Tsafkas v Trende Caravans Pty Ltd
[2013] VCC 1708
•18 November 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-12-00316
| VICTOR TSAFKAS | Plaintiff |
| v | |
| TRENDE CARAVANS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 25 March 2013 | |
DATE OF JUDGMENT: | 18 November 2013 | |
CASE MAY BE CITED AS: | Tsafkas v Trende Caravans Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1708 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury – pain and suffering damages – loss of earning capacity damages – whether physical injury and incident have resulted in the psychiatric injury – whether injury satisfied the threshold test for leave to seek damages – causation
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G A Montgomery | Maurice Blackburn Lawyers |
| For the Defendant | Ms R L Kaye | Minter Ellison Lawyers |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 20 January 2012, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of or in the course of his employment with the defendant and, more particularly, on 17 September 2007.
2 In the course of the opening, Mr Montgomery, for the plaintiff, submitted that the injury arose from an incident which occurred on 17 September 2007, when the plaintiff was struck in the back of the head by a large ball of putty.[1]
[1]Transcript (“T”) 12-13
3 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
4 At the commencement of the hearing, the plaintiff conceded that this application was not a claim for physical injury. The application proceeded on the basis that only the psychiatric injury and consequences in this application were relevant to whether or not the plaintiff be granted leave to recover damages for pain and suffering and loss of earning capacity.
5 The plaintiff alleged that whilst he was in the course of his employment on 17 September 2007, he was struck in the back of the head by a large ball of putty. As a result of that incident and injury to him, the plaintiff alleges that he has suffered a psychiatric injury and is now diagnosed with an adjustment disorder with depression and anxiety.
6 The following evidence was adduced or tendered during the hearing:
· The plaintiff gave evidence and was cross-examined
· Mrs Soula Tsafkas gave evidence and was cross-examined
· Dr Michael Wong, psychiatrist, gave evidence and was cross-examined.
· The plaintiff tendered the following documents:
§ Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 13-93, page 99, page 103, page 111a and page 112.
· The defendant tendered the following documents:
§ Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1-3, pages 6‑8, pages 11-13, pages 26-64 and pages 71-168.
§ Exhibit 2, the clinical notes of Physical Healthcare Physiotherapy of 1A Rochdale Square, Lalor.
· Dr Michael Duke, psychiatrist, gave evidence and was cross-examined.
7 The plaintiff’s application is brought under the definition of “serious injury” contained in ss(37) of the Act, which requires the plaintiff to prove that he suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”. In this case, the diagnosis of the plaintiff is an Adjustment Disorder with Depression and Anxiety.
8 Ms Kaye, on behalf of the defendant, identified the issues in this application. The first issue is whether the psychiatric injury claimed by the plaintiff and the ongoing consequences are caused by the original work-related injury said to have occurred on 17 September 2007. The second issue is whether the migraines and headaches that the plaintiff complains of are caused by physical or psychiatric injuries. In short, this case relates to disentangling the consequences between physical and psychiatric-based injury. The third issue is whether the consequences as set out in the plaintiff’s application meet the statutory test. These issues relate to the application for serious injury certification in respect of pain and suffering damages and loss of earning capacity damages.
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
10 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 employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(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”;[3]
[3]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (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) Sub-section (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) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) 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 ss(38).
I have applied the principles set forth therein in reaching my conclusions in this application.
11 I am required 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
12 The plaintiff was born in 1954. He is now fifty-eight years old.[4] In 1968, when the plaintiff was approximately fourteen years old, he migrated from Macedonia with his family to Australia.[5] The plaintiff is a married man with three adult children.
[4]PCB 14
[5]PCB 14
13 The plaintiff was educated to Form 4 level at Preston Technical School. In the time since then, he has been predominantly employed as a factory hand. He commenced his work with the defendant in July 2002.[6]
[6]PCB 14
Injury with the Defendant
14 The plaintiff, in the course of his employment with the defendant, worked as a manufacturer of caravans. The majority of his work was performed at a workbench. In his affidavit dated 15 July 2011, the plaintiff described the injury occurring in the following circumstances:
“On or about 17 September 2007, when working at my work bench, I was struck at the back of the head behind the right ear by a large, heavy ball of putty.
…
I continued working, finishing my shift.”[7]
[7]PCB 15
15 The plaintiff attended at the Northern Industrial Medical Clinic on the day following the incident. On 13 October 2007, the plaintiff attended on his usual general practitioner, Dr Jim Romas. Dr Romas practises at Rochdale Medical Centre.[8]
[8]PCB 30
16 The plaintiff was referred to Dr John Merory, neurologist, on 23 October 2007.[9]
[9]PCB 39
17 The plaintiff was made redundant by the defendant on 11 December 2007.[10] It was not until after that time that he was referred to Professor Michael Wong, psychiatrist, whom he first attended on 11 February 2008.[11] The plaintiff has been regularly attending Professor Wong since that time. The plaintiff has also been treated by a psychologist, Ms Shalika Ranaweera, since 2010.
[10]PCB 99
[11]PCB 42
18 The plaintiff has also received injections for headaches from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, in August and October 2011.[12]
[12]PCB 35
Medical treatment
19 On the day following the incident at work, the plaintiff attended at the Northern Industrial Medical Centre.[13] There was no report tendered in this case from that medical centre.
[13]PCB 15
20 On 13 October 2007, the plaintiff attended his own general practitioner, Dr Romas, at the Rochdale Medical Centre.[14] At that time, the plaintiff complained about poor mentation, forgetfulness, dizziness and headaches. Dr Romas was originally treating the plaintiff for physical injuries. He referred the plaintiff to Dr John Merory, neurologist, on 23 October 2007.
[14]PCB 30
21 Dr Merory noted that on examination of the plaintiff, he could not find any definite neurological signs. Examination revealed fairly full neck movement but with complaints of crepitus. The plaintiff was complaining of being tender over the right occiput. Dr Merory noted that the CT scan of the brain was normal, incidentally showing pansinusitis.
22 Dr Merory’s diagnosis was as follows:
“He appears to have suffered some concusion [sic] and cervical injuries. I would expect a gradual but definite recovery. There are some functional features and I suspect some psychosocial issues but I have not probed for this.”[15]
[15]PCB 39
23 I note that Dr Romas refers to these as “functional features”.[16]
[16]PCB 31
24 The plaintiff continued to complain of vertigo.[17]
[17]PCB 16
25 The plaintiff was made redundant on 11 December 2007.[18]
[18]PCB 99
26 Dr Romas referred the plaintiff to Professor Michael Wong, psychiatrist, who first saw the plaintiff on 19 February 2008.[19]
[19]PCB 31
27 On the plaintiff’s first attendance on Professor Wong on 11 February 2008, the plaintiff gave a history of being shot at with a staple gun over a period of two years. Professor Wong also took a history of the impact to the back of the plaintiff’s head in September 2007, leaving the plaintiff feeling dizzy and anxious. Professor Wong’s history of the pre-illness personality of the plaintiff was that the plaintiff described himself as “easygoing” and “happy-go-lucky”. This description is consistent with the evidence he gave during the course of this application.
28 In early 2008, Professor Wong diagnosed the plaintiff as suffering from an Adjustment Disorder with Anxiety and Depressed Mood. Professor Wong stated that this condition was a direct result of “the stress” the plaintiff experienced at work.[20]
[20]PCB 44
29 Since that time, Professor Wong has been treating the plaintiff on a monthly basis with some longer breaks during the 2009 year. Professor Wong continues to treat the plaintiff and he prescribes the medications of Epilim, Lexapro and Imovane.
30 Professor Wong continues to certify the plaintiff as unfit for work.
31 The plaintiff has also been referred to Dr Richard Gerraty, neurologist. In a report dated 12 March 2009, Dr Gerraty took a history of the plaintiff being hit with a lump of putty. He also took a history of the plaintiff being shot at with a staple gun whilst at work and an earlier history of migraine. Dr Gerraty opined as follows:
“Neurological examination is normal.
…
It is conceivable that some of his current symptomatology could be post-traumatic migraine related despite the absence of prominent headache and he may well respond to Sandomigran and I have prescribed this today.”[21]
[21]PCB 40
32 It is to be noted that Dr Gerraty was aware that at the time he prescribed Sandomigran, the plaintiff was also being prescribed valium and Lexapro by his then treating psychiatrist.
33 The plaintiff has also been seen by Dr Clayton Thomas, consultant in rehabilitation and pain medicine. The plaintiff saw Dr Thomas on 5 March 2010. On that day, the plaintiff complained of a constant headache. The tenderness to the back of his right skull was noted by Dr Thomas, who thought, from a physical point of view, it might be as a result of an injury to the great occipital nerve, accounting for such sensitivity to the right side of the skull.[22]
[22]PCB 61
34 Dr Thomas noted that he was of the view that the plaintiff’s emotional problems certainly appeared to be overwhelming him.
35 On 23 August 2011 and 12 October 2011, Dr Thomas performed injections to assist with the plaintiff’s headaches.[23]
[23]PCB 35
36 Dr Thomas’s treatment of the plaintiff is all related to physical-based pain and injury. Those physical-based injuries are not the subject of this application.
37 The plaintiff has also received treatment from Ms Shalika Ranaweera, psychologist. In her final report dated 16 March 2013, Ms Ranaweera states that the plaintiff is unable to work due to the severity of his depression and general psychological state. Moreover, his physical capacity, due to his injuries, has caused major physical restrictions.[24] The opinion expressed by the treating psychologist mixes up the causation of the plaintiff’s difficulties between a psychological state and his physical incapacity due to his injuries.
[24]PCB 74C
38 The treatment of the plaintiff by his medical practitioners has been a combination of physical and psychological treatment.
The Plaintiff’s evidence
39 In this proceeding, the plaintiff relied upon two affidavits sworn on 1 July 2011 and 11 January 2013 respectively. The plaintiff gave evidence and was cross-examined.
40 In his first affidavit, the plaintiff deposed:
“Further, on or about 17 September 2007, I suffered multiple injuries as a result of being struck on the head by a large, heavy ball of putty. As a result, I have suffered physical, psychological and emotional injuries.”[25]
[25]PCB 14
41 The plaintiff in this application relied upon the single incident which occurred on 17 September 2007, to establish his serious injury.
42 In his affidavit, he stated that he was working at his work bench when he was struck in the back of the head behind the right ear by a large heavy ball of putty. The plaintiff deposed that he had been knocked forward, and the blow from the putty had dislodged his earmuffs. He stated that he felt immediate soreness and pain. He continued working on that day and finished his shift. He subsequently went home. He stated that overnight he had experienced headaches and dizziness and he was upset at what had occurred to him.[26]
[26]PCB 15, paragraph 10
43 The plaintiff stated that he attended work the following day but was sent to a doctor at the Northern Industrial Medical Centre. He stated that he later attended his own general practitioner at Rochdale Medical Centre in Lalor. He was referred for a CT scan and prescribed medications of an anti-inflammatory nature. The plaintiff deposed that he continued to experience throbbing pain in the head. He experienced difficulty with lying down, and his sleep was very disturbed. He re-attended his general practitioner, Dr Jim Romas, complaining of having headache, dizziness and an unsteadiness like vertigo, as a continuing problem for him.
44 The plaintiff stated that he was referred to Dr John Merory and Mr Richard Gerraty, specialist neurologists. The plaintiff stated that his symptoms of sleep disturbance, including having nightmares about the incident involving the putty ball, continued to concern him.
45 The plaintiff stated that he had been teased by co-workers and that they would fire staple guns and the like at him, causing him to be fearful of injury to his eyes. The plaintiff stated that he found these episodes of teasing very upsetting. I note that the course of conduct, as it may be described, by the co-workers was not pursued by the plaintiff in this case to establish his serious injury certificate.
46 The plaintiff continued to be seen by his general practitioner, Dr Ramos. In February of 2008, due to his ongoing and persisting symptoms, he was then referred to Associate Professor Michael Wong, a psychiatrist, who prescribed Lexapro, Epilim and valium.[27] He was also referred to psychologist, Shalika Ranaweera, for treatment.
[27]PCB 17
47 The plaintiff deposed that he continued to experience head pain and headaches. He described the pain in the head as always being there. He also stated that he experienced neck pain. This part of the plaintiff’s deposed evidence is repeated on a number of occasions throughout the affidavits and in his viva voce evidence. The symptoms that he is describing are physical symptoms of pain to the head and neck area.[28] The plaintiff stated as follows:
“Because of the injuries, my capacity for physical work has been markedly affected. I am no longer capable of full-time, physical work because of the persisting symptoms and problems I experience. I believe my experiences in the course of my employment with the Defendant have had a marked effect on my emotional health and wellbeing.”[29]
[28]PCB 18
[29]PCB 18
48 In this part of his affidavit, the plaintiff is combining both the physical injuries he received as a result of the impact from the putty ball, together with his experience of teasing by co-workers referred to earlier in these reasons. This raises the very real difficulty of disentangling the psychological and psychiatric consequences of the putty ball incident from the physical injuries received in the putty ball incident. It also raises the difficulty of psychiatric or psychological injuries as a result of a course of conduct alleged against the co-workers in teasing the plaintiff.
49 In his second affidavit sworn on 11 January 2013, the plaintiff deposed:
“I have not returned to work. Because of my injuries, I am unable to work. I believe I am no longer capable of working because of my injuries. My injuries continue to affect me badly, especially the emotional and mental injuries.”[30]
[30]PCB 20
50 The plaintiff goes on to depose that he never recovered from his physical injuries which he received in the incident of September 2007.[31]
[31]PCB 21, paragraph 5
51 The plaintiff deposed that since he was struck on the back of the head, he has continued to have pain and headaches. The plaintiff deposed that he had injections to try and improve his headaches and head pain. He stated that those injections were performed in August 2011, and repeated again in October 2011. He stated the symptoms did not improve and remained the same.[32] The plaintiff again is complaining of physical injuries and treatment for his physical symptoms when referring to the injections.
[32]PCB 21, paragraph 7
52 The plaintiff then deposes to the consequences as a result of the injuries that he received in the incident of September 2007. He stated that he struggled to keep his emotions under control and was emotionally aggravated. He stated his sleep patterns were poor as a result of the injuries. He noted that he did not take any medication to assist him in his sleep. He said he was now unable to continue with his fishing or shooting trips, due to the symptoms he suffers as a result of his injuries. When the plaintiff is describing his symptoms, he used the phrase “before the injuries” or “before my injuries”, when describing a difference between how he was prior to the incidents referred to in his application and how he is now.[33]
[33]PCB 21
53 The plaintiff was cross-examined at length about his prior medical complaints. In his affidavit, the plaintiff had described the period before the injuries as “life was good, I was a happy relaxed person”.[34] The medical history put to the plaintiff, and part of the notes in Exhibit 2, reveal a different picture.
[34]PCB 22
54 In cross-examination, the plaintiff was asked about his attendance at his general practitioner, Dr Ramos, on 15 October 1997. The general practitioner’s notes appeared at DCB 101. The plaintiff was asked about the history of dizziness and feeling stressed given to his general practitioner on that occasion. In evidence, he denied that he had given that history and then subsequently said that he was not sure.[35]
[35]T41
55 The plaintiff was then asked about an attendance on his general practitioner on 20 July 1998. The history of that attendance appeared at DCB 104. The plaintiff stated in his evidence that he had no recollection of attending the doctor for dizziness and chest pains on that occasion. He also had no recollection of the diagnosis of anxiety and hyperventilation. The plaintiff also had no recollection that he was prescribed Lovan, an antidepressant medication, at that time.[36]
[36]T41-42
56 The plaintiff was asked about his visit to his general practitioner on 7 September 1998. The history of that attendance appears at DCB 104. At that time, the plaintiff was still taking Lovan medication. He complained of dizziness to his general practitioner. In his evidence, he stated that he had no recollection of attending the doctor for dizziness at that time. The plaintiff was asked about two attendances on his general practitioner in 2000. The first attendance was on 22 June 2000, where the plaintiff attended upon his general practitioner complaining of headache. The second attendance was on 2 November 2000, where the plaintiff complained of a throbbing headache and was prescribed Sandomigran. These attendances appear at DCB 108. In his evidence, the plaintiff denied any recollection of attending his doctor for the complaints of headache or being prescribed Sandomigran.[37]
[37]T49
57 The plaintiff was asked about his attendance on his general practitioner on 21 May 2001. The entry for this attendance appears at DCB 109. On that occasion, it was recorded that the plaintiff complained of headache and neck pain. The plaintiff, in evidence in this application, stated that he might have attended the doctor on that occasion but he was not sure.[38]
[38]T49
58 On 31 May 2002, it was recorded by the general practitioner that the plaintiff attended complaining of a right-sided headache and migraine symptoms.[39] This visit to the doctor was at a time immediately before he commenced employment with the defendant, Trende Caravans, in July 2002. I note that this attendance records the headache as being right-sided. This headache is in the exact area of the injury that the plaintiff now complains of. The plaintiff stated in his evidence that he had no recollection of attending the doctor on that occasion.[40]
[39]DCB 110
[40]T50
59 The plaintiff was asked about his history of medications which are listed at DCB 115. The two separate occasions when the plaintiff had been prescribed Sandomigran, of 2 November 2000 and 31 May 2002, were shown to the plaintiff. The plaintiff stated that he had no recollection of taking the medication Sandomigran.[41] On 17 October 2005, the plaintiff attended Dr Jim Romas complaining of neck pain radiculopathy.[42] The plaintiff was referred for a CT scan of his neck. In his evidence, the plaintiff stated that he had no memory of this attendance or testing.[43]
[41]T50
[42]DCB 117
[43]T52
60 On 5 June 2006, the plaintiff returned to his doctor with complaints of throbbing headache and right-sided headache. It was noted in that entry that the plaintiff had no left-sided symptoms despite an indication from the CT scan that there was pathology of nerve root impingement on the C7 left side.[44]
[44]DCB 117
61 The plaintiff attended the same general practitioner the next day, on 6 June 2006. He was prescribed Voltaren tablets on that occasion. The diagnosis of his condition was osteoarthritis to the neck.[45] The plaintiff had no recollection of attending his general practitioner on two successive days.[46] He said that he thought he may have tripped and lost his balance and hurt his back.[47]
[45]DCB 117
[46]T54
[47]T53
62 The plaintiff then returned to his general practitioner on 20 June 2006, complaining of numbness over the right side of the head.[48] The plaintiff in his evidence stated that he may have attended Dr Nassios for that complaint on this occasion.[49]
[48]DCB 117
[49]T56
63 The plaintiff then attended at his general practitioner on 30 October 2006 complaining of episodic dizziness with paraesthesia in the legs. He also complained of being stressed with his work situation.[50] In his evidence, the plaintiff conceded that he may have complained of dizziness and had no recollection of the paraesthesia down the legs. However, he was clear that he had complained about the stress at work situation.[51] The plaintiff in this case complains about dizziness and symptoms relating to headaches and in particular to his right-sided headache. He has given evidence that he has effectively no recollection of prior attendances on his general practitioner for those symptoms. At the same time he gives evidence as a recollection of complaining of stress at work. In this application, the ongoing stress at work is not the subject of his application for serious injury as it related to the incident arising from the impact of the putty ball on 17 September 2007.
[50]DCB 118
[51]T58
64 The plaintiff, in his evidence, exhibited examples of selective memory and convenient recollections. As the medical opinions rely upon an accurate history being given by the plaintiff, it raises a difficulty in this case about a proper assessment of the medical opinions.
65 On 1 May 2007, the plaintiff attended his general practitioner complaining of neck pain and headache for about two weeks.[52] In his evidence, the plaintiff had no recollection of this consultation with his general practitioner.[53]
[52]DCB 119
[53]T59
66 The plaintiff was asked about his attendance at his general practitioner on 27 June 2007. On that occasion, he reported that the headache in the morning was now better. He was reassured by his general practitioner that the dizziness was coming from his neck.[54] In his evidence, the plaintiff stated that he did not have a memory of attending his general practitioner on that occasion, and added:
“No, no. I don’t know why my memory is – it’s very bad at the moment.”[55]
[54]DCB 120
[55]T70, L13-14
67 The attendance by the plaintiff on his general practitioner on 27 June 2007 is the last attendance on his general practitioner prior to the incident bringing this matter to Court.
68 The plaintiff was cross-examined about prior claims made in respect of a low-back injury in the 1980s and also a transport accident claim in the year 2000. These claims related to physical injuries which also carried with them the symptoms declared by the plaintiff of dizziness and referred pain up into his neck area.
69 The plaintiff attended on his general practitioner on 5 November 2010. The history given to his general practitioner at that time was that he had fallen through the plaster roof at his home and fractured ribs and needed medication for that pain.[56] In his evidence, the plaintiff stated:
[56]DCB 125
“Q: What were you doing up on the roof?‑‑‑
A: I’ve had the insulation in the roof from I don’t know how many years and it was blow insulation. This time to Indians came and knock on the door asking me to put the insulation and I told them, “No.” And they went up the roof and put the insulation in. But they threw it all over the place and a lot of the insulation was on top of the down-lights.
Q: So you went up to move it, did you?‑‑‑
A: So I went to move them because in case it catch fire.
Q: You did not call your brother to go up and move it for you?‑‑‑
A: No.
Q: Dr Nassios has recorded that you fractured your ribs when you fell, is that right?‑‑‑
A: Yes.
Q: You needed some medication and “due to see a specialist next week,” is that right? Did you go to see a specialist?‑‑‑
A: For the ribs?
Q: After the fall?‑‑‑
A: No, the medication was given to me by the hospital.
Q: You went to the Northern Hospital, is that right?‑‑‑
A: No, Austin.
Q: How long were you at the Austin for?‑‑‑
A: Four days, I think.
Q: You were in the Austin as an in-patient for four days?‑‑‑
A: Yeah.
Q: What did they say was wrong with you?‑‑‑
A: Fractured ribs.
Q: You saw a specialist there?‑‑‑
A: No – I can’t remember.
Q: Do you know what medication they gave you?‑‑‑
A: One of them was a very strong one, it was the morphine and the rest of them I don’t remember. All together there were about six, seven tablets.
Q: It is fair to say, isn’t it, that that was fairly stressful falling through a roof and having to be in the Austin for four days?‑‑‑
A: Not really. I was in pain. I was in pain.
Q: So it did not cause you any stress or concern, that situation?‑‑‑
A: Concerning what way you mean?
Q: Worry. Were you worried?‑‑‑
A: I was in pain. How can I say? I was in pain.”[57]
[57]T81, L17 – T82, L19
70 I find that it is clear from this evidence that the plaintiff did not feel physically constrained by any injuries he received as a result of the putty incident when it came to doing work around the house. In his other evidence, he had referred to doing the gardening work and other tasks in keeping the house. The general level of activity by the plaintiff around his home, including getting up into the roof space to deal with the insulation, is indicative that he is more physically active and feels as if he can achieve these tasks than the way in which he presents to Professor Wong. I find that there is an inconsistency between the presentation of the plaintiff to Professor Wong and the level of activity he is prepared to engage in, in his day-to-day life.
Medical opinions
71 In respect of the psychiatric and psychological impairment suffered by the plaintiff as a result of the incident on 17 September 2007, the following medical practitioners have given opinions.
Dr Jim Romas, general practitioner
72 Dr Ramos prepared a number of medical reports in respect of the plaintiff’s condition. The reports are dated 20 April 2010, 21 October 2010, 26 June 2012 and the final report on 15 February 2013. Dr Ramos referred the plaintiff to Professor Michael Wong, psychiatrist, on 19 February 2008.[58] The predominant issues addressed in his first three reports relate to matters of physical injury to the plaintiff as a result of the incident the subject of this application. In his last report he stated as follows:
“He still remains very markedly impaired gentleman with significant mental and Psychiatric problems. Physically he still has the same complaints of vertigo, headaches, right hand weakness.
…
In conclusion remains [sic] a man with significant impairment with especially regard [sic] to his mental state. His headaches are still persistent and are related I feel to mainly to his [sic] Psychological and mental state.”[59]
[58]PCB 31
[59]PCB 37
Dr N R Rose, psychiatrist
73 The plaintiff was sent by the defendant for examination and assessment by Dr N R Rose, psychiatrist, on 25 August 2008. Dr Rose prepared a report dated the same day. The purpose of the independent medical examination was to determine if the plaintiff suffered from stress or a psychological injury.[60] At this time, the plaintiff was being treated by Professor Wong.
[60]DCB 19
74 The plaintiff gave Dr Rose a history of having no motivation and not doing any gardening.[61] He also gave a history of no prior psychiatric illness.[62] At the time of the assessment, Dr Rose diagnosed the plaintiff as having no work capacity due to psychiatric injury. Dr Rose recommended a further assessment in three to six months’ time. This did not occur.
[61]DCB 20
[62]DCB 21
75 Dr Rose’s assessment is now nearly five years old. Professor Wong and Dr Duke have had more recent treatments and assessments of the plaintiff. Dr Rose’s assessment of the plaintiff in August 2008 does not assist me in the assessment of the plaintiff’s condition at the time of the hearing.
Dr Michael Piperoglou
76 The plaintiff was referred to Dr Piperoglou for medico-legal reporting purposes. Dr Piperoglou examined the plaintiff on 11 December 2012. Dr Piperoglou’s report is dated 11 January 2013. The plaintiff stated to Dr Piperoglou that he had been persistently the subject of jokes and having staples fired at him from a staple gun at his place of work. The final incident was the putty ball incident. The plaintiff gave a history to Dr Piperoglou that he experienced anxiety and depression after being hit by the putty ball.[63] Dr Piperoglou noted that the plaintiff had lost interest in life in general. The plaintiff was no longer interested in gardening or fishing, which were activities he used to enjoy.[64]
[63]PCB 85
[64]PCB 86
77 In the discussion section of Dr Piperoglou’s report, he stated:
“The injury is consistent with the stated cause i.e. chronic stress, harassment and fear of his physical safety over at least a two-year period.”[65]
[65]PCB 89
78 Dr Piperoglou then went on to outline his diagnosis as a Major Depressive Disorder and an Anxiety Disorder. It is at least of moderate severity.[66]
[66]PCB 89
79 Dr Piperoglou has a different cause for the conditions suffered by the plaintiff compared to the cause of the injury pursued in this application. Whilst Dr Piperoglou takes note of the putty ball incident, he attributes the injury to the longer period of time that the plaintiff had been employed and harassed at his place of employment. Dr Piperoglou describes the condition as of moderate severity. In cases of mental or behavioural disturbance or disorder, the statutory test is that the consequences to the plaintiff have to be to the extent of being severe.
Shalika Ranaweera, psychologist
80 The plaintiff had been referred to Ms Ranaweera, psychologist, by his general practitioner, Dr Ramos. Ms Ranaweera prepared two reports for the purposes of this application dated 18 May 2012 and 16 March 2013.
81 In the first report, Ms Ranaweera gave the following opinion:
“I[n] my opinion, due to his work place injury, Victor is limited both psychologically and physically. Emotionally he feels that he cannot work at his previous place of employment as he does not feel safe. This seems to bring on an anxiety attack. He is finding it difficult to come to terms with his loss and feels depressed most of the time.
Victor appears to be continuing to re-live the accident trauma in a psychological form and is still battling with sustained physical injuries from the accident. This seems to be debilitating his current life circumstances.”[67]
[67]PCB 73
82 The psychologist at that stage expressed some optimism as to the therapeutic outcome for the plaintiff as a result of the psychological treatment.
83 In her later report, Ms Ranaweera gave the following opinion:
“In my opinion Victor remains unable to work due to the severity of his depression, and general psychological state. Moreover his physical capacity, due to his injuries, has caused major physical restrictions.”[68]
[68]PCB 74c
84 In the same report, the psychologist notes:
“Victor is not able to return to pre-injury duties as he is physically and psychologically unfit to conduct any lifting and presents with a prolonged unhealthy state of mind. In addition, he may experience some psychological re-traumatisation if he enters the previous work environment as he does not feel supported in his workplace.”[69]
[69]PCB 74c
85 The reports by the psychologist, Ms Ranaweera, squarely raise the problem of the inter-relationship between the physical injuries suffered by the plaintiff and the psychological state of the plaintiff. The psychologist has not separated out the respective symptoms and/or consequences between the physical injuries and the psychological impact on the plaintiff.
Professor Michael Wong
86 Professor Michael Wong is the treating psychiatrist for the plaintiff. Professor Wong prepared five medical reports in respect of this application. The reports are dated 26 February 2008, 26 February 2010, 29 March 2012, 6 December 2012 and the final report dated 14 March 2013. In this hearing, Professor Wong was cross-examined by the defendant’s counsel.
87 Professor Wong first saw the plaintiff on 11 February 2008.[70] Since that time, Professor Wong has consistently and persistently treated the plaintiff on a fortnightly or monthly basis except for a period between 3 June 2009 and 10 November 2009.[71] Professor Wong, in his report dated 6 December 2012, sets out the background that he was told by the plaintiff as to his condition. It reads as follows:
“When he was hit at the back of head by a clay ball in September 2007 and no one claimed responsibility he started to become unwell feeling dizzy and anxious. Over the subsequent 5 months and before his first psychiatric consultation in 2008 he said he had been feeling increasingly anxious and depressed experiencing nightmares and becoming fearful when going to public places such as shopping mall. He said he had lost his interest, motivation, energy, attention and concentration. He said he was repeatedly bothered by dizziness and other non-specific somatic symptoms. He said he had not been able to return to work and as a matter of fact he was dismissed by his employer soon after the incident. That caused much emotional stress and financial hardship.”[72]
[70]PCB 42
[71]PCB 55
[72]PCB 56
88 In that same report, Professor Wong states that the plaintiff’s past health was unremarkable. This statement is at odds with the extensive medical treatment and complaints of symptomatology, in particular in relation to dizziness; that is in the evidence of this case. Professor Wong also has taken a history of employment which does not set out the previous injury and period of time that the plaintiff was out of work as a result of his back injury.
89 In that report, Professor Wong diagnoses the plaintiff with an Adjustment Disorder with Anxiety and Depressive Mood.[73] Professor Wong sets out that the plaintiff had no previous history of mental illness and there are no other causes for his Adjustment Disorder, apart from his work-related physical and mental injuries.[74] Professor Wong’s opinion at that time was that the plaintiff was psychiatrically unfit to return to his pre-injury level of work. He found that condition was likely to persist into the foreseeable future.
[73]PCB 57
[74]PCB 58
90 The most recent report of Professor Wong, dated 14 March 2013, sets out the current medication prescribed to the plaintiff in the form of Lexapro, 20 milligrams per day, and Epilim, 500 milligrams twice per day. Professor Wong, in that report, confirms his previous diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and depressive features. In reference to reports prepared by Professor Michael Duke, psychiatrist, Professor Wong stated that the symptoms experienced by the plaintiff do not warrant a separate diagnosis of undifferentiated somatoform disorder as proposed by Dr Michael Duke.
91 On 20 March 2013, Professor Wong gave evidence in this case. In his evidence, Professor Wong confirmed that he still regularly sees the plaintiff on a monthly basis. He confirmed that the medication the plaintiff was prescribed was Epilim and Lexapro. The plaintiff sometimes uses valium to control his emotional distress. Professor Wong has certified the plaintiff as unfit for work from the first time he saw him in 2008 until the current time.
92 Under cross-examination, it became clear that Professor Wong had not been given a full history of the relevant symptoms suffered by the plaintiff prior to his attendance on Professor Wong in 2008. Professor Wong’s evidence was as follows:
“Q: He did not make you aware of any pre-existing anxiety issues he may have had?‑‑‑
A: No, he did not.
Q: Or of any depressive difficulties he may have had in the past?‑‑‑
A: No, he did not.
Q: So your impression is basically this was a man who was very well psychiatrically and psychologically up until approximately 2006?‑‑‑
A: Yes, that’s correct.”[75]
[75]T91, L11-17
93 Professor Wong was cross-examined and it became clear that:
·He had not been told of the anxiety reported in 1990 in respect of the plaintiff.[76]
[76]T92
·He was not aware of the anxiety and stress problems reported to Dr Ramos by the plaintiff in 1997.[77]
[77]T92
·He was not aware of the anxiety and hyperventilation reported by the plaintiff in July 1998.[78]
·He had been told that the headaches suffered by the plaintiff had commenced as a result of the incident in September 2007.[79]
·He had not been told about the headaches and dizziness reported in October 1996.[80]
·He had not been told about the treatment for dizziness in September 1998.[81]
·He had not been told the headaches and/or throbbing headaches reported in June 2000.[82]
·He was not aware that the plaintiff had been prescribed Sandomigran in the past.[83]
·He had not been told that the plaintiff had suffered right-sided headache and migraine in May 2000.[84]
·He had not been told that the plaintiff had complained of dizziness at work on 7 September 2006.[85]
·He did not know that the plaintiff had complained on 13 October 2006 about episodic dizziness with paraesthesia in the legs and stress with the work situation.[86]
[78]T93
[79]T94
[80]T95
[81]T95
[82]T95
[83]T96
[84]T96
[85]T96
[86]T97
94 After all of these pieces of medical history had been pointed out to Professor Wong, his evidence on those issues was:
“Q: All of this tends to indicate, doesn’t it, that this is a plaintiff who has got some – including the psychiatric elements I took you to earlier from the 1990s, this is a plaintiff who has got some predisposition to these sorts of problems, being dizziness, headaches and also the psychiatric difficulties?‑‑‑
A: That is correct.”[87]
[87]T97, L21-26
95 In his evidence, Professor Wong disagreed that the diagnosis of Adjustment Disorder was no longer applicable. And he also disagreed that the maintenance of the condition now is due to internal factors rather than the original work injury.[88] Professor Wong disagrees with Dr Duke’s diagnosis of an undifferentiated somatoform disorder.[89] Professor Wong was unable to distinguish the symptoms relating to the physical injuries and the psychiatric condition of the plaintiff. The evidence in this regard was:
[88]T98
[89]T99
“Q: Are you linking that to the physical injury or the psychiatric injury?‑‑‑
A: I think he has sustained both physical and psychiatric injuries as evidenced in the history of his current WorkCover claims.
Q: When you say what he has suffered is not in excess of what would be expected, are you there referring to the physical or the psychiatric part of it?‑‑‑
A: I think it is academic but I think we should not – or we – or at least I am not in the position to be able to tease out the interaction between his bodily symptoms and his psychiatric symptoms on this occasion.
HIS HONOUR:
Q You can’t separate them, is what you mean?‑‑‑
A: Yes, I think it seems that he suffers both psychological and physical injuries at this work place and it seems to happen at the same time and teasing them out I think is not a task that I am able to do so, Your Honour.”[90]
[90]T101, L18 – T102, L2
96 In his evidence, Professor Wong put forward a number of causes for the plaintiff’s current psychiatric and psychological condition. One of the causes, according to Professor Wong, was that the plaintiff is distressed by the outstanding nature of the investigation of his WorkCover claim.[91] Another one of the causes of the stress to the plaintiff is that the investigation into what actually happened to the plaintiff has not been completed.[92]
[91]T104
[92]T104
97 Professor Wong stated:
“A: Yes I think the patient continues to fail to understand why he has been victimised and I think the understanding of the nature of his injury is important. He continued to feel that he has been injured, physically and psychological for a no end, probably no good reason. …”[93]
[93]T106, L25-30
98 Professor Wong later in his evidence states that the failure to locate any former colleagues to support his claim and the lack of progress of his claim continues to put a lot of stress and strain on the plaintiff’s daily life.[94]
[94]T108
99 Almost in frustration, Professor Wong gave this answer in his evidence:
“A: Your Honour, as I have already repeated myself, that the stresses and the consequences perpetuate as a result of the lack of completion of the assessment of his work related injuries. I continue to insist that it’s a better way to represent my view rather than the wordings as just mentioned by the counsel.”
100 Professor Wong’s final position in relation to diagnosis was that:
“A: I think I have got necessary and sufficient information from what I gather and I think from his work related injuries, physical and psychological, to substantiate that to his current experience, anxiety, depression, and non-specific somatic symptoms are adequately and completely addressed and explained by adjustment disorder with mixed anxiety and depressive symptoms without any need for any additional diagnosis.”[95]
[95]T114, L25 – T115, L1
101 Professor Wong has given that diagnosis in a situation where he was not in possession of the full diagnostic history from the plaintiff, nor what he referred to as the other external factors.
102 In relation to the work capacity of the plaintiff, Professor Wong stated that the plaintiff was unable to return to work. Professor Wong did not say that the plaintiff was unable to work in the general sense, just that he was unable to return to his pre-injury work.[96]
[96]T 119
103 In summary, Professor Wong was continuing to consult with and treat the plaintiff on a monthly basis. He also continued to prescribe the medications of Epilim, which is a mood stabiliser, and Lexapro, which is an antidepressant medication. On occasions the plaintiff was also prescribed Valium to control his emotional distress and Temazepam to assist in sleeping. Professor Wong completely disagreed with the opinion of Dr Michael Duke, psychiatrist.
The Defendant’s medical evidence
Dr Paul Kornan
104 Dr Paul Kornan, psychiatrist, prepared a report dated 26 July 2010. The plaintiff gave a history to Dr Kornan that he had not had any previous stress problems in his life prior to the injury relating to this application.[97] The plaintiff had informed Dr Kornan that he was someone who had previously liked to go out a lot with his wife and children and to have a laugh with them. Dr Kornan assessed the plaintiff as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood.[98] In Dr Kornan’s opinion, the plaintiff did not suffer from any limitation in respect of his daily activities of living from a psychiatric viewpoint.[99] Dr Kornan assessed the plaintiff’s impairment in a psychiatric sense as being caused by his injury with the ongoing pain and discomfort that has led him to be depressed, angry, irritable and tense. Dr Kornan was of the view that the psychiatric impairment is a secondary impairment to the physical injuries. In that regard, if Dr Kornan’s assessment is accurate, it does not assist the plaintiff’s claim for serious injury based on a psychiatric or psychological impairment.
[97]DCB 55
[98]DCB 58
[99]DCB 60
Dr Michael Duke, psychiatrist
105 In this matter, Dr Michael Duke prepared reports dated 19 August 2009, 6 October 2009, 17 November 2009, 28 May 2012, 26 February 2013, 7 March 2013 and two reports dated 14 March 2013. The contest and conflict between the treating psychiatrist, Professor Wong, and the medico-legal assessment psychiatrist, Dr Michael Duke, was a significant matter in this particular hearing. I ordered that in this case, it was appropriate for Dr Duke to attend to give evidence and be cross-examined so that I was in a position to properly assess the psychological and psychiatric condition of the plaintiff.
106 Dr Duke first assessed the plaintiff on 19 August 2009. This assessment occurred approximately in the middle of the period between 3 June 2009 and 10 November 2009 when the plaintiff did not see Professor Wong. In his evidence, Dr Duke described the symptoms of the plaintiff as follows:
“Mrs (sic) Tsafkas complained of a range of symptoms which in my view were not adequate in number or severity to qualify him for the diagnosis of adjustment disorder any longer. He had received treatment from not only his general practitioner but Professor Wong since November 2007 which in my estimation had proved sufficient to diminish his depressive symptoms.”[100]
[100]T 148, L23-30
107 The diagnosis made by Dr Duke was an undifferentiated somatoform disorder.
108 When Dr Duke examined the plaintiff in May 2012, he answered as follows:
“Mr Tsafkas, when I saw him in May 2012 had ongoing physical symptoms which I consider to be the undifferentiated somatoform disorder. As a result of the continuation, the lack of amelioration of those symptoms he had once again acquired a depressive illness which I consider to be a secondary adjustment disorder. So despite having recuperated to a degree in 2009, by the time I saw him again three years later ongoing symptoms of a physical nature and presumably these have worn him down and made him depressed again.”[101]
[101]T149, L26 – T150, L4
109 It was clear from Dr Duke’s evidence that by May of 2012, the plaintiff’s psychiatric condition was a secondary condition to the physical complaints that the plaintiff was experiencing.
110 Dr Duke was cross-examined about this differentiation in diagnosis. The following exchange occurred during the course of evidence:
“Q: Are you saying that Mr Tsafkas did have an adjustment disorder at the time and it was one that had continued from shortly after the events of September 2007?---
A: In my first report of August 2009 I formed a conclusion that the initial adjustment disorder had been ameliorated hopefully by treatment from Professor Wong but that he had ongoing physical symptoms congruent with undifferentiated somatoform disorder which by 2010 according to Dr Kornan and 2012 on my direct observation had a new disorder, a new adjustment disorder had occurred and I felt this was secondary to his ongoing unremitting symptoms.”[102]
[102]T161, L5-16
111 Dr Duke was then asked about the treatment given to the plaintiff by Professor Wong. Dr Duke very carefully distinguished between his role as an independent medical assessor and the position that Professor Wong was in in relation to a patient and treating practitioner’s therapeutic alliance.[103]
[103]T162 – T165
112 There is a clear clash or difference between the two psychiatric assessments that are contemporary with the time of this application given by Professor Wong and Dr Duke. The plaintiff has the onus of proof in this case. It is clear that the plaintiff is continuing to complain of physical-related injuries as a result of the incident on 17 September 2007. The complaints of pain are in the back of the head, buzzing in the ears, and referred pain from, as he described it, his back up to his neck up to his head. The anxiety and depressive nature of his symptoms arise from a reaction to his physical injuries. The complication for the plaintiff is compounded when the evidence of Professor Wong is taken into account, particularly to do with the complaints made by the plaintiff about the failure to fully investigate the incident giving rise to this claim by the employer. This disappointment on the part of the plaintiff or the depressive reaction to it as described by Professor Wong is not causative of his psychiatric symptoms which are said to have arisen on the 17 September 2007.
113 I accept that both Professor Wong and Dr Duke have earnestly and honestly attempted to properly assess and give an opinion in respect of the condition suffered by the plaintiff. I am not satisfied that the plaintiff has proved that his psychiatric and psychological condition for which he is being treated by Professor Wong is caused by the incident in September 2007. I am also not satisfied that the psychiatric or psychological impairment suffered by the plaintiff is sufficient to satisfy the test under the Act of being “severe”.
Consequences of the alleged psychiatric condition to the Plaintiff
Sleep
114 The plaintiff claims that his sleep is disturbed by the psychiatric and psychological reaction to the incident in September 2007. It is clear from his evidence and the evidence of his wife that the plaintiff’s sleep is disrupted by both the continuing pain from his old back injury and also from the head injury as a result of the impact from the putty ball. In particular, Mrs Tsafkas gave evidence as follows:
“Q: So that is what affects his sleep, is it, the fact that it hurts when he puts his head down on the pillow?‑‑‑
A: I said to you that when he puts his head on the right side, it hurts him. That is what I said.”[104]
[104]T139, L12-15
115 The evidence of Mrs Tsafkas indicates that the cause of the sleep disruption is the physical injury she describes to the right rear side of the plaintiff’s head. That was the point of impact of the putty ball in September 2007. I am not satisfied that the interruption to the plaintiff’s sleep is a result of any psychological or psychiatric reaction by him.
Pain
116 The plaintiff has given evidence that he suffers pain as a result of his injuries in September 2007. The overwhelming force of the plaintiff’s evidence is that the pain he suffers is as a result of his unresolved physical injuries. These injuries are, in combination: his lower back, which is an old injury; his neck injury, which he says occurred in September 2007; and the impact point to the right side of his head at the back. The pain consequences the plaintiff complains about are not related to any psychiatric or psychological condition.
Sport
117 The plaintiff states that he has sporting consequences as a result of the injuries received in September 2007. The first consequence he says is that his general practitioner, Dr Ramos, had refused to fill in the appropriate forms for him to continue with a gun licence. He stated the reason for this is that he is angry and upset. It is for this reason that he has had to give up shooting. The fact that the plaintiff now suffers from anger and mood swings, I find, is a secondary condition resulting from the physical injuries. I do not accept that it is a psychiatric reaction to the incident on 17 September 2007.
118 The second sporting activity the plaintiff complains has been taken from him as a result of the incident on 17 September 2007 is that he no longer goes fishing. In his evidence, the plaintiff conceded that he had gone fishing on a number of occasions but just dropped a line over the side. Whilst I accept the plaintiff may have reduced the amount of fishing that he engages in at the current time, compared to those times prior to September 2007, I do not accept that this is a significant consequence for him. The position is that he can still do it, but elects not to.
Activities of daily living
119 Mrs Tsafkas gave evidence that the plaintiff did the odd jobs around the house including household stuff, as she described it, doing the dishes, hanging out the clothes and the gardening. In short, she stated, if anything is needed, yes, he does it.[105] Mrs Tsafkas confirmed that the plaintiff had fallen through the roof whilst attempting some maintenance job at the house. I do not accept that the plaintiff’s activities of daily living have been limited in any way by his psychiatric or psychological condition arising from the September 2007 incident. Indeed, it appears as if his physical injuries have not limited him in this regard.
[105]T142
Medication and ongoing treatment
120 The plaintiff is continuing to receive treatment from Professor Wong and his general practitioner. He continues to be prescribed and take medication of Epilim and Lexapro. Whilst the necessity to take medication and continue to receive therapeutic treatment from Professor Wong and Ms Ranaweera, the psychologist, is a significant impost upon the plaintiff and indicative of something of some consequence, I do not accept that this treatment is for a psychiatric or psychological condition per se. The psychological and psychiatric condition is secondary to his physical injuries which remain unresolved despite extensive medical examinations by neurologists and occupational therapists to diagnose and attend to those physical injuries. I am not satisfied on the balance of probabilities that this treatment is directly related to anything to do with his injury on 17 September 2007. The plaintiff had a long history of anxiety and depressive-type symptoms leading up to his employment with the defendant. He has never at any time told his treating psychiatrist or psychologist about this history. The evidence they give in regard to the cause of his current position is compromised by that lack of psychiatric and psychological history.
Loss of earning capacity
121 In this application, there is no dispute that the plaintiff has not worked since the termination of his employment with the defendant. The issue in respect of the loss of earning capacity certification is whether or not the injuries described as psychological and psychiatric are the cause of the plaintiff’s inability to work. As I have previously outlined in these reasons, there is an inter-relationship of physical injury and psychological/psychiatric response by the plaintiff. The plaintiff has presented a case which is said to be productive of consequences in relation to his incapacity for work and also an impact on his loss of enjoyment of life. The plaintiff bears the onus of disentangling the injuries relied upon, both physical and psychological or psychiatric, and proving the consequences of that impairment to those separate body functions or consequences. In this case, the plaintiff is required to satisfy the Court that the pain and suffering consequences or loss of earning capacity consequences, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, can be fairly described as being more than serious to the extent of being severe. I do not accept that the consequences outlined by the plaintiff in his application reach this standard.
122 In conclusion, the plaintiff has the onus of proof. The plaintiff has failed to disentangle the physical injuries from the psychological and psychiatric consequences. The plaintiff has failed to establish that the consequences for him are of the standard required under the Act.
123 For these reasons, the plaintiff’s application for serious injury in respect of pain and suffering damages and loss of earning capacity is dismissed.
124 I will hear the parties on costs.
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