Vivienne Cirillo v Mayven and Ramsay Medical Pty Ltd and
[2010] VCC 1431
•21 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-04764
| VIVIENNE CIRILLO | Plaintiff |
| v | |
| MAYVEN & RAMSAY MEDICAL PTY LTD | Defendant |
| and LIVINGSTONE INTERNATIONAL PTY LTD |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 and 7 October 2010 |
| DATE OF JUDGMENT: | 21 October 2010 |
| CASE MAY BE CITED AS: | Vivienne Cirillo v Mayven & Ramsay Medical Pty Ltd and Livingstone International Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1431 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent severe mental or permanent severe behavioural disturbance or disorder – whether mental impairment ‘permanent’ under s 134AB(37)(c) – whether refusal to use medication for treatment unreasonable
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dyson F Hore-Lacy S.C. | Clark, Toop & Taylor |
| Andrew D B Ingram | ||
| For the Defendant | Neal B Chamings | Thomsons Lawyers & Co. |
| HER HONOUR: |
Introduction
1 The plaintiff is 46 years of age and married with two teenage children.
2 She was educated to year 12 level without obtaining her Higher School Certificate. However, prior to commencing her first period of employment with the first defendant in 1982 the plaintiff completed a certificate of computer operations at a Tafe College.
3 The first defendant manufactured, imported and distributed medical products. Between 1982 and 1986 the plaintiff was employed in its accounts office performing computer work. Thereafter she either worked in a jeans manufacturing business established by her husband and his brother or she was involved in raising her children.
4 In October 1997 the plaintiff returned to part-time work for the first defendant as an accounts clerk. From 1998 she commenced working full time.
5 On 1 December 2000 the Sydney-based second defendant took over the business of the first defendant and introduced new accounting and Internet systems. The plaintiff alleges that the changes in the business brought with them inadequate training, greater work pressures, additional duties and a general decline in staff morale. Nevertheless, by August 2002 the plaintiff was appointed general manager of the Victorian division, on a salary of $50,000 for an anticipated 45 to 50 hours per week. The plaintiff's contract also entitled her to commission for additional sales.
6 Essentially the plaintiff alleges that the second defendant's involvement in the business introduced a very stressful working environment. For instance, between 2001 and 2003 when this woman's employment was terminated, the plaintiff was bullied and belittled by the defendants' Sydney-based National Sales and Marketing Manager and, subsequently, her Sydney-based replacement failed to consult the plaintiff in the appointment of a Victorian employee, who proved to be an unsuitable member of staff.
7 Stressors in the plaintiff's work environment brought on physical symptoms such as belching, altered sensations on the right side of the plaintiff's body and at times breathlessness. In mid-December 2004 the plaintiff's general practitioner, Dr Morris commenced treating the plaintiff with Cipramil, Xanax and Valium for symptoms of anxiety, depression and disabling panic attacks occurring day and night. An attempt to return to work on 19 December 2004 produced symptoms of acute anxiety and stress.
8 The plaintiff remained off work until she made a further unsuccessful attempt to return to work in October 2005. During this period her claim for compensation was accepted and the plaintiff commenced regularly attending at the Mawarra Services Pty Ltd clinic where she has received psychological treatment from successive psychologists including her current treating psychologist, Ms Morgan.
9 In 2006 after the plaintiff began pushing to resume her former position and duties she was not supported and, in May 2006, she was informed that, due to a restructuring of the company, her position in Melbourne was no longer required. The plaintiff rejected demotion to a role in office administration at a reduced salary of $35,000 per annum and she continued to press her claim.
10 As it turned out for some time the plaintiff also had difficulties with another Sydney-based employee who on occasions visited Melbourne. It seems that the tipping point came when, on 7 February 2008, this employee who was responsible for hospital equipment sales in both Victoria and New South Wales arranged dinner at a Chinese restaurant with the plaintiff and two other Victorian sales staff during which he subjected the plaintiff to what she found to be distressing and intimidating behaviour. The plaintiff left the restaurant before the conclusion of their meal and on the way home suffered a panic attack experiencing severe chest pains, nausea, shaking and impaired sensation in her left arm.
11 The plaintiff has not returned to employment since this episode and, despite regular consultations with psychiatrist, Dr Lewis from May 2010, she has not resumed using antidepressant medication because of its side-effects. However, the plaintiff remains under the care of her general practitioner, Dr Morris who continues to certify her as unfit for employment and she also consults her treating psychologist, Ms Morgan approximately every three weeks for psychological counselling and cognitive behavioural therapy.
12 By originating motion filed on 6 October 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
13 The application is made under paragraph (c) of the definition of serious injury; that is permanent severe mental or permanent severe behavioural disturbance or disorder.
14 For the purpose of this application "permanent" refers to a condition that is “likely to persist in the foreseeable future” and “conveys the probability that the condition will not mend or repair – or at least to any significant extent”.[1] "Severe" connotes something of stronger force than "serious".[2]
[1] Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33 at paragraphs 18-19.
[2] Mobilio v Balliotis [1998] 3 VR 833.
15 In 2010 the psychiatric diagnoses include chronic adjustment disorder with mixed anxiety and depressed mood, panic disorder and agoraphobia[3] and depressive symptoms and panic disorder with mild agoraphobic symptoms.[4]
[3] Dr Shan, the defendants' medico-legal psychiatrist at Defendants’ Court Book (“DCB”) 14.
[4] Dr Lewis at Plaintiff’s Court Book (“PCB”) 135.
16 In her final report made in June 2010 treating psychologist, Ms Morgan provided the following useful summary:
"Vivienne meets the criteria for Panic Disorder, Without Agoraphobia, and Major Depressive Disorder. Her symptoms appear to have originated in response to incidents of bullying, intimidation, and poor treatment at work. Vivienne has reported experiencing panic attacks, as well as general anxiety, since the first incident of workplace mistreatment in 2004. Her condition has changed, with initial gradual improvement, and the subsequent drop in psychological functioning following a reported instance of verbal abuse and intimidation by Vivienne’s employer in 2008. Since then her condition has fluctuated, but her anxiety has remained severe over the past year, as evidenced in psychometric assessments. She also suffers from depression due to the impact of her anxiety. As a result of her depression and anxiety, Vivienne currently experiences problems with concentration and memory, which greatly impacts on her self-confidence, in particular, the confidence in her ability to return to any work. Due to the severity of her symptoms, and her current inability to work, Vivienne experiences reported low self-esteem, and feelings of worthlessness.
Perpetuating factors that appear to be affecting Vivienne's psychological condition include problems with concentration and memory. This contributes to her poor self-confidence, but also means she frequently forgets to do therapeutic homework outside of psychological sessions. The length with which she has been unwell is also a perpetuating factor, as Vivienne has reported being concerned that she may not be able to recover from her depression and anxiety.
Protective factors include the fact that Vivienne is highly motivated to improve. She participates actively in sessions, and has reasonable insight into the nature of her condition. In addition, the fact that she has previously shown improvements with psychological treatment may suggest that she could improve again in the future ..." [5]
[5] PCB 161.
17 It seems from her report that in making her diagnoses Ms Morgan attributed the plaintiff’s reluctance to leaving her house to depression and what she described as the plaintiff’s lack of confidence and motivation. However, allowing for the plaintiff's evidence and the affidavit sworn by her husband, Salvatore Cirillo on 7 September 2010, corroborating as it does many of the matters reported in the plaintiff's affidavit material,[6] I have preferred the diagnoses of the psychiatrists where they have indicated that the plaintiff is probably still appropriately diagnosed as presenting with symptoms of agoraphobia.
[6] PCB 119.
The Areas of Dispute
18 As I have already noted the plaintiff's claim for compensation was accepted, apparently in respect to work-related anxiety and panic attacks and she is currently receiving weekly payments of compensation for total incapacity.
19 At hearing on behalf of the defendants their counsel conceded that the plaintiff is suffering from the effects of work-related injury which has caused her current total incapacity for work. However, without conceding that her mental condition was severe, the defendants contested whether, in all the circumstances, any mental or behavioural disturbances or disorders arising out of the plaintiff's employment with the defendants are permanent. In addition to that, the defendants contested whether any current loss of earning capacity of 40% or more of the plaintiff's without injury earnings is permanent. In this case the issue of permanency turned on the interpretation of the evidence concerning any likely improvement in the plaintiff’s mental state and whether the plaintiff's ongoing refusal of treatment with antidepressant medication was unreasonable.
20 In the course of submissions I was taken to various extracts from Harold Luntz's text on "Assessment of Damages for Personal Injury and Death"[7] and the Victorian and High Court authorities of Glavonjic v Foster[8] and Fazlic v
Milingimbi Community Inc.[9]
[7] Harold Luntz, Assessment of Damages for Personal Injury and Death (revised ed, 2006).
[8] [1979] VR 536.
[9] (1982) 150 CLR 345.
21 In summary the defendants carry the legal onus of proving any matter in mitigation of damage and in this case of proving that it is unreasonable for the plaintiff, who from 2005 until some 11 months before she ceased her employment in February 2008 reportedly experienced some mild improvement in her depression and anxiety symptoms in association with the use of antidepressant medication,[10] to reject further use of any different antidepressant medication, in addition to her counselling-based therapy.
[10] See TN 83, the report of treating psychiatrist, Dr Lewis at PCB 135 and the report and evidence of
22 Whilst in his recent report the psychiatrist does not mention or recommend this as a course of treatment, in cross-examination the plaintiff agreed that her treating psychiatrist, Dr Lewis had prescribed the antidepressant, Lexapro and that he had discussed with her its possible side-effects.
23 In response to questions asked in re-examination the plaintiff emphasised that there had been no improvement in recent months or years in her ability to return to work. As it stood at the date of hearing both Dr Lewis and Ms Morgan were of the view that the plaintiff had no psychiatric capacity for work and neither envisaged that a return to work was likely in the foreseeable future without improvement in her condition.
24 Their opinions are consistent with the medico-legal reports of psychiatrist Dr Epstein, who last examined the plaintiff at the request of her solicitors in August 2010 and, amongst other things, said that in his opinion this situation will not improve in the future, and psychiatrists Dr Stern and Dr Shan, who last examined the plaintiff on behalf of the defendants in August 2008 and August 2010 respectively. Relevantly, in 2010 Dr Shan also reported that in his opinion the plaintiff "will not report any improvement through psychiatric treatment and the taking of medications if that was added."11
25 Dr Shan's opinion notwithstanding, in keeping with Ms Morgan's opinion, at hearing the plaintiff appeared to accept that the use of antidepressant medication offered the possibility of improving her mental health and her capacity to return to work, an activity from which the treating psychologist believed the plaintiff could benefit.12
26 Nevertheless, in her report Ms Morgan also noted that the plaintiff experienced high levels of anxiety about taking any medications including Xanax and
treating psychologist, Ms Morgan.
DCB 14.
PCB 160 and TN27-28.
Valium and that part of her current treatment program had been to desensitise the plaintiff to the notion of using psychotropic medications.
27 Whether the refusal by the plaintiff to take medications is unreasonable is a question of fact. The plaintiff's evidence was that, whilst it probably assisted in preventing panic attacks at night, her earlier use of antidepressant medication had brought about significant weight gain, she was concerned about health issues associated with being overweight and she felt that the medication had impaired her thinking, functioning and decision-making such that she made mistakes.
28 In effect, the plaintiff said that in the past the drugs controlled the way she thought and acted and she expressed a preference for working with her psychiatrist on healing naturally, that is through drug-free treatment.[13] To this end and with the support of her psychologist it appears that the plaintiff has established a program of walking outside her home in 40 minute blocks, once weekly by herself and twice weekly accompanied by her daughter. It was the plaintiff's understanding that this therapy would give her "somewhat the same sort of benefit as antidepressants over a three-month period".[14]
[13] See generally TN 13-15 and 83.
[14] TN 20-21.
29 The plaintiff is currently receiving psychiatric and psychological support. At hearing I was not satisfied from the evidence before me that currently any of the psychiatric specialists were actively agitating for the use of antidepressant medication or were of the view that this would likely lead to any significant improvement.
30 For instance, in August 2010 Dr Lewis said that currently they intended to continue to adopt a cognitive behavioural therapy approach to help target unhelpful psychological beliefs and to provide a behavioural exposure strategy to assist the plaintiff to attempt activities of daily living more independently.[15] In these circumstances, I was not satisfied that the plaintiff's preference for drug-free treatment was not an appropriate course to adopt for treatment of her current mental impairment.
[15] PCB 136.
31 These matters, coupled with the plaintiff's concerns about the potential effect of drugs on her well-being and behaviour as well as the potential for exacerbation of her symptoms due to her sensitivity to the idea of using these drugs, led me to the conclusion that in this case the defendants have not discharged the onus they carry to prove that the failure to take anti-depressant medication is unreasonable.
The Statutory Requirements
32 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of work-related mental impairment, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, are fairly described as being more than serious to the extent of being
"severe".
33 In summary, the plaintiff is required to establish a compensable mental injury after 20 October 1999; the nature of the injury; the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which the compensable injury materially contributes; and that these consequences are permanent and severe.
34 In this case, there is no evidence of any pre-existing mental health issues.
35 The plaintiff alleges a total and permanent loss of earning capacity. The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her capacity for suitable employment post-injury and her attempts to participate in rehabilitation and retraining, she has a capacity for any employment which if exercised would result in her earning more than 60% of her pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
36 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[16]
[16] s134AB(19)(b).
37 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
38 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, she will be entitled to leave in respect to these damages and, without further determination of this aspect of the application, pain and suffering damages.
The Evidence Called and Tendered
39 The plaintiff deposed to the accuracy of her affidavit sworn on 20 April 2009 and her further affidavit sworn on 9 September 2010. She was cross- examined at length.
40 The material tendered by the plaintiff consisted of her Court Book from which a number of documents had been removed. The plaintiff also tendered and relied on pages 10 to 37 of the defendants' Court Book inclusive which consisted of reports from the defendants' medico-legal specialists, consultant psychiatrists, Dr Shan dated 6 August 2009 and 27 August 2010 respectively and Dr Stern dated 26 August 2008 and from general surgeon, Mr Troy dated 28 August 2008.
41 The defendants called and tendered no evidence. However, the plaintiff’s current treating psychologist, Ms Morgan was required for cross-examination.
The Medical Evidence
42 As I have already indicated the plaintiff continues to regularly consult her general practitioner, her treating psychiatrist and her treating psychologist. Based on the material before me all of the doctors and the treating psychologist agree that the plaintiff is currently and for the foreseeable future totally incapacitated by reason of a work-related mental impairment.
43 It appears that the plaintiff has reported what Dr Lewis described as "mild improvement" in her symptomatology and possibly also in her depressive symptoms in the past three years. Nevertheless, Dr Lewis felt that the improvements made over a relatively long period were very modest, although he did anticipate ongoing but slow improvement in the plaintiff's anxiety and depressive symptoms.
44 At hearing Ms Morgan adopted and affirmed the views and conclusions expressed in her report dated 21 June 2010. She confirmed that since making her report there had been no significant alteration in the conclusions reached or in the severity of the plaintiff's symptoms. Indeed, notwithstanding the plaintiff's apparent motivation and improvements such as engaging in walking and using self-talk to manage some of her symptoms, Ms Morgan described the rate of the plaintiff's improvement as "modest or less". [17]
[17] TN 31.
45 Both in her report and evidence Ms Morgan also confirmed that between August 2009 and June 2010 the plaintiff submitted to 3 self-report psychometric tests. Relevantly, the measures obtained indicate the following:
•
that the plaintiff's general psychological distress has remained in the severe range, albeit whilst showing a numerically higher score;
•
when measured in August 2009 the plaintiff’s depressive symptomatology was severe;
•
On the depression/anxiety/stress scale the severity of the plaintiff’s depression has steadily increased through moderate to severe, the severity of her anxiety has fluctuated between extremely severe and it is currently severe and the level of her stress, which reflects her ability to cope, has steadily reduced from moderate to mild. [18]
[18] TN 26-27.
The consequences
46 These were best summarised in paragraphs 4 to 7 inclusive of the plaintiff’s supplementary affidavit where she deposed:
"4.
As a result, my psychiatric treatment has remained within the realms of counselling and advice and this comes from Dr Morris, a psychologist Ingrid Morgan who I began to consult in early 2010 and continue to consult on approximately a three weekly basis and also from Dr Lewis whom I continue to consult on approximately weekly basis also. I find these consultations are beneficial to me in helping me to remain stable and not deteriorate any further but there has been no resolution or longer term improvement in the nature of my condition.
5.
As I have stated, I continue to be certified unfit for employment and remain in receipt of compensation payments which I believe are paid at a rate of approximately $522 per week. Given the period of time over which I have remained incapacitated from employment I believe that it is probable that I will remain so incapacitated in the longer term.
6.
My lifestyle continues to remain affected in many ways as a result of my psychiatric condition. Because of the panic attacks I am fearful of going out and tend to stay at home so that I can limit threats of initiating factors which might bring on attacks, or alternatively if I do suffer an anxiety attack am (sic) not exposed to a public display of the symptoms of such an attack. I continue to lead a relatively isolated existence because of these factors prefer being at home. I continue to shop locally but my husband undertakes the majority of our shopping. My sleep continues to be disturbed and I continue to suffer nightmares on a number of occasions during the week and in those nightmares I revisit my work circumstances and the personnel I used to work with which itself leads to me feeling anxious and upset. My husband and I are trying to improve our relationship and have been sharing our bed more so than in the past as part of our endeavours to deal with my illness and the affects that it has had upon our marriage. Our sexual relations have not resumed. I continue to be moody and irritable and this affects my relations with my husband and with my children. I continue to have a loss of self-esteem and self-confidence. I continue to suffer the gastric problems in particular belching and painful bloating referred to in my earlier affidavit.
7.
There is no aspect of my life which has not been very significantly affected as a result of my psychiatric condition and treatment which I undertake helps me to manage the symptoms from which I suffer but given the period of time over which those symptoms have persisted I believe that they are likely to be with me on an ongoing basis."[19]
[19] PCB 117-118.
47 Relevantly, in his report dated 28 August 2008 the defendants’ medico-legal specialist, general surgeon, Mr Troy accepted the nexus between increased gastric secretion and oesophageal reflux and the plaintiff’s stress, panic attacks and anxiety state.[20] This is clearly an uncomfortable and embarrassing condition for the symptoms of which the plaintiff said antacid medications provided only limited relief.
[20] DCB 31-35.
The Compensable Injury
48 Accordingly, the evidence and the general medical consensus has satisfied me that the plaintiff suffers from work-related mental impairment caused by a probable chronic adjustment disorder, depressive disorder, panic disorder and agoraphobia. This compensable injury probably continues to make a material contribution to both pain and suffering and pecuniary loss consequences, although the extent of these consequences requires consideration.
49 The pain and suffering consequences of the plaintiff's work-related mental impairment when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders are fairly described as "severe". In characterising the consequences of her mental impairment as "severe" I had regard to the likelihood of prolonged and regular psychiatric and psychological interventions, the persistence of her symptoms notwithstanding treatment, the likely fluctuation and exacerbation of her symptoms as she attempts to comply with the requirements of her behavioural therapy, the long-standing digestive disturbance and the impact of her condition and its treatment on her relationships and on all aspects of her life.
50 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence
51 In relation to her loss of earning capacity claim, in addition to the narrative requirements of loss of earning capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act, the plaintiff was required to prove that at the date of hearing, her loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
52 A statement of calculation of the plaintiff's loss of earning capacity was not submitted to the Court. The defendants concede that by reason of her work- related mental impairment the plaintiff is currently totally incapacitated for work. It follows from this concession that at the date of hearing the plaintiff's loss of earning capacity was 40% or more. However, for the purposes of the Act the plaintiff submitted that she is permanently, that is in the foreseeable future totally incapacitated for suitable employment.
53 This requires consideration of the possibility of employment following the plaintiff's injury by reference to the plaintiff's mental capacity for employment and with due regard to the various factors on which the definition of "suitable employment" elaborates. The ultimate concern in this case is whether the plaintiff's current total mental incapacity for work is permanent in a sense that in the foreseeable future even with treatment she is unlikely to have the psychiatric capacity to return to or undergo any retraining to equip her for suitable employment options.
The Vocational Material
54 The material tendered by the plaintiff included the following:
•
an Initial Assessment Report prepared by Recovre Pty Ltd and dated 22 October 2008, in which it was accepted the plaintiff had no current work capacity;[21]
•
a "130 Week Vocational Assessment Report" following assessment of the plaintiff on 11 March 2010 by Cafri Psychological & Rehabilitation Services. It appears that prior to finalising this report, on 6 April 2010 the Cafri psychologist spoke to Ms Morgan and effectively confirmed that the plaintiff did not have a current work capacity. In addition, the Cafri psychologist apparently understood from Ms Morgan that, should the plaintiff regain her work capacity, the positions identified in the report, namely Customer Service Manager, Retail Sales Manager, Customer Service Officer and Retail Sales Assistant each represented suitable employment options. As far as I can tell from this report other than her discussions with the plaintiff and the treating psychologist the maker did not have access to the current psychiatric material;[22] and
•
a Vocational Assessment Report prepared by a psychologist specialising in vocational assessments, Mr Radley who assessed the plaintiff on 18 August 2010 as well as his supplementary report dated 27 August 2010.[23] The first report is a lengthy document in which the psychologist discusses both his assessment of the plaintiff, the Cafri report, extensive medical information and other background materials. The supplementary report contains his comments on and reasons for rejecting as unsuitable each of the occupations recommended in the Cafri report.
[21] PCB 163-166
[22] PCB 167-178.
[23] PCB 179-216.
55 Whilst Ms Morgan agreed during cross-examination that she was not “totally pessimistic that (the plaintiff) will never return to work”,[24] in view of the chronic nature of the plaintiff's mental impairment condition and the comparatively modest gains made after fairly intensive interventions over some years it is unlikely that any return to work would be contemplated in the foreseeable future.
[24] TN 33.
56 Based on all of the evidence discussed and summarised in this judgment, I was satisfied that:
(a)
the plaintiff probably has no current psychiatric capacity to return to suitable employment or any employment including alternative or further or additional employment;
(c)
the plaintiff probably has no current psychiatric capacity to undertake any type of occupational retraining;
(d)
for the foreseeable future the plaintiff is probably unable to undertake any occupational retraining and she is probably unemployable by reason of her psychiatric condition; and
(e)
were her condition to improve with treatment, for reasons very fully and persuasively articulated in Mr Radley's supplementary report it is unlikely that any of the job options to which the Cafri report referred, currently or for the foreseeable future represent suitable employment for this plaintiff. For instance, quite apart from the medical diagnoses and her prognosis, in respect to the customer service officer and sales representative positions Mr Radley found that the plaintiff did not have the requisite qualifications and that she generally lacked relevant experience, training and skills in respect to each of the positions nominated.
57 Having accepted that the plaintiff probably has no capacity for suitable employment, I find that the plaintiff has a loss of earning capacity of 40% or more that, in all the circumstances, is likely to be permanent and that when judged by comparison with other cases in the range of possible mental behavioural disturbances or disorders this loss is fairly described as being more than serious to the extent of being "severe".
58 The plaintiff has satisfied both the "permanent" and "severe" aspects of the test of any work-related mental impairment. As the plaintiff is entitled to leave in respect to loss of earning capacity damages it is not necessary for me to further address the test in relation to pain and suffering damages
Orders 59 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect to pain and suffering and loss of earning capacity damages. I will hear from the parties as to the making of appropriate orders.
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