revised at melbourne not restricted civil division ...€¦ · where held : melbourne date of...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

!Und efined Boo kmark, I

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION

Revised Not Restricted

Suitable for Publication

DAMAGES AND COMPENSATION LIST SERIOUS INJURY DIVISION

Case No. CI-11-04365

MARK ANDREW ASH Plaintiff v ORIGIN ENERGY LIMITED First Defendant and CGU WORKERS’ COMPENSATION VIC LIMITED Second Defendant

--- JUDGE: HER HONOUR JUDGE JENKINS

(Later, HIS HONOUR JUDGE PARRISH)

WHERE HELD: Melbourne

DATE OF HEARING: 29 and 30 August 2012

DATE OF JUDGMENT: 14 May 2013

CASE MAY BE CITED AS: Ash v Origin Energy Limited & Anor

MEDIUM NEUTRAL CITATION: [2012] VCC 524

REASONS FOR JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Serious injury – paragraph (c) of definition of “serious injury” – permanent severe mental or permanent severe behavioural disturbance or disorder – nature and extent of such condition – whether such condition is “permanent” – “without injury earnings” of the plaintiff – capacity of the plaintiff Legislation Cited: Accident Compensation Act 1985; Justice Legislation Amendment (Miscellaneous) Act 2012; Transport Accident Act 1986 Cases Cited: Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170. Judgment: Leave for the plaintiff to commence common law proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect to psychiatric injury.

--- APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr B Collis QC with Mr M J Stiffe

Ellis Palmos & Co

For the Defendants Mr I McDonald Minter Ellison

VCC:AS

1 JUDGMENTAsh v Origin Energy Limited and CGU Workers'

Compensation Vic Limited

HIS HONOUR:

Preliminary

1 Her Honour Judge Jenkins was the Presiding Judge during the hearing of this

matter on 29 and 31 August 2012. On 31 August 2012, she directed that the

parties make written submissions in relation to the proceeding. Judge Jenkins

had available to her the various Court Books of the parties, and the evidence

was recorded and transcribed pursuant to her order.

2 Unfortunately, due to her Honour being required to take extended leave for

family reasons, it was decided, with the consent of the parties, that I would

decide the matter on the basis of the transcript, the various tendered

documents and the written submissions made by each party. It is to be

stressed that I did not have the advantage of viewing the plaintiff (who is the

only witness who gave evidence) give evidence in the proceeding.

Introduction

3 By way of Originating Motion issued on 12 September 2011, Mr Mark Andrew

Ash (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident

Compensation Act 1985 (as amended) (“the Act”), to bring common law

proceedings to recover damages for personal injury arising out of or in the

course of his employment with Origin Energy Limited (“the first defendant”).

4 It is alleged by the plaintiff that, during the course of his employment with the

first defendant, he developed a Chronic Major Depressive Disorder (which has

been described also as an Adjustment Disorder with Anxiety and Depression).

I will refer to such psychiatric injury as “the injury”.

5 The plaintiff seeks leave to bring proceedings for “pain and suffering

damages” and “pecuniary loss damages” within the meaning of s134AB(37) of

the Act in respect of the injury.

VCC:AS



6 The plaintiff gave evidence and was cross-examined. Both parties tendered

various documents.1

Relevant Legal Principles

7 The Court must not give leave unless it is satisfied, on the balance of

probabilities, that “the injury” is a “serious injury” within the meaning of the

definition of “serious injury” contained in s134AB(37) of the Act.2

8 The plaintiff relies on paragraph (c) of the definition of “serious injury”

contained in s134AB(37) of the Act.

That paragraph reads:

“ … serious injury means—

(a) …

(b) …

(c) permanent severe mental or permanent severe behavioural disturbance or disorder … .”

9 In order to succeed, the plaintiff must prove, on the balance of probabilities,

that:

(a) “the injury” suffered by him arose out of or in the course of or due to the

nature of her employment with the first defendant on or after 20 October

1999;3

(b) “the injury” and the resulting mental behavioural disturbance or disorder

must be “permanent” – that is, permanent in the sense that it is “likely to

last for the foreseeable future”;4

(c) the consequences to the plaintiff of the mental or behavioural

disturbance or disorder in relation to “pain and suffering” or “pecuniary 1 See Annexure A

2 See s134AB(19)(a) of the Act

3 See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at

paragraph [11] 4 See Barwon Spinners Pty Ltd& Ors v Podolak (op cit) at paragraph [33]

VCC:AS



loss” must be “severe” – that is, when judged by comparison with other

cases in the range of possible mental or behavioural disorders, as the

case may be, be fairly described as being more than “serious” to the

extent of being “severe”.5

The test for “severe” as set out in paragraphs (b) and (d) of s134AB(38)

of the Act is sometimes referred to as “the narrative test”.

10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff

has a specific burden6 to establish:

(a) that as at the date of hearing, a loss of earning capacity of 40 per cent or

more, measured (subject to certain irrelevant exceptions) as set out in

paragraph (f) of s134AB(38) of the Act;7 and

(b) that after the date of hearing, the plaintiff will continue permanently to

have a loss of earning capacity which will be productive of a financial

loss of 40 per cent or more.8

11 In determining the application, the Court:

(a) must make the assessment of serious injury at the time the application is

heard;9

(b) notes that it has been observed that the question of whether any injury

satisfied the definition of “serious injury” is largely a question of

impression and value judgment;10

(c) must give reasons which are as extensive and complete as the Court will

give on the trial of an action, and in so doing, disclose the pathway of

5 See s134AB(38)(b) and (d) of the Act

6 See s134AB(19)(b) and (38)(e) of the Act

7 See s134AB(38)(e)(i) of the Act

8 See s134AB(38)(e)(ii) of the Act

9 See s134AB(38)(j) of the Act

10 See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009]

VSCA 242 at paragraph [67]

VCC:AS



reasoning in dealing with the evidence and the issues raised by the

application;11

(d) notes that s134AB(38)(b) provides that the consequence of an injury and

impairment in terms of “pain and suffering” and “loss of earning capacity”

are to be considered separately. In the event that a worker satisfied sub-

paragraph (1) but not sub-paragraph (2) of s134AB(38)(b) of the Act, the

worker is entitled to have leave to bring proceedings for the recovery of

“pain and suffering” only. A worker who satisfies the loss of earning

capacity requirements of s134AB of the Act is entitled, as a “matter of

statutory construction” to have leave to bring proceedings for “pain and

suffering damages” and “pecuniary loss damages”.12

The Issues

12 Both parties gave written submissions. In essence, the first defendant

submits:

(a) That the plaintiff does not now continue to suffer from a “psychiatric”

injury;

(b) If the plaintiff does continue to suffer from any such injury, can the

consequences of any such impairment be fairly described as a

“permanent severe mental behavioural disturbance or disorder” within

the meaning of s134AB(37) of the Act? In particular, can the

consequences for the plaintiff – whether they be “pain and suffering

consequences” or “loss of earning capacity consequences” – when

judged by a comparison with other cases in the range of possible mental

or behavioural disturbances or disorders be fairly described as being

11

See s134AE of the Act; the Justice Legislation Amendment (Miscellaneous) Act 2012 (Act no 68 of 2012) repealed s134AE, with the repeal coming into operation on 1 January 2013;

12 See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v

Frosster Pty Ltd [2009] VSC 454

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“more than serious to the extent of being severe”?13

(c) In any event, the plaintiff has failed to discharge his onus in establishing

that the injury is “permanent”, particularly in relation to “loss of earning

capacity” consequences;

(d) Whether the plaintiff can satisfy the Court as to the requirement of at

least a 40 per cent loss of earning capacity, assessed at the date of

hearing, which is permanent pursuant to s134AB(e)-(g) of the Act. If not,

are the pain and suffering consequences “more than serious to the

extent of being severe”.

The Evidence of the Plaintiff

13 The plaintiff gave evidence that his affidavits sworn on 4 May 2011,14 on 19

June 201215 and 28 August 201216 are “true and correct”.17

14 During his evidence-in-chief, the plaintiff gave evidence that he had been

employed the Hertz Company since October 2011 performing car detailing

work. In particular, he produced two recent payslip documents – the first for

the period from 27 July to 5 August 2012, wherein it is recorded that he

earned $1,436.85 gross, and a second certificate from 6 August 2012 to 19

August 2012, wherein it is recorded that he earned $1,365.00 gross.

15 Such employment was his first employment after the cessation of weekly

payments of compensation in about March 2011. He gave evidence that his

earnings at Hertz “vary a bit” because it is a little seasonal and it is probably a

little bit on the high side at the moment.

16 By way of his first affidavit, the plaintiff gave the following pertinent evidence:

13

See s134AB(38)(d) of the Act 14

See Exhibit B at page 6 PCB 15


See Exhibit B at page 39.1 PCB 17

T14, L10-15

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• He is a fifty-one-year-old man separated from his wife. He has three

children, aged nineteen years, eighteen years and fifteen years.

• He was educated to Year 10 at school and has no post secondary school

qualifications.

• He was employed by the first defendant between 10 June 2008 and 8

September 2008 in the capacity of the National Claims Manager.

• Before commencing with the first defendant, he had wide-ranging

experience within the WorkCover claims area, and in particular:

� had worked for various large employers;

� had performed consultancy work;

� had great experience in Tasmania and Victoria and more limited

experience in South Australia and New South Wales’ WorkCover

systems;

� he also had some knowledge and experience in ComCare.

• During the course of his employment as National Claims Manager with

the first defendant, he suffered a Major Depressive Disorder.

• When he commenced employment with the first defendant, he was

aware or was made aware that the first defendant operated in every

State of Australia and thus the position would involve working with

various WorkCover organisations in each State of Australia.

Furthermore, in South Australia, the first defendant was a self-insurer

under the South Australian WorkCover system and that system was

about to undergo quite significant far-reaching legislative changes. He

was also made aware that the first defendant was about to transfer its

South Australian WorkCover office, files and personnel to Melbourne.

VCC:AS



• He appreciated that his job as National Claims Manager would initially be

doing a great deal if not all of the work of managing claims himself,

particularly in South Australia, as two people were leaving the

employment of the first defendant.

• He was assured that resources would be made available to him and that

he would be able to engage suitable staff or have them engaged so he

would have someone to manage.

• His contract of employment with the first defendant provided for a salary

package of $130,000 per annum, which was to include his salary,

superannuation and, if necessary, a provision of a car.

• After one day’s induction at the Melbourne office, he flew to Adelaide to

commence the transition process and remained there during the week for

several weeks, returning home on Friday nights.

• Within a week of his commencement of employment, the person who

actually handled day-to-day WorkCover claims in the Adelaide office left

the employment of the first defendant. In particular, the plaintiff states:

“Almost immediately after starting work at Origin, I learned of many system failings and irregularities affecting the functioning and administration of WorkCover claims at Origin and affecting them in all States. These problems and irregularities had serious consequences for me, but also serious consequences or potential consequences for Origin. The legal requirements and administrative and auditing requirements imposed upon Origin by each State WorkCover Authority are stringent and failure to comply can result in very substantial adverse financial consequences for Origin. The most stringent requirements were those of South Australia, largely because in that State Origin was a self-insurer, and like all WorkCover Authorities, the South Australian WorkCover Authority imposed very stringent conditions, requirements and systems of work upon all self-insurers.”18

• One of his responsibilities as National Claims Manager was to ensure

that all of the requirements imposed by the various State WorkCover

18

See Exhibit B at pages 8-9 PCB

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Authorities – requirements of notification, operating of various systems to

enable and facilitate auditing, to provide rehabilitation and a host of other

similar requirements – were met.

• Shortly after commencing employment, he alerted his superiors that he

would require various resources and people to help him. No such

resources were made available to him.

• He prepared a letter of resignation dated 10 July 2008, but due to other

issues arising at that time, the letter was not handed to his superior. In

such letter, he describes his situation as a “lambs to the slaughter”

situation.

• On being told that there would be no allocation in the budget for further

resources to assist him, he felt he was “being ignored and being left to

suffer the consequences of having to work with Origin’s flawed and under

resourced WorkCover area”.

• Because of working in such a “very stressful environment”, he suffered

the injury, and on a date, he believed to be 8 September 2008, he went

to Julie Russell (his superior) and told her that he could not continue

such employment. He resigned and handed in the articles he had which

belonged to Origin, although he did not resign in writing. He does not

remember much of the last day; it was just a blur, as he was not

functioning well from a psychiatric point of view. Some time soon

afterwards he had a conversation with another superior and tried to

withdraw his oral resignation but was informed that he had effectively

abandoned his employment and his employment had ended.

• On 10 September 2008, he planned and attempted suicide when he

drove into a secluded spot on the Murray River and attached a pipe to

his exhaust pipe with a hose leading into the cabin with the engine going.

VCC:AS



He snapped out of this endeavour after receiving a text message from

his daughter.19

• Following his attempt at suicide, he consulted with his general

practitioner at the Sunbury Medical Centre.

• He subsequently lodged a WorkCover claim in respect of an injury under

the Act, and such claim was accepted. In the course of the

investigations, he made two statements to the WorkCover investigators

dated 8 October 2008. In those statements he sets out the various

difficulties he had during the course of his employment with the first

defendant. In particular, in the statement identified as Exhibit 2, he

states, in part:

“At the moment, I have a lot of anxiety because of the work situation, I feel powerless and frustrated and don’t feel that I have control of my own life. The work situation has caused the other things in my life to unravel. I don’t feel that these things would have occurred if I hadn’t been suffering the depression.”20

• Later, he lodged a claim for impairment benefit compensation pursuant to

the Act, and that claim was also accepted.

• He has received treatment in respect of his psychiatric injury from the

following people:

- General practitioners at the Sunbury Medical Centre, and he continues

to see his general practitioner there once a month

- A psychologist, Ms Catherine Clarke, two or three times a month

- A psychiatrist, Dr Arunava Das, approximately once a month.

• At the time of such affidavit, he was taking 100 milligrams of Pristiq per

day – such drug is an anti-depressant.

19


See Exhibit B at page 23 PCB

VCC:AS



• At the time of swearing such affidavit, he believed he was still depressed

and still contemplated suicide. Furthermore, his memory and

concentration are poor and everyday thoughts come to his mind about

the stresses at the work he performed with the first defendant. He feels

angry and depressed and worries about his future and employability and

contrasts his present situation with what would have been if he had not

suffered the psychiatric injury.21

• He has bad days when he is very low in mood and from time to time he

cries, he has lost a lot of confidence and feels helpless, as though he has

lost control of his life.

• Three or four times a week he wakes up from sleep and when awake he

feels hot, sweaty and anxious.

• His marriage broke up soon after he suffered the injury and at present he

lives alone and anticipates that his marriage will end in divorce.

• He has now met another woman named Debbie and he is in a

relationship with her. She works as a full-time carer and also operates a

market stall each Sunday which he helps her with on occasions, though

not for payment. At the stall, she sells a mixed variety of items such as

children’s games, giftware and ornaments. He helps her to set up the

stall at the start of trading and helps pack up the store at the end of

trading. He also assists with sales. He has been providing this

assistance to Debbie since around November 2010, mostly every second

Sunday.

• Since ceasing work he has not worked for reward and received weekly

payments of compensation until their cessation on 5 March 2011.

• He has had assistance from Ayres Consulting which were engaged by

21

See Exhibit B at pg 12 PCB

VCC:AS



the WorkCover insurer to try and assist him back into the workforce. He

believes their funding expired at the end of February 2011.

• He has applied for many jobs without any success, sometimes resulting

in interviews, but no offers for employment. He was advised that due to

the lack of availability of part-time roles, that he should apply for full-time

roles with a view to “getting a foot in the door” and attempt to utilise the

WISE Program in making himself attractive to prospective employers.

He believes that when he discloses his WorkCover status to prospective

employers, it is virtually impossible for him to gain suitable employment,

even in his field of expertise.22

• His present WorkCover Capacity Certificates indicate that he can only

work 15 hours per week and it has been recommended by his treating

psychiatrist, Dr Das, that in order to prevent further injury, he should

recommence on a part-time basis so as to ease back into the workforce.

• Ayres Management Services Pty Ltd prepared a Vocational Assessment

Report dated 27 August 2010 wherein it is recommended that suitable

employment options for him would include working as an insurance clerk,

general clerk, customer service clerk, policy and planning manager,

account manager and contact centre manager.

• He believes that at present he is capable of doing some type of clerical

work for 15 hours a week initially, with perhaps potential in the future to

increase his work hours to 37 or 38 hours a week. Furthermore, he

believes that because of his injury, he can never return to a responsible

stressful job like that he was performing with the first defendant or a

similar large employer.

• Be believes that because of his educational level and because of his

22


VCC:AS



psychiatric injury, he has no reasonable prospects of being able to obtain

a university degree or equivalent.

• Prior to commencing with the first defendant, he had worked on a short-

term contract with Coles Supermarkets which ended in 2008, and prior to

that he had worked for two years as consultant to Melbourne Water.

17 By way of his second affidavit, the plaintiff gave the following pertinent

evidence:

• He continues to be under the care of his treating psychiatrist, Dr Arunava

Das, who he sees every month and who also continues to prescribe him

100 milligrams of Pristiq per day. He also continues to see his general

practitioner, Dr Mark Michail, every month, and also continues to see his

psychologist, Ms Catherine Clarke, on a regular basis.

• He has taken antidepressant medication daily since late September

2008. Initially he was prescribed Cipramil medication by Dr C Keaney of

the Sunbury Medical Centre, and later this was changed to Pristiq when

he first consulted Dr Das on 24 April 2009. Dr Das has increased the

dosage of Pristiq to the present does of 100 milligrams per day

commencing from May 2009. He has been advised that he will need to

take Pristiq for the foreseeable future.

• He believes he is still depressed although no longer suicidal. He also

continues to suffer from very poor sleep “to the point where I am lucky to

manage even only two or three nights of uninterrupted sleep per week”.23

• He continues to be in a relationship with Debbie, and they recently went

on a short holiday to Thailand which was the first holiday since the

cessation of his employment with the first defendant in September 2008.

23

See Exhibit B page 37 PCB

VCC:AS



• Since ceasing employment with the first defendant, he has been

unsuccessful in obtaining employment in senior management/

administrative positions such as those that he had prior to his injury with

the first defendant.

• He commenced employment with Hertz Australia Pty Ltd as a casual

vehicle service attendant on 2 November 2011. He describes such work

as very basic and menial but physically demanding. Such work involves

him ensuring the supply of clean and fully-fuelled Hertz rental vehicles at

Tullamarine airport. He is required to detail all return vehicles by way of

vacuum, hard surface restoration, windscreen and window clean at the

rate of eight to ten vehicles per hour in a two-man cleaning team”. He

has to pick up and drive return vehicles following client use and transfer

them back to a holding yard.24

• His then gross base rate of pay is $15.96 per hour plus a casual loading,

depending on the shift/day of work. Although the hours vary, he

generally works between 50 to 65 hours per fortnight.

• He believes he is now limited to unskilled work, such as the work he is

now performing at Hertz, and incapable of performing any of the type of

work he was performing prior to his injury.

18 By way of his third affidavit, the plaintiff gave the following pertinent evidence:

• In answer to assertions made in the report of a psychologist, Dr Simon

Kennedy, dated 20 August 2012, he notes that when discussing his work

prospects with Dr Kennedy he did use the expression “technical” or

“technical role” but was not referring to the position of technical manager.

He meant to convey he would be able to return at some time to working

at a base level in the insurance industry, such as a claims officer.

24

See Exhibit B page 37-38 PCB

VCC:AS



• He does not believe that he could work as a technical officer.

• He suffers from depression and still cries “from time to time”. He often

feels irritable and short-tempered and cannot stop thinking about what

happened at work to lead to his depression.

• He cannot handle stressful situations and does not believe he would be

able to manage other people. Furthermore, he does not believe he could

work in an environment where there is a significant workload or a lot of

deadlines to meet.

• His understanding of the role of technical officer is that the manager

would manage several people, up to as many as fifteen people, and that

there would be face-to-face dealings with the claims officers where he

may have to be critical of their performance, all of which is stressful.

Furthermore, he would have to be responsible to claims officers meeting

deadlines and following guidelines, which again would be stressful.

• His concentration and ability to process information would not be up to

handling files or taking the information in those files quickly.

19 The plaintiff relies upon an affidavit sworn by his brother, Robert John Ash,

sworn on 8 August 2012.25 In such affidavit, he describes himself as being

fifty-four-years-of-age and is a head teacher at Yanco Agricultural High

School, New South Wales. He refers to the plaintiff as the youngest of four

brothers, with he being the second eldest. They have always maintained a

good relationship.

20 Prior to his employment with the first defendant, he knew his brother to be

hardworking, happy, funny, confident, popular and very likeable. Furthermore,

he observed him to be dedicated to his work and not afraid to work

exceptionally long hours when needed in order to complete a task.

25

See Exhibit B at pages 40-44

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21 During the months that he worked with the first defendant, he observed his

brother’s tone and demeanour to progressively change and he seemed “flat

and stressed”.

22 When he actually saw his brother on 17 November 2009 when travelling to

Melbourne, he was “shocked”. He observed that his brother was no longer

the happy, vibrant person he once was and appeared slower, visibly

distraught and emotional and totally lacking any self-confidence.26 He

remained with his brother until 24 December 2009 and essentially became his

“confidant”. He describes how his brother often cried to him over the phone

for an hour at a time and also noting that he received a suicide note from his

brother.

The cross-examination of the Plaintiff

23 Under cross-examination, the plaintiff gave the following salient evidence:

• He is currently a casual employee at Hertz and has been working 28 to

30 hours a week since commencing at Hertz in October 2011.

• The work he performs at Hertz is predominantly physical work and he

does not have any trouble performing such work.

• He has no trouble turning up to work on a regular basis and deals with

supervisory staff but not the public “much”.

• Besides performing physical cleaning of cars, he ferries various vehicles

back and forward from airports, or other places where cars are driven to.

• “Within reason” he would perform more work at Hertz if such was

available but he has not made any such enquiries.

• He does have a specific knowledge of what is required to have leave to

bring a common law claim for pecuniary loss and he was aware of what

26

See Exhibit B page 42 PCB

VCC:AS



was required when he swore his affidavits. He accepted that he had

knowledge that if it was found that he was capable of earning 60 per cent

or more of his pre-injury earnings, there was the potential to lose the right

to claim for pecuniary loss damages.

• He left school in Year 10 but has developed good English and

communication skills, together with good computing skills and basic skills

in Word and Excel.

• He gave evidence of the following employment history:

- He worked for the Department of Agriculture as a blood sampler for

about two years.

- He commenced working in the insurance industry when he was about

nineteen, initially with Fire and General, which were later known as

New Zealand Insurance or South British United, where he performed

underwriting work at first and later moved to the workers’

compensation area. Since then he has essentially remained in the

workers’ compensation area.

- For some time he was the National Manager for home warranty claims

with Royal and the Sun Alliance Insurance Company.

- He worked for CE Heath for about eight to nine years as a claims

officer and then he was involved after the introduction of the Accident

Compensation Act.

- He was working as a manager on site at the Ford Motor Company for

CE Heath managing claims made by injured workers at Ford. When

performing that work he had up to ten people working under him. He

worked two stints at Ford for a total of about six years.

- He became a branch manager at Ballarat for IMC, which then became

VCC:AS



Royal and Sun Alliance, and again was there for two stints of time

totalling about two years. At that point he was the area supervisor of

that general area and had about eight people working under him.

- He was then sent to Tasmania to run the Launceston office, where he

handled all the national accounts for CE Heath and had five staff

under him. Later he shifted to the Hobart office and had

approximately forty staff under him. He was in charge of “claims” and

answered to a state manager.

- He returned to Melbourne and obtained a position with QBE as a

claims manager involved with setting up and conducting a long-term

claims section.

- In approximately January 2005, he commenced work with Linfox as a

claims consultant, specifically to help out with the project of moving

from State legislation to the Commonwealth scheme. He remained in

that employment under a contract to May 2006.

- In June 2006, he commenced employment with Melbourne Water as a

claims co-ordinator for the WorkCover liability and property portfolio,

during which time he conducted a major claims review in conjunction

with the annual Victorian WorkCover audit.

- He then obtained employment with Coles, managing long-term claims.

Such “employment” was as a consultant working through an agency.

He was in such position from March 2008 to May 2008.

• In relation to his experience, the following evidence was given:

Q: “Before we go to that, is it fair to say there’s been very few periods in your life prior to anything occurring at Origin where you haven’t been able to get work in the insurance worker’s comp type of arena?

A: Yes, that wouldn’t be the case now I assure you.

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Q: But prior to 2008?

A: I believe I had a good reputation yes.”27

• He accepted that when he commenced employment with the first

defendant there was a significant jump in his base salary but considered

that given the nature of the role, it is probably about standard for such a

job. He was asked:

Q: “Was this the first role that you had obtained that involved that degree of responsibility and work?---

A: No, I don’t believe so, the roles I have had in the past, be they on site at the Ford Motor Company or state claims manager in Tasmania, were certainly as responsible. In fact in Tasmania I had more staff, I had 40-odd staff to care for there so I don’t think it was anything out of the ordinary except for the condition I was in.”28

• He began to experience problems in his new role with the first defendant

soon after commencing. His letter of resignation dated 10 July 2008 was

about one month after he commenced work.

• He gave the following evidence in relation to his marital breakup:

Q: “And at the same time [as his letter of resignation] you were going through major marital issues, weren’t you?---

A: Not at that point in time, no.

Q: They had started back in 2001, hadn’t they?---

A: There was no marital problems going on at that particular time, no.

Q: Are you sure? I might come back to that. I thought the situation was that your wife left you or left the marital home two weeks after you left Origin?---

A: No, that was the announcement, the split was announced, we didn’t part ways for some time after that until the house was sold.

Q: So that split was announced two weeks after you left Origin?---

A: Yes.

27

T23, L2-6 28

T27, L22-29

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Q: And you had been married to your wife for many, many years?----

A: 24.

Q: And you had three children all of whom were living at home?---

A: Yes.

Q: These things don’t build up overnight, do they, they build up over years, I suggest?---

A: I think this was probably the major – the lack of finance or the prospects of not having a major wage coming in was a huge factor to my ex-wife.”29

• There was some conflict when he was working with QBE and his wife

had concerns as to where income was going to come from after he left

QBE. He did not accept that there was a degree of difficulty in his

marriage when he commenced employment with the first defendant.

• His attempted suicide was two or three days after leaving the first

defendant and which was before the announcement of his separation

from his wife.

• He saw his psychologist, Ms Catherine Clarke, initially every fortnight

and at the time of hearing, approximately monthly. Her treatment

consists mainly of counselling.

• In February 2009, Dr Michail took over his care from Dr C Kearney at the

Sunbury Medical Centre. Dr Michail supplies him with certificates and is

“very supportive”.

• His treating psychiatrist, Dr Das, provides medication.

• He believes that Dr Michail commenced giving him certificates to return

to part-time work from October 2009 and that he presently receives

certificates to work for thirty hours a week at Hertz. Sometimes he might

29

T30, L7-27

VCC:AS



work an extra couple of hours’ work.

• He commenced seeing Dr Das in April 2009 and was initially treated with

Cipramil, and later with Pristiq. In the past he had also been prescribed

Diazepam for anxiety and agitation. He goes for regular walks around

his area and also plays competition tennis once a week and sometimes

plays social tennis on the weekend.

• He was diagnosed post his employment with Origin with sleep apnoea,

for which he has been treated, and the quality of his sleep has improved,

although not the length of his sleep.

• At about the time he was cleared to return to part-time duties, he became

involved with various rehabilitation providers and also in about June

2010, he contacted the “Self Insurers Association of Victoria” (on which

he used to be a committee member) requesting that the President

canvass various members to see if they had a role he could undertake.

When queried as to what sort of role he would hope to obtain, the plaintiff

stated:

“Well, I was hoping to obtain at least something that was within my limitations and within the hours that I was certified for. So something obviously with less responsibility, I certainly couldn’t have taken on a managerial role but obviously something that might be helpful to the Self Insurer themselves from the point of view of the claims management, sort of like a silent partner if you like, or a consultancy type scenario where I perhaps was removed from the coal face to some degree but could still be of some benefit that way, that was the line of hope I had.”30

• He had no positive response from that association. He confirmed that

when advising people in the industry, he sought only part-time work and

noted that he had suffered from a psychiatric condition.

• In mid-2010, he found his new partner – “Debbie” – and that relationship

continues with them now living together. Recently they travelled

30

T43, L4-14

VCC:AS



overseas to Thailand for a holiday for fifteen or sixteen nights.

• He plays a support role with one of his son’s football teams, which may

involve being a goal umpire or whatever and sometimes he would help

with the statistics. The football club is also a hub of some social activity

and from time to time he would attend social activities at the club. He

would also help one of his sons during the cricket season.

• He assists Debbie at a stall she operates every Sunday at a market. The

stall is set up from about 7.00am on a Sunday morning and continues to

about 3.30 in the afternoon. In particular, the following evidence was

given:

Q: “Do you spend your time at the market helping her?---

A: Yes, I’m no there all the time but when I can I do because at one point in time I had my son on alternate weekends and so forth, if there was footy involved I would go to the football; if I can help out I do.

Q: How long has that situation been in existence?---

A: Pretty much since I moved in with Deb, the last 16 months.

Q: And you carry out your support role, I suppose we would call it, in addition to the work that you do for Hertz?---

A: Yes, and if I’m rostered on at Hertz well, I don’t go to the market obviously.

Q: You still drive a car, I take it?---

A: Yes.

Q: You do your own shopping?---

A: I share in that now, yes.

Q: Prior to moving in with Debbie you were living in a three bedroom unit on your own?---

A: Yes.

Q: During that time you would have been doing your own cooking, cleaning and shopping?---

VCC:AS



A: Yes.”31

• He finds the work at Hertz sometimes monotonous and when queried

whether he would prefer a job that was more challenging intellectually,

he stated:

“I would like to get myself as high in the process as I can. But I’m limited in what I can do, I have to realise that and it’s pretty hard to accept.”32

• He believes he could not go back to the type of job he had at the first

defendant, or indeed any job of a “high stress nature”.

• He was queried about his attempts to work and in particular the following

evidence was given:

Q: “Since you have been working at Hertz, have you made any further applications for jobs in the insurance industry?---

A: No.

Q: And is that because you’re content with what you’re doing at the moment or you don’t think you can get a job or what’s that situation?---

A: Well, I think I have a pretty good history of trying before that and all I’m trying is living day by day and doing what I can do and at least I’m doing something meaningful so I am glad to have that but hopefully one day I can move on, whether that opportunity comes or not is another question.

Q: But you’re not ruling it out?---

A: No.

Q: When you saw Ayres Management Services at the request of CGU in late 2010 do you remember undergoing that 130 week vocational assessment?---

A: Yes.

Q: And you were aware that they have identified a number of jobs that they thought you might be able to do, are you aware of that?---

A: Yes.

Q: Did you tell them that you would be interested in returning to the following fields being worker’s compensation roles,

31

T48, L10-26 32

T53, L5-7

VCC:AS



insurance role and sports administration, this is page 182, Your Honour?---

A: Yes, that could be some possible options.

Q: Is it the situation that you’re not going to try too hard to get back into the insurance arena, your area of expertise whilst this case is going on?---

A: I totally repudiate that, if you could see it from my side and how often and how many people I have spoken to and tried to generate something, I haven’t sat on my hands and just gone for the ride, I totally repudiate that.”33

24 After the completion of cross-examination and re-examination, the Court

posed the following question, and evidence was given:

Q: “Then Origin Energy had all kinds of other problems, so what is it about the prior roles now you say you couldn’t do now?----

A: It’s along similar lines as to why – with the technical manager’s role that was thrown up, you have a number of reports, you have deadline after deadline, there’s a lot of technical requirements and I just don’t feel I’m in a position to go back to those levels of stress without my problem recurring and me going back to where I have been and I think it just has to be a stage process to get back there and whether I get back there is probably a whole other question. But I have to have something to shoot at so I do what I do to get by now and – but as time goes by my stock in trade is disappearing and it’s very hard to get someone that will take you back on with restrictions or just as importantly, the possibilities that these things could reconsider. Maybe I’m pushing myself too hard but I have to have something to aim at, I have never been a bludger.”34

25 Also, when queried by the Court, the plaintiff indicated that a clerical role in

the insurance industry and customer enquiry services may well be within his

capacity. Furthermore, he maintained that jobs involving policy and planning

manager, or account manager and call centre manager would be too stressful

and beyond him. In particular, the following evidence was given:

Q: “What is it you’re really not able to cope with, the volume of work or having to deal with people?---

A: It’s volume, the people management, it’s the push back, you know, the result, the absolute requirement to get results and certain levels of result and so on and so forth. That puts lots of pressure on and when you’re in a team situation your team are relying on

33

T55, L3 – T56, L1 34

T60, L14 – T61, L1

VCC:AS



you to be the lynchpin if you like, and depending on what it is that can be a lot of pressure and you’re expected to have the answers and experience to go with that. And that sort of rapid fire timeframe scenario is – your life’s just full of deadlines day in day out and it does, it gets the better of you over time.”35

26 Also, the Court queried the plaintiff in relation to his present activities. In

particular, the following evidence was given:

Q: “Is there anything that you’re not doing in your life at the moment otherwise, putting work aside, that you can’t do because of what’s happened at Origin?---

A: Look, most things that come along my way, like from a family situation, I find it much harder for example, my son just got redundant in that LTC mess out at Tullamarine and I have been helping him through that and try and get his resume up and running and start going forward again. But I find a lot of that stuff very draining and it’s for the kids that you push on, you try and get through it so energy wise I’m a lot worse off than perhaps I was, you accept that and you just try and do what you can and just try and progress.”36

The evidence of those treating the Plaintiff

(a) Dr Mark Michail

27 The plaintiff relies on medical reports dated 6 February 201137 and 22 May

201238 from his current treating general practitioner, Dr Mark Michail.

28 Dr Michail reports that the plaintiff originally presented to a colleague, Dr

Catherine Keaney, at the Sunbury Medical Clinic on 13 September 2008.

When Dr Keaney left the clinic, Dr Michail became the general practitioner of

the plaintiff in February 2009. Dr Michail notes that the plaintiff originally gave

a history of being under great stress in his employment with the first defendant

and initially presented with symptoms which included poor sleep, poor

concentration, crying, anhedonia, nightmares, anxiety and suicidal ideation.

29 Dr Michail notes that the plaintiff denied any depressive symptoms prior to

September 2008 and such assertion is borne out by the medical records. Dr

35

T63, L18-30 36

T65, L30 – T66, L11 37

See Exhibit B at pages 57-59 PCB 38

See Exhibit B at pages 60-62 PCB

VCC:AS



Michail notes that treatment has consisted of a combination of drug therapy

and counselling/cognitive behavioural therapy. The plaintiff was commenced

on Cipramil but was later changed to Pristiq, of which he is currently

prescribed 100 milligrams daily. The clinic also referred the plaintiff to the

psychiatrist, Dr Das.

30 The plaintiff was diagnosed to be suffering a Major Depressive Disorder and

as at February 2011, Dr Michail considered the plaintiff to be suffering with

“mild-moderate depression”. He notes that the plaintiff was preoccupied with

his past experiences at Origin Energy, loss of career, financial stressors,

family matters and future employment. Furthermore, he noted that his mood

had improved and he is no longer contemplating suicide.

31 In particular, Dr Michail considered the plaintiff to have a work capacity

consisting of part-time work of up to 15 hours per week (although he should

not return to work with his previous employer).

32 Dr Michail was of the opinion, as at February 2011, that the “suitable

employment” identified by the rehabilitation company, consisting of insurance

clerk, general clerk, customer service clerk, policy and planning manager,

account manager and contact centre manager were reasonable. Dr Michail

did stress that at that stage “suitable” still implies work of a part-time nature

(15 hours per week), re-training if required and a supportive work

environment.

33 In his later report dated 22 May 2012, Dr Michail records that it is his opinion

that the plaintiff continues to suffer from a Major Depressive Disorder with

symptoms of lowered mood, poor sleep, poor concentration and occasional

tearfulness.

34 He notes that the plaintiff has applied for multiple job positions, including

those in his field, but has been unsuccessful, and that he was currently

VCC:AS



employed as an attendant by Hertz Car Rentals.

35 He considers that the overall condition of the plaintiff has improved and that

he is no longer suicidal. Such improvement is attributable to a combination of

cognitive behavioural therapy and anti-depressant medication. The plaintiff

was still being prescribed 100 milligrams daily of Pristiq by Dr Das.

36 Dr Michail also produced a medical practitioner questionnaire completed by Dr

Keaney on 3 October 2008 wherein she notes that the initial consultation with

the plaintiff was on 13 September 2008 wherein she records the episodes of

stress experienced by the plaintiff during the course of his employment with

the first defendant. Dr Keaney also notes that his psychiatric condition has

put a strain on his marriage which appears to have “failed”. She also notes

that she referred the plaintiff to a psychologist, Ms Catherine Clarke.

(b) Ms Catherine Clarke

37 The plaintiff also relies on a questionnaire dated 17 November 200839 and

reports dated 19 May 2009,40 26 November 2009,41 13 April 2010,42 1

February 201143 and 28 May 2012,44 all prepared by the treating psychologist,

Ms Catherine Clarke.

38 Ms Clarke commenced to treat the plaintiff on 19 September 2008, at which

time the plaintiff presented with symptoms of Depression, Anxiety, and sleep

problems. At that time, she noted that no prior history had been reported of

any similar problems.

39 Ms Clarke formed the opinion that the plaintiff was suffering from a moderate,

non-psychotic major depressive episode which appears to be “fully related to

work-related issues”. Such condition she notes, has led to marital issues and

39







VCC:AS



a recent marriage breakup.

40 In her report dated 1 February 2011, Ms Clarke notes that the plaintiff is

incapacitated for his pre-injury employment and that he suffers from a “long

term psychological injury due to the impacts of his previous employment and,

in my opinion, is unable to perform any duties in a similar environment for a

significant period of time (if at all)”.45

41 When queried as to his capacity to perform work as an insurance clerk.,

general clerk, customer service clerk, policy and planning manager, account

manager and contact centre manager, she notes that the nature of his

previous employments would have provided him with the skills to perform

such work. However, she notes:

“Due to his psychiatric injury, and the length of period of time he has not been able to work, Mr. Ash will not initially be able to work at his previous capacity. His ability to undertake any of the duties outlined will very much be dependent on the type of environment he works in. He will need to ease his way back into any form of employment. A job with too much stress or pressure, until he recovers from his psychological injury, would be unsuitable. A job would need to involve part time hours. It is critical that the role undertaken by Mr. Ash is applicable to a part time role and does not pressure him to work extended hours. … .”46

42 When reporting in May 2012, Ms Clarke noted that the plaintiff required

continued individual therapy and that although his depressive symptoms had

reduced from severe to moderate, his depression needs to be further explored

and treated.47

(c) Dr Arunava Das

43 The plaintiff also relies on the reports dated 4 February 2011,48 6 April 201249

and 28 August 201250 from the treating psychiatrist, Dr Arunava Das.

45






See Exhibit B at pages 53.1 – 53.2

VCC:AS



44 Dr Das initially saw the plaintiff on 24 April 2009, at which time the plaintiff

gave a history of his presenting symptoms and work experiences. Dr Das

diagnosed Major Depressive Disorder of a chronic nature and also stated in

his first report:

“… This 48 year old man without any past/family history of psychiatric disorders, without any history of drug/alcohol abuse, pre-morbidly being well adjusted developed pervasive sadness, dysphoria, restlessness, insomnia, loss of appetite, loss of weight, poor concentration, poor memory, indecisiveness, lack of pleasure leading to moderately severe subjective distress, moderately severe social and occupational impairment, marital disharmony leading to divorce, in the context of work-related stress at Origin Energy.”51

45 Furthermore, in the same report, Dr Das expressed the opinion that the

plaintiff was currently incapacitated for his pre-injury duties and that such

incapacity was likely to extend into the foreseeable future. When queried

about his capacity to perform work as an insurance clerk, general clerk,

customer service clerk, policy and planning manager, account manager or

contact centre manager, Dr Das stated:

“I have gone through the job descriptions for the above roles. However, my role as Mr. Mark Ash’s treating psychiatrist would be to highlight the principles to be adhered to while selecting a position for him rather than commenting on the technicalities of the position per se. The principles in finding a position for Mr. Mark Ash would be, in my opinion, as follows:

i. the position should be commensurate with his qualifications and experience, with Mr. Ash initially being provided support over and above what is provided to a new recruit to orient himself with the position.

ii. his salary should have parity with what he was earning prior to his work-related injury.

iii. any role that Mr. Mark Ash goes back to, should initially be part-time, the number of hours being agreed upon by the concerned parties in discussion with Mr. Mark Ash’s General Practitioner and myself, with gradual increase in his hours, based on his ability to cope with the demands of the job and his overall functioning.”52

46 Dr Das notes that the plaintiff has been on Pristiq, 100 milligrams per day,

since May 2009.

51



VCC:AS



47 In his report dated 6 April 2012, Dr Das notes that the plaintiff continues to

experience dysphoria, poor self esteem, tension, apprehension, fluctuating

levels of energy, fluctuating levels of motivation and remained pre-occupied

about his future. Such symptoms were of a moderate severity and on that

basis, he considered the plaintiff continues to suffer from Chronic Major

Depressive Disorder. Furthermore, he was of the opinion that because of the

chronicity of such symptoms, he expected that the plaintiff would continue to

need Pristiq, 100 milligrams per day, for the foreseeable future.

48 Later in his report dated 28 August 2012, Dr Das records that the plaintiff

continues to suffer from Chronic Moderately Severe Major Depressive

Disorder and that he will require to need Pristiq, 100 milligrams daily, for the

foreseeable future.

49 In particular, when commenting on his present and future capacity for

employment, Dr Das states:

“… Any future role that Mr. Mark Ash goes back to should initially be part-time, the number of hours being agreed upon by his G.P. and myself with a plan for gradual increase in the number of hours based on his ability to cope with the demands of the job and his overall functioning. However, based on my knowledge of Mr. Mark Ash’s mental state since April 2009, his Chronic Moderately Severe Symptoms of Major Depression (precipitated by work-related stress), I do not expect Mr. Mark Ash to go back into a senior-role, in a high-pressure situation now or in the foreseeable future.”53

(My emphasis).

50 Dr Das also notes that the plaintiff, “in all likelihood”, will need ongoing

psychiatric treatment (medication; monthly review sessions for monitoring of

mental state, medication-review, utilisation of principles of supportive

physiotherapy and cognitive behavioural therapy) into the foreseeable

future.54

53

See Exhibit B at pages 53.1 – 53.2 PCB 54

See Exhibit B at page 53.2 PCB

VCC:AS



Medico-Legal reports relied on by the Plaintiff

51 The plaintiff relies on the following medico-legal examinations:

(a) Examinations by the psychiatrist, Dr Chris Grant, on behalf of the agent

of the first defendant, on 16 October 2008,55 25 February 200956 and on

15 June 2009;57

(b) From the psychiatrist, Dr Paul Kornan, who examined the plaintiff on

behalf of the agent of the first defendant on 4 May 2010.58

52 After his first examination, in which he obtained a detailed history and made a

mental state examination, Dr Grant was of the opinion that the plaintiff had

suffered a Major Depressive episode, moderate to severe and of a non-

psychotic type. He notes that this appears “to be related solely to his

employment and to have been aggravated by marital tensions that have

surfaced in the setting of his deteriorating health”. At that point, he considered

the plaintiff had no current work capacity.

53 When re-examined on 25 February 2009, Dr Grant was of the opinion that the

plaintiff was still continuing to experience significant symptoms of a Major

Depressive Episode despite treatment. Again, at that stage, he did not think

the plaintiff capable of any type of work.

54 When last seen on 15 June 2009, Dr Grant was of the opinion that the plaintiff

continued to have residual symptoms of a Major Depressive episode which

had been brought about by the change of treatment to Pristiq some eight

weeks prior to the consultation. Dr Grant considered that the condition of the

plaintiff was in “partial remission” and further improvement could be expected.

In particular, Dr Grant was of the opinion the plaintiff was now fit to pursue

job-seeking assistance or other occupational rehabilitation with a view to

55

See report dated 16 October 2008, Exhibit B at pages 78-81 PCB 56

See report dated 25 February 2009, Exhibit B at pages 80-84 PCB 57

See report dated 15 June 2009, Exhibit B at pages 85-87 PCB 58

See report dated 5 May 2010, Exhibit B at pages 88-95 PCB

VCC:AS



returning to part-time employment in or about July/August 2009 with the

potential to increase work capacity.

55 Dr Kornan, after taking a detailed history and making a mental state

examination, was of the opinion that the plaintiff was suffering from Major

Depression and an Adjustment Disorder with Anxiety. He considers that

employment with the first defendant “has been a significant contributing factor

in him not being able to work”.

Medico-Legal reports relied on by the Defendants

56 It is convenient to also refer to the medico-legal reports relied on by the

defendants:

(a) Reports from the psychologist, Dr Simon Kennedy, who examined the

plaintiff on 13 August 2012,59 8 December 200960 and on 7 September

2010.61 Dr Kennedy also suppled a supplementary report dated 5

November 2010;62

(b) Reports of Dr Das dated 15 May 2009, 12 January 2011 and 23 June

2011.63

57 The defendants also rely on reports from Dr Neil Smith, dated 21 June 2010

and 20 July 2010.64 Dr Smith is a consultant physician who has treated the

plaintiff in relation to obstructive sleep apnoea. He initially consulted with the

plaintiff on 18 August 2009 on referral from Dr Michail. At that time, the

plaintiff gave a “long history” of not sleeping well.

58 Dr Smith diagnosed the plaintiff to be suffering significant obstructive sleep

apnoea and such condition was adding to his symptoms profile. However, Dr

59

See report dated 20 August 2012, Exhibit 2 at pages 9-17 DCB 60

See report dated 9 December 2009, Exhibit 2 at pages 18-27 DCB 61

See report dated 22 September 2010, Exhibit 2 at pages 28-35 DCB 62

See Exhibit 2 at pages 36-40 DCB 63

See Exhibit 2 at pages 43-48 DCB 64

See Exhibit 2 at pages 49-51 DCB

VCC:AS



Smith considered that the obstructive sleep apnoea developed because he

was an overweight male and that it was not a secondary consequence of his

depression or stress. He did consider that obstructive sleep apnoea can

exacerbate stress and depression but is not caused by stress and depression.

59 After his first consultation with the plaintiff, Dr Kenned was of the opinion that

he suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood

which was “triggered by the stress in the workplace”. He noted there was no

pre-existing psychological disorder and at the time of his examination the

disorder had not resolved. At the time of that first consultation, he considered

the plaintiff had a capacity for some part-time work with the potential to get

back to full-time work over time.

60 When later seen on 7 September 2010, Dr Kennedy comments that the

plaintiff presented in a similar way although was functioning better than

before.

61 At that consultation, Dr Kennedy noted that the plaintiff spoke of his frustration

associated with seeking employment and that he put out about thirty

applications seeking jobs.

62 After that examination, Dr Kennedy diagnosed the plaintiff to be suffering an

Adjustment Disorder with Mixed Anxiety and Depressed Mood (mild

symptomology) and such condition was at least “partially related to his

previous employment and the events that occurred there”. He also

considered that the personality style of the plaintiff and the lack of

employment itself contributes to such condition.

63 Dr Kennedy was of the view after that examination, that the plaintiff could not

return to his previous employment but would probably be able to undertake a

role similar to his previous employment.

64 In a supplementary report, Dr Kennedy was queried as to whether or not the

VCC:AS



plaintiff could undertake work as an insurance clerk, general clerk, customer

service clerk, policy and planning manager, account manager and/or contact

centre manager. In response, he stated:

“It would appear that there are no physical difficulties. In my opinion, the worker could undertake employment for more than 15 hours per week. In my opinion it is appropriate in return to work for individuals who have a history such as Mr Ash that there would be a gradual increase in return to work over several months with an increase in the number of hours across each week occurring over that several month period. The speed of the increase to full time hours depends on the individual’s response to the return to work. In some individuals they are to return to work over a period of two months for example. In others this may take to six to eight months before they are able to tolerate the full time work.

… .”65

65 The plaintiff was last seen by Dr Kennedy on 13 August 2012. After taking a

further history and making a mental state examination, Dr Kennedy diagnosed

the plaintiff to be suffering no psychological disorder but with a past Chronic

Adjustment Disorder with Mixed Anxiety and Depressed Mood which had

resolved. In particular, Dr Kennedy states:

“Since 2008 Mr Ash has experienced a combination of anxiety and depressive symptoms. He continues to suffer from some anxiety and depressive symptoms at a non-clinically significant level. Treatment has been psychological therapy and anti-depressant medication. Treatment and the effects of work have reduced his symptoms and there is now no psychological disorder.

…

Mr Ash has likely incapacity for highly stressful or highly responsible positions currently. Incapacity may improve over time. He is effectively rehabilitating himself and is back to work on a part time basis in a non-professional role.”66

Vocational Reports

66 The defendants rely on a “130-week Vocational Assessment Report” dated 27

August 2010 in relation to an assessment undertaken on 12 August 2010.67

In that report, there is identification of what is said to be suitable employment

options for the plaintiff. They include work as a general clerk,

65

See Exhibit 2, at page 39 DCB 66

See Exhibit 2, at page 15, DCB 67

See Exhibit 2, at pages 123-127 DCB

VCC:AS



enquiry/customer service clerk, insurance clerk, planning and policy manager,

account and call and contact centre manager. Each nominated job has a

general description of the duties and the average weekly gross wage.

Seemingly, the nomination of such jobs was based on what was said to be:

“Mr Ash has excellent communication, literacy, numeracy and computer skills including a working knowledge of the internet, email, word processing and spreadsheet packages. He has worked in roles such as claims manager, state claims manager within the workers’ compensation and public liability industries, which have provided Mr Ash with skills such as policy development and implementation, advanced analytical and interpersonal skills, the ability to manage small and large teams and deal with difficult situations and customers. … .”68

Analysis of the Evidence

67 Those acting for the plaintiff submit that there has been no attack on the credit

of the plaintiff. Indeed, a reading of the affidavits of the plaintiff and the

transcript of his cross-examination, would suggest that the plaintiff was frank

about his new relationship (and him attending and assisting her at the Sunday

markets), his capacity to continue to play competitive tennis and his

involvement in one of his son’s sporting pursuits.

68 A reading of the transcript would suggest no prevarication on the part of the

plaintiff.

69 There was some attack on the plaintiff, in the sense that it was suggested that

with his knowledge of workers’ compensation law, he appreciated that it was

in his interest to have earnings less than 60 per cent of his “without injury

earnings” in order to be successful in a serious injury application. Allied to

this, was the suggestion put to the plaintiff that he was not seeking to increase

his work hours at Hertz because of this concern. For reasons which I will

advance later, I reject such a suggestion.

70 The evidence is overwhelming that the plaintiff suffered a psychiatric injury

arising out of or in the course of his employment with the first defendant.

68

See Exhibit 2, at page 109 DCB

VCC:AS



Such injury has been characterised as a Chronic Major Depressive Disorder

and also described as an Adjustment Disorder with Anxiety and Depression.

71 Although it is perhaps curious that the plaintiff, prior to his employment with

the first defendant, had had vast experience in the workers’ compensation

area, had seemingly no pre-existing psychiatric problems, and was only

employed by the first defendant for a relatively short time, there is none the

less a very strong correlation between the employment activities undertaken

by the plaintiff with the first defendant and the commencement of his

psychiatric symptomology.

72 Indeed, as I understand the position of the defendants, there is no issue that

such a compensable injury occurred. I also note that the initial WorkCover

claim lodged by the plaintiff and the later claim for impairment benefits were

accepted by the defendants.69

73 Consistent with such attitude, the psychologist, Dr Kennedy, initially accepted

that the plaintiff had suffered an Adjustment Disorder with Mixed Anxiety and

Depressed Mood arising out of or in the course of his employment with the

first defendant. He was of the opinion, by his last examination on 13 August

2012, that he suffered no ongoing psychological disorder, although there was

some anxiety and depressive symptoms at a non-clinically significant level.

74 I reject the opinion of Dr Kennedy, and consider that the plaintiff continues to

suffer a chronic, moderately severe Major Depressive Disorder. Although he

has improved since ceasing work with the first defendant, I find that such

condition is likely to continue into the foreseeable future. In this respect, I

accept the opinions of the treating psychologist, and in particular, the treating

psychiatrist, who has seen him over the years since him ceasing work with the

first defendant. It is to be stressed that Dr Kennedy is “alone” in expressing

his opinion in relation to the current status of the plaintiff. In particular, I note

69

See Ansett Australia Ltd v Taylor [2006] VSCA 171, per Ashley JA, at paragraph [3]

VCC:AS



that Dr Das continues to observe the plaintiff to be continuing to experience

dysphoria, poor self-esteem, tension, apprehension, fluctuating levels of

energy, fluctuating levels of motivation and is pre-occupied about his future.

75 Accordingly, I am satisfied that the plaintiff has a mental or behavioural

disturbance or disorder.

76 It is submitted on behalf of the defendants that if the plaintiff does have such a

disturbance or disorder, whether such can be seen as “permanent” and/or

“severe”.

77 Again, I accept the opinion of the treating psychiatrist, Dr Das, that the plaintiff

has had chronic ongoing symptoms to date and that he will require Pristiq

(100 milligrams daily) for the foreseeable future.

78 Given the chronicity of symptoms to date and the prognosis of Dr Das, I

consider that such behavioural disturbance or disorder is “permanent” within

the meaning of the Act – that is to say, “likely to last for the foreseeable

future”.

79 I also note that the treating psychiatrist, although accepting that the plaintiff

has a capacity for work (as clearly demonstrated by his employment with

Hertz), is of the opinion that the plaintiff would not get back to a senior role or

a high-pressure situation now or in the foreseeable future. Such a view also

seems consistent with the limitations perceived by the plaintiff. In this respect,

I gained the impression that although the Plaintiff considers he can perform

more work than that what he is performing at Hertz, he is incapable of

returning to high management positions in the insurance industry which

involve substantial amounts of stress.

80 I consider it appropriate to initially decide whether the plaintiff satisfies the

requirements to obtain leave to claim “pecuniary loss damages”.

VCC:AS



81 In relation to the issue of pecuniary loss, s134AB(38)(e)(i) of the Act requires

the plaintiff to establish that as at the date of the hearing of the application, he

“has a loss of earning capacity … of 40 per cent or more” measured “as set

out in (f)”. The measurement of the claimed loss of earning capacity, as

described by paragraph (f), necessitates a comparison of two matters:

(a) what the plaintiff is earning, whether in suitable employment or not, or

capable of earning in suitable employment at the date of hearing (“after

injury earnings”); and

(b) the income that the plaintiff was earning or is capable of earning

“during that part of the period within 3 years before and 3 years after

the injury as most fairly reflects the plaintiff’s earning capacity had the

injury not occurred” (“without injury earnings”).

82 In both cases, the income is limited to gross income from personal exertion

and is to be annualised.

83 Section 134AB(38)(e)(ii) requires the plaintiff to establish that he will, after the

date of hearing, “continue permanently to have a loss of earning capacity

which will be productive of a financial loss of 40 per cent or more”.

84 Section 5(1) defines “suitable employment” to mean:

“In relation to a worker, means employment in work for which the worker is currently suited –

(a) having regard to –

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker’s pre-injury employment; and

(iii) the worker’s age, education, skills and work experience; and

(iv) the worker’s place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

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(vi) any occupational or rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether –

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market.”

85 Counsel for the defendants70 submits that the appropriate “without injury

earnings” of the plaintiff amount to $83,466.00, whereas it is submitted on

behalf of the plaintiff that the appropriate “without injury earnings” are in a

range between $119,266.00 to $151,766.00.

86 In particular, counsel for the defendants highlights that the gross annual

income of the plaintiff for the financial year ending 30 June 2005 was

$57,244.00; for the financial year ending 30 June 2006, $56,923.00; for the

financial year ending 30 June 2007, $61,891.00; for the financial year ending

30 June 2008, $83,466.00; for the financial year ending 30 June 2009,

$75,547.00, and for the financial year ending 30 June 2010, $71,722.00.

87 I refer to the offer of employment made by the first defendant dated 30 May

2008. In that offer of employment, the remuneration to be paid to the plaintiff

was $130,000 per annum made up of a notional base salary of $119,266.00

with base superannuation of $10,734.00, although the superannuation

component could be increased subject to the first defendant’s policies.

Furthermore, the plaintiff was subject to a short-term incentive plan to a

maximum of 25 per cent of $130,000. Accordingly, his total annual reward

potentially amounted to $162,500. The next review of his salary would be on

1 September 2009.

88 Employer superannuation contributions are specifically precluded from the

definition of “income from personal exertion” whilst bonuses are specifically

70

See page 114 PCB

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included in such definition.71

89 Accordingly, on the submission of the plaintiff, the “without injury earnings” of

the plaintiff is at least $119,266.00, being his base salary with the first

defendant, and up to $151,766.00 after allowance for a bonus.

90 In particular, the plaintiff refers to the decision of Forrest J in Acir v Frosster

Pty Ltd,72 wherein he stated:73

“… It follows, I think, in the context of s 134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. … .”

91 Counsel for the plaintiff submitted that the plaintiff was a highly experienced

operator in the workers’ compensation area prior to his commencement with

Origin and had demonstrated such high level of performance by his work at

Ford and in Tasmania, where he had managed a large number of staff.

92 Counsel for the defendants submits that the plaintiff’s earnings over the

financial years from 2005 to 2007 are relatively modest. He notes there was a

significant increase in the financial year ended 30 June 2008, during which

time the plaintiff had mainly worked for Melbourne Water and Coles and had

just commenced employment with the first defendant. The defendants submit

that given the very short period of employment with the first defendant, his

earnings with the first defendant do not “fairly reflect, the plaintiff’s without

earning capacity”.

93 After a consideration of the competing submissions, I consider that the

“without injury earnings” should be fixed at $119,266.00, being the notional

base salary when employed by the first defendant, with no allowance for any

71

See s134AB(38)(a) of the Act and s6(2) of the Transport Accident Act 1986 72

[2009] VSC 454 73

at paragraph [175]

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bonuses which would be speculative on the state of the evidence.

94 Contrary to the submission of counsel for the defendants, I consider that given

the experience of the plaintiff prior to his appointment with the first defendant,

and taking account of his senior management roles in various insurance

companies in the past, it is appropriate to accept as his “without injury

earnings”, his actual rate of pay when employed by the first defendant.

95 Sixty per cent of $119,266.00 is $71,559.60.

96 Clearly, the plaintiff has demonstrated that he is capable of performing

alternative suitable employment. The issue is as to the nature of any suitable

employment and what that employment would generate by way of income. In

this respect, the defendants, relying on the vocational assessment undertaken

on 27 August 2010,74 submit that the plaintiff is capable of performing work in

the following occupations:

• General clerk, earning $45,240.00 gross per year;

• Enquiry clerk, earning $43,874.00 gross per year;

• Insurance clerk, earning $44,512.00 gross per year;

• Policy manager, earning $88,504.00 gross per year;

• Account manager, earning $58,916.00 gross per year;

• Call or contact centre manager, earning $70,407.00 per year;

• Technical manager, earning $72,800.00 minimum gross per year.

97 Consistent with the evidence of Dr Das, I consider that the plaintiff is probably

capable of working full time in a position in the insurance industry where he is

not exposed to undue stress, deadlines or the need to constantly deal with

74

See pages 99-109 DCB

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people in a highly charged situation. Again, on the basis of the report from the

treating psychiatrist, I consider that situation will continue permanently.

98 Accordingly, I do accept that the plaintiff could work full time as a general

clerk, enquiry/desk clerk, and insurance clerk. Indeed, the plaintiff essentially

accepted such a situation.

99 However, I do not find that the plaintiff is capable of performing work as a

policy and planning manager, an account manager or a call or contact centre

manager. Each of these roles is of a senior management role and would

involve, in my view, exposing the plaintiff to levels of stress which would be

inappropriate. I have come to such view after perusing the various duties

outlined in the vocational report.

100 Accordingly, each of the employments which I consider suitable, give rise to

after injury earnings less than 60 per cent of the “without injury earnings”.

Accordingly, applying the principles set out in Advanced Wire & Cable Pty Ltd

v Abdulle,75 and Acir v Frosster Pty Ltd,76 I determine that the plaintiff has

satisfied the requirements of the Act in establishing leave being granted to

bring common law proceedings for both “pain and suffering damages” and

“pecuniary loss damages” in respect of the psychiatric injury that he suffered

during the course of his employment with the first defendant.

101 I also note that if the “without injury earnings” figure submitted by the

defendants ($83,466 x 60% = $50,079) had been utilised the result would

have been the same.

102 I consider that in all the circumstances the Plaintiff has satisfied the

requirements of s 134AB(38)(g) in that he has over the years made

reasonable attempts to exercise any residual capacity for employment. Before

his present employment he applied for many jobs and in particular, attempted

75

[2009] VSCA 170, at paragraphs [60]-[64] 76

Supra

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to obtain employment in the insurance industry through the self-insurers

association.

Conclusion

103 Accordingly, pursuant to s134AB(16) of the Act I grant leave to the plaintiff to

bring common law proceedings for both pain and suffering damages and

pecuniary loss damages in respect to a psychiatric injury arising out of or in

the course of his employment with the first defendant.

104 I will hear the parties on the question of costs.

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ANNEXURE A

(1) The plaintiff tendered following material:

Exhibit A

• Payslips of the Plaintiff dated 27 July 2012 to 5 August 2012 and 6

August 2012 to 19 August 2012;

Exhibit B

• Affidavit of the Plaintiff sworn 4 May 2011 at pages 6-16 PCB;

• Exhibit “MAA-1”, letter dated 10 July 2008 addressed to Julie Russell at

pages 17-19 PCB;

• Exhibit “MAA-2”, first copy statement dated 8 October 2008 at pages 20-

24 PCB;

• Exhibit “MAA-3”, second copy statement dated 8 October 2008 at pages

25-34 PCB;

• Plaintiff’s supplementary affidavit sworn 19 June 2012 at pages 35-39

PCB;

• Third affidavit of the plaintiff sworn 28 August 2012 at pages 39.1-39.2

PCB;

• Affidavit in support of Robert John Ash sworn 8 August 2012 at pages

40-44 PCB;

• Suicide note of the plaintiff to the plaintiff’s brother dated 12 January

2010 at pages 44.1-44.2;

• Medical reports of Dr Arunava Das, consultant psychiatrist, dated 4

February 2011, 6 April 2012, 28 August 2012 at pages 45-53.2 PCB;

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• Medical report of Dr Catherine Keaney, general practitioner, dated 3

October 2008 (Questionnaire) at pages 54-56 PCB;

• Reports of Dr Mark Michail, general practitioner, dated 6 February 2011,

22 May 2012 at pages 57- 62 PCB;

• Reports of Ms Catherine Clarke, clinical psychologist, dated 17

November 2008 (Questionnaire), 19 May 2009, 26 November 2009, 13

April 2010, 1 February 2011, 28 May 2012 at pages 63- 77 PCB;

• Medical reports of Dr Chris Grant, consultant psychiatrist, dated 16

October 2008, 25 February 2009, 15 June 2009 and 5 May 2010 at

pages 78-95 PCB;

• Report of Dr Paul Kornan, forensic psychiatrist, dated 5 May 2010 at

pages 88-95 PCB;

• Worker’s Claim Form dated 13 September 2008 at pages 96-97 PCB;

• CGU Acceptance Letter dated 22 October 2008 at pages 98-101 PCB;

• Worker Questionnaire completed by plaintiff 4 January 2012 at page 102

PCB;

• CGU Letter to the plaintiff dated 30 March 2012 at page 103 PCB;

• Statement of Issues;

• Statement of Calculation of Loss of Earning Capacity.

(2) The first defendant tendered the following material:

Exhibit 1

• Plaintiff’s Draft Statement of Claim (undated 3 pages) at pages 111-113

PCB;

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Exhibit 2

• Plaintiff’s Taxation Returns for years ending 2005 – 2011;

• Medical Reports of Dr Simon Kennedy, Psychologist dated 20 August

2012, 9 December 2009, 22 September 2010 at pages 9-35 DCB;

• Supplementary Report of Dr Simon Kennedy dated 5 November 2010 at

pages 36-40 DCB;

• Reports of Dr Paul Kornan, Forensic Psychiatrist dated 1 October 2010

at pages 41-42 DCB;

• Reports of Dr Arunava Das, Consultant Psychiatrist dated 15 May 2009,

12 January 2011, 23 June 2011 at pages 43 – 48 DCB;

• Reports of Dr Neil Smith, Consultant Physician, dated 21 June 2010, 20

July 2010 at pages 49-51 DCB;

• CGU 130 Week Vocation Assessment Report dated 27 August 2010 at

pages 99 – 109 DCB;

• Position Description – Manager Workers Compensation dated March

2008 at pages 123-127 DCB;

• Online Employment Application of Plaintiff – enclosing Resume of

Plaintiff, undated at pages 144-150 DCB.

Exhibit 3

• A bundle of documents from the Northern Hospital in relation to various

investigations undertaken by the plaintiff.

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revised at melbourne not restricted civil division ...€¦ · where held : melbourne date of...

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