Van der Neut, Levinus v St Vincent's Hospital (Melbourne)
[2009] VCC 1474
•14 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-03946
| LEVINUS VAN DER NEUT | Plaintiff |
| v | |
| ST VINCENT'S HOSPITAL (MELBOURNE) LIMITED | Defendant |
| (ACN 052 110 755) |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4, 7 and 8 September 2009 |
| DATE OF JUDGMENT: | 14 September 2009 |
| CASE MAY BE CITED AS: | Van der Neut, Levinus v St Vincent’s Hospital (Melbourne) Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1474 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - whether the consequences of a mental or behavioural disturbance or disorder were severe - satisfaction of loss of earning requirements permits the plaintiff to claim damages for pain and suffering: section 134AB (37)(c) and (38)(b), (d) and (e)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash QC with | MW Law |
| Mr G Burns | ||
| For the Defendant | Mr J Moore QC with | Wisewould Mahony |
| Ms P Cefai | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 8 September 2006 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 defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr G Nash QC appeared with Mr G Burns of Counsel for the plaintiff and Mr J Moore QC appeared with Ms P Cefai of Counsel for the defendant.
4 The plaintiff submitted that he suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Peterson, psychiatrist, gave evidence and was cross-examined. • Dr Hardy, general practitioner, gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ the Plaintiff's Court Book ("PCB") pages 286-297: Exhibit A ƒ part of the Defendant's Court Book ("DCB") pages 101-102: Exhibit B • The defendant tendered the following evidence:
ƒ
the Defendants Court Book pages 44; 85-86; 134-154; 159-174; 177- 181; 188-208; 215-218; 332-349, and items noted in the index at 39, 40, 41, 42, 43 and 44, which did not have associated pagination: Exhibit 1
ƒ
video film of the plaintiff recorded on 20 April 2006, 2 May 2006, 23 May 2006, 24 May 2006, 25 May 2006, 29 May 2006, 9 February 2009 and 15 June 2009: Exhibit 2.
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 employment on or after 20 October 1999.[1]
(b)
The injury and the consequences 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)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e)
Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes 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 a mental or behavioural disturbance or disorder 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 (supra), I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[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
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 on 20 November 1955 in Holland. He migrated to Australia in 1956, first settling in Tasmania with his parents, and later moving to Victoria.
10 The plaintiff obtained employment with the defendant in February 1999 as a courier in the pathology department.
11 In October 2001, he slipped and fell at the defendant's workplace, aggravating a pre-existing injury to his lower back. He was off work some time. He returned to work as a courier on restricted duties.
12 In July 2004, the plaintiff applied for a position as a pathology team leader. His application was successful. The work required of the plaintiff in that job involved coordinating deliveries by couriers in the pathology department. He was able to cope with the tasks required of him in that job. He enjoyed the work he was required to undertake. He found the job suitable in all respects.
13 The plaintiff suffered an injury to his lower back in 1984. He was referred to Mr Pease, orthopaedic surgeon, who operated on his lower back, performing a spinal fusion.
14 Mr Moore cross-examined the plaintiff at some length regarding his work history subsequent to 1984 and leading up to his employment with the defendant. The thrust of that cross-examination went to whether there was a pattern of behaviour emerging after the plaintiff suffered the subject psychiatric injury consistent with his behaviour subsequent to suffering the lower back injury.
15 Part of that cross-examination went to whether the plaintiff actually returned to work and undertook any substantial work up until the time when he suffered the subject injury. Mr Nash tendered part of the Defendant's Court Book which contains the plaintiff’s pay history from January 2003 to August 2006.[4]
[4] Exhibit B
16 The relevant parts of the plaintiff’s pay history discloses that in the years 2004, 2005 and 2006, the plaintiff was working 76 hours per fortnight most of the time. The hours he was working appear to have been full-time hours.
17 The plaintiff fell into conflict with Ms Lynn Nicholson. Ms Nicholson was employed as a courier by the defendant. The plaintiff said that his relationship with her was initially cordial, but deteriorated rapidly. He said that she was rude, abusive, disobedient and aggressive, all of which rendered his working life a misery.
18 The plaintiff complained to his manager regarding the conduct of Ms Nicholson. The plaintiff made a report in writing to his manager on 28 February 2006,[5] setting out the nature of the conflict between himself and Ms Nicholson. He completed a Hazard/Near Miss Incident Report dated 29 and June 2005, reporting the onset of stress, which he submitted was a result of the conflict between himself and Ms Nicholson,[6] and he made a further report regarding the same subject matter dated 29 June 2005.[7] The plaintiff also made a statement dated 7 April 2006, setting out the circumstances leading up to him suffering injury.[8]
[5] DCB 199-194
[6] DCB 201-202
[7] DCB 204-208
[8] DCB 332-336
19 The plaintiff said that on 25 February 2006 he thought he had suffered a massive heart attack. He was hospitalised. He was diagnosed as having suffered a panic attack.
20 The plaintiff said that he suffered panic attacks requiring hospitalisation on 6 June 2005, 16 December 2005, 21 December 2005, 7 March 2006, 28 April 2006, 29 April 2006, 9 June 2006 and 10 June 2006.[9]
[9] PCB 7. Dr Peterson referred to others which the plaintiff had reported to him at transcript 129 and 132
21 The plaintiff said that he continued working through February and March 2006. He took sick leave for about two days and then one week of holidays commencing on 25 February 2006. He went to Tasmania. In his statement he described the holiday as being “great” and that he and his girlfriend, Nancy, “had a ball simply because I wasn't at work”.[10]
[10] DCB 334
22 The plaintiff said the harassment, abuse and insubordination of Ms Nicholson persisted, which eventually led to a panic attack on 7 March 2006 which required hospitalisation. He ceased working for the defendant on that day and has not returned to work with the defendant or with any other employer.[11]
[11] PCB 7-8
The Plaintiff's Medical Treatment
23 The plaintiff first attended Dr Hardy on 5 July 2005[12]. She has treated the plaintiff since that time.
[12] PCB 18
24 On 7 March 2006, the plaintiff suffered a panic attack. He was taken to the Emergency Department of the defendant’s hospital. He was given three days off work by the attending medical practitioner and was provided with medication.[13]
[13] DCB 334
25 Mr Moore cross-examined Dr Hardy at some length, challenging the basis of her opinion that the plaintiff was effectively totally incapacitated. At the start of her evidence Dr Hardy described her diagnosis of the plaintiff's injury and the plaintiff's prognosis as follows:
"Q:
Dr Hardy, what is the prognosis given what you have read in that report and given your knowledge of Mr Van der Neut in the context of vocational retraining and capacity to return to any form of duty?
A:
I - it's - it's a tricky one I - personally I feel in my - as a GP that some sort of work would be beneficial to Mr Van der Neut for his own self-esteem and regaining self confidence but it is clear that from a symptomatic point of view some of the options that have been explored have shown that the training itself produces anxiety and that's a very difficult situation. So I feel that he has got a permanent state of anxiety and would need to be, if he does go into any form of employment, he would need to be in a - in a particular situation that is low level stress, that's my opinion."[14]
[14] Transcript 162-163
26 When asked to compare the plaintiff's position in 2009 with what he was like in 2006, Dr Hardy said:
"Q: How would you compare that to his condition now in September
2009?A:
He's obviously - in 2006 things were very – were still very new. There was a lot of - there was more reactive stress to the situation of his feeling that he wasn't being taken seriously at work, that he had been intimidated by somebody and no one was accepting that feeling. He hasn't changed that point of view so that is still consistent but his actual condition has become more chronic because he's - instead of having just the reactive stress which would go away when the stressor was taken away, he's now got an anxiety disorder which is where other things that would normally not cause him stress are causing him stress, so other situations that would normally not cause him stress.
Q:
In your view, even if these proceedings were resolved or completed, what is his prognosis in the future? Is he likely to continue to suffer from that anxiety and stress?
A:
Well, given the length of time that he has now, yes, he is likely to. It would probably improve if we could help him, you know, basically do his normal day-to-day things more effectively, which is what we've been trying to do with the various return to works and those sorts of things and the exercise and, you know, trying to normalise his life as much as possible. He was in a job where he had expectations. He's now in a situation where he doesn't have those kind of, you know, when to get up in the morning, when to go to sleep, those sort of normal things that give people a sense of security."[15]
[15] Transcript 184
27 Dr Hardy provided a number of medical reports in which she initially expressed some optimism that the plaintiff would return to work, but like her oral evidence, that optimism diminished markedly by May 2006.[16]
[16] Dr Hardy provided three medical reports dated 28 October 2005, at PCB 16-17; 12 May 2006, at PCB 18-19 and a certificate dated 13 September 2006, at PCB 20
28 Dr Hardy referred the plaintiff to Dr Peterson. Dr Peterson took over the plaintiff's treatment from Dr Holwill, psychiatrist, who had treated the plaintiff for some years before the psychological sequelae of his lower back injury.
29 Dr Peterson was uncertain when he first began treating the plaintiff, but he believed it was probably in May 2006.[17] Dr Peterson has treated the plaintiff regularly. He estimated that he has seen him fortnightly or monthly. Dr Peterson provided a number of medical reports. In his first report dated 26 March 2007, he offered the following opinion and prognosis:
"The above, notwithstanding it is appropriate to emphasise the devastating impact that the workplace experiences have had on Mr Van der Neut’s emotional well-being, prior to the index events he had made an effective adjustment to his previous surgical problems, was in a work position that he enjoyed and that he [was] anticipating staying in for the foreseeable future.
It is unlikely that he will be able to find a similar position and he is faced with a future marked by emotional and financial uncertainty."[18]
[17] Transcript 125
[18] PCB 25-26
30 In a report dated 21 September 2008, Dr Peterson expressed a far more pessimistic opinion that the plaintiff could not return to his previous place of employment nor participate in remunerative activity in any workplace environment compatible with his training and experience. He added that it was unlikely that the plaintiff could meaningfully participate in any re-training program.[19]
[19] PCB 30
31 In subsequent reports dated 22 September 2008[20] and 14 May 2009,[21] he repeated the very same opinion.
[20] PCB 32-35
[21] PCB 36-37
32 Mr Moore cross-examined Dr Peterson based upon the plaintiff's association with his third wife who is Vietnamese and who conducts a jewellery business in Vietnam. She has built a flat over her business premises which is available for the plaintiff's use.
33 Mr Moore also cross-examined Dr Peterson based upon the plaintiff's association with other business people who are presently setting up a business to cater for travel for disabled people. The plaintiff candidly admitted that he believes he has the administrative qualifications and experience to occupy a position in such a business.
34 Both Dr Hardy and Dr Peterson were cross-examined about their knowledge of the plaintiff's plans to travel to Vietnam or Manila and to engage in some form of business activity, probably the travel industry for disabled people. Neither were particularly impressed by the plaintiff's plans and neither were of the opinion that the plaintiff had the capacity to carry out those plans.
35 Dr Peterson described the plaintiff's plans as indulging in pipe dreams driven by the plaintiff’s distressing circumstances, and the plaintiff seeking nirvana where he would be out of the situation he is in presently.[22] Dr Hardy described the plaintiff as having lots of ideas, but not being capable of carrying them out. She added that the plaintiff has had plans, but instead of taking practical little steps he has ideas that something extreme like travelling and going into business would bring his life back and would reduce his anxiety. Dr Hardy did not consider that the plaintiff would actually get to that point.[23]
[22] Transcript 133
[23] Transcript 177-178
36 Dr Hardy has prescribed the plaintiff medication to treat his psychiatric injury. The inference I draw from the evidence of Dr Peterson is that he has treated the plaintiff fortnightly or monthly, and that regime will continue.
37 Dr Harvey referred the plaintiff to Dr McGreal, psychologist, who first saw the plaintiff on 8 November 2006. She has been treating the plaintiff fortnightly. She was of the opinion that the plaintiff suffered a post-traumatic stress disorder and an anxiety condition. It would appear that she provided the plaintiff with strategies to try to cope with the symptoms he described to her. She observed that the plaintiff had difficulty employing those strategies at times.[24]
[24] PCB 39-43
Other Medical Evidence
38 Dr Turecek, psychiatrist, examined the plaintiff for the defendant in April 2006. He was of the opinion that the plaintiff was suffering from a generalised anxiety disorder. He considered it appropriate that the plaintiff continue with anti-depressant medication and psychiatric treatment. He was impressed by the plaintiff's motivation to return to work and considered that he had the capacity to do so, but not unless the situation with Ms Nicholson was resolved satisfactorily.[25]
[25] DCB 6-7
39 Dr Turecek was provided with a circumstances investigation report from a private investigator. He was asked to consider its contents and to say whether it changed his previously expressed opinion. After reading the report he said that he saw no inconsistency between what he read in the report and the assessment he made of the plaintiff’s psychiatric injury.[26]
[26] DCB 8-9. The report provided to Dr Turecek was not tendered in evidence
40 Dr Duke, psychiatrist, examined the plaintiff on 29 July 2005 for the defendant. He was of the opinion that the plaintiff was suffering from an adjustment disorder with marked psychological features.[27]
[27] DCB 26-27
41 Dr Duke examined the plaintiff again on 19 February 2008. He made the same diagnosis. He was of the opinion at that stage that the plaintiff’s condition had not resolved; that the plaintiff had no current work capacity; that the plaintiff was under treated from a psychiatric point of view, and that the plaintiff had ongoing mood fluctuations, variability and significant symptoms which he noted in the body of his report dated 19 February 2008.[28]
[28] DCB 16-18
42 Dr Strauss, psychiatrist, examined the plaintiff for the defendant on 27 August 2008. He was of the opinion that the plaintiff had developed a mild panic disorder with some agoraphobia. He did not consider him to be totally incapacitated. He was confident that the plaintiff would find work, although he considered it would need to be in a quiet or restricted environment or maybe overseas.[29] He made the observation that he was sure that the plaintiff's level of activity would increase after finalisation of his case.
[29] DCB 36-37
43 Dr Hardy and Dr Peterson were cross-examined by Mr Moore regarding Dr Strauss's observation that the finalisation of the plaintiff's case would see his level of activity improved. Neither accepted that the improvement would be of any significance or would be lasting.[30]
[30] Dr Hardy at transcript 176-177, and Dr Peterson at transcript 127 and 150
44 Dr Strauss examined the plaintiff again on 5 May 2009. On that occasion Dr Strauss was of the opinion that the plaintiff was suffering from a mild panic disorder with agoraphobia. He questioned the necessity for the plaintiff to have any psychiatric or psychological treatment. He was of the opinion that the plaintiff was capable of work, but would not make an attempt to find work until the finalisation of his claim. He was of the opinion the plaintiff was fit for suitable work consistent with what he was doing before he was injured.[31]
[31] DCB 43-44
The Plaintiff's Evidence
45 The plaintiff swore two affidavits in which he described the consequences of the psychiatric injury. In his first affidavit he said he once had a happy and fulfilling life despite the problems with his lower back, but since March 2006 he has become a totally different person. He described becoming extremely withdrawn, nervous, anxious, depressed and suffering frequent panic attacks to the point where he has become reclusive and anti-social.[32]
[32] PCB 8
46 In his second affidavit he described not being a sociable person. He does not go to parties any more. He needs lot of personal space. He regards his home as his sanctuary. He said he was not able to go to a rock 'n' roll concert because he could not face being surrounded by so many people, nor was he able to go to the football for the same reason. He watched the grand final, in which his son played for a local team on the far wing, away from a gathering of people, and when the crowd grew he had to leave. He said he has trouble sleeping. He said he cannot travel on a plane by himself. He said he could not participate in a business and tourist project in Vietnam because he could not travel to Vietnam. He rarely drives because of fear of having a panic attack which come on with without warning. He has suffered a loss of self- esteem and personality. He cries a lot. He has lost interest in people and has little interest in sexual activity. [33]
[33] PCB 11-13
47 Mr Moore cross-examined the plaintiff, submitting the following:
• I should not accept the plaintiff as a reliable or accurate witness. •
I should not accept the plaintiff’s evidence in the absence of corroborative lay evidence.
•
The pattern of the plaintiff's behaviour following the occurrence of the psychiatric injury bears similarities with his behaviour following the occurrence of his lower back injury.
•
I should doubt the plaintiff's evidence given his preparation to undertake a business activity prior to March 2006.
•
I should accept that the plaintiff does have a capacity for work, and furthermore, that the consequences to him do not meet the statutory test.
•
I should not accept the evidence of Dr Hardy or Dr Peterson because they have accepted the plaintiff at face value.
48 Mr Moore referred me to a large number of transcript and court book references which he submitted demonstrated that the plaintiff gave unresponsive answers; had not revealed relevant facts regarding his working life between suffering the injury to his lower back and commencing work with the defendant; complaints of persisting lower back pain impairing his capacity to function, for instance, in driving a car just before commencing work with the defendant; an account of his relationship with his former wives and girlfriends and an account of his business plans in Vietnam and Manila.
49 I do not see it as a relevant or productive exercise to sieve through each of the transcript and court book references seriatim because I consider that it ignores the real essence of this application.
50 The defendant has admitted that the plaintiff suffered a compensable injury, and more particularly, resulting from the very work which the plaintiff implicates as a cause between July 2004 and 7 March 2006.
51 Therefore, the only issue that arises for my consideration is whether the consequences of the psychiatric injury meet the statutory test.
52 I accept that the plaintiff gave evidence in a manner suggestive of being unresponsive. If there was any doubt raised concerning the veracity of the plaintiff’s evidence because of his trips to Vietnam, Tasmania and Perth by aeroplane, and the plans he has vocalised regarding the business activity of one of his friends in Manila, it was put into its proper perspective by the evidence of Dr Hardy and Dr Peterson.
53 Dr Hardy did not believe the plaintiff would see out those plans, and Dr Peterson considered that they were a pipe dream. Essentially, they were of the same mind regarding why the plaintiff was vocalising those plans and that he was unlikely to carry them out.
54 Furthermore, the preponderance of the medical evidence comprising Dr Hardy, Dr Peterson and Dr Duke points to the plaintiff having a significant level of disablement both in terms of general functioning and capacity to return to suitable employment.
55 I do not see the relevance of raking over the plaintiff's behaviour following the occurrence of his lower back injury. He may well have given a history to Dr Sillcock, occupational physician, of continuing physical disablement,[34] and also to Mr Strangward, surgeon,[35] however, I accept the submission made by Mr Nash that the plaintiff’s pay history demonstrates that he was working full- time with the defendant leading up to March 2006.
[34] DCB 135
[35] DCB 150
56 The film of the plaintiff taken on 28 April 2006 demonstrated that the plaintiff had a mobile lower back and was capable of undertaking light to moderate physical activity. The other films demonstrate very little. I do not accept that the plaintiff's undoubted capacity to walk, ride a bicycle and otherwise engage in physical activity impact much upon a case based upon a psychiatric injury.
57 Again, Dr Hardy and Dr Peterson were cross-examined by Mr Moore about the plaintiff's capacity to engage in the activities just mentioned. Neither were moved to alter their previously stated opinions in the face of that evidence.
58 Moreover, Dr Hardy expressed some real optimism early on that the plaintiff would be able to return to work. She said as much in her report dated 28 October 2005. Her optimism waned. She is now of the opinion that the plaintiff has an established chronic psychiatric injury. Her evidence puts the film of 28 April 2006 into its proper perspective. At an early stage the plaintiff may well have been physically and mentally able, but according to Dr Hardy that degree of resolve on the part of the plaintiff did not last, and indeed, dissipated dramatically.
Serious Injury
59 Mr Moore submitted that I should not accept the opinions of Dr Hardy and Dr Peterson, and it must follow logically that I should not accept the opinions of Dr Turecek and Dr Duke where their opinions are consistent with those of Dr Hardy and Dr Peterson. He submitted that I should prefer the opinion of Dr Strauss.
60 On the analysis I have made of the evidence of Dr Hardy and Dr Peterson, it is obvious to me that they are in the best position to make an evaluation of the plaintiff in an overall sense, and in particular, whether they can accept him as a reliable historian regarding the nature and extent of his symptoms, and also whether the description given to them of the panic attacks is acceptable.
61 The opinions of Dr Turecek and Dr Duke are really not very different. Dr Turecek was optimistic when he saw the plaintiff in 2006, but so was Dr Hardy, whose optimism turned to pessimism. Dr Turecek was not given the opportunity to review the plaintiff.
62 There is little difference in reality between the opinions of Dr Duke and the opinions of Dr Hardy and Dr Peterson. It seems to me that they are all of the same mind regarding the fact that the plaintiff has a psychiatric injury which is disabling and which requires medical treatment.
63 In the setting of that medical evidence in question, what now arises for consideration is why should I prefer the evidence of Dr Strauss? Dr Strauss is essentially on his own in saying that the psychiatric injury is milder in consequence than others say it is, and he is also on his own in observing that the plaintiff no longer requires medical treatment and will improve once his case had been finalised.
64 Dr Duke was certainly of the opinion that the plaintiff required medical treatment, and indeed, was of the opinion that the plaintiff was under treated. Dr Hardy and Dr Peterson are certainly of the opinion that the plaintiff requires medical treatment.
65 Neither Dr Hardy nor Dr Peterson believe that whatever improvement might come the plaintiff's way when his case is finalised, that it is unlikely to be lasting or returning him to a better level of psychiatric functioning.
66 I reject the opinion of Dr Strauss to the extent that it is in conflict with the opinions of Dr Turecek, Dr Hardy, Dr Peterson and Dr Duke.
67 I propose to deal with the plaintiff's claim for loss of earning capacity first. In Advanced Wire & Cable Pty Ltd v Abdulle (supra) the Court of Appeal held that where an applicant for serious injury satisfies the loss of earning capacity requirements of section 134AB then it follows that the applicant can also claim pain and suffering.[36]
[36] Paragraphs 62-64
68 I was impressed by the evidence of Dr Peterson. It occurs to me that he had obtained a clear and reasonably accurate history from the plaintiff of the circumstances under which he was working which resulted in him suffering the psychiatric injury. It also occurs to me that in the time he has treated the plaintiff he has come to well understand the plaintiff, whether the symptoms of which he complains are verifiable and the plaintiff's work history .
69 In his reports, which I have referred to in paragraphs 29-31, and in his oral evidence, it is abundantly clear that the plaintiff has an underlying psychiatric injury and serious panic attacks. The panic attacks are sometimes unheralded. According to Dr Peterson, the plaintiff has a fluctuating level of anxiety which sometimes reach absolute panic proportions which stop him from being able to do anything.[37]
[37] Transcript 135-136
70 Whilst Dr Hardy's opinion was not as strong as that of Dr Peterson, she painted a picture of the plaintiff needing to go into a sheltered level of working environment in order to survive an ordinary working existence.[38] At present Dr Hardy is certifying the plaintiff as unfit for all work.[39]
[38] Transcript 162-163
[39] Transcript 160
71 I find that the plaintiff is suffering from a psychiatric injury as described by Dr Peterson of major proportions which has impacted on nearly every aspect of his life. He suffers panic attacks for which he has required hospitalisation, and in that regard I accept the plaintiff’s evidence of a number of panic attacks he has suffered and the treatment he has sought as a result of their onset. He requires regular medical treatment and psychological counselling. He requires medication to control his anxiety and panic attacks. He suffers from a degree of agoraphobia which sees him experiencing difficulty coping in crowded places. Otherwise I accept his evidence which I summarised in paragraphs 44-45.
72 I find that the plans which the plaintiff has vocalised are unlikely to come to fruition. It occurs to me that Dr Hardy and Dr Peterson would not have characterised the plaintiff's plans in the way they have unless they had given serious consideration to whether the plaintiff can fly overseas and engage in a business activity.
73 In the end I find that the plaintiff did suffer a psychiatric injury as described by Dr Peterson. I find that the consequences to the plaintiff of the psychiatric injury are permanent. I find that the plaintiff has no capacity for suitable employment given the opinions of Dr Hardy, Dr Peterson and Dr Duke on that score.
74 I find that the consequences to the plaintiff deserve the description “severe”. I have reached that conclusion after making a comparison with other cases in the range of possible mental or behavioural disturbances or disorders.
Conclusion
75 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 pain and suffering and loss of earning capacity arising out of his employment with the defendant.
76 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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