Wen v Joy Foods Australia Pty Ltd
[2014] VCC 1479
•8 September 2014
| 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-13-00993
| HAO WEN | Plaintiff |
| v | |
| JOY FOODS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2014 | |
DATE OF JUDGMENT: | 8 September 2014 | |
CASE MAY BE CITED AS: | Wen v Joy Foods Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1479 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – plaintiff suffered injuries to his right shoulder, neck and a psychiatric injury – concession that the pain and suffering consequences of each injury was “serious” – concession that leave with respect to loss of earning capacity consequences for one injury would permit the plaintiff to claim loss of earning capacity damages for all of the injuries – Consideration of whether the psychiatric injury had loss of earning capacity consequences which were “severe”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff has leave to bring a proceeding at common law to recover damages for pain and suffering and loss of earning capacity .
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell with Ms K Popova | Zaparas Lawyers |
| For the Defendant | Ms G Cooper | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 1 March 2013, the plaintiff seeks the leave of the Court pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) , to bring a proceeding to recover damages for pain and suffering and loss of earning capacity for injuries which he suffered in the course of and within the scope of his employment with the defendant.
2 The plaintiff suffered injuries to his right shoulder and neck. The defendant conceded that those injuries constituted compensable injuries. It further conceded that the pain and suffering consequences of the impairment of function of the plaintiff’s right shoulder and neck met the statutory test. It denied that the loss of earning capacity consequences met the statutory test.
3 Additionally, the plaintiff suffered a secondary psychiatric injury. The defendant conceded that it constituted a compensable injury. It further conceded that the pain and suffering consequences of the impairment resulting from that injury met the statutory test. It denied that the loss of earning capacity consequences met the statutory test.
4 Mr J Mighell QC appeared with Ms K Popova of Counsel for the plaintiff. Ms G Cooper of Counsel appeared for the defendant.
5 The evidence which was adduced at the trial was as follows:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered the following evidence:
§ a letter from the Australian Government dated 10 January 2005: exhibit A;
§ the discharge summary of Eastern Health dated 19 June 2010: exhibit B;
§ his Court Book (“PCB”) pages 6-13.5 and 33-149: exhibit C.
· The defendant tendered the following evidence:
§ its Court Book (“DCB”) pages 1-82; 85-88, and 91-94: exhibit 1;
§ a letter of instruction and attachments addressed to Dr Bowles, occupational physician, dated 22 January 2013: exhibit 2;
§ a letter written by the plaintiff dated 18 October 2010: exhibit 3;
§ a letter written by the plaintiff dated 15 November 2012: exhibit 4;
§ a Fair Work minimum wage document: exhibit 5;
§ The plaintiff’s academic record from Northern Normal University: exhibit 6.
6 Ms Cooper informed me that if I was satisfied that the impairment of function resulting from one of the compensable injuries met the statutory test for loss of earning capacity consequences, that the plaintiff would be entitled to recover damages for loss of earning capacity consequences with respect to the other injuries.
7 I have read the transcript of the plaintiff’s evidence, the exhibits, and have considered the submissions made by counsel. I have concluded that the loss of earning capacity consequences resulting from psychiatric injury meet the statutory test. Therefore, in line with the concession made by Ms Cooper, I do not propose to consider the other compensable injuries, and whether they also meet the statutory test.
The Plaintiff’s background
8 The plaintiff was born in October 1966 in China. He completed his secondary education. He then entered a university, where he satisfied the requirements to have a Bachelor’s Degree conferred on him. That qualification entitled him to work as a teacher. However, he decided to work in an administrative role with a number of companies in China until about 2007.
9 The plaintiff migrated to Australia in April 2008. He commenced working for the defendant on 30 May 2010. He was employed on a casual basis as a production worker. He worked six days per week, and usually for more than eight hours per day.
10 The plaintiff was married. He and his wife divorced in 2011. There were three children born of their marriage. His wife returned to China with two of their children. One of their children, a daughter, lives with the plaintiff in Australia.
The Plaintiffs injury
11 On 18 June 2010, and at about 3.30pm, the plaintiff had just completed his day’s work. He was in an area which was set aside for workers to change from their working clothes. It was on the first floor of a building.
12 The plaintiff attempted to unlock his locker with a key. He dropped the key. He tried to retrieve the key. As he did so, he fell from the first-floor level. He fell about 5 to 6 meters to the floor below. As he fell, he attempted to grab onto a frame with his right hand.
The Plaintiff’s medical treatment
13 It is unnecessary for me to set out much of the plaintiff’s medical treatment because of the conclusion I have reached that the psychiatric injury has resulted in loss of earning capacity consequences which meet the statutory test. However, I will set out some of the evidence in short compass so that the development of the plaintiff’s secondary psychiatric injury can be understood.
14 The plaintiff was taken to the Box Hill Hospital immediately after the incident occurred. He was admitted overnight. A number of x-rays were taken. He was subsequently discharged. At the time of his discharge, he was provided with painkilling medication.
15 The plaintiff then saw Dr Chionh, general practitioner. He referred the plaintiff to have two ultrasounds of his right shoulder. The second of the two ultrasounds demonstrated a translaminar full-thickness tear of the right supraspinatus.[1] It would appear that the plaintiff’s major problem was his right shoulder at that stage.
[1]PCB 81-82
16 Dr Chionh referred the plaintiff to Mr Holland, orthopaedic surgeon. He referred the plaintiff to have an MRI scan. In the opinion of the radiologist, it probably demonstrated a supraspinatus tear.[2] Again, it would appear that the plaintiff’s major problem was his right shoulder. However, at the time he was treated by Mr Holland, he was experiencing pain in his right shoulder and neck, with pain radiating down into his right arm. The plaintiff said that both Dr Chionh and Mr Holland were focusing their treatment on his right shoulder.
[2]PCB 83
17 Dr Chionh referred the plaintiff to Mr Hunt, orthopaedic surgeon. The plaintiff first saw him on 5 April 2011. Mr Hunt referred the plaintiff to have an MRI scan of his right shoulder and neck.[3] With the aid of the MRI scan, he diagnosed that the plaintiff had suffered a right shoulder impingement syndrome comprising rotator cuff tendinitis and subacromial bursitis, and a partial-thickness tendon tear. He also diagnosed that the plaintiff was suffering from symptomatic cervical spondylosis with right arm radicular pain.[4] Mr Hunt recommended that the plaintiff pursue conservative treatment. He referred him to have an ultrasound-guided injection into his right shoulder, and physiotherapy.
[3]PCB 84-85
[4]PCB 45 and 48
18 Mr Hunt advised the plaintiff to have surgery on his right shoulder. The plaintiff accepted his advice and underwent surgery on 23 December 2011. Mr Hunt performed an arthroscopy. He found a labral tear and florid subacromial bursitis. He resected the bursa, removed an anterior osteophyte, and debrided the inferior margin of the acromioclavicular joint.[5] Mr Hunt reviewed the plaintiff. He found clinical manifestations of adhesive capsulitis post operatively which he considered would settle.[6]
[5]PCB 49
[6]PCB 51 and 54-55
19 Mr Hunt advised the plaintiff to pursue conservative treatment for the injury to his neck.[7] He recommended that the plaintiff have massage and physiotherapy treatment.[8]
[7]PCB 49
[8]PCB 49
20 It is reasonably clear from the reports of Mr Hunt, that throughout his treatment, the plaintiff was suffering from disabling symptoms of pain in his right shoulder and neck.[9] The plaintiff swore two affidavits in which he described the disabling symptoms of pain in his right shoulder and neck, and the impact that those injuries had on his domestic, social and recreational life.[10] In addition, the plaintiff was unable to work beyond October 2010. He has not worked since.
[9]PCB 41-56
[10]PCB 10-13 and 13.3-13.5
21 Dr Chionh referred the plaintiff to Dr Wong, psychiatrist. The plaintiff first saw him on 20 June 2012. The plaintiff has seen him on 37 occasions between 20 June 2012 and 31 July 2013. His most recent report, dated 31 July 2014, appears to summarise his diagnosis of the plaintiff’s psychiatric condition and his treatment of the plaintiff. On examination, he found the plaintiff to be depressed and frustrated. He diagnosed that the plaintiff was suffering from an Adjustment Disorder with Anxiety and Depressed Mood. He prescribed the plaintiff Avanza and Cymbalta, both of which are prescribed to treat depression. As at 31 July 2013, he had adjusted the dosage of Avanza to 90 milligrams per day, and Cymbalta to 60 milligrams per day. He also prescribed the plaintiff Imovane, 7.5 milligrams, to help him sleep.
22 Dr Wong diagnosed that the plaintiff continued to suffer from an Adjustment Disorder with Anxiety and Depressed Mood. He described the plaintiff’s position as follows:
“ Since the beginning of 2014, Mr Wen has been reviewed regularly. His pain persists and continues to keep him in an anxious and depressed state despite his full compliance with his psychotropic medications. His level of distress further worsened in May when WorkSafe stopped funding him seeing his psychologist and his GP had to try to get him a psychologist through a Medicare care plan. At the last review, he was anxious, depressed and distressed by his unremitting pain.”
23 Dr Wong was of the opinion that the plaintiff continued to require regular psychiatric treatment. He considered that treatment would involve prescription medication and supportive psychotherapy. He was also of the opinion that the plaintiff was currently not psychiatrically fit to return to his pre-injury employment, or any alternative duties compatible with his education, training and experience. His prognosis was, that judging by the lack of progress which the plaintiff had made, the plaintiff would remain psychiatrically unfit to return to his pre-injury employment, or any alternative duties compatible with his education, training and experience.[11]
[11]PCB 75.4-75.5
24 Dr Chionh referred the plaintiff to Ms Zhu, clinical psychologist. She treated the plaintiff between November 2012 and April 2014. She was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Anxiety and Depression. She considered his prognosis to be poor. She considered that a combination of physical and psychological factors had impacted upon the plaintiff’s mental and physical functioning, which resulted in his work incapacity being much reduced. She considered that his capacity to work had been significantly diminished.[12]
[12]PCB 80.5-80.6, and 80.7
25 The plaintiff described becoming extremely depressed, anxious, impatient and angry. It was as a result of his deteriorating emotional state that Dr Chionh referred the plaintiff to Dr Wong.[13] In his second affidavit, the plaintiff described the following emotional symptoms:
“19.I feel, my mental state has deteriorated even further in the last two years. I think about self harm a lot. I think about hitting my head against the wall or putting a needle in my head to make the pain go away. I continue to be extremely depressed, anxious, impatient and angry. I now feel completely hopeless about my situation, whereas two years ago I was more optimistic.
20.I live with my now 8 year old daughter. I often feel extremely frustrated, impatient and angry with her because I’m always tired and in pain. I feel that because of my injuries, she has lost her childhood. I am not able to be there for her emotionally and rely on her for my emotional support. My daughter is the only reason that I keep trying to get on with my life. In January this year I went to China for about a month to see my parents because my mum was ill, but also because I felt that I needed some family support.”[14]
[13]PCB 12-13
[14]PCB 13.4-13.5
26 The plaintiff gave a history to Dr Wong consistent with what the plaintiff described in his second affidavit.[15] He gave a similar history to Ms Zhu. She recorded that the plaintiff was suffering from increased irritability and anger outbursts, and reduced memory and concentration levels consistent with what the plaintiff described in his second affidavit.[16]
[15]PCB 75.4
[16]PCB 80.4-80.6
27 The plaintiff was examined by Dr Tagkalidis, psychiatrist, on 3 June 2014. He was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and features of traumatisation relevant to his claimed injury. He considered that the plaintiff was not fit for his pre-injury work, nor for alternative duties. He considered that the plaintiff required regular treatment by a psychiatrist and psychologist, and treatment with psychotropic medication. He considered that the plaintiff’s prognosis was “quite guarded”.[17]
[17]PCB 119-122
28 The defendant referred the plaintiff for examination by two psychiatrists. The first was Dr Varma, who examined the plaintiff on 8 October 2012. He diagnosed that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood. He considered that the plaintiff was not able to return to his pre-injury duties, modified or alternative duties. He considered that unless the plaintiff’s “medical problems” resolved, that the plaintiff would not be able to return to any form of work.[18]
[18]DCB 29-31
29 The next was Dr Entwisle, who first examined the plaintiff on 14 February 2013. He agreed that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood. He was aware of Dr Wong’s opinion regarding the plaintiff’s capacity to return to work, but he considered that the plaintiff’s lack of progress related to issues involving the plaintiff’s wife and their separation, rather than the injury itself.
30 Dr Entwisle examined the plaintiff again on 4 June 2014. His diagnosis is somewhat curious. He diagnosed that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood and a Chronic Pain Syndrome, but under the heading of “diagnosis”, he referred to “family separation and breakdown” and “relocation issues”. I do not understand the latter to be psychiatric diagnoses; however, Dr Entwisle considered that the plaintiff had improved. He appears to have placed a great deal of emphasis on the issues involving the plaintiff’s wife and their separation as being a significant cause of the plaintiff’s predicament.[19] He considered that the plaintiff had “some capacity” to perform the duties which he was asked to consider.[20]
[19]DCB 58
[20]DCB 53-54
Findings
31 Ms Cooper very properly challenged aspects of the plaintiff’s case for the purpose of demonstrating its weaknesses. Whilst that cross-examination inevitably questioned the plaintiff’s creditworthiness and reliability, I am satisfied that he is both a creditworthy and reliable witness. He gave his evidence in a relatively straightforward manner. I accept his evidence in whole without reservation.
32 There is no doubt that the plaintiff suffered serious injuries to his right shoulder and neck. I have limited my review of that evidence to the treating medical practitioners, because it was unnecessary to summarise the nature and extent of those injuries and the treatment the plaintiff had for them in any great detail. However, there is equally confirmatory evidence of the seriousness of those injuries in the reports of Mr Flanc, general surgeon; [21] Mr Brownbill, neurosurgeon;[22] Mr Kossmann, orthopaedic surgeon,[23] and Dr Slesenger, occupational physician.[24]
[21]PCB 86-103.2
[22]PCB 104-110
[23]PCB 124-135
[24]PCB 138-149
33 One of the factors, and perhaps the major factor, which Dr Wong and Ms Zhu have considered as important in the making of their diagnoses is the fact that the plaintiff has physical injuries that are causing him pain, and which are disabling. I have no doubt that the injuries to the plaintiff’s right shoulder and neck are both painful and disabling, and are productive of an incapacity for the plaintiff’s pre-injury work, and perhaps alternate work.
34 I am satisfied that the opinion of Dr Wong is soundly based. He obviously had a very good understanding of the incident, the onset of the plaintiff’s physical injuries, his medical treatment and his family history. He considered it necessary to treat the plaintiff often, and with antidepressant medication, and medication to assist the plaintiff to obtain sleep. His opinion in all of those respects is confirmed by the opinions of Ms Zhu, Dr Tagkalidis and Dr Varma. It is only Dr Entwisle who suggested that there is another factor at play which has caused, or is contributing to, the plaintiff’s psychiatric injury.
35 What is clear to me is that the plaintiff has suffered a very serious psychiatric illness. He is deeply depressed. The level of his depression has led him to self-harm. He requires two types of medication to control his depression, and he also requires medication to help him sleep. Although his right shoulder and neck cause him pain and disablement, according to Dr Wong, the plaintiff’s psychiatric injury alone disables him for not only his pre-injury work, but effectively for any work for which he is qualified. His opinion in that regard is shared by Dr Tagkalidis and Dr Varma.
36 I am satisfied that the plaintiff’s psychiatric injury has incapacitated him for his pre-injury work, and for any suitable employment. I am also satisfied that the loss of earning capacity consequences are permanent and severe. In reaching that conclusion, I have made a comparison with like impairments as I am obliged to do.
Orders
37 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity.
38 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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