White v Alcoa Fastening Systems - Australia Pty Ltd
[2013] VCC 894
•14 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01276
| TERRY SYDNEY WHITE | Plaintiff |
| V | |
| ALCOA FASTENING SYSTEMS – AUSTRALIA PTY LTD and VICTORIAN WORKCOVER AUTHORITY | Defendants |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 15 and 16 July 2013 | |
DATE OF JUDGMENT: | 14 August 2013 | |
CASE MAY BE CITED AS: | White v Alcoa Fastening Systems - Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 894 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application to recover damages for pain and suffering and loss of earnings – work related permanent severe mental or permanent severe behavioural disturbance or disorder – whether plaintiff’s current psychiatric state can be described as severe – significance of any illicit drug use – section 134AB(38)(g)
Legislation Cited: Accident Compensation Act 1985, Evidence Act 2009
Cases Cited:Ansett & Anor v Taylor [2006] VSCA 171, Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33, Mobilio v Balliotis [1998] 3 VR 833, Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, Glavonjic v Foster [1979] VR 536, Fazlicv Milingimbi Community Inc. (1982) 150 CLR 345
Judgment: Leave granted to plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Smith with Mr J. Fitzpatrick | Slater & Gordon |
| For the Defendants | Ms D. Manova | Herbert Geer |
HER HONOUR:
Introduction
1 The plaintiff is 36 years of age. He was born in New Zealand. He has 15 and 7 year old daughters, from two de facto relationships. [1]
[1]These and other the background factors summarised are found in the plaintiff’s first affidavit, his further affidavit and in the plaintiff’s oral evidence
2 In addition to reports made to various medical practitioners, in his oral evidence the plaintiff described a childhood marred by his father’s violent behaviour towards his wife and children. His exposure to this behaviour, the plaintiff said, had left him determined not to be like his father.[2]
[2]Transcript (TN) 41-42
3 Despite this resolve, under cross examination the plaintiff conceded early and isolated episodes of violent and anti-social behaviour. He described two encounters with the criminal justice system, when aged 19 and, again at about the age of 20. The first followed a fight at a train station in which another person was injured. According to the plaintiff, after a short period in custody and psychological assessment, on one charge of reckless cause serious injury he was released with no conviction recorded.[3]
[3]TN 43-44
4 The second episode was precipitated by the arrest of his sister who had been drunk in public. Evidently, the plaintiff and others who, at the time, were also drunk, became involved. They too were “locked up” for the night. This incident appears to have resulted in findings of guilt on charges of hindering police and of behaving in a riotous manner in a public place.
5 The plaintiff was also cross-examined about an Intervention Order obtained by the mother of his eldest daughter following a disagreement over access. She apparently alleged that the plaintiff had grabbed her by the throat. This conduct was not conceded by the plaintiff, who said that the order had been lifted within two weeks, once police learned that this partner was “coming round home”.[4]
[4]TN 46-47
6 Whether viewed alone or in combination, the episodes I have summarised do not indicate that, in the past, the plaintiff was a man prone to uncontrollable anger, violent outbursts or had previously presented with symptoms of psychosis.
7 The plaintiff was educated to Year 10 level and left school at the age of 16. He was employed from July 2007 as a storeman/store person at the first defendant's Clayton premises. Prior to this, in addition to an interest in producing music from home, some of which he said was sent overseas, the plaintiff’s employment activities had involved working either as a machine operator, forklift driver or as a fencer.
8 The plaintiff has no history of mental health issues prior to 1 July 2008. He did, however, describe a limited history of physical injury. For instance, in 2002 as a result of a motorbike accident, the plaintiff suffered soft tissue injuries which he deposed required treatment and time off work. He also mentioned a WorkCover claim lodged in 2006 for a shoulder injury.
9 After being granted a certificate under section 128 of the Evidence Act 2009 relating to his evidence of use or possession of illicit drugs, when questioned about this during cross-examination, the plaintiff reported a very limited history of illicit drug use before and since July 2008.
10 I will summarise and discuss this and other evidence relating to the plaintiff's alleged illicit drug use as part of my discussion of the medical evidence shortly.
The application
11 The plaintiff sought leave under section 134AB of the Accident Compensation Act 1985 (the Act) to bring proceedings to recover damages in respect to injury arising out of, or in the course of, or due to the nature of his employment with the first defendant after 20 October 1999 and, in particular, on or about 1 July 2008.
12 The circumstances in which injury occurred and the events which followed were described by the plaintiff in his first affidavit as follows:[5]
[5]Plaintiff's Court Book (PCB) 29
"8. On 1 July 2008 I was stacking boxes on a pallet and caring are calculated to my supervisor, Tim Jack. When I put the calculator down I looked up as my supervisor pretended to throw the bar code at me but I believe the strap on the bar code broke and the bar code scanner came down and hit me on the head. I can remember being on the ground and going in and out of consciousness. I was placed in a car and taken home. I was brought into the house and put on a couch. My next memory was being helped to bed (the incident).
9. The next day I had a severe headache and bruising on the side of the head. I had difficulty hearing and my ear ached.
10. I went back to work but I felt dizzy and I have severe headaches I took some time off. The next Monday I saw a general practitioner, Dr Rahgozar, who prescribed medication. I went back to work and worked for about a week. However, I was becoming emotional and I had severe headaches and my ear ached. I then went and saw the GP again and then stopped work.
11. In August 2008 I was referred to a psychiatrist (sic) Dr Lehmann, who treated me. I was becoming quite emotional and depressed and tried to harm my daughter and my mother. I was sent have CT scan of my head on 5 September 2008. I was then referred to a psychiatrist, Dr Perenyi and I saw him for about four months and I received medication. I also saw Dr Irani for my ear in February 2009.
12. At that stage I felt hopeless, helpless and useless. My confidence and self-esteem were low and my concentration was poor. I had suicidal thoughts and planned to either hang myself or take an overdose. I felt very anxious and had episodes of shaking, sweating and shortness of breath, which lasted for approximately 10 to 15 minutes. I also had nightmares and flashbacks regarding the incident. I became withdrawn and had less contact with my friends and had difficulties attending family functions. Prior to the incident, I did have some problems with my family.…”
13 As his reports to doctors and the evidence subsequently revealed, the physical trauma suffered on 1 July 2008 and associated poor treatment by particularly co-workers (and his brother) was a cause of the plaintiff’s psychiatric injury (the injury).[6]
[6]See for example the history recorded by the defendants’ psychiatrist Dr Serry on 3 September 2008, Defendants’ Court Book (DCB) 11-16 and by treating psychologist, Ms Anderson between 8 April 2010 and 30 June 2010, PCB 79-81
14 It appears that, following the incident, co-workers and the plaintiff’s brother, who also worked with the first defendant, had acted to protect their no claim bonuses, rather than arrange for immediate medical treatment and report the incident to the employer. As it turned out, the supervisor eventually lost his job and the co-workers and the plaintiff’s brother lost the bonus. The incident and these related events evidently had a profound psychological effect on the plaintiff.
15 Leave was sought under paragraph (c) of the definition of "serious injury" to recover damages for both pain and suffering and loss of earnings in respect to work-related permanent severe mental or permanent severe behavioural disturbance or disorder. Over a 5 year period, from time to time treating doctors and medico-legal specialists have characterised the plaintiff’s mental state as involving one or more conditions, namely: acute stress disorder,[7] post-traumatic stress disorder,[8] major depressive disorder,[9] major depressive disorder with suicidal and homicidal ideation,[10] adjustment disorder with anxiety and depression and features of traumatisation,[11] chronic psychotic disorder with auditory hallucinations and delusions of persecution[12] and complex post-traumatic stress disorder with periods of major depression.[13]
[7]Treating psychologist, Dr Lehmann on 1 August 2008, PCB 42
[8]Company doctor and treating general practitioner, Dr Rahgozar on 5 August 2011, PCB 47, treating psychologist, Ms Gannon on 5 September 2008, PCB 50, treating psychiatrist, Dr Perenyi on 8 December 2009, PCB 52 and plaintiff psychiatrist, Dr Epstein on 16 July 2012 and 12 June 2013, PCB 64 and 71
[9]Treating psychologist, Ms Dunn on 22 April 2013, PCB 84
[10]Dr Epstein on 13 June 2013, PCB 71
[11]Defendants’ psychiatrists, Dr Serry on 1 April 2009, DCB 23, Dr Das on 24 March 2010, DCB 34 and Dr Strauss on 24 May 201, DCB 154
[12]Dr Epstein on 13 June 2013, PCB 71
[13]Defendants’ psychiatrist, Associate Professor Robertson on 11 March 2013, DCB 73
16 The consequences of the work-related injury to the plaintiff’s psyche were articulated in his affidavits and oral evidence and through the reports made by him and recorded by doctors. Importantly, save where indicated to the contrary, the consequences summarised below were largely unchallenged:
Ø a worsening of symptoms;
Ø feelings of hopelessness, helplessness, worthlessness and uselessness;
Ø tearfulness and lowered confidence and self-esteem;
Ø poor memory and concentration;
Ø episodes of shaking, sweating and shortness of breath;
Ø more constant and vivid nightmares and flashbacks regarding the incident;
Ø insomnia and mood swings;
Ø being very angry and short tempered;
Ø ongoing difficulties interacting with family and friends such that by 2012 the plaintiff had moved to live in Newcastle. These difficulties included a loss of trust particularly in his brother and other members of his family including his facto partner, Jane[14] and angry and violent behaviour directed to members of his family (during cross-examination the defendants sought to portray the plaintiff's accounts of episodes of violent behaviour toward members of his family as untruthful without directly putting to him that these incidents had been fabricated);
[14]TN 74 and 76-77
Ø ongoing suicidal ideation and at least one incident of self harm in October 2009, namely cutting his forearms prior to referral by his general practitioner, Dr Rahgozar for review at the Dandenong Hospital Emergency Department[15] (the defendants did, however probe the accuracy of the plaintiff's reports and evidence to the effect that that he had on earlier occasions attempted suicide by hanging, again without directly putting to him that these accounts were untruthful);
[15]Exhibit D2 and TN 68
Ø the need for ongoing treatment which currently involves both regular consultations with treating psychologist, Ms Dunn and daily medication, Seroquel and Lexapro. However, the plaintiff has again been referred for psychiatric treatment. At the date of hearing he was awaiting approval for funding of this treatment by the defendants;
Ø an inability to return to composing music;
Ø mental incapacity for employment.
17 The plaintiff said that the violent behaviour toward family members had involved "heaps of incidents over the years" since the incident.[16] He described:
[16]TN 73
Ø attempts during August 2008 to choke his daughter because she looked like his brother and to punch his mother because she looked like his former supervisor; [17]
[17]TN 70
Ø having in 2009, lost his temper (“I just flipped out”) and trying to smash a vehicle, in which his then five-year-old daughter was a passenger into a tree, as well as trying to slam one of the vehicle’s doors on her head;[18]
Ø in 2010/2011 an attempt to harm Jane outside her parents home, which had left her with a bruised arm;[19]
Ø having last attempted to harm his family ("the last time I scared them") prior to moving to New South Wales in 2012, a move that has been attributed to the plaintiff’s "numerous violent outbursts and marked emotional lability".[20] On this particular occasion the plaintiff said he had tried to kick both Jane and his seven-year-old daughter.[21]
[18]TN 71
[19]TN 72
[20]See for example the report of psychiatrist, Associate Professor Robertson on 11 March 2013, DCB 71
[21]TN 74 and 77-78
18 The plaintiff has also described other episodes of angry or violent behaviour or likely psychotic behaviour and, at times, an inability to fully engage during periods of treatment, medical examination or testing.
19 For instance, the plaintiff recalled having on one occasion become enraged and smashing a car window and on another occasion finding himself with a meat cleaver.[22] These episode were recorded in April 2010 by psychologist, Ms Anderson, who treated the plaintiff between 8 April 2010 and 30 June 2010. She recorded the following:[23]
[22]TN 109-110
[23]PCB 78-79
"Terry reported that when he is on the medication he is "knocked out" and unable to function. He stopped the medication for a period so that he can function for a few days a week and then experiences an episode of uncontrollable rage. He said that he can now sense when this is going to happen and is usually able to medicate himself to prevent it. On 2nd June 2008 (sic), he reported that he had stopped taking his tablets for two weeks and was "busy" until two days prior to the session, when he had suddenly become enraged and smashed a window. Terry said that he becomes very frightened of the violence that occurs.
…
Terry said that on one occasion he was at McDonalds, Parkmore. Then, one hour later he found himself at his sister house. He said it seemed like everyone from work was there and he was lying down. He had a meat cleaver in his hand (taken from a barbecue set in the boot of the car) to protect himself…"
20 Ms Anderson reported having found formal assessment difficult because the plaintiff was either extremely distressed at their sessions or, after medication, extremely drowsy. She described two incidents of particular note occurring during treatment. One was during a relaxation therapy session, when in her words the plaintiff: "… relaxed for a short period and experienced a flashback. His whole body jumped. He leapt up, he was shaking and sweating. He believed that I had thrown something at him that had hit him in the head. He appeared enraged and ran out of the clinic."[24]
[24]PCB 78
21 On another occasion, having reportedly not taken his medication prior to the session, the psychologist noted that the plaintiff appeared to experience psychotic phenomena involving images of the factory and people with their heads chopped off.[25]
[25]Ibid
22 Some four weeks after the incident the plaintiff was assessed by organisational and clinical psychologist, Dr Lehmann on referral from his general practitioner. This psychologist’s account of their meeting, among other things, showed that, if not already aware of this, within weeks of the incident, the plaintiff’s family had been notified of the plaintiff’s suicidal ideation. For instance, Dr Lehmann said that after learning of his plans to commit suicide, in addition to obtaining agreement from the plaintiff to call her, the psychologist had invited the plaintiff's mother into the interview where she was appraised of his risk of suicide and his plans.
23 Their discussion, the psychologist said, had led to an agreement that the plaintiff’s partner would take possession of and provide him with the required dosage of his medication, his mother would retain possession of his car keys and his partner would relocate domestic power cords.[26]
[26]PCB 41A
24 During cross-examination, the plaintiff agreed that when requested by Dr Lehmann to complete a test of his executive function, he had felt unable to attempt this and, it seems, had also felt that "there was no point" in completing another task set by her, which he had not finished.[27]
[27]TN 114
25 Importantly, Dr Lehmann had not been critical of the plaintiff's failure to complete these tests. Rather, at the time, she concluded that his reported symptoms of concentration and attentional difficulties were more likely related to emotional factors than any impaired organic function.[28]
[28]PCB 42
26 On 22 October 2010, clinical neuropsychologist, Professor Ponsford examined the plaintiff at the request of his then solicitors.[29] Among other things, the neuropsychologist noted that the plaintiff presented as a very distressed and angry man, he had failed to make eye contact and he had become very frustrated and distressed after performing a few tests. The assessment was not completed apparently because the plaintiff (who during cross-examination failed to recall this incident) threw a chair.[30] Relevantly, the neuropsychologist did not question the genuineness of the plaintiff's presentation or his behaviour. Rather, at the time, she concluded that the plaintiff's psychiatric state, not any head-injury related limitations, rendered him unemployable.
[29]PCB 73-76
[30]PCB 73 and TN 114
The evidence called and tendered
27 The plaintiff deposed to the accuracy of his first affidavit sworn on 22 June 2011 and his further affidavit sworn on 14 June 2013. In so doing, the plaintiff indicated that he had been too emotionally affected by the circumstances of the incident, summarised in paragraph 8 of his first affidavit, to review this part of his affidavit prior to confirming the accuracy of his evidence-in-chief. The plaintiff was subjected to lengthy and, at times, repetitive cross-examination.
28 A treating general practitioner, Dr Rahgozar was also required for cross-examination.
29 Both parties tendered multiple reports from their respective Court Books prepared by treating doctors and medico-legal specialists.[31]
[31]Exhibit P1 (PCB) and Exhibit D1 (DCB)
30 The plaintiff also tendered an extract from the clinical notes of a treating psychiatrist, Dr Perenyi.
31 The defendants also tendered a letter from Dr Rahgozar dated 26 October 2009 directed to the Dandenong Hospital's Emergency Department,[32] an extract from clinical notes made by Ms Anderson on 29 April 2010, a report from occupational physician, Dr Sutcliffe dated 10 June 2013[33] and extracts from handwritten clinical notes made by Dr Rahgozar between 7 July 2008 and 2 September 2009.[34]
[32]Exhibit D2
[33]Exhibit D4
[34]Exhibit D5
The statutory requirements
32 To succeed in this application, the plaintiff must first prove that he suffered a compensable injury arising out of or in the course of his employment with the first defendant on or after 20 October 1999.
33 In 2008 the defendants accepted the plaintiff’s claim for compensation for the injury made on 7 August 2008. The acceptance of the claim stands as a significant but not conclusive admission by the defendants that compensable injury was sustained in the circumstances described, an admission the defendants had not sought to rebut.[35]
[35]Ansett & Anor v Taylor [2006] VSCA 171, [37]–[40]
34 Moreover, the plaintiff’s evidence in chief that the insurer continued to make weekly payments of compensation because the plaintiff has “no current work capacity and such capacity will continue indefinitely”,[36] was not contested. Subject to the qualification that only some of his psychiatric consequences had resulted from the incident, the medical evidence that the plaintiff had been psychiatrically incapacitated for work since mid July 2008, was not contested either.[37]
[36]PCB 34
[37]Defendant’s Statement of Issues and Defendant’s Statement of Economic Loss
35 Under subsection 37(a) of s 134AB of the Act, to establish “serious injury”, the plaintiff is required to prove he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder,” which is to be determined on the balance of probabilities.
36 Sub-section 38(d) provides that pain and suffering and loss of earning capacity consequences of the injury must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, be fairly described as being more than “serious” to the extent of being “severe”.
37 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”.[38] "Severe" connotes something of stronger force than "serious".[39]
[38]Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33 at paragraphs 18-19.
[39]Mobilio v Balliotis [1998] 3 VR 833
38 The plaintiff, who, as I have already mentioned, has not returned to any employment since July 2008, must also discharge the burden imposed by section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
39 It was common ground that for the purpose of this provision, the plaintiff's without injuries earnings figure, namely the sum that most fairly reflected his earning capacity had the injury not occurred, was $42,810.56 gross per annum.[40] During cross-examination the plaintiff said he had been notified by APRA that there were royalties outstanding on music produced by him prior to the incident. However, the plaintiff said that following the incident he had not pursued payment of royalties because he "didn't care any more".[41] During further cross examination the plaintiff clarified this evidence when he said that there had been one cheque only which he had not pursued because APRA required payment of a $100 fee to access this royalty.[42]
[40]See the Statement of Economic Loss
[41]TN 38-39
[42]TN 125
40 Accordingly, based on the gross figure of $42,810.56 the plaintiff was required to establish that at the date of hearing he has a permanent loss of earning capacity productive of a financial loss of $17,124.23 gross per annum or more.
41 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account his capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he had a capacity for any employment which if exercised would result in him earning more than 60% ($25,686.33) of his without injuries earnings figure.
42 The onus rested 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.[43]
[43]Section 134AB(19)(b) of the Act
43 For reasons I will explain in due course, having, as he did in this application, satisfied the loss of earning capacity requirements in s134AB of the Act, the plaintiff became entitled to leave to institute proceedings for both these damages and his pain and suffering damages without further determination of this aspect of the application.
The dispute
44 The Defendant’s Statement of Issues articulated the matters in dispute in the following general terms:
"Defendant disputes the plaintiff's claim that the totality of the symptoms present in his current psychiatric state:
1) arise as a consequence of the injury;
2) are symptoms which are consequent upon the injury;
3) meet the test in relation to comparison of range of possible mental and behavioural disturbances;
4) can be described as being more than serious to the extent of being severe.
The Plaintiff's Credit is in issue and the Defendant wishes to explore the extent to which use by the Plaintiff of intoxicants can be attributed to his current psychiatric state (sic)."
45 In her final submissions the defendants' counsel challenged the plaintiff's credit with respect to a number of specific matters. The first related to his reports and evidence of any illegal drug use before and since the incident and the consistency of his reports on this issue. The latter, so the defendants submitted, had bearing on the reliability of various medical assessments of the plaintiff's psychiatric condition.[44]
[44]TN 170-177 and 216-218
46 As my discussion of the evidence relating to the plaintiff's drug use in due course reveals, irrespective of whether their report of the plaintiff's account of his drug use was consistent with the evidence he gave at hearing on this issue, all of the doctors who took a history of illicit drug use had accepted a causal connection between the plaintiff's symptoms and the work-related injury.
47 The second related to the plaintiff's reports and evidence of his attempts to commit suicide and to harm members of his family. The defendants submitted that the conduct described was not recorded until reported by the plaintiff to various treating doctors and specialists from about April 2010,[45] nor was it the subject of independent corroboration.[46]
[45]See, for example, the reports made to Ms Anderson when the plaintiff was presented for treatment on 8 April 2010, PCB 78-79 and TN 187 et seq and TN 199
[46]TN 213
48 The defendants accepted that, over a period of some five years since the incident, the plaintiff had reported suicidal ideation and plans to harm himself and members of his family. However, it was submitted that the plaintiff had exaggerated his evidence in reporting actual attempts to commit suicide and in reporting episodes where he had tried to harm members of his family. As a result, so the submission went, the Court should treat the plaintiff's evidence, including reports made to doctors about his symptoms, as unreliable. [47]
[47]TN 213
49 The defendants' argument in this regard was based on the rather simplistic premise that if the evidence of actual attempts to self harm or to harm members of the plaintiff's family could not be independently verified (or, as was likely in this case, the plaintiff was a poor historian), this evidence should be considered untruthful. Moreover, his other evidence and the record made over some five years of reports of symptoms involving suicidal and harm ideation and apparent risk to the plaintiff's family should also be treated as unreliable.
50 As it turned out, an entry made on 11 December 2008 in the clinical notes of a treating psychiatrist, Dr Perenyi, tendered by the plaintiff by leave of the Court during final submissions, provided a much earlier and arguably contemporaneous report of an attempt to commit suicide.[48] Among other things, this entry confirmed that during this first consultation with the psychiatrist the plaintiff had reported having, two months earlier, "hung himself, girlfriend cut him down".[49]
[48]Exhibit P2
[49]Ibid
51 If nothing else, this evidence indicated that treating doctors or specialists to whom an earlier attempted suicide had been reported, probably were in a better position than might otherwise have been the case, to appreciate the severity of the plaintiff's psychiatric symptoms and condition at the time of making their report.
52 In addition to undermining the defendants’ poorly executed attempt to portray the plaintiff as a liar, this evidence also helped persuade me of the correctness of my overall assessment of the plaintiff as an unsophisticated and mentally disturbed individual, who largely did his best to recall the events about which he was questioned.
53 Whether this was due to the passage of time or the likely impact of the plaintiff's mental illness on his concentration, memory and perception of reality (or a combination of these factors), the plaintiff was, a poor historian who, from time to time, demonstrated difficulty in accurately recalling the timing and sequence of some events or in recalling some of the matters reported to doctors throughout this period.
54 The reports recorded by health professionals from shortly after the incident had nonetheless contained recurring themes of suicidal and harm ideation and references to likely psychotic imagery and episodes involving angry outbursts or uncontrollable rage. More than once, disturbed behaviour had been witnessed by a health professional either during a treatment session or medical assessment.
55 The plaintiff certainly presented as a young man challenged by ongoing mental illness and, as claimed, he probably had and continued to have difficulty revisiting the circumstances that had triggered the work-related psychiatric injury or discussing his behaviour, particularly toward family members.
56 However, to the extent that there was any discrepancy between evidence given at hearing concerning the plaintiff's reported illicit drug use (particularly since the incident) and various accounts recorded by treating doctors and medico-legal specialists, I was not satisfied that this could be fully explained as the likely result of poor memory and/or the effects of his mental illness. Nevertheless, in my view, the submission made on behalf of the plaintiff during final addresses properly stated the position at the conclusion of the evidence, namely that there was: ".. No medical evidence at all that the injury or any of its consequences have been subsumed by a different injury resulting from 'drug use'. "[50]
[50]Outline of Argument from the Plaintiff, [10]
57 I will say more about all of these matters as part of my summary of the medical evidence shortly.
58 A Statement of Loss of Earnings was submitted by the plaintiff. As already noted, it was accepted that for the purpose of this proceeding the plaintiff's probable without injury earnings capacity was $42,810.56.
59 It was also accepted that the plaintiff had no current capacity to work any hours in any suitable employment and that he had no current earning capacity to earn 40% or more of the without injury earnings capacity figure.
60 The defendants nonetheless contested the plaintiff's further claim that by reason of the injury he had no capacity for rehabilitation or retraining for suitable employment.
61 I will finalise this issue after completing my summary of the evidence.
The Plaintiff's Medical Treatment
62 The plaintiff was first treated on 7 July 2008 by Dr Rahgozar to whom he presented with headaches and hearing loss, symptoms the plaintiff attributed to the incident.
63 In the weeks that followed, various investigations including review by an ENT specialist, Dr Irani ruled out organic injury. The general practitioner's hand written clinical notes for the period ending 2 September 2009 and his written report dated 5 August 2011 reveal that, over a period of weeks, the plaintiff: "gradually developed an anxiety reaction with flashbacks and depressed mood".[51] Post-traumatic stress disorder was diagnosed, the plaintiff was prescribed medication but, as Dr Rahgozar also noted in August 2011, the plaintiff had not been "attending psychological counselling and prefers not to attend his psychiatrist, due to the anxiety associated with those reviews. ..."[52]
[51]Exhibit D5 and PCB 46-47
[52]PCB 47
64 Having considered the medical material as a whole, as far as I can tell, this was a recurring problem in the treatment of the plaintiff's mental condition because, from time to time, he reported that discussion of his mental state with treating and other health professionals had increased the level of his symptoms and psychological distress.
65 I have already mentioned the referral to psychologist, Dr Lehmann who examined the plaintiff on 1 August 2008, as well as various matters noted by her arising from the examination to which the plaintiff had been accompanied by his mother.
66 At the time Dr Lehmann diagnosed Acute Stress Disorder associated with the incident. To address this condition, she recommended trauma focused cognitive behavioural therapy administered by a suitably trained psychologist. She referred the plaintiff to psychologist, Ms Gannon.[53]
[53]PCB 40-43
67 When she reported to Dr Rahgozar on 5 September 2008, Ms Gannon had undertaken 2 sessions with the plaintiff. The second of these was on 28 August 2008. This session was also attended by the plaintiff’s partner, Jane. Testing conducted by the psychologist on that date had apparently revealed to her that the plaintiff was then experiencing severe anxiety and severe depression. She too noted the impact discussion of the incident had on the plaintiff’s mental state: "thoughts of the incident were highly intrusive and disturbing, and that his avoidance of any reminder of the incident was also at a very high level."[54]
[54]PCB 50
68 Ms Gannon diagnosed Post-Traumatic Stress Disorder.
69 When cross-examined, among other things, Dr Rahgozar agreed that the handwritten notes, to which I have referred, did not record any report of any suicide attempt or of any attempts to harm members of the plaintiff's family. Indeed, entries made on 10 October 2008 and 7 November 2008 respectively are consistent with the plaintiff having during those consultations, reassured the doctor that he was "not suicidal".
70 This of course is not the equivalent of the plaintiff having reported that he had not been suicidal or had not attempted suicide on any occasion prior to these consultations. Other entries made in these notes also indicated that the plaintiff, who from time to time had reported that he was not taking his medication (Zoloft), [55] was a very disturbed individual. For instance, on 28 November 2008 the plaintiff had reported symptoms that were consistent with some level of psychosis (namely having seen his relatives "as animals wolf/dog").[56]
[55]On 17 October 2008 and 27 January 2009 respectively
[56]Exhibit D5
71 On 13 November 2008 Dr Rahgozar referred the plaintiff to psychiatrist, Dr Perenyi, who treated the plaintiff between 11 December 2008 and 1 September 2009. His written report, addressed to the plaintiff's solicitors and dated 8 December 2009, only mentioned suicidal ideation. However, the clinical notes to which I have already referred, recorded the plaintiff having reported on 11 December 2008 that, some two months earlier, he had attempted to hang himself and that his partner had been required to "cut him down."[57]
[57]Exhibit P2
72 According to the psychiatrist's report, there were seven consultations up to and including 1 September 2009, the plaintiff having missed and cancelled other appointments. During this period, the psychiatrist diagnosed Post-Traumatic Stress Disorder and changed the plaintiff’s medication from Zoloft to Lexapro. His report also records the difficulty the psychiatrist had encountered in providing supportive psychotherapy due to the plaintiff's sporadic attendance.[58]
[58]PCB 51-52
73 During cross-examination, after being taken to a copy of a letter dated 7 May 2009, in which the plaintiff was advised that further appointments would not be made unless a non-attendance fee of $50 for a missed appointment was paid, the plaintiff recalled having paid this fee. However, in re-examination, the plaintiff explained (in my view very plausibly) his problem in attending therapy with Dr Perenyi or with other health professionals in the following exchange:[59]
[59]TN 138-139
"Why was it that you hadn't attended some appointments with Dr Perenyi?---Every time I see a psychiatrist, they build up everything inside me and I have to take it home to my family.
By building up these things inside you, you mean what?--- Causing a threat against my family. I want to hurt them.
…
In terms of talking to someone, whether it be a doctor or a lawyer, whoever it might be, about what happened to you at work, do you find that easy or not?--- No.
…
… What effect does it have on you? Just brings everything back – stronger, sorry, yeah, real strong."
74 In his first affidavit, the plaintiff deposed that he had been treated by psychiatrist, Dr Thacore, between October 2009 and October 2010 ("I was smashing articles at home and wanting to hurt others. I felt that I could not return to work because of the state I was in"[60]). No report from the psychiatrist was tendered.
[60]PCB 30
75 However, during cross-examination Dr Rahgozar recalled a time (on 26 October 2009) subsequent to this further referral, when the plaintiff’s presentation and symptoms had prompted a referral to the Emergency Department of the Dandenong Hospital for further assessment and management of his psychiatric state.
76 In keeping with the content of the letter written on that date and addressed by Dr Rahgozar to the hospital, accompanied by his "wife", who had "serious concerns", the plaintiff presented to the doctor as: "… very anxious and unstable with marks of self harm on both forearms. He states that these marks are representations of the people in his life that are causing in trouble and mentioned that there is someone in him that needs to be sorted out (delusion or depersonalisation?)."[61]
[61]Exhibit D2
77 Among other things, in this letter the doctor summarised the circumstances of the incident and reported his diagnosis (moderate to severe Post-Traumatic Stress Disorder) and the medication prescribed (Lexapro, Clonazepam and Diazepam).
78 During 2010, Dr Rahgozar also referred the plaintiff to psychologist, Ms Anderson for treatment of Post-Traumatic Stress Disorder. I have already discussed various aspects of Ms Anderson's only report, dated 17 January 2011. Among other things, this report referred to the plaintiff having reported that following the incident "he had experienced episodes of acute uncontrollable rage", he had memory problems and he was experiencing flashbacks and nightmares relating to the incident.
79 As is evident from the report submitted, Ms Anderson also recorded that, between 8 April and 30 June 2010, the plaintiff only attended five sessions and had failed to attend several appointments or return telephone messages. In these circumstances, it was hardly surprising that in January 2011 the psychologist indicated that her report was not "complete". I took this to mean that it was not up to date.
80 In any event, in addition to the matters I have already noted, Ms Anderson advised the plaintiff's solicitors, among other things, that:
Ø the plaintiff's psychological condition was extremely volatile;
Ø the plaintiff was not fit to return to work;
Ø she had found significant cognitive impairment;
Ø she considered the plaintiff's Post-Traumatic Stress Disorder symptoms to be extremely severe;
Ø due to the severity of his symptoms and need for heavy medication the plaintiff would likely require ongoing psychotherapy for approximately 5 years;[62]
Ø having suffered a significant head injury, the plaintiff's significant cognitive deficits and extremely poor impulse control should be investigated by a neuropsychologist.
[62]PCB 81
81 Notably, Ms Anderson was one of a number of specialists to obtain a history of an earlier suicide attempt. This she reported involved the plaintiff having found "a rope in the garage and attempted to hang himself. He said his girlfriend caught him."[63]
[63]PCB 80
82 During cross-examination the plaintiff was questioned in some detail about his claim to have made an earlier suicide attempt. Without directly putting this proposition, this line of cross-examination was clearly intended to suggest that this and any other account given of an attempt to commit suicide had been recently invented as a means of advancing the plaintiff's application.[64]
[64]TN 64-68
83 This is not to deny that the plaintiff's evidence, particularly about when this attempt and a further attempt to hang himself (which he thought had occurred in around November 2008), appeared somewhat confused. However, as I have already indicated I was satisfied that, from time to time, the plaintiff probably was confused in his reporting of the timing or details of some events. Nevertheless, having regard to all of the evidence, I was also satisfied that, on at least one occasion,[65] as claimed, the plaintiff probably had attempted to hang himself and, on a subsequent occasion in October 2009, he probably had slashed his arms. The latter event and the plaintiff’s presenting symptoms were the catalyst for the referral by Dr Rahgozar to the Dandenong Hospital’s Emergency Department.
[65]The psychiatrist’s clinical notes made closer to this event are probably the most accurate in placing this event two months prior to 11 December 2008)
84 It appears that until the plaintiff relocated to Newcastle he continued under the care of Dr Rahgazor. Whilst, in his report dated 5 August 2011, the doctor remained optimistic that in the short term the plaintiff could make a full recovery from symptoms of Post-Traumatic Stress Disorder, Dr Rahgazor nevertheless cautioned that the plaintiff’s condition had “proved to be more difficult to manage and the prognosis at this stage is moderate.” [66]
[66]PCB 47
85 In his further affidavit, the plaintiff deposed that, since relocating, he had consulted general practitioner, Dr Singh, who continues to certify him as unfit for all work. This doctor was responsible for referring the plaintiff to another psychologist, Ms Dunn, and more recently, on 22 May 2013, to another psychiatrist, Dr Bhandari. I was informed that, subject to the success of the plaintiff's application for funding, this psychiatrist has arranged to examine the plaintiff during August 2013.
86 Ms Dunn's correspondence addressed to Dr Singh, dated 22 March 2013 and her responses to a series of questions contained in her report to the plaintiff’s current solicitors dated 22 April 2013, among other things, indicated the following, that:[67]
[67]PCB 82-92
Ø between 14 March 2013 and the date of her report, the plaintiff had attended six consultations for treatment;
Ø based on her testing and the plaintiff's reported symptoms, he met the criteria for both Post-Traumatic Stress Disorder and Major Depressive Disorder, psychological injuries consequent on the happening of the incident;
Ø during the second consultation on 18 March 2013, the plaintiff's Post-Traumatic Stress Disorder symptom severity and level of impairment in functioning were rated in the severe range and his results on each of the depression, anxiety and stress scales were found to be in the extremely severe range;
Ø Cognitive Behaviour Therapy was the treatment modality employed by her;
Ø as a consequence of the plaintiff's psychiatric condition and largely due to the impact of the symptoms of Post-Traumatic Stress Disorder ("feeling irritable and having fits of anger. Mr White has great difficulty managing his anger and aggression, much of which is directed towards the company in which he was formerly employed, the management of that company and former work colleagues"), for the foreseeable future, the plaintiff had no capacity to perform pre-injury duties as a storeman, either full-time or part-time or to perform suitable employment;
Ø due to the chronicity and severity of the plaintiff's condition and the short time over which they had established a therapeutic relationship, she was not in a position to prognosticate about his condition or about the prospect, if any, of long-term deterioration;
Ø she strongly recommended that the plaintiff undergo further psychiatric treatment (this was also conveyed to the general practitioner), which the plaintiff had said he was willing to do.
87 In his further affidavit sworn on 14 June 2013, the plaintiff deposed that he continued to consult Ms Dunn on a weekly basis.
Other Medical Opinions
88 Between 2008 and 2013 the plaintiff was examined by specialists, either at the request of his solicitors or on behalf of the defendants. A number of their reports were tendered.
89 The first of these reports was submitted by consultant occupational physician, Dr Mutton, who examined the plaintiff less that two months after the incident, on 28 August 2008, at the request of the insurer.[68] The defendants relied on this report to attack the plaintiff's credit because the occupational specialist had not recorded any report of actual self harm or harm directed to members of the plaintiff's family.
[68]Exhibit D1
90 On this occasion, the specialist concluded that the plaintiff's incapacity for work was related to psychological factors, rather than a traumatic injury to his head and ear ("Mr White has developed a significant psychological reaction and provides a history of increasing suicidal ideation and depression. To help manage this condition, he and his partner have moved back to his partners residence. He ceased work two weeks ago and this is not unreasonable given his current state of mind"[69]).
[69]Ibid at page 8
91 In view of the evidence of the treating doctors in the months subsequent to the incident, summarised in earlier paragraphs of this judgment, I was not satisfied that this report could be used in the manner suggested to undermine the plaintiff's accounts.
92 Psychiatrist, Dr Serry, assessed the plaintiff at the request of the insurer on 3 September 2008 and on 1 April 2009. He submitted additional reports dated 8 September 2008 and 1 July 2013 in response to requests to comment on particular documentation supplied either by the insurer or by the defendants' solicitors.[70]
[70]DCB 11-26c
93 Dealing for the moment, only with the reports made by Dr Serry in 2008 and 2009, I note the following matters. Having obtained a detailed history, in early September 2008 Dr Serry relevantly observed that:
Ø the plaintiff appeared depressed, anxious and preoccupied with any let down at work;
Ø the plaintiff had reported some suicidal thoughts but had made no attempts;
Ø the plaintiff's reaction to the incident appeared to him to be extreme and seemed, he said, to represent quite marked pre-morbid vulnerability most likely arising from the plaintiff’s childhood experiences with his father;
Ø the plaintiff required ongoing psychiatric treatment;
Ø the plaintiff was suffering from a work-related condition of at least moderate severity, namely an adjustment disorder with anxiety, depression, features of traumatisation and agoraphobic features;
Ø the plaintiff was then incapacitated for work and would need to improve to a significant degree before he was able to return to work.
94 I note that after reviewing a circumstances/investigation report forwarded by the insurer on 8 September 2008, Dr Serry was not disposed to alter his earlier opinion.
95 Again, I was not satisfied that, as submitted by the defendants, on this occasion the failure to report actual suicide attempts or, indeed, harm directed toward the plaintiff's family could be used to discredit the plaintiff.
96 On reviewing the plaintiff on 1 April 2009, among other things, Dr Serry:
Ø observed that the plaintiff remained "stressed, anxious and uptight. He is apprehensive and worried about the future. He is more irritable, frustrated and short temper. He feels angry and has become quite volatile. On one occasion three weeks ago, whilst the worker was driving, he had the sense that his girlfriend who was in the car was his supervisor. He tried to run the car into a tree"[71];
[71]Ibid, 21
Ø noted reports from the plaintiff of "seeing vague images," avoidance of crowds in social situations, low mood and self abuse ("at times when he feeling particularly low, he will punch himself in the head"[72]), low motivation and loss of enjoyment of life, diminished libido, fluctuating concentration, disturbed sleep with initial insomnia, fluctuating appetite and ongoing suicidal thoughts ("but has made no attempts");
[72]Ibid, 22
Ø concluded that the plaintiff's diagnosis was more accurately described as work-related major depression with anxious features including features of traumatisation;
Ø assessed the plaintiff as psychiatrically unfit for his pre-injury employment or suitable employment, although at that time he was not able to determine whether this circumstance would last indefinitely;
Ø assessed the plaintiff as requiring ongoing psychiatric treatment, which at that stage involved regular attendance on his treating psychiatrist and, at least antidepressant medication;
Ø thought the plaintiff may require a period of inpatient management to control symptoms he clearly considered to be severe;
Ø offered a guarded prognosis in all the circumstances.
97 As we now know if, in April 2009, this psychiatrist understood that the plaintiff had not previously attempted suicide this was probably wrong.
98 In any event, it was in the plaintiff’s interests to convey this information which could only have advanced the plaintiff's case and strengthened Dr Serry's evident concern about the severity of the plaintiff's presenting symptoms at that time.
99 The plaintiff was next assessed on 18 March 2010 by psychiatrist, Dr Das, at the request of the insurer.[73]
[73]DCB 31-39
100 This report was also relied on by the defendants to attack the plaintiff's credit on the basis that he had lied in his oral evidence when he reported various incidents of harm directed to members of his family. In this instance, Dr Das appeared to quote the plaintiff when he reported the plaintiff as saying that recently he had "… nearly crashed my car, I nearly attacked my family". Assuming that this report was made as quoted, in my view it may very well have been true in March 2010, without necessarily excluding any earlier incidents.
101 Notably, Dr Das diagnosed a work-related chronic adjustment disorder with depressed mood of moderate severity. Among other things, he advised that the plaintiff had no current work capacity due to "his actively symptomatic state of depression with feelings of unresolved anger, diminished level of interest, loss of concentration, lack of motivation and most importantly a morbid sense of preoccupation along with a sense of entrapment in a paralytic state of apprehension.”[74]
[74]DCB 36-37
102 The plaintiff was assessed by psychiatrist, Dr Epstein, at the request of his solicitors on 31 August 2010, 7 July 2012 and 12 June 2013. He took extensive histories and submitted detailed reports.[75]
[75]PCB 53-72
103 In my view, it is of little consequence in this application that the plaintiff was probably wrong about the date of this when he initially informed Dr Epstein that "he attempted suicide by hanging himself in a garage in late July 2008 and was found by his partner".[76] As we now know, by that stage, this event had been notified to Dr Perenyi in November 2008 and to Ms Anderson during a period of therapy commencing from April 2010.
[76]PCB 55
104 In any event, allowing for this report and the detailed information obtained regarding both the circumstances of the injury and the nature of the plaintiff's symptoms, Dr Epstein at first diagnosed Post Concussional Syndrome arising from the minor head injury sustained in the incident and the development of a Major Depressive Disorder with suicidal ideation and Panic Disorder with some Agoraphobia. He considered the plaintiff to have "nil " work capacity, a circumstance the psychiatrist also considered (as it turned out correctly) was unlikely to improve in the foreseeable future.
105 Notably, on that occasion, Dr Epstein advised the plaintiff's solicitors that he had seen no evidence of Post-Traumatic Stress Disorder because the plaintiff's symptoms appeared to relate to how the incident had been dealt with and the plaintiff's post concussional symptoms, rather than to traumatisation arising from the incident.[77]
[77]PCB 58
106 As his report dated 16 July 2012 indicated, when Dr Epstein reviewed the plaintiff on 7 July 2008, reports from Dr Rahgozar, Dr Perenyi, Professor Ponsford and Ms Anderson were among the materials to which he had regard. In his second and, again very detailed report, Dr Epstein:
Ø recorded a report from the plaintiff that in late 2010 or early 2011 he had attempted to kill both his daughters, from which time his family had prevented him from seeing them unaccompanied;
Ø revisited his earlier diagnoses and advised that the plaintiff "now manifests a chronic psychotic disorder with auditory hallucinations and delusions of persecution in addition to his Post-Traumatic Stress Disorder and chronic Adjustment Disorder with depressed mood arising from his workplace injury. When I last saw him I thought he had post concussional syndrome but there appears to be little evidence of that at the moment. I also thought that he had a Major Depressive Disorder and this may be causing his psychosis. He did not appear to be experiencing Panic Disorder at the present time. He was having panic attacks at times but not to the intensity required for them to become a panic disorder"[78];
Ø was of the view that, where, as in this case, the plaintiff's condition had deteriorated significantly since he was seen by the Medical Panel in July 2008, the opinion apparently expressed by the Panel, namely a diagnosis of moderately severe chronic Adjustment Disorder with mixed disturbance of emotions and conduct relevant to the accepting Post-Traumatic Stress Disorder, probably did not adequately explain the plaintiff's mental state; and
Ø expressed his view that the plaintiff's condition (which was "clearly very poor") was stable, he had no work capacity in his previous employment or for any suitable employment and the prognosis for improvement was poor.
[78]PCB 64
107 On 12 June 2013, having by then also received copies of the plaintiff's affidavit and a number of reports made by Ms Dunn, Dr Epstein concluded that the plaintiff continued to suffer from chronic psychotic disorder with auditory hallucinations and delusions of persecution and that he was suffering from chronic Post-Traumatic Stress Disorder and also presented with Major Depressive Disorder with suicidal and homicidal ideation. The suicidal and homicidal ideation appear to relate to the plaintiff's account of:[79]
[79]PCB 69-70
Ø experiencing auditory hallucinations, "with multiple voices laughing at him. He continues to feel people are trying to harm him. He feels that if it is filled with thoughts and images of the accident and people laughing at him and thoughts of killing them. He is very concerned about his homicidal impulses. He thinks of suicide "all the time" and thinks he would be unhappy but is uncertain as to whether or not he could do it";
Ø having in September 2012 become enraged and tried to kill his elder daughter by slamming her head in a door, as a result of which this daughter went to live with her mother;
Ø having, shortly before Christmas, taken an overdose of 12 tablets of Seroquel which he vomited up and for which incident he had obtained no specific treatment; and
Ø having a week later began self harming by cutting both arms.
108 In Dr Epstein's opinion, the plaintiff's condition had deteriorated, his prognosis for improvement was poor, he had no work capacity and he required intensive psychiatric treatment and may also require psychiatric hospitalisation.[80]
[80]PCB 71
109 As previously mentioned, on 22 October 2010 at the request of the plaintiff's solicitors neuropsychologist, Professor Ponsford performed a neuropsychological assessment of the plaintiff. She said that only a limited assessment had been possible because the plaintiff had become frustrated and angry. Clearly, on that occasion, Professor Ponsford saw the plaintiff's behaviour, including the chair throwing incident, as a manifestation of his disturbed psychiatric state.
110 Moreover, she attributed the extremely low level at which the plaintiff had performed all tasks given, as being more indicative of the presence of psychiatric disturbance, than the effects of the mild head injury suffered as a result of the incident.[81] In these circumstances, the defendants’ criticism of the plaintiff for failing to complete this testing is unwarranted.
[81]PCB 73-76
111 On 24 May 2011 at the request of the insurer, psychiatrist, Dr Strauss assessed the plaintiff's psychiatric impairment and found that the plaintiff was suffering from permanent psychiatric impairment as a consequence of the incident, namely a chronic adjustment disorder with depressed mood. Relevantly, at the time Dr Strauss obtained a history from the plaintiff that "for a long time he was getting angry with everyone including his children and apparently there was a threat to one of his children but he did not follow through with it."[82]
[82]DCB 6
112 According to specialist in occupational medicine, Dr Crompton, when seen by him on 10 September 2012 at the request of the first defendant, among other things, the plaintiff denied any current thoughts of self harm, any thoughts of suicide or any thoughts of harm to others at that particular time. The plaintiff, he added, appeared to be indifferent to treatment that could further benefit him.[83]
[83]DCB 66
113 Having taken the time to read this report, I was at a loss to understand how, if accurate in this regard, the report could be tendered and relied on by the defendants (as it was in final submissions) as evidence of the plaintiff having contradicted his evidence at hearing that he last recalled trying to harm his children two years ago or as evidence of his failure to meet the requirements of section 134AB(38)(g).[84]
[84]TN 74
114 The most recent of the defendants' psychiatric reports was prepared by psychiatrist, Associate Professor Robertson following an examination on 8 March 2013, at the request of the insurer. It contained a detailed history as part of which, among other things, the plaintiff was reported as having described various symptoms and events interpreted by the psychiatrist to consist of:
"a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred"
160 The provision is focused on a worker's physical or mental capacity for employment after the injury and, if exercised in employment, the economic yield of such work.[114] It directs the Court to take into account the possibility of rehabilitation and retraining for employment.
[114]Barwon Spinners Pty Ltd op. cit., [20]-[31]
161 As the Defendant’s Statement of Economic Loss handed to the court demonstrated, the basis of the challenge mounted was somewhat obliquely cast in the following terms:[115]
“…the Court ought to have consideration to the extent of the Plaintiff’s compliance with treatment recommendations and testing to determine the true nature of his condition and whether the reasons for lack of compliance are directly related to the consequences of the injury itself or have some other basis (sic).”
[115]Ibid
162 In her final address, the defendants’ counsel submitted that the Court "ought to reject the plaintiff's claim in respect of economic loss because he has unreasonably failed to comply with medical assessment and treatment of his condition, and therefore he has not met the requirement to rehabilitate himself…"[116] It was not suggested that the defendants had offered the plaintiff occupational rehabilitation of any kind, which had been refused or in which he had unreasonable failed to participate.
[116]TN 219
163 My interpretation of the rather confusing submission made on behalf of the defendants was that the Court was being asked to view medical treatment as an aspect of (or one step in) the rehabilitation to which the provision referred. According to the defendants, the plaintiff had not met the requirement that he prove any inability to be rehabilitated under the provision because conduct by the plaintiff that involved non-compliance with treatment (as for example any past failure to take his prescribed medication, attend for therapy, enter a psychiatric facility for treatment and any failure to complete or undertake testing procedures), could have impeded improvement of his psychiatric state and was, in all the circumstances, unreasonable.[117]
[117]TN 210-211
164 In this case the defendants submitted that the Court had to take account of the plaintiff’s failure (possibly on several occasions) to agree to admission to the Dandenong Hospital, after he and his partner had discussed this with a treating psychiatrist and hospital representatives.[118] However, as the plaintiff very plausibly explained during cross-examination, after seeking help he had been reluctant to enter hospital because he feared he would not leave the psychiatric facility and, at the time, he did not want to leave his partner and children. [119]
[118]TN 75-76
[119]Ibid
165 In making her submissions, counsel failed to grasp and address at least one of the many issues raised by these submissions, namely that ordinarily a defendant carries the legal onus of proving any matter in mitigation of damage where, for instance at trial, it is alleged that a failure to undergo treatment is unreasonable.[120]
[120]Harold Luntz, Assessment of Damages for Personal Injury and Death (revised ed, 2006), Glavonjic v Foster [1979] VR 536 and Fazlicv Milingimbi Community Inc. (1982) 150 CLR 345
166 The issue for determination in this serious injury application was what did the Act require? The defendants’ counsel was unable to point to any authoritative analysis of the statutory provision by a higher court in support of her submission.
167 I accept as correct the plaintiff’s interpretation of 134AB(38)(g), namely that in proving any inability to be rehabilitated or retrained a worker is not required to show that they had acted reasonably in undergoing treatment or testing or to show that where this had been recommended by treating doctors or other specialists, any failure to undergo treatment and testing was reasonable. To find otherwise, would shift the inquiry about the possibility of rehabilitation or retraining for employment to one concerned with, for example, the reasonableness of a worker’s refusal to undergo surgical intervention (even where this had been recommended by a specialist other than a treating specialist) or the reasonableness of a worker preferring particular therapies to other recommended therapies or the reasonableness of a worker preferring alternative remedies to conventional medical treatment and medications.
168 Notably, it was not suggested to the plaintiff during the course of the hearing that he could have attended or undertaken occupational rehabilitation. More significantly, the defendants' own expert witness, Professor Robertson has advised that the plaintiff is mentally unfit for any form of occupational rehabilitation.[121]
[121]DCB 75
169 In my view, after five years of treatment consisting of psychiatric treatment, medication and psychological therapies (admittedly not always continuous treatment), it is fanciful to suggest that the plaintiff, who remains very mentally disturbed, could participate in occupational rehabilitation or retraining to improve his capacity for suitable employment. In addition to the evidence of Professor Robertson, the overwhelming inference available on the totality of the evidence is that, for the foreseeable future, the plaintiff remains mentally unfit to undergo occupational rehabilitation or retraining and no further rehabilitation and retraining has been identified that would or could render the plaintiff fit for any employment.
170 In summary, whilst medical treatment may have rehabilitative benefits by contributing to and facilitating improvement of a worker's physical or mental capacity to undertake suitable employment, allowing for the context in which section 134AB(38)(g) arises, I was not satisfied by any considered analysis of the provisions of the Act that the plaintiff was required to show that he had acted reasonably in undergoing or failing to undergo any medical treatment or testing in the five years preceding the hearing of the application. However, if I am wrong in my understanding of the requirements of the Act, I was nevertheless satisfied that in this case that the plaintiff had discharged the onus he carried under section 134AB(38)(g).
171 Based on all of the evidence –
a) I find that the plaintiff has a loss of earning capacity of 40% or more and this is likely to be permanent;
b) I am satisfied that for the foreseeable future the plaintiff is mentally unfit to undergo occupational rehabilitation or retraining and that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment;
c) the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible mental disorders the plaintiff's loss of earning capacity is fairly described as being more than serious to the extent of being severe.
172 Accordingly, leave is granted to the plaintiff to bring a proceeding for damages in respect to pain and suffering consequences and loss of earning capacity consequences of the injury to his psyche, suffered in the course of his employment with the first defendant post-20 October 1999.
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