Williamson v Energy Australia Services Pty Ltd
[2017] VCC 737
•13 June 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04599
| BRUCE WILLIAMSON | Plaintiff |
| v | |
| ENERGY AUSTRALIA SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 22, 23, 24 May 2017 | |
DATE OF JUDGMENT: | 13 June 2017 | |
CASE MAY BE CITED AS: | Williamson v Energy Australia Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 737 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985; s134AB application for leave to bring damages claim; definition of serious injury s134AB(37)(c); claim for pain and suffering and pecuniary loss damages s134AB(38)(b),(d); injury not found to be “severe”.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis [1998] 3 VR 833; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave to bring a damages claim is refused. Costs reserved
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with | Brown McComish Solicitors |
| Mr G Pierorazio | ||
For the Defendant | Mr WR Middleton QC with | Thomson Geer |
Ms D Manova
HIS HONOUR:
Background
1 Mr Williamson was born in 1958. He was educated to Year 10 at Moorabbin Technical School and obtained an Associate Diploma in Mechanical Engineering at the age of 30.
2 Having followed a variety of occupations during his adult life, he obtained employment with the defendant, Energy Australia Services Pty Ltd in October 2011. He worked initially as a lead technician and thereafter as a storeman in the warehouse. His responsibilities in this latter post included inventory control.
3 According to Mr Williamson, when he took up his post in the defendant’s store, it was “very disorganised and most of the stock was in the wrong place and often sitting on the floor and basically out of control”. (Plaintiff’s Court Book “PCB” 18, [8])
4 Other employees were authorised to enter the store during the evenings when Mr Williamson was absent. He said he was concerned as to how “I could possibly have stock control when in fact other persons could enter the warehouse and help themselves to items”. (Ibid, [9])
5 He said that about a month after he commenced his job as storeman he became:
“the subject of extremely bad behaviour by other workers. Tradesmen would complain to me to my face that the store situation was ‘hopeless’. I was blamed if a tradesman could not find a part. I would be told that I was ‘useless’. … I was subjected to abusive language, swearing and personal attacks every day. These attacks were repeated, persistent and from a variety of different people. I found this very difficult and upsetting.” (Ibid, [10] and [11])
6 Amongst the inventory for which he was responsible were nuts, bolts and valves and similar items which would frequently go missing with Mr Williamson receiving the blame. With the store being unlocked, he said it was “a free for all”, and further said:
“It wasn’t until some 2 to 3 months after I complained after an audit that the store room was finally locked up. However, it had been open for some 2 years before I had even started the job and when I got there, it was a complete shambles and I was made the scapegoat.” (Ibid, [12])
7 Mr Williamson said that at weekly meetings with management he complained about these issues and stated he was being targeted and abused. When he objected to releasing equipment without proper documentation, he said the tradesmen “would respond with remarks such as ‘you are just a piece of shit’ or ‘you are just a fat fuck … you can’t do the job’.” (Ibid, [14])
8 Permits were required for some of the projects in which he was involved. The defendant’s permit office, according to Mr Williamson, frequently held up these permits. He received the blame for onsite delays being told “you are not doing your job right … you are a piece of shit … you’re useless”. (PCB 19, [15])
9 He said that after some months of this he suffered sleep disturbance, waking every hour or two and being unable to return to sleep “because of thoughts about the job, worrying about abuse and being fearful of the next shift”. When he woke he felt sweaty and clammy. He woke up with morning headaches. He took time off to get away from the workplace and had to cajole himself to manage to go to work. He “did not want to face the abuse again”. In 16 months he took six weeks off. He said he “could not take it any longer. [He] would take the week off and then refresh and attempt to go again.” (Ibid, [17]-[18])
10 He attended his general practitioner at Warrnambool Medical Clinic complaining of stress at work, problems with sleep and feelings of depression and irritability. On the third visit to his general practitioner, he complained that he was:
“worrying a lot and feeling restless and snappy. [He] was feeling nervous most of the time, flat, depressed and suffering from ruminating thoughts. [He] was having difficulty with tension/concentration/focusing. [He] was forgetful with dates. He (sic) was waking up through the night. [He] lacked motivation/energy. [He] began comfort eating.” (Ibid, [21])
11 Mr Williamson was referred by his general practitioner to psychologist, Ms Susan Hook, whom he first consulted on 11 June 2013. He has continued to attend regular consultations with Ms Hook. (PCB 20, [22]-[23])
12 According to Mr Williamson, on 21 August 2013, some two years after he began work for the defendant, he received a letter from the management relative to complaints he had made about “inappropriate behaviour”. Nevertheless, no action was to be taken. His manager told him that “we would all work together on ‘the culture on the site’.” He asked the manager where he stood and the manager told him “up the creek without a paddle”. (Ibid, [25]-[26])
13 Mr Williamson complained but things became worse. He continued to be abused. On 11 November 2013 he could “cope no longer and left [his] shift early”. He consulted his general practitioner, who certified him unfit for work. He has not returned since nor has he obtained any alternative work. He says he is unfit for employment. (Ibid, [28]-[31])
14 Mr Williamson complains that in addition to rendering him unfit for work, his experiences in the defendant’s employ have affected his personal life and his enjoyment of family life. He had, before these incidents, trained with his son in karate. Whilst his son continues in that sport, he no longer participates. He said:
“The reason I gave it up is because on one particular occasion I had an altercation with a fellow student who was egging me on. Because of my condition I simply could not take it and let go. This was completely outside of my pre-injury character and because of this I have taken myself away from the situation.” (PCB 21, [32])
15 In previous years, he said that he had been able to drive long distances. As a sales representative he “would easily rack up 3,800kms in a week”. Following his time with the defendant, he said he struggled:
“to drive even to places as close as Geelong. As a result of my injury, amongst other things, I feel fatigued. If we have to drive to Geelong, for example, my wife usually has to take over half way.” (Ibid, [33])
16 In the past, he said he had attended at events in Warrnambool, including the Big Day Out (an outdoor concert), markets and the like. He said:
“These days I tend not to go out as much, particularly during a bad week. When I do go out, I find that I do not enjoy the experience as I am in constant fear of bumping into past co-workers.” (Ibid, [34])
17 He said he avoids local football matches, having encountered an ex co-worker at a local Grand Final about two years ago. He said a can was thrown in his direction “with sniggering”. (Ibid, [35]) He said he tends to even avoid family get togethers. He asks others “to come to our place for a BBQ rather than us having to go out”. (Ibid, [35] - [36]) He said that as a result of stopping work, he has put on a fair bit of weight – up to 15-20 kilograms.
“In addition, my blood pressure has gone up a bit. In the past I would regularly go out for long walks, often accompanying my son who would ride his bike. I’d walk up to 4km[s]. This is not the case now.”
18 He said the family’s Jack Russell Terrier which he used to exercise is now taken for his walks by his son. (Ibid, [37]-[38])
19 Mr Williamson continues to attend his general practitioner and psychologist, Ms Hook, and receives continuing certifications of unfitness from the general practitioner. After a trial on anti-depressant, Lexapro, he felt “foggy” and gave up. He said:
“My ability to focus and concentrate has been affected as too has my short term memory. I am forever forgetting things such as the shopping and appointments, where I placed my car keys or glasses. For this reason I need to write lists and rely on my phone diary.” (PCB 22, [39]-[41])
20 He said that his financial situation does not enable him to retire.
21 Mr Williamson is married with one son. He and his wife have been together for over 30 years. Their son is at the high functioning end of the autism spectrum with Asperger’s Syndrome. (Transcript “T” 3, L9-11) Mr Williamson’s son is now aged 15.
The present proceeding
22 Solicitors acting for Mr Williamson have issued an Originating Motion seeking an order granting leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, for Mr Williamson to commence proceedings to recover damages in respect of injuries suffered by him in the course of his employment by the defendant on the basis that he has sustained a serious injury, as defined in s134AB(37). According to his particulars of injury Mr Williamson suffers (a) Major Depressive Disorder; (b) Post Traumatic Stress Disorder; (c) Adjustment Disorder with Depressed Mood. He relies on paragraph (c) of the definition of serious injury.
23 The matter has come on for hearing before me during the court’s Warrnambool civil circuit sittings.
Statutory provisions
24 As a “worker” within the meaning of the Accident Compensation Act, Mr Williamson is not entitled to recover damages against his employer except in accordance with s134AB of that Act. That section makes separate provision for the pre-conditions for a worker to bring a claim for pain and suffering on the one hand and damages for pecuniary loss on the other. Pain and suffering damages and pecuniary loss damages are defined in sub-s(37) as follows:
“pain and suffering damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
pecuniary loss damages means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;”
25 A damages claim may be brought only if the court finds the injury in question is a “serious injury” as defined in the same sub-section as including (c) “permanent severe mental or permanent severe behavioural disturbance or disorder;…”. Sub-section (38)(d) provides:
“a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;”
26 Sub-section (38)(b) states:
“the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;”
27 Paragraph (e)(i) of that sub-section in provides that leave to bring a claim for pecuniary loss damages may not be granted unless “the worker has a loss of earning capacity of 40 per centum or more…”. Paragraphs (f) and (g) of the sub-section make further provision as to the calculation or loss of earning capacity.
28 Where these provisions are to be applied to a situation where a plaintiff worker suffers a pre-existing injury or disability, the determination as to whether that injury is severe must be based upon the extent of the exacerbation of any pre-existing injury. That exacerbation must be found to be “serious” within the relevant definition for leave to be granted. It is insufficient that the plaintiff worker’s condition constitutes a serious injury by reference to his entire presentation, including the pre-existing injury or disability. (Petkovski v Galletti [1994] 1 VR 436, 443 per Southwell and Teague JJ)
Expert opinions
29 Dr Tatiana Cimpoesu, of the Warrnambool Medical Clinic, has been Mr Williamson’s treating general practitioner at all material times. She has provided some three expert reports. In a report dated 25 February 2014, she referred to a number of attendances at the clinic, the first being on 28 August 2011 and the last being on 17 February 2014. She noted that Mr Williamson had been referred to Ms Susan Hook for counselling and had commenced on Cymbalta which was later changed to Lexapro. She said that Mr Williamson had presented:
“on a number of occasions with symptoms of depression and anxiety in the last 2- 3 years. I have diagnosed [him] with Reactive depression/anxiety.”
30 She was unsure of his prognosis because:
“his symptoms are caused and perpetuated by recent events. He needs to continue his medication and counselling, and also his work situation needs to be addressed.” (PCB 32)
31 She referred to the diagnostic criteria for depression referred in the standard work, The Diagnostic and Statistical Manual (5th Ed) (“DSM-V”).
32 Dr Cimpoesu’s second report was addressed to Mr Williamson’s solicitors and dated July 2016. She said she had diagnosed Mr Williamson with Reactive Depression “as a result of workplace bullying” in 2011. Since her previous report, she said she had reviewed Mr Williamson “every three to four weeks … in relation to his medical condition.” (PCB 46) She said he was very anxious seeing his co-workers “and had cold sweats for at least an hour after meeting them”. She said he had difficulty controlling his emotions, felt distressed and suffered from ruminating thoughts “regarding past work stress”. He had reduced self-esteem and his energy and motivation were very low. He was “pessimistic, suspicious, and [had] difficulty trusting people. He [had] interrupted sleep and his short-term memory [was] poor”. (Ibid) She reiterated her diagnosis of Reactive Depression/anxiety. She said that she found this diagnosis compatible with the one made by consultant psychiatrist, Dr Kornan, who had diagnosed an Adjustment Disorder with mixed anxiety and depressed mood.
33 At the then most recent consultation on 12 July 2016, she found that Mr Williamson’s symptoms had not improved and that he continued to have low self-esteem, “anhedonia, anxiety, depressed concentration, reduced energy and motivation.” (PCB 47). The doctor’s most recent report was addressed to Mr Williamson’s solicitors by way of letter dated 16 January 2017. (PCB 49-51) The most recent consultation at that time had occurred on 9 January 2017 and she recorded that Mr Williamson continued to complain of “irritability, feeling anxious, having low self esteem, reduced energy and motivation and interrupted sleep.” She said he “felt fed up with things, suffers with anhedonia and is socially withdrawn.” She said he was “anxious about being bullied, suspicious and [had] no current work capacity due to anxiety and irritability and reduced attention/concentration. He is physically unfit for heavy duty work.” She concluded that “in the future, when the stress related to the workplace bullying will end, he will be able to get on with his life and to perform suitable alternative employment.”
34 Mr Williamson was referred by his solicitors to consultant psychiatrist, Dr Paul Kornan for medico-legal services. The consultation occurred on 7 January 2014 and the doctor provided a report addressed to the solicitors dated 9 January 2014. The doctor recorded a history that Mr Williamson had not fitted in at Energy Australia Services Pty Ltd:
“because he realised that the other employees were targeting him. He described it as the ‘death of a thousand cuts’. The issues evidently came from a group of nine people, and these were the Tradesmen who basically ran the plant. They were all high income earners often getting upwards of between $130,000-00 to $180,000-00, whilst he was merely a Storeman on $72,000-00. They were complaining, even to his face, that the store situation was ‘hopeless’…He was blamed if someone could not find a part…The men would confront him physically, who were often in their thirties.”
35 The doctor said Mrs Williamson:
“indicated that [Mr Williamson] was now forgetful.” He had difficulty driving to Melbourne, becoming over-tired, ‘he was more `fidgety’…he just felt worthless, and useless. He would become tearful every two weeks since he had been off work.’” (PCB 23-24)
36 According to the history taken by Dr Kornan, Mr Williamson had not, prior to his employment with the defendant, received any treatment or taken any form of psychotropic medication for psychiatric ill-health issues. (PCB 25) According to the doctor, Mr Williamson told him that before his employment with the defendant, “he was someone who would previously have been described as being of jovial temperament.” (PCB 26) The doctor diagnosed Mr Williamson with a significant Adjustment Disorder with mixed anxiety and depressed mood. He recorded ongoing symptoms as being:
“(a)He constantly felt stressed;
(b)He was waking up during the night;
(c)There were mood swings;
(d)He felt that he was forgetful;
(e)He now felt overtired at times, and he did not feel safe, for example, driving all the way to Melbourne on his own;
(f)There was significant irritability, and frustration;
(g)He was `fidgety’;
(h)He felt worthless, and useless;
(i)He was tearful. There were thoughts of death in an increasing way, and what would happen if that occurred, but he was not actively suicidal as such;
(j)He felt that there was a lack of concentration.” (PCB 28)
37 According to Dr Kornan, Mr Williamson was:
“quite unfit for employment. He is not capable of working. He is certainly not capable of returning to his last place of employment, where the reality is that the same environment would face him on his return. … At some point, when his psychiatric state has hopefully shown some improvement, he will need to seek suitable alternative employment.” (PCB 29)
38 Dr Kornan carried out a further medico-legal assessment of Mr Williamson’s condition on 5 April 2016. His report to Mr Williamson’s solicitors is dated 4 April 2016. [Presumably, the date of the report or the date of the assessment must be incorrect, perhaps they have been reversed.] Dr Kornan recorded that Mr Williamson:
“felt as though there was some increased tension between him and his wife because he was so irritable. They were now sleeping in separate rooms because he would toss and turn over the last three years. Intimacy had stopped about the same time in the marriage, but it could have been coincidence, so he did not necessarily blame the bullying incident for that.” (PCB 41)
39 The doctor felt that Mr Williamson’s condition had worsened, though he maintained the same diagnosis as in the first report. He recorded that Mr Williamson was still gaining weight and thought that he weighed at that stage 130 kilograms. The doctor recorded substantially the same constellation of symptoms as in the previous report. He remarked:
“[Mr Williamson] still would, unfortunately, see people from work. Most ignored him, but some of them made comments like, ‘You’re still a fat piece of shit’”. (PCB 43)
40 Dr Kornan repeated his opinion that Mr Williamson was unfit for work and certainly not fit to return to the employ of the defendant “where he has been sensitised”. He said that Mr Williamson was:
“also not open to carry out other alternative employment, given the severity of the psychiatric health condition, as well as the failure of his condition to respond to treatment and its ongoing severity.”
41 The doctor said that Mr Williamson’s psychiatric ill-health was “noticeable and moderately severe in degree” and was caused by his experience of bullying. He concluded that Mr Williamson was now “unlikely to ever be able to return to the workforce.” He said his condition was “resistant to treatment”. (PCB 44)
42 Psychologist Susan Hook, who has counselled Mr Williamson regularly over the years since his problems in the employ of the defendant, also provided a number of reports. Her first report to Mr Williamson’s solicitors was dated 7 March 2014. She reported upon some four tests that she administered and reported that, according to DSM-V, she believed that he was “suffering from Major Depressive Disorder and Posttraumatic Stress Disorder”. She said these were “the direct result of the stressful events at work.” She noted that:
“it is likely that he had experienced some depressive symptoms for some years prior to the events at work. However, the depressive symptoms were not sufficient to warrant a diagnosis until they were exacerbated by the events in the workplace.” (PCB 34)
43 She said she had treated him with”
“a range of cognitive and behavioural therapy techniques including stress management and emotional regulation skills, trauma focussed therapy, communication and assertiveness skills and schema therapy.”
44 She said she believed that his prognosis was “guardedly positive” provided that he did not return to the employ of the defendant and that he was able to find “supportive, appropriate and sustainable work” and able to continue with psychotherapy. But she said, “He is always likely to [be] vulnerable to anxiety in the workplace.” (PCB 35)
45 Her next report to Mr Williamson’s solicitors was dated 23 March 2016. She reported the administration of further psychological tests and noted that her diagnosis had not changed since the first report. She said his condition had deteriorated over the past two to three years
“because of ongoing additional stresses of the WorkCover process, including uncertainty and irregularity of his pay and constant pressure to return to work in spite of his doctor’s opinion.”
46 Her prognosis remained the same as in the first report. (PCB 37)
47 Ms Hook’s third report was dated 15 March 2017. Her diagnosis remained unchanged. She said his condition continued to worsen:
“because of ongoing additional stresses of the WorkCover process, including the imminent threat of the loss of his house because of financial difficulties and constant pressure to return to work despite his doctor’s opinion”.
48 Her prognosis remained “guardedly positive” but she remarked, “(t)here are also limiting factors such as his age, his health and the place of residence, Warrnambool, which severely limit his ability to even find work.” (PCB 51)
49 Finally, Mr Williamson’s solicitors referred him to consultant psychiatrist, Dr Michael Epstein, for medico-legal assessment. Dr Epstein took a characteristically detailed history from Mr Williamson. As part of that history, the doctor noted:
“In the late 1990s [Mr Williamson] was feeling exhausted through working full-time and also working in his pizza shop and he was becoming irritable and saw a counsellor weekly for four visits to help him deal with feeling frustrated and irritable.” (PCB 63)
50 He took a history of sleep studies in 2007 for the use of a CPAP machine and matrimonial counselling for him and his wife in 2009. Dr Epstein noted, “[Mr Williamson] had seen his general practitioner, Dr Cimpoesu, on several occasions prior to his employment with Energy Australia describing symptoms consistent with being depressed but he had no time off work and no medication or any other treatment and in retrospect [Mr Williamson] believes these visits were in the context of some work frustration.” (Ibid)
51 The doctor described Mr Williamson as “heavily obese with significant abdominal obesity”. (Ibid) Dr Epstein concluded:
“Bruce Williamson has developed a chronic Adjustment Disorder with mixed anxiety and depressed mood that appears to have occurred in the context of a difficult work situation. Despite investigations finding that his complaints of bullying were substantiated the situation became worse and he became increasingly symptomatic and was unable to continue to work from 11 November 2013 and has not worked in any capacity since then.” (PCB 64)
52 He noted that there had been a diagnosis of mild obstructive sleep apnoea in 2007. He had used a CPAP machine but ceased using it and “after a month or two and prior to the events that led to his claim he regarded his sleep pattern as generally good.” The doctor noted, “His mental state has led to issues with regard to memory, concentration, judgement, irritability, fatigue and lack of motivation together with emotional instability.” (PCB 64) Dr Epstein described Mr Williamson’s prognosis for improvement as “poor”. (PCB 65)
53 Mr Williamson’s solicitors also referred him for a vocational assessment report to Mr Bill Radley, a psychologist and vocational assessment specialist, who Mr Williamson saw on 10 January this year. Mr Radley found Mr Williamson:
“to be a very reserved and impulsive person with poor social and interpersonal skills who was reporting a high level of anxious and depressed mood, together with significant irritable and angry mood and significant impairment and concentration and short term memory.”
54 He found Mr Williamson to have:
“a level of general intelligence in the average range. However his high level of anxious and depressed mood together with his significant impairment in concentration and short-term memory would effectively preclude him from participating in any type of occupational retraining.”
55 He said that Mr Williamson had:
“very limited transferrable work skills. His work background is in unskilled, semi-skilled and skilled non-trade occupations of a manual-practical and organising–persuasive nature at the lower end of the occupational skill range.”
56 Mr Radley found that Mr Williamson had “no current capacity” to return to his pre-injury employment or any similar employment and “no current capacity” for work including any alternative employment. He had “no capacity to undertake any type of occupational retraining” and “no capacity for any type of employment in the future”. (PCB 69)
57 The defendant obtained a number of medico-legal assessments of Mr Williamson’s condition. At the defendant’s request, Mr Williamson attended consultant psychiatrist, Dr Edmond van Ammers. The doctor provided a report to the WorkCover insurer dated 4 December 2013. The doctor noted that “Mr Williamson denied prior history of psychological problems”. (Defendant’s Court Book “DCB” 3)
58 The doctor said he was “not of the opinion that [Mr Williamson] has a specific psychiatric diagnosis”. (DCB 4)
59 The doctor observed:
“On mental state (sic) Mr Williamson presented as a middle aged gentlemen looking appropriate to his age and social economic background. He was somewhat overweight. He was calm and courteous throughout and interacting with the examiner. There was no obvious display of emotion. He didn’t spend the whole interview demonising work colleagues. There was no abnormality in speech or thought form. There were no observable signs of either tension or anxiety. Although he was clearly unhappy regarding his predicament, there was no observable indication that his underlying mood was depressed. Cognitive function was good.” (Ibid)
60 The doctor provided a further report dated 17 March 2017, recording his conclusions following an examination of Mr Williamson on 8 March 2017. The doctor noted that Mr Williamson:
“spontaneously mentioned to the examiner that he did want to work and was short of money. Challenged a bit more Mr Williamson agreed that he is not actively looking for jobs and made comment ‘where do you dig’.” (DCB 9)
61 The doctor asked him about records from his general practitioner’s clinic before his employment with the defendant entailing complaints about relationship issues, energy difficulties and sleep problems. According to Dr van Ammers:
“Mr Williamson was firmly of the opinion that if he might have complained about relationship problems they were only normal issues and he only would talk to a General Practitioner to get help and perspective. He said he could not remember complaining about low energy states. He was asked to respond to the General Practitioner notes indicating ‘severe Sleep Apnoea’ but said he did not think much about it.”
62 Before his employment with the defendant, according to the doctor, “Mr Williamson said that previously there was nothing other than normal mental stresses and he did not think he had sought any treatment or advice”. (Ibid)
63 According to Dr van Ammers:
“The most noticeable aspect of this clinical presentation is the significant disparity between Mr Williamson’s mental status presentation, as compared to the symptoms he complains of. A further level of complexity is attributed to what appears to be quite a significant prior history of psychological problems which he however seems unaware of. He does not appear to be interested in pursuing trials of psychiatric medication, which appears to be discordant with his belief that he has a psychiatric illness. … Many of the symptoms that he complains of as well as the presentations on mental status are in the examiner’s opinion, primarily attributable to Sleep Apnoea rather than a specific psychiatric condition. It is to be noted that otherwise he describes a capacity for a number of hedonic activities and if anything, he complains less of marital difficulties than would appear from his prior General Practitioner record.” (DCB 11)
64 The doctor repeated his opinion that Mr Williamson “does not suffer from a psychiatric condition relevant to his claimed injury and that any emotional factors present were already present pre-morbidly”. According to the doctor, “the most significant contributor to the difficulties complained of is the poorly managed Sleep Apnoea”. (Ibid)
65 Dr van Ammers agreed with other examiners that Mr Williamson did not have the capacity to return to his pre-injury work, but that he could undertake employment with a different employer without restriction. Dr van Ammers did not believe Mr Williamson had a permanent incapacity for any employment and said that he was suitable for alternative employment. He remarked, “please note the sleep apnoea may be impacting upon work capacity but such is not related to the claimed injury”.
66 Dr van Ammers said it was unlikely that finalisation of the litigation process would improve Mr Williamson’s condition “considering chronicity of his presentation even pre-morbidly and the examiner’s postulation on Sleep Apnoea.” (DCB 13)
67 At the request of the defendant, Mr Williamson attended consultant psychiatrist, Associate Professor PMJ Brinded on 26 May 2014. The Associate Professor reported his opinions based on the examination in a letter to the defendant dated 30 May 2014.
68 As with Dr van Ammers, Mr Williamson described no relevant pre-existing medical or psychiatric history to the Associate Professor. (DCB 21)
69 Associate Professor Brinded said that Mr Williamson:
“describes signs and symptoms consistent with an adjustment disorder with depressed mood. The differential diagnosis would be one of a major depressive episode. His mental state findings are not those of common emotional distress but in my view reach the severity of a recognisable disorder”. (DCB 22)
70 He therefore disagreed with Dr van Ammers’ refusal to diagnose any psychiatric disorder. (DCB 22-3)
71 He said that Mr Williamson did not have current work capacity. “His adjustment disorder symptoms are such that he is not currently able to either return to his pre-injury duties or indeed to any alternative duties”. (DCB 23)
72 The Associate Professor said that at that stage Mr Williamson’s prognosis was “uncertain”. He said that Mr Williamson was embroiled in a major industrial dispute. He continued:
“The prognosis for adjustment disorder is usually good but given that it is a ‘secondary disorder’ (that is, caused by an incident or incidents), recovery usually requires the resolution or removal of the situation that has caused the adjustment disorder to occur. In this case, the prognosis of Mr Williamson would appear to be strongly determined by the ability or otherwise of Energy Australia to rectify the current industrial situation which is impacting very poorly, currently, on Mr Williamson’s mental state.”
73 The Associate Professor believed that retraining was not necessary to resolve Mr Williamson’s problems, rather it was a resolution of the adjustment disorder, presumably in the manner just described. (DCB 23)
74 Mr Williamson was also assessed by consultant psychiatrist, Dr Natalie Krapivensky, who reported upon her assessment by letter dated 15 September 2014 addressed to the defendant’s solicitors.
75 Dr Krapivensky records no psychological or psychiatric history prior to Mr Williamson’s employment with the defendant. She said, “he described no panic attacks, no suicidal ideation, intent or plan, and there were no psychotic symptoms”. (DCB 28) She also noted, “Mr Williamson said he used to spend all his spare time with his son. He says that he has struggled to gather the energy and motivation to do so recently.” (Ibid)
76 I take the description of Mr Williamson’s “used to do” to be a reference to his activities of daily living before his employment with the defendant.
77 Dr Krapivensky noted Mr Williamson’s asthma, “which he said was poorly controlled when he was at work”. She said, “(h)e also has symptoms that may be consistent with obstructive sleep apnoea, but this has never been formally investigated, diagnosed or treated”. (DCB 29)
78 His presentation was:
“pleasant, polite and cooperative throughout the examination, maintaining good eye contact and rapport. His speech was normal in rate, volume and flow. His affect was generally euthymic with periods of anxiety reflected by pressured speech and his affect was appropriate and well communicated with somewhat decreased reactivity and range. His thought form was normal and content reflected themes discussed during the examination.” (DCB 30)
79 In conclusion, she said:
“There is history of bullying in the workplace which has been relayed consistently to various medical examiners as have his symptoms of high level of stress, sleep disturbance, mood swings, concentration difficulties, anxiety, anhedonia, worthlessness and hopelessness. It would be my view, that these symptoms are of sufficient severity to warrant a diagnosis now of a major depressive illness, as the duration of the symptoms is now longer than six months which invalidates the diagnosis of adjustment disorder with mixed anxiety and depressed mood and changes the diagnosis to that of a major depressive illness.”
80 She said that, while there were some symptoms of traumatisation, she did not “feel that there was sufficient evidence for a diagnosis of a posttraumatic stress disorder”. (DCB 31)
81 She concluded:
“It is possible that the finalisation of this litigation process, and possible acceptance of the claim, will result in improvement in his psychological condition because it will validate and acknowledge his medical condition and the circumstance of the causation of that condition, as well as providing Mr Williamson with some financial relief. It would be my view that once he is feeling better he will recover his capacity for work.” (DCB 34)
82 On 7 January 2016, Mr Williamson was assessed at the defendant’s request by Associate Professor Saji Damodaran, another consultant psychiatrist. He provided his report to the WorkCover insurer in a letter dated 7 January 2015 [presumably this should read 2016]. The Associate Professor said:
“it is my opinion that Mr Bruce Williamson is suffering from an adjustment disorder with anxious mood. It is my opinion that the condition has not resolved and is consistent with the history and examination findings.” (DCB 41)
83 He set out the diagnostic criteria for that disorder set out in the Diagnostic and Statistical Manual (4th Ed) (“DSM-IV”). (Ibid) According to the Associate Professor, “Mr Williamson could return to modified pre-injury duties and hours or alternate duties and hours with another employer and not with his current employer.” (DCB 42) He stated that Mr Williamson could perform modified duties “up to 20 hours per week with a different employer”. (DCB 43)
84 The defendant sent Mr Williamson for assessment to yet a further consultant psychiatrist, Dr Stephen Stern, whom he attended on 21 July 2015. The doctor sent a report and assessment to the WorkCover insurer by letter of the same date. The doctor noted that:
“He is happily married although his sex life has stopped because of loss of libido. He sleeps in a separate room now. He has lost interest in socialising. He drives locally.” (DCB 52)
85 I understand these aspects of Mr Williamson’s life to have been reported by them as being sequelae of his employment with the defendant.
86 Dr Stern noted the following “present complaints”:
(i) Depression and anxiety
(ii) Disturbed sleep;
(iii) Lack of energy;
(iv) Weight gain;
(v) Reduced memory and concentration. (DCB 52)
87 Dr Stern took a history of a low back injury in 1975, an appendectomy in 1983 and a life suffering from asthma. He said, “(t)here is no past psychiatric history”. (DCB 53)
88 Dr Stern found Mr Williamson:
“a casually dressed overweight man with a worried expression. He had difficulty relaxing. His behaviour was cooperative and pleasant. He maintained eye contact … [He had a depressed affect] … but there was no evidence of thought disorder, delusions or hallucinations.” (Ibid)
89 The doctor found him able to concentrate but with a reduced memory. “His intelligence and insight were normal”. (Ibid)
90 The doctor diagnosed “a chronic adjustment disorder with mixed anxiety and depressed mood”. He said there was “no pre-existing or unrelated psychiatric disorder”. (DCB 54)
91 Dr Stern found that Mr Williamson does have work capacity and found him psychiatrically fit for pre-injury duties or alternative duties in another workplace. Aside from finding a different employer, in the doctor’s view, Mr Williamson was otherwise fit for pre-injury duties and hours. “He should have no excessive workloads or responsibilities initially”. (DCB 55)
92 The plaintiff also placed into evidence the Certificate of Opinion from the Medical Panel dated 19 January 2015. The Panel consisted of Dr Diane Neill and Dr Gianni D’Ortenzio, both psychiatrists. The Panel determined that Mr Williamson was “suffering from an Adjustment Disorder with anxiety and depressed mood, relevant to the claimed injuries”. The Panel also determined that Mr Williamson had current work capacity, noting that he was unable to return to his pre-injury employment. (PCB 96-97)
Conclusions
93 All practitioners, except Dr van Ammers, are agreed that as a result of the events of his employment, Mr Williamson sustained a diagnosable psychiatric injury. The typical diagnosis is the one made by Dr Kornan, namely, “adjustment disorder with mixed anxiety and depressed mood”. Nevertheless, Dr Krapivensky was surely correct when she noted that the diagnostic criteria in the DSM would exclude the diagnosis of adjustment disorder, whereas here, the disorder has lasted more than six months after the conclusion of the stressful event, viz the conclusion of Mr Williamson’s employment with the defendant on 11 November 2013. According to the analysis in DSM-V, one would conclude, as Dr Krapivensky did, that the appropriate diagnosis is a major depressive illness. These things are, however, merely labels and what counts is the underlying reality.
94 The case on behalf of Mr Williamson is that his depressive illness could, by comparison with a range of possible mental or other behavioural disturbances or disorders, be fairly described as being more than serious to the extent of being severe. [s134AB(38)]
95 As Brooking JA said, as a member of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833, 846, the change in language between paragraph (a) of the definition of serious injury dealing with organic injuries, which uses the word “serious”, and paragraph (c) dealing with psychological or psychiatric disorders, which employs the word “severe”
“betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that ‘severe’ was used in the definition as a stronger word than ‘serious’.” ([1998] 3 VR 833, 846)
96 The plaintiff’s case is that his present psychological presentation answers the definition and the entirety of the consequences of his psychiatric injury are attributable to his employment with the defendant and ought therefore be weighed in the balance in determining whether the requirements of paragraph (c) of the definition of “serious injury” have been met.
97 The defendant, however, through its counsel, Mr R Middleton QC and Ms D Manova, submit that most or all of the negative features of Mr Williamson’s psychiatric presentation, as recorded by the experts, were pre-existing and were therefore not consequences of, or caused by, his employment with the defendant.
98 Consultant psychiatrist, the late Dr Paul Kornan, in his report summarised above ([36]) recorded some 10 negative features which were manifestations of Mr Williamson’s psychiatric disorder.
99 In cross-examination of Mr Williamson, Mr Middleton QC took him in detail to entries of the clinical notes of his general practice clinic for the years immediately prior to Mr Williamson’s employment with the defendant with a view to making good this proposition.
100 The notes from the clinic were admitted into evidence as Exhibit 4. A record of a consultation of 14 July 2004 with Dr Tatiana Cimpoesu recorded a possible diagnosis of sleep apnoea. By 2 March 2006, this diagnosis was adopted and established. Dr Cimpoesu recorded:
“Poor sleep and feels not rested in am. Found CPAP uncomfortable and did not pursue it further. Also early morning wakening and mood swings, irritable but not anxious. Normal self esteem. No panic attacks.”
101 The reference to “CPAP” is to a machine intended to maintain positive air pressure in a patient’s respiratory system and thereby avoid the interruption to sleep caused by obstructive sleep apnoea. (T27, L4-7)
102 The note continued:
“Started new job; not entirely happy as now has to work for wages and no matter how much he works the pay is quite low. Also travelling a lot. Long discussions re family difficulties. Deb [Mrs Williamson] avoiding contact with him. Sleeping in separate rooms. Feels hopeless as cannot convince her to go together for counselling. Unsure if it is worth to try any changes to the relationship.”
103 The reason for the visit was set out as follows, “Asthma, Reactive depression, Sleep apnoea, ?UTI (Urinary Tract Infection).”
104 On 27 March 2007, Dr Dwyer of the same clinic saw Mr Williamson and they were discussing a sleep study which had been conducted. Dr Dwyer recorded Mr Williamson as saying the following:
“sleep study was poorly done and didn’t really try CPAP. Would like a second opinion. Constantly tired and nods off easily. Often snorts/starts awake during sleep or even watching TV etc.”
105 Throughout this period, and as at the date of trial, Mr Williamson was suffering from, and was being treated for, asthma. At a consultation on 13 June 2007 with Dr Cimpoesu, she recorded “generally better after starting Symbicort …”.
106 On 29 June 2007, Dr Cimpoesu recorded that Mr Williamson was “better after starting Symbicort” then “(h)ad sleep study; severe sleep apnoea …”.
107 On 26 February 2008, Dr Cimpoesu recorded that Mr Williamson was “(u)sing CPAP and has difficulty using it because of nasal congestion”.
108 On 23 July 2008, Mr Williamson had a consultation with Dr Cimpoesu for “reactive depression”. She recorded he was:
“Travelling a lot with his job and thinking about changing jobs. Unhappy in his marriage. Sleeping in separate rooms … Poor sleep and tired. Irritable at time (sic); no anxiety, normal self esteem. Long discussion about marriage difficulties. Feeling hopeless and not sure how to change his relationship. Does not want to be a ‘weekend father’.”
109 On 4 November 2008, Dr Cimpoesu recorded Mr Williamson as suffering:
“Sleep apnoea and day time tiredness. Has difficulty using CPAP as has nasal congestion…Unhappy with his job. Told he took too many days off sick. Looking for a new job.”
110 As at the date of the consultation on 14 July 2004, Mr Williamson’s weight was recorded as 96 kilograms. By 4 November 2008, it had risen to 108 kilograms.
111 On 23 February 2009, the doctor recorded reference to matrimonial difficulty and “(p)oor sleep but few better nights in the last month; tired, reduced motivation. Impaired concentration.” Amongst the disorders recorded was “weight excess” as well as “reactive depression”.
112 On 18 May 2009, the doctor recorded “(o)ngoing family stress…decreased energy and motivation, reduced concentration and short term memory”.
113 On 8 December 2009, Dr Cimpoesu’s note records a history of:
“Not working still but finished a short business course. Sick and tired and (sic) being without work…Low mood at times but more optimistic and hoping to find work soon.”
114 On 19 April 2010 Dr “TC” (presumably Dr Cimpoesu) recorded Mr Williamson’s weight at 112 kilograms, remarking:
“Unable to get suitable dietician appointment so has not been yet. Eats very large meals, often skips lunch. Has large snacks late in the day. Will try again to make appointment with dietician”.
115 On 9 July 2010, Dr “KG” recorded “severe sleep apnoea equals airway terrible. Intermittent CPAP but didn’t use last night”.
116 On 6 December 2010, Dr “TC” recorded Mr Williamson “Eating on the run but trying to improve diet … Sleep apnoea and waking up tired”. His recorded weight was 114 kilograms.
117 On 4 February 2011 his weight was recorded as 117 kilograms. It was stated, “Last dietician appoint cancelled – to be rebooked”.
118 On 1 April 2011, Dr Cimpoesu recorded Mr Williamson as “(u)nable to lose weight”. Mr Williamson had been made redundant from his then employment. Was working casually in the taxi industry and in a pizza shop. He was said to be “stressed and sad some days … decreased self esteem. Reduced energy.” His weight was recorded as 116 kilograms.
119 On 18 July 2011, that is, shortly before he commenced work with the defendant, he was diagnosed “with depression; reactive asthma, fatty liver”. Dr Cimpoesu recorded:
“Feeling depressed and unmotivated. Comfort eating when stressed and tired. Reduced motivation and feeling hopeless at times. Busy and stressed at work, paid $8/hour. More and more problems with marriage and few parenting disagreements …”
120 She recorded that she “(d)iscussed re focusing on positives, stress coping strategies and healthy life style”.
121 Mr Bird, who appeared with Mr Pierorazio for the plaintiff, submitted that not much should be made of these matters. There were frequently gaps of up to a year between the consultations to which reference was made. It would be wrong, he submitted, to regard these issues as constant or being of such importance that they called for psychiatric or psychological treatment, none of which was had in a relevant period.
122 I accept the force of Mr Bird’s critique. Nevertheless, the tenor of this material gives the lie to Mr Williamson’s characterisation of his temperament as “jovial”, as reported to Dr Kornan. The record shows that Mr Williamson was, before his employment with the defendant, suffering from stress and depression. There is a record of his suffering from mood swings and impairment of memory. At times, he lacked motivation and energy. He was irritable and frustrated and had feelings of worthlessness.
123 Amongst the symptoms said to be the result of his psychiatric injury was a weight gain. Again, the record shows that his weight was already out of control before his employment with the defendant.
124 Asthma is a constant in Mr Williamson’s health problems before and after his employment with the defendant.
125 Mr Middleton QC suggested to him that his problems of concentration, short-term memory, decreased energy and motivation, as well as stress, might be attributable to the asthma. (T53, L25-28)
126 Mr Williamson replied that his asthma was now under control but was out of control back in 2009. (T53, L30 – T54, L2) Yet the clinical record shows he was, at all material times, being treated with Symbicort. (T64, L31 – T65, L8)
127 Dr Kornan remarked upon Mr Williamson sleeping separately from his wife, implying this was caused by his employment, but the clinical record shows this move had been made years before he began working for the defendant.
128 I accept that as a result of Mr Williamson’s employment with the defendant these features of his psychological presentation have become more constant and problematic, with the result that there has been a transition from a series of problematic characteristic features or symptoms into a diagnosable psychiatric disorder, as found by all examiners except Dr van Ammers. Nevertheless, the difference between Mr Williamson’s pre-morbid psychological state and his presentation after his experiences with the defendant is much less marked than a comparison between a man of jovial temperament before and one afflicted with a series of negative psychological features afterwards, as Dr Kornan’s assessment portrays it.
129 Mr Middleton QC correctly pointed out that many examiners, including Dr Kornan, did not have the advantage of the history of symptoms which may be derived from the general practice clinical records as demonstrative of Mr Williamson’s pre-morbid state. From Mr Williamson’s standpoint, the history which he gave, for instance, to Dr Kornan, seems defensible enough. He complained of these matters to his general practitioner but he received no psychiatric treatment for those symptoms. Nevertheless, analysis for the purposes of this proceeding indicates that these features of his pre-morbid state are most significant in determining the consequences of his employment with the defendant.
130 It is now three and a half years since Mr Williamson ceased his employment with the defendant. There could be no denying the severity of his immediate reaction to the stressors to which he was subjected, but the sources of these stressors have now been removed and are now some years in the past. Again, there is no reason to doubt the reality of the avoidant behaviour which he engages in to avoid contact with his former tormentors. Granted that avoidance of this sort of confrontation is more difficult in a regional area than it would be in a metropolitan one, it is difficult to think that with the natural tendency for the stress to diminish over time, it is sufficient to exclude the possibility of employment in another workplace.
131 In Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, the Court of Appeal dismissed an appeal from a determination of this Court, refusing leave to bring a damages claim based inter alia on paragraph (c) of the definition of “serious injury” in the Accident Compensation Act. The trial judge made the following findings:
“She does not take anti-depressants, although I accept these have been tried on a number of occasions and she has found she has developed side effects. There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word ‘severe’ in the definition of the Act has been held to be a word of stronger force than ‘serious’.” ([2014] VSCA 167 [31])
132 In the same passage, his Honour commented that:
“Aside from the attendances on the treating psychologist, … the plaintiff has received little if any psychological treatment.” (Ibid)
133 These observations are equally applicable to Mr Williamson.
134 Mr Bird correctly observed that the evidence showed Mr Williamson as having a very limited social life and one which revolved around his son and his special needs. Nevertheless, a suggestion that Mr Williamson could be regarded as living the life of a recluse must be rejected. First, he accepted that he had served, since his employment with the defendant, as president of his son’s karate club.
135 Secondly, video surveillance depicted him spending a day presiding at one of the rings at a karate competition. Mr Williamson observed correctly that the announcements which he made, both of the place getters in the competition and summoning the competitors to particular bouts, were made on the basis of written instructions provided to him by a lady colleague sitting at the same table. He seemed, nevertheless, at ease in the crowded environment, though I accept, as Mr Bird correctly submitted, that he did display a tendency to be fidgety.
136 In the witness box, Mr Williamson presented much as he had to Dr van Ammers as quoted above. [59]
137 For all these reasons, I do not accept that the consequences of Mr Williamson’s psychiatric injury at the hands of the defendant now merit the description “severe’ when compared with other cases in the range of possible mental or behavioural disturbance, so as to meet the requirements of paragraph (c) of the definition of `serious injury’.
138 I find that Mr Williamson has not been deprived of 40 per cent or more of his earning capacity. All examiners agree that he cannot return to the employer defendant and there is no suggestion that he ever should. He has in the past displayed a capacity for a range of occupations. I accept Mr Radley’s general characterisation of his abilities and transferable skills. A person with that skill level at the age of 58 is in a disadvantageous position in finding employment in a regional area. I accept, nevertheless, that Mr Williamson is not precluded from finding employment in a number of the roles in which he has previously worked, including sales and retail by reason of the consequences of his injury.
139 In placing the reliance that I have on the video surveillance material, I am conscious of the point made by Mr Bird, namely, that it represents a handful of hours against a total attempted surveillance period of 72 hours. The very low “strike rate” in the surveillance is probably indicative of a limited social life in which a small family of three is very much concentrated upon itself, particularly having regard to the special needs of Mr Williamson’s son.
140 I do not believe, however, that the evidence establishes a dramatic difference between the present situation and that which existed before Mr Williamson’s work with the defendant.
141 Leave to bring a damages claim is refused.
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