[29]
[29] DCB 22-23
65 Dr Entwisle, psychiatrist, examined the plaintiff on 24 September 2009. He was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood. He was of the opinion that the plaintiff was fit for work as a car park attendant, ticket seller, cashier and product assembler.[30]
[30] DCB 23f.5
Serious Injury
66 I propose to, firstly, deal with the plaintiff's application under paragraph (c), that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
67 In dealing with that part of the plaintiff’s application, I also intend to, firstly, deal with the plaintiff's claim for loss of earning capacity.
68 Following his dismissal, the plaintiff appears to have suffered worsening depression. It would appear that precipitated a referral to Dr Herur.
69 The plaintiff referred to becoming nervous and short tempered, with the consequence that his home life was suffering. He described interference with his concentration and becoming easily depressed and annoyed. He avoided going out with his friends and family, stating that he would get into arguments with them and would suffer nervousness on those occasions.[31]
[31] PCB 24 and 34-35, and Transcript 40-41 and 46
70 Both Dr Hampton and Dr Herur are of the opinion that the consequences of the psychiatric injury presently render the plaintiff unfit for suitable employment.
71 Dr Hampton blandly expressed the opinion that the plaintiff's psychiatric injury made him unfit for non-manual work and retraining, and furthermore, that he was permanently unfit for employment. Dr Hampton did not provide any analysis to support that conclusion.
72 Dr Herur on the other hand, was of the opinion that currently the plaintiff presents with symptoms which he considered were chronic and causing moderate to severe impairment; that the plaintiff was unlikely to return to his pre-injury employment in the foreseeable future, and that he is currently not fit for employment.
73 Under the heading of "Permanency of the Psychiatric injury" he was of the opinion that it was unlikely that this situation would change in the near future; that the plaintiff's prognosis was poor, and that his condition might take years to settle.
74 The opinion of Dr Herur is to be contrasted with the opinions of Dr Kaplan, Dr Stern and Dr Entwisle. Dr Kaplan expressed no useful opinion on the plaintiff's capacity to undertake suitable employment. Dr Stern and Dr Entwisle did. They were both of the opinion that the plaintiff was fit for suitable employment.
75 Dr Hampton has known the plaintiff a long time and is in the unique position, as every general practitioner is, in knowing the plaintiff and being able to express an opinion from that unique vantage point on questions relevant to a determination of the degree of injury and its consequences. However, I am not prepared to accept his blandly stated opinion regarding the plaintiff's incapacity for suitable employment without an accompanying analysis of the reasons why he came to that conclusion.
76 Therefore, I prefer the opinions of the psychiatrists who have an obvious special interest in the very condition which the plaintiff says also renders him incapacitated for suitable employment.
77 There seems to me little doubt amongst the psychiatrists that the plaintiff has a psychiatric injury. Where they part company is its degree and its consequences, and the extent to which those consequences have rendered him incapacitated for suitable employment.
78 Dr Herur is emphatically of the opinion that the plaintiff is currently not fit employment, and that that situation is unlikely to change.
79 What distinguishes Dr Herur from Dr Stern and Dr Entwisle is that he has treated the plaintiff for a considerable period of time and is probably in a better position to understand the plaintiff’s psychiatric injury.
80 It is very clear from Dr Herur’s report dated 3 February 2010 that the plaintiff suffered a very severe level of depression in April 2009. According to Dr Herur, he demonstrated paranoid tendencies which led Dr Herur to prescribe him significant quantities of medication.
81 That treatment appears to have moderated the plaintiff's paranoid tendencies, but notwithstanding that treatment, Dr Herur considered that the plaintiff's psychiatric state was so serious that he continued to treat him with a mood stabiliser.[32]
[32] PCB 94 (a)
82 It is clear enough to me that the psychiatric symptoms were very severe at one point in 2009, and despite the Dr Herur’s treatment, the plaintiff continues to demonstrate major depressive symptoms requiring ongoing treatment.
83 It is for these reasons that I find his opinion more compelling and persuasive than those of Dr Kaplan, Dr Stern and Dr Entwisle.
84 It is in this context that the opinion of Dr Hampton is of some importance. Whilst I have been critical of the way in which he has expressed his opinion, it is of some importance because it is confirmatory of the conclusions reached by Dr Herur.
85 Interestingly, whilst Mr Dooley has been very critical of those medical practitioners who have treated the plaintiff, he was of the opinion that the plaintiff's psychological condition, as he diagnosed it, was likely to make it very difficult for the plaintiff to be employed in any of the positions on which he was asked to express an opinion regarding the plaintiff's capacity for work.[33]
[33] DCB 23e.3
86 Again, Mr Dooley's opinion is of some importance, firstly, because he obtained an appreciation that the plaintiff was suffering from an injury to his lower back with a secondary psychiatric injury, and secondly, because in order to make any assessment of the plaintiff's capacity for work from a physical point of view, he had to develop an understanding of the secondary psychiatric problems suffered by the plaintiff and determined the impact of those problems upon the plaintiff.
87 I am not satisfied that the film taken of the plaintiff impacts upon the plaintiff's credit to such an extent that I should not accept the plaintiff’s evidence and that of the medical practitioners whose evidence I prefer, relevant to the psychiatric injury.
88 Therefore, I find that the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
89 Furthermore, I find that the mental or behavioural disturbance or disorder is severe and has loss of earning capacity consequences for the plaintiff, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, and may fairly be described as being more than serious to the extent of being severe.
90 A finding of the kind I have made in relation loss of earning capacity does not then necessitate me independently making any finding regarding the plaintiff's claim for the pain and suffering consequences of the psychiatric injury: see
Advanced Wire & Cable Pty Ltd v Abdulle.
91 Furthermore, at the end of addresses, Mr Collis and Mr Batten agreed that if the plaintiff succeeded in proving that he had suffered a serious injury for one or other injury, that it was unnecessary for me to make a determination of whether both injuries satisfied the statutory test. A finding in relation to one injury would then permit the plaintiff to recover damages for all the injuries which he could prove occurred as a result of the incident.
Conclusion
92 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
93 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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