Young v Victorian WorkCover Authority
[2021] VCC 976
•2 August 2021
| THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05634
| JOHN STEWART YOUNG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 and 19 July 2021 | |
DATE OF JUDGMENT: | 2 August 2021 | |
CASE MAY BE CITED AS: | Young v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 976 | |
JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury – pre-existing – aggravation - pecuniary loss
Legislation Cited: Accident Compensation Act 1985 (Vic); Veterans’ Entitlements Act 1986
Cases Cited:Dordev v Cowan [2006] VSCA 254; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Spence v Gomez [2006] VSCA 48; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Mr A Fraatz | Arnold Thomas & Becker Lawyers |
| For the Defendant | Ms D Manova | Minter Ellison |
HER HONOUR:
1The plaintiff, Mr Young, is a fifty-eight-year-old man. He makes this application pursuant to s134AB of the Accident Compensation Act 1985 (Vic) in respect to a workplace injury for psychiatric injuries he sustained during his employment with the employer, G4S. Mr Young claims that his injuries have impacted on his social and domestic activities in such a way that they constitute a “serious injury” as defined by ss134AB(37) and (38). As a result of those injuries, Mr Young says he has suffered a sufficient loss of earning capacity to entitle him to make a claim for pecuniary loss.
2Pursuant to s134AB(38)(d), the plaintiff must establish that his impairment is “severe”; that is, it is something more than “serious”. The plaintiff must further demonstrate that the consequences of the injury are permanent, in the sense of continuing for the foreseeable future.
3The issues in this case are:
(a) whether the aggravation of the plaintiff’s psychiatric condition amounts to a severe consequence; (the aggravation case)
(b) whether the plaintiff’s diagnosis of Parkinson’s Disease accounts for some of the symptoms he experiences; (the disentanglement case) and
(c) whether, as a result of the injury, the plaintiff has suffered a more than 40 per cent loss of earning capacity. (the pecuniary loss)
4If he satisfies the requirements for loss of earning capacity, he is also entitled to bring a claim for pain and suffering damages. However, pursuant to s134AB(17), if he does not satisfy the test for pecuniary loss, he can be awarded a certificate for pain and suffering only.
Background
5Mr Young relies on two affidavits sworn on 5 July 2021, as well as an affidavit of his wife, Adelle Young, dated 5 July 2021, and an affidavit of Susan Pollard dated 8 July 2021.
6Mr Young was born in 1962, married his wife, Adelle in 1990 and has a twenty-five-year-old daughter.
7He left school at the age of seventeen and joined the Navy as an electrical fitter in 1980. In that role he was sometimes shore based, but also saw active duties on various deployments which I will detail later. He left the Navy in 1990 and worked for a period as a forklift operator and warehouse manager, before returning to the Navy in 1996. He remained in the Navy until 2007.
8His role as an electrical fitter and later an electrical workshop supervisor meant that, after leaving the Navy, he was well suited to obtain employment in the fire safety and training industry. He obtained a number of jobs within the industry and in 2011, commenced with Chubb Fire and Security (“Chubb”). In 2012, he commenced work with Wormald Australia Pty Ltd (“Wormald”) as a state service manager and continued in this employment until he was made redundant as part of a wave of redundancies that resulted from the loss of a major contract.
9After being made redundant from Wormald, he sought and obtained employment as a fire section manager with G4S. G4S at that time had a contract with the Commonwealth Government to manage its detention facility on Manus Island, Papua New Guinea. Mr Young’s role was to assess and maintain the firefighting equipment at the detention facility and to monitor the facility for any fire-related risks. His work was on a “fly-in-fly-out” basis, where he would work twenty-eight days consecutively and then have a period off where he would return to Australia. Whilst on duty he was also on call at night. He trained and managed six locally employed staff. He oversaw the installation of over 150 fire extinguishers and put in place policies and procedures to manage the fire risk at the facility.
10Although he was employed as a fire section manager, he was required from time to time to undertake security patrols around the centre, looking for contraband, fire hazards or weapons. He did not receive any detainee or personal security training. He said he felt “uneasy” when he was deployed into the compounds. He describes himself as being “often anxious and scared in this role, as I did not know what to do if I was attacked”.
11Mr Young says when he arrived at Manus Island there were approximately 600 “transferees”, that is, persons detained at the facility. This number rose steadily to about 1,400 by the time of the events that caused Mr Young’s injury.
12He says the increased numbers resulted in a “big difference’ in his role, as the accommodation facilities were overcrowded and, presumably, posed a greater fire hazard. He says the overcrowding also caused tensions on the island. The detainees could not stay inside the accommodation as it was too hot, crowded and smelly, and sleeping was difficult. There were reports of sexual assaults among the detainee population. The adjacent facility was occupied by the Papua New Guinean (“PNG”) Navy and Mr Young describes the relationship between the detainee facility operated by the Australian government and the PNG Navy as fraught, and this meant that accessing water, which required the cooperation of the PNG Navy, was sometimes problematic.
13Mr Young returned to Australia over the Christmas 2013 period and then resumed his role on Manus Island on 26 December 2013. He says the facility was in the same condition as when he arrived in September 2013, despite the increase in numbers, and the fencing was inadequate to prevent people getting in or out of the compound.
14Mr Young describes rising tensions during January 2014. More people were arriving at the compound, the weather was hot and wet, and there was no shelter when it rained. During this period there were demonstrations and protests.
15Mr Young had scheduled leave after his rostered twenty-eight-day period, and then returned to Manus Island on 6 February 2014. The security status, operating on a “traffic light” system, had been set at “amber”. Mr Young was told which assets were a priority to protect in case there was a fire. He was also told by his counterpart that “real trouble was anticipated”. Mr Young says he believes that G4S expected “things to go pear shaped” at the Centre.
16Protests continued and a meeting was held between detainees, the PNG government and representatives of the Department of Immigration and Border Protection. The meeting proceeded without incident, but detainees were told during that meeting that they were never going to be able to come to Australia. Mr Young describes the aftermath of that meeting as “then everything went ballistic”.
17On 16 February 2014, Mr Young had the afternoon off but was recalled to duty when unrest began to percolate at around 4.00pm. With his fire crew, he took a five-tonne fire tender and a fire ute to report to the office at the compounds. He was briefed that trouble was expected to erupt that night, and he pulled the fire section vehicles out of the compounds and parked them outside to monitor the situation. He was prepared for a fire during the unrest. He had heard rumours that roll-on deodorant might be used as an accelerant to create “Molotov cocktails”. He was particularly concerned the vinyl tents used in the Oscar compound would be vulnerable to fire and could result in significant loss of life.
18That night he recalls that local citizens from the area, armed with sticks and shovels, marched on the compound. Rioting broke out. Mr Young describes it as “terrifying”. It was not clear whether the locals or the detainees attacked first. The detainees “ran over” the vehicles that had been set up outside the compound, so Mr Young and his crew redeployed back towards a sports field known as the Bibby, where they had previously set up a training ground. He said that to get there, he had to move through the rioting detainees and locals to save the “assets”, being the trucks, equipment, and fire crew. He describes the fire crew as ‘like family to me. I was training them to be firemen and had formed very strong relationships with them”.
19At the Bibby he says he could hear screaming from within the compounds. He was listening on his radio to follow the events that were unfolding. At about 1.00am, the rioters started breaking down the fences and were using the fire hoses as weapons. He turned off the water at the mains to prevent this. He describes the rioting as “escalating” over the next few hours and saw the fences within the compounds being torn down.
20He did not return to the compound until it was clear later that night. He saw about twenty to thirty people with cuts, bruises and more serious injuries. He remained on duty until about 3.30am or 4.00am that morning.
21The following day he returned to the compound to assist with the clean-up at around 11.00am. He was told that G4S was expecting more rioting that night, so he assisted in moving containers between the detainee compounds and other facilities. He had heard rumours that PNG nationals would be targeted during the riots, so he removed his fire crew to a position outside the facility. This left only the G4S staff.
22Rioting recommenced at around 4.00pm near the Mike compound. He and his fire crew were sitting outside the compounds in full firefighting suits, on “high alert”. The rioting quickly escalated and he was told to go into the compound kitchen area to remove any knives or objects that could be used as weapons. He “bunkered down” in the office area.
23He says he saw and heard the riots and saw rocks being thrown, and rocks wrapped in bedsheets being used as weapons. He describes the noise as “incredible”. The police went into the Delta compound and he could hear the police dogs at the Oscar compound. He could hear gun fire. He says he feared for his own life and the lives of his crew and other G4S staff. The police used tear gas, which went into the compound where he was sheltering, and he was redeployed to an oval just outside the compound. He says he will:
“… never forget white tear gas pouring out of the windows of the ute and truck as we escaped. We were coughing and could barely see. We had no personal protection equipment and no guards assigned to us”.
24He says a few hours after this event he was tasked with relocating non-rioting detainees. Some detainees were directed to the ovals. Whilst redirecting detainees, he was expecting to be attacked, either by locals or by rioting asylum seekers.
25He continued working until about 2.00am, when the rioting died down. When he re-entered the compound, he saw injured people everywhere and the “trouble makers” under guard. He says they:
‘… were crazy scenes and I have never seen so much blood, so many wounds, pressure bandages, people limping, black eyes and other injuries. Some staff were also injured. There were injured people everywhere’.
26He was stood down at about 4.00am and describes sitting at the Bibby and thinking “‘what has just happened?’”.
27After the riots he stayed on the island for another ten days. At one point he spoke to a psychologist who was walking around amongst staff and who asked if he was “alright”. He says he spoke with her for about five minutes. Other than this, he says he had no debriefing process arranged by G4S.
28Following the riots, the government contract with G4S to manage the detention facility was terminated and another service provider was brought in. As a result of losing the contract, G4S terminated Mr Young.
29Mr Young returned to Australia in March 2014. He says he had some difficulty finding a job in Australia, but did eventually get work with an organisation called First Five Minutes, providing emergency response training. He worked there for about twelve months. He then relocated to Tamworth where he obtained work as a branch manager for a fire services company, Sicada Fire and Safety. At this time his father was very unwell, with a life expectancy of around a month. Although Mr Young had had a difficult relationship with his father as a child, he felt that he should move to Tamworth and provide care to his father during his last days. In the end, Mr Young’s father died about twelve months later. Mr Young moved in with his father and provided care to him. He says he “likes to think” he played a role in prolonging his father’s life.
30After his father died, Mr Young arranged the funeral and packed up his house. He then returned to Victoria in March 2016. He obtained work as a training consultant with a company called Emergency Preparedness Training and Consulting (“EPTAC”). He continued in that employment until 2019.
31He then worked in a fire management role with Chubb. He describes this role as “suitable for my training and experience”. It was, as his counsel put it, “a bit of a step-up” for Mr Young in terms of the level of management and the increased responsibility. It was more akin to the sort of work that he was doing on Manus Island, managing a team and an active fire risk site, rather than simply providing technical training as he had with First Five Minutes and EPTAC. However, after only twelve weeks in the job he found he could not cope. He says the “pressure got to me” and he began experiencing high anxiety and panic attacks. He says that:
“… One day I looked at my phone and computer, and just had no idea what to do. I was completely overwhelmed. I sat in my car and just felt nothing.”
32He was unable to return to that role and resigned in late March 2020.
33Fortunately for Mr Young, he was able to find work in June 2020 working at the Cerberus Naval Base as a technical trainer. He describes this as a “great job” and says he is able to cope as there is no stress, no after-hours requirements and no management components. Whilst this is a good job and he loves it, it is relatively low paid and he is “not where I wanted to be” in terms of his career. He says despite his skill set and extensive experience in the industry, he is not working in a senior position or earning the money that he would otherwise be capable of earning. Mr Young continues to be employed at the Cerberus Naval Base.
Medical history
34During his time in the Navy, Mr Young saw active service and experienced some highly stressful moments. In particular, during service in the Persian Gulf, he had an experience where an Iranian ship believed that the ship he was on, the HMAS Canberra, had strayed from international waters into Iranian waters. The Iranian warship “locked” its missiles on the HMAS Canberra, and Mr Young describes a period of several hours where there was a real risk that his ship would be hit by a missile. He described this experience as “being scared for my life”. He was also deployed to Surabaya during the student riots in 1999 and to East Timor in 2006. He was in Bali on holiday during the Bali bombing in 2002.
35In November 2008 Mr Young attended three sessions with a psychologist, Andrew Plewa, for targeted cognitive behavioural therapy. He focused on what he needed to do to repair his relationships and Mr Plewa notes that he reported “a normalisation of his life and he’s on target now. No further sessions required”.
36Mr Young describes this period as a period of adjustment to civilian life after many years in the Navy.
37In 2010 Mr Young lodged a claim pursuant to the Veterans’ Entitlements Act 1986 for a disability caused by his naval service. He claimed some minor physical injuries, including tinnitus and tinea, and for “mental problems”. He was assessed by a psychiatrist, Dr Anthony Sheehan on 27 April 2011, who determined that he had no diagnosable psychiatric disorder or condition attributable to his service in the Royal Australian Navy. He was granted a pension for the physical injuries he was found to have sustained.
38Mr Young subsequently attended a psychiatrist, Dr Norbert Pomorin for an assessment, as he sought to appeal the finding that he had no psychiatric disorder or condition. The date of his consultation with Dr Pomorin is not clear, but Dr Pomorin prepared a report dated 18 October 2011 and notes that he had seen the report of Dr Sheehan of 27 April 2011. Dr Pomorin took a detailed history of Mr Young’s naval service and diagnosed a “mild but pervasive” Chronic Adjustment Disorder with Anxiety with symptoms of hypervigilance, exaggerated startle response, nervous tension, being on edge, sleep disturbance and impaired ability to concentrate. He noted that “[i]t is clear from his history that the condition arose as a result of being confronted by a 1A(c) Stressor whilst serving on the HMAS Canberra in the Persian Gulf”. Mr Young was successful in having his psychiatric condition accepted by the Department of Veterans’ Affairs.
39In 2013 Mr Young was diagnosed with Parkinson’s Disease. He had noted progressive deterioration on function, most obviously in his right arm and leg stiffness with weakness. He had difficulty with fine motor movements including using a pen, toothbrush, cutlery and typing. On occasions his right leg dragged and he had difficulty with driving. With the benefit of hindsight, Mr Young says that these symptoms had probably been affecting him since sometime in 2011.
40At the time of the diagnosis, Mr Young was working for Wormald. He says the diagnosis did not affect his ability to perform his job, and he was entirely upfront with his employer about his diagnosis. He was subsequently made redundant when Wormald lost a major contract and although his diagnosis was not the reason he was made redundant, he believes it may have been one of the factors used to elect him for redundancy. At the time of the redundancy, he was told something along the lines of “the redundancy would assist me in my condition now that I’d been diagnosed”.
41With the benefit of hindsight, it is also possible that some of the symptoms caused by Parkinson’s Disease may have contributed to his psychiatric state in 2013. His progressive loss of function may have had a role to play in him becoming more depressed, as noted in the report of Dr Loh of 26 February 2013. He was notably more labile and more easily frustrated.
42At the time, Mr Young agreed that he found it very difficult to deal with his diagnosis. As he says, he was “unaware of what the full-blown Parkinson’s was going to do”.
43There was a period where the treatment Mr Young was receiving for his Parkinson’s diagnosis was causing him some problems, including high levels of fatigue, that meant he sometimes had to pull over when driving. However, by 2015 he had a “highly competent” treatment team and felt that he had a “sense of direction in how to manage his physical symptoms”. Adjustments to his medication regimen had elicited good results and Mr Young says he has been told that the disease is under control with medication and should not significantly affect his life expectancy or employment capacity. He says it does not affect his ability to work, though he has some balance issues and some issues with “freezing”. He says he has come to accept his condition.
44Apart from his Parkinson’s Disease, Mr Young has no other significant physical health problems.
45Prior to his employment with G4S he underwent a confidential psychological assessment. There were no areas of concern raised following this assessment and he was successful in obtaining employment. He disclosed his Parkinson’s Disease diagnosis to G4S.
46In 2014, after his return from Manus Island, he began experiencing some psychological symptoms. He attended his general practitioner and was put on a Mental Health Care Plan which resulted in four sessions with Dr Bernadette Hertzog in 2014 or very early 2015. In her letter dated 26 January 2015, Dr Hertzog notes that Mr Young attended four sessions to address his depressive symptoms. He was noted to have multiple stressors over the past few years, including his Parkinson’s diagnosis and his work on Manus Island “during a very stressful period”. At the time of his intake, he was assessed on the “DASS” as having extremely severe depression, severe anxiety and mild stress. After the sessions he was assessed as having mild depression, and no anxiety or stress. There was no requirement for ongoing mental health care at that time.
47However in 2016 his condition deteriorated. He says he had suicidal thoughts. His general practitioner prescribed Pristiq (Desvenlafaxine) 100 milligrams. He was aware that, as an ex-serviceman, he was entitled to medical assistance from the Department of Veterans’ Affairs. He was referred to the Vietnam Veterans Counselling Service (now called Soldier On) and saw a psychologist, Dr Jeremy Shields, on an ongoing basis, including after Dr Shields went into private practice. Dr Shields’ clinical assessment was that Mr Young had Complex Post-Traumatic Stress Disorder (“PTSD”) arising from the exposure to events of the Manus Island riots whilst employed by G4S.
48On 19 July 2017 his general practitioner, Dr Varghese Zachariah, referred him to psychiatrist Dr Kamal Sanghvi for review of possible PTSD and depression. Dr Sanghvi saw Mr Young about ten times, but has not seen him since December 2019. He diagnosed Mr Young with PTSD and Major Depression and increased his dosage of Pristiq to 150 milligrams.
49He remains under the treatment of Dr Shields and his general practitioner, Dr Zachariah. He is prescribed Pristiq, the dosage of which has varied from time to time.
The aggravation case
50The parties are generally in agreement that, prior to his service on Manus Island, Mr Young had some sort of psychiatric injury. The defendant says this pre-existing psychiatric injury was largely caused by his naval service and particularly the incident in the Persian Gulf where he was scared for his life. The defendant says that Mr Young’s symptoms from his pre-injury psychiatric condition were sleep disturbance, impaired ability to concentrate, nervous tension and feeling on edge, night terrors and sweats, an exaggerated startle response as observed by his family, difficulty enjoying events involving large crowds, particularly at night, and hypervigilance manifesting in always looking for exit doors. These symptoms were noted by both Dr Sheehan and Dr Pomorin, though Dr Sheehan did not consider they amounted to a disorder.
51The defendant says that, since his service on Manus Island, the plaintiff has been able to continue full-time work. He would have stayed in employment on Manus Island if that had been offered to him. He has had some symptoms which required treatment, including major depression, but this resolved with treatment as attested in the report of Dr Hertzog. He moved to Tamworth to provide end-of-life care to his father, and was able to do this whilst working full time, without any sort of relapse in his mental state, and without requiring any psychiatric support. He has undertaken international travel, having been twice to Europe and once to China for a golfing holiday. He has had self-directed counselling as needed, which suggests a mild condition that might flare up from time to time.
52The defendant relies on the opinion of Dr Sanghvi, the plaintiff’s treating psychiatrist, that his symptoms were not severe enough to interfere with his day-to-day functioning.
53The defendant also relies on the medico-legal opinion of Associate Professor Saji Damodaran who says that Mr Young has PTSD caused by his naval service and aggravated by his experience on Manus Island. In Associate Professor Damodaran’s opinion, the dominant causative feature of Mr Young’s condition was the traumatic events during his naval career which has made him vulnerable.
54The defendant further says the opinion of Dr David Weissman that the PTSD was caused by the service on Manus Island, and that the prior symptoms attributable to the naval service had resolved, ought be given little weight, as it relied on an inaccurate history provided by the plaintiff which impacts on its probative value.[1]
[1] Dordev v Cowan [2006] VSCA 254 at paragraph [14]
55Whilst not contesting that there has been some aggravation of Mr Young’s condition, the defendant says that it does not meet the test of “severe” as:
(a) Dr Hertzog reported that his depression was “mild” and he had no ongoing anxiety or stress-related symptoms;
(b) Dr Shields considered that Mr Young’s prognosis was good and noted that two thirds of people with PTSD would recover, with most symptoms decreasing substantially in the first twelve months following the event;
(c) Mr Young has returned to work which is equivalent to his pre-injury work and this is a factor to be considered in assessing the severity of the impairment;[2]
(d) Mr Young provided care to his father without aggravation of his condition and without treatment for over twelve months; and
(e) He has undertaken shifts in a second job doing occasional work at the Australian Open and concerts. He looked into volunteering for Puffing Billy but was unable to fit this in with other commitments.
[2]See the discussion in Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Findings – the aggravation case
56I am required to assess the plaintiff as he presents on the day of the trial. The question for me is whether Mr Young currently experiences symptoms that can be described as “severe” and that are a result of his work on Manus Island, taking into account his pre-existing condition.
57Much of the evidence relied on by the defendant is out of date and bears little relevance to the task I must undertake. For example, the report of Dr Hertzog notes that he was experiencing severe depression, which reduced in severity after four sessions. The defendant submits that this is consistent with Dr Shields’ opinion that most people who suffer from PTSD experience a decline in symptoms in the twelve months following the incident.
58However, Mr Young’s evidence is not that he had immediate symptoms that then improved. Other than feeling a sense of shock about what had happened immediately after the riots, and having some night terrors, he did not experience the symptoms he now suffers from until a much later point. He says his symptoms developed over a period of years and it was in 2016 that his condition deteriorated and he began having suicidal thoughts. In other words, his symptoms did not manifest immediately and were cumulative in nature. At the time of his consultation with Dr Hertzog, whilst he clearly had psychological symptoms, they do not appear to have been the same as those he subsequently developed and did not fit the diagnosis of PTSD.
59At the point where he did begin to experience symptoms consistent with PTSD he contacted the Navy counselling service and commenced seeing Dr Shields. Dr Shields considers that Mr Young is suffering from Complex PTSD and a Major Depressive Disorder. Dr Shields is the medical professional who has had the most to do with Mr Young in relation to his psychological state. Prior to his experience on Manus Island, Mr Young had never been diagnosed with PTSD.
60Dr Sanghvi has also diagnosed Mr Young with PTSD, but attributes that diagnosis to Mr Young’s time in the Navy. On the other hand, Dr Weissman diagnoses PTSD and attributes it entirely to Mr Young’s experience on Manus Island. Dr Steven Adlard, who examined Mr Young for the defendant, likewise attributes Mr Young’s PTSD to his experience on Manus Island, whilst Associate Professor Damodaran, whose assessment is the most current, having been undertaken in June 2021, diagnoses an adjustment-type disorder prior to Mr Young’s service on Manus Island and opines that Mr Young’s clinical state worsened after the stressors of Manus Island and manifested in PTSD in 2017.
61The preponderance of the medical evidence, and in particular the most recent medical evidence, and the evidence of those who have seen Mr Young on an ongoing basis, supports the finding that Mr Young has suffered a deterioration of his clinical state, which has manifested in a diagnosis for the first time of PTSD, attributable to his employment on Manus Island. Prior to his work on Manus Island, he had received a short, three-session course of cognitive behavioural therapy to assist him to deal with the transition to civilian life, but subsequently required no regular treatment or medication. In contrast, he has, since 2017, required regular treatment and has been, and remains, constantly on medication.
62His pre-existing condition may have made him more likely to develop the PTSD. Without the pre-existing injury, it is possible that he would not have developed the PTSD. This is, however, irrelevant to the test that I am required to determine. I must decide whether the aggravation to his injury by his service on Manus Island has been causative of severe consequences for the plaintiff. I find that his experience on Manus Island led to an aggravation of a pre-existing psychological injury which was severe for the reasons set out below.
The disentanglement case
63Further, the defendant says that Mr Young has failed to disentangle symptoms caused by his Parkinson’s Disease from symptoms caused by his psychiatric condition.
64The onus is on the plaintiff to properly disentangle those consequences so that the Court can assess the work-related injury.[3]
[3] Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
65The defendant submits that a number of symptoms Mr Young experiences can be, and should be, attributed to his Parkinson’s Disease. These are: the sleep difficulties he suffers, which may be a REM behavioural sleep disorder; reduced functionality; depression; loss of motivation; loss of libido; and fatigue associated with travel.
Findings – the disentanglement case
66Whilst Mr Young did experience symptoms of Parkinson’s Disease which impacted on his psychological state, in particular depression and difficulty coming to terms with his diagnosis, I accept his evidence that he has now come to terms with his diagnosis. I do not consider his Parkinson’s Disease is a major factor in any ongoing depression. The preponderance of the evidence is that the Parkinson’s Disease does cause symptoms, including some motor disturbance in his limbs, and some freezing, particularly in his face, but these symptoms do not impact on his ability to work. Mr Young appears to have accepted this and made appropriate accommodations in things such as the way he uses cutlery. He clearly gains satisfaction from his voluntary work with Parkinson’s Victoria, where he speaks to other relatively young people diagnosed with Parkinson’s Disease and, as I understood it, provides them with a living example of a person who continues to be fully employed and engaged in life.
67Symptoms such as fatigue and sleep disturbance are linked to Parkinson’s Disease. Sleep disorders, particularly those caused by night terrors, are undoubtedly also linked to PTSD and self-evidently disordered sleep will cause fatigue. In circumstances where both conditions can be causative of symptoms, it is open to the Court to find that both causes were operative.[4] However, even if I was to conclude that these symptoms were predominantly, or solely, caused by his Parkinson’s diagnosis, a conclusion which I have not reached, there are clearly other symptoms which are unrelated to his Parkinson’s Disease which amount to an aggravation of Mr Young’s injury. For the avoidance of doubt, the extent that I am required to disentangle the symptoms caused by Mr Young’s Parkinson’s Disease from the aggravation of his psychiatric condition caused by his employment, I am satisfied that the symptoms caused by his employment form the substantial part of his psychological state.
[4] Spence v Gomez [2006] VSCA 48 at paragraph [78]
Pecuniary loss
68The heart of this dispute is really whether Mr Young has suffered a loss of earning capacity that would entitle him to bring a claim for pecuniary loss.
69The assessment for his loss of earning capacity is to be made at the date of the hearing.[5] The assessment of Mr Young’s earning capacity is, pursuant to legislation, required to be undertaken by comparing his gross income from personal exertion (expressed as an annual rate) which he is earning, or is capable of earning, as at the date of the assessment, with the gross income he was earning, or was capable of earning, from personal exertion during that part of the period within three years before and three years after the injury as “most fairly reflects the worker’s earning capacity had the injury not occurred”.[6]
[5] Accident Compensation Act 1985 (Vic) s137AB(38)(e)
[6] Ibid, s134AB(38)(f)(ii)
70In this case, there is an argument as to what earnings before his claimed injury “most fairly” represent his pre-injury, or “without injury” earnings, and whether his “with injury” earnings represent at least a 40 per cent reduction in that gross amount.
71The plaintiff submits that his “without injury” earnings were $155,367, made up of a base salary of $140,367 plus a bonus of $15,000, payable on completion of his contract. My Young says he regarded the work he was doing for G4S as a long-term proposition. He was suited to that work because of his experience in the Navy and in the fire services industry. Though it was a step up, it was one he was prepared for and able to carry out. There is nothing to suggest that he was unable to perform his duties appropriately on Manus Island, and his evidence is that he instituted substantial changes during his time there, and was in the process of training a group of locals to become fire fighters. But for his injury, Mr Young would have continued in this sort of work, being fairly high-level fire services-related work with a management component.
72I am satisfied that his employment contract with G4S most fairly reflects his without injury earning capacity and that had he not suffered his injury, he would have retained that earning capacity.
73The defendant submits that the plaintiff would have stayed on at Manus Island if he had been offered a job, and Mr Young agrees with that proposition. However the plaintiff’s case is not that, as a result of the riots, he was immediately incapable of working at the same level. His case is that, over the course of the next few years, his condition declined and the aggravation of his previous injury manifested. I am required to assess his with injury earning capacity as at the date of the hearing, and not at any other time.
74A comparable role with Chubb, which required him to undertake management work, as well as overtime and to be on call, resulted in him leaving after only twelve weeks as he could not cope.
75He is able to work full time, and his Parkinson’s Disease does not impact on this ability. However, he is not able to manage in stressful work, particularly where he feels the responsibility for others’ expectations of him – whether that be clients, subordinates or superiors.
76The defendant argues that Mr Young is undertaking the same type of work post injury as he was doing pre-injury and that he has, in fact, earned more than 60 per cent of his pre-injury earnings since his return from Manus Island.
Findings – pecuniary loss
77Looking at the work he was doing at Manus Island and the work he is doing now, it is clear that there is a significant difference in the demands, stressors, and responsibilities attached.
78I am satisfied, on the basis of the evidence, including the plaintiff’s evidence, the psychological assessment undertaken by G4S and the reference from Wormald, that had Mr Young not sustained his injuries as a result of the riot, he would have retained the capacity to work in highly demanding, high-stress management positions within the fire industry.
79I am satisfied that the earning capacity that most fairly represents his without injury earnings is $155,367.
80I am satisfied on the basis of the medical evidence and Mr Young’s evidence that he no longer has that capacity. I am satisfied that the work he is capable of doing now is not the same as the work he was capable of doing before his injury. This is evidenced by his experience at Chubb. Although he gave evidence that this was a toxic workplace, the demands were excessive and the job was really more of a two-person job, he also gave evidence that prior to him taking the role, the job was undertaken by a single person. Without his psychiatric injury it may be that he could have coped with the toxic workplace, and the other stressors of the job. Certainly he was able to cope with being on call at nights on Manus Island.
81I am also satisfied that his Parkinson’s diagnosis has had no significant impact on his ability to perform his work, or on his work capacity, either prior to or post his injury. He had been diagnosed with Parkinson’s Disease prior to his work on Manus Island, and likely had had some symptoms of the disease for about two years before that. The evidence before the Court is that his Parkinson’s Disease is well controlled. There is no evidence that there has been significant development of the disease since his time on Manus Island, such as to impact on his earning capacity. To the contrary, the evidence is that his disease does not impact on his earning capacity or his life expectancy.
82I am satisfied that his with injury earnings are most fairly represented by his current earnings, and that his current employment is suitable employment for him, given his condition. His current earnings are $85,162 and I therefore find that he has sustained a loss of earning capacity of greater than 40 per cent.
Are the consequences of the injury severe?
83Given my findings in relation to loss of earning capacity, it follows as a matter of course that the consequences for the plaintiff are severe and amount to a serious injury.
84However, if I am wrong in my assessment of Mr Young’s earning capacity, I turn to consider whether Mr Young would satisfy the test for serious injury based only on pain and suffering. The test for a serious injury is described as one where, in comparison with other cases, the consequences can be fairly described as “very considerable” and certainly more than “significant” or “marked”.[7] Whilst there is no established test for what is meant by “severe”, it is accepted that “severe” is intended to convey something with stronger force than “serious”.[8]
[7] Humphries v Poljak [1992] 2 VR 129
[8] Mobilio v Balliotis [1998] 3 VR 833
85I find the plaintiff’s evidence about the impact on his life and the difference between his current functioning and his functioning before his service on Manus Island, credible and compelling. He was not a witness who sought to embellish his evidence, nor to bolster his case. He made appropriate concessions and answered questions in a straightforward and forthright manner. Both he and his wife, whose evidence was uncontested, gave evidence he had previously been a motivated, social and extraverted person. He has become more withdrawn and quiet. He has lost his sense of humour. He suffers from frequent night terrors. His sleep is broken most nights. He used to love going to football and other sporting events but becomes overwhelmed now in large crowds and has panic attacks. He recently attended an AFL football game at Marvel Stadium with his wife. Whilst in the ground at the game he was fine, but mixing in a large crowd entering and exiting the ground was highly stressful. He described it as “the most horrific thing I’ve done in a long time” and says he “won’t be doing it again”. He is hyperalert and has panic attacks. He looks for exits. Whilst some of these symptoms, such as disliking large crowds, looking for exits and being hypervigilant predate his Manus Island employment, they did not previously stop him from doing the things he loved, such as attending football games, going to shopping centres and the like. These are new consequences since his work on Manus Island. His anxiety can be triggered by hearing the ringtone of a Samsung phone, which was used on Manus Island.
86He has reduced tolerance and is less able to cope with stress. His wife says he has never come to terms with what happened on Manus Island and he does not talk about it.
87He is unable to progress in his career in the way he previously anticipated. He is unable to pursue management roles. He cannot cope with work-related stress.
88In making an assessment of the consequences of an injury for a particular person, the Court must have regard to the range of consequences available, from the mildest, to the most catastrophic. Inevitably the cases that come before this Court are ones that tend to fit somewhere towards the middle of that spectrum. What the individual plaintiff says about the impairment and consequences is highly relevant, especially where the plaintiff is a credible and reliable witness.[9]
[9] Johns v Oaktech Pty Ltd [2020] VSCA 10
89When comparing what Mr Young has lost and what he has retained as a result of his injury, I am satisfied that the aggravation of his condition amounts to a severe consequence for Mr Young.
90Leave is granted to commence common law proceedings for pain and suffering and pecuniary loss.
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