IN COUNry Revised Suitable Publication · 2013. 11. 20. · manufacturer of caravans. The majority...

V

IN THE COUNry COURT OF VICTORIAAT MELBOURNECIVIL DIVISIONDAMAGES AND COMPENSATION LISTSERIOU S INJURY DIVISION

VICTOR TSAFKAS

TRENDE CARAVANS PTY LTD

JUDGE:

WHERE HELD:

RevisedNot Restricted

Suitable for Publication

Case No. Cl-12-00316

Plaintiff

Defendant

Solicitors

Maurice Blackburn Lawyers

Minter Ellison Lawyers

HIS HONOUR JUDGE CARMODY

Melbourne

20,21 and25 March 2013

18 November 2013

Tsafkas v Trende Caravans Pty Ltd

I2013IVCC 1708

OF HEARIN

DATE OF JUDGMENT:

CASE MAY BE CITED AS

MEDIUM NEUTRAL CITATION:

Subject:Catchwords

Legislation Cited:Cases Cited:

Judgment:

APPEARANCES

For the Plaintiff

For the Defendant

Counsel

MrPGAMontgomery

Ms R L Kaye

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury - psychiatric injury - pain and suffering damages - lossof earning capacity damages - whether physical injury and incídenthave resulted in the psychiatric injury - whether injury satisfied thethreshold test for leave to seek damages - causationAccident Compensation Act 1985, s134ABBa¡won Sprnners Pty Ltd & Ors v Podolak (2005) 14 VR 622Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti[19941 1 VR436Application d ismissed.

CoUNTY COURT OF VICTORIA250 William Street, Melbourne

HIS HONOUR

Introduction

1 This application is brought by Originating Motion dated 20 January 2012, by

which the plaintiff applies for leave pursuant to s134AB(16Xb) of the Accident

Compensation Act 1985 ("the Act") to bring proceedings to recover damages

for an injury suffered by him arising out of or in the course of his employment

with the defendant and, more particularlY, on 17 September 2007.

ln the course of the opening, Mr Montgomery, for the plaintiff, submitted that

the injury arose from an incident which occurred on 17 September 2007, when

the plaintiff was struck in the back of the head by a large ball of putty.l

The plaintiff seeks leave to bring such proceedings for pain and suffering and

loss of earning capacity.

At the commencement of the hearing, the plaintiff conceded that this

application was not a claim for physical injury. The application proceeded on

the basis that only the psychiatric injury and consequences in this application

were relevant to whether or not the plaintiff be granted leave to recover

damages for pain and suffering and loss of earning capacity.

The plaintiff alleged that whilst he was in the course of his employment on

17 September 2007, he was struck in the back of the head by a large ball of

putty. As a result of that incident and injury to him, the plaintiff alleges that he

has suffered a psychiatric injury and is now diagnosed with an adjustment

disorder with depression and anxiety.

6 The following evidence was adduced or tendered during the hearing:

The plaintiff gave evidence and was cross-examined

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a

o Mrs Soula Tsafkas gave evidence and was cross-examined

Transcript ("T') 12-13

1 JUDGMENTTsaftas v Trende Caravans Pty LtdVCC:AS/LP/DC

a Dr MichaelWong, psychiatrist, gave evidence and was cross-examined

o The plaintiff tendered the following documents:

Exhibit A, the Plaintiff's Court Book ("PCB"), pages 13-93, page gg,

page 103, page 111aandpage112.

o

a

I

¡

The defendant tendered the following documents:

Exhibit 1, the Defendant's Court Book ("DCB"), pages 1-3, pages

6-8, pages 11-13, pages 26-64 and pages 71-168.

Exhibit 2, the clinical notes of Physical Healthcare Physiotherapy of

1A Rochdale Square, Lalor.

Dr Michael Duke, psychiatrist, gave evidence and was cross-examined

7 The plaintiffs application is brought under the definition of "serious injury"

contained in ss(37) of the Act, which requires the plaintiff to prove that he

suffered a "permanent severe mental or permanent severe behavíoural

disturbance or disorder". ln this case, the diagnosis of the plaintiff is an

adjustment disorder with depressíon and anxiety.

Ms Kaye, on behalf of the defendant, identified the issues in this application.

The first issue is whether the psychiatric injury claimed by the plaintiff and the

ongoing consequences are caused by the original work-related injury said to

have occurred on 17 September 2007. The second issue is whether the

migraines and headaches that the plaintiff complains of are caused by

physical or psychiatric injuries. In short, this case relates to disentangling the

consequences between physical and psychiatric-based injury. The third issue

is whether the consequences as set out in the plaintiff's application meet the

statutory test. These issues relate to the application for serious injury

certification in respect of pain and suffering damages and loss of earning

capacity damages.

rsarkas v rrende ""r"1:ro.n#ff,l

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2VCC:AS/LPIDC

The statutory scheme

g The application is brought under the definition of "serious injury" contained in

ss(37Xa) of s134AB of the Act which requires the plaintiff to prove that he has

suffered a "permanent serious impairment or loss of a body function".

10 The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has suffered a compensable injury; that

is, an injury which he suffered arising out of the course of his

employment on or after 20 October 1999;2

(b) The injury and the impairment must be permanent; that is, permanent

in the sense that it is "likely to last for the foreseeable future";3

(c) The plaintiff bears the burden of proof to be determined upon the

balance of probabilities;

(d) Sub-section (38Xc) provides that the impairment must have

consequences in relation to pain and suffering and loss of earning

capacity which, when judged by comparison with other cases in the

range of possible impairments or losses of a body function, may fairly

be deScribed as being more than "signifiCant" Or "marked", and aS

being at least "very considerable";

(e) Sub-section (38Xh) provides that the psychological or psychiatric

consequences of a physical injury are to be taken into account only for

the purpose of paragraph (c) of the definition of "serious injury" and not

othenryise;

Sub-section (38Xe) provides that in a claim for loss of earning capacity,

such loss must be to the extent of 40 per cent or more, both at the date

of hearing and permanently;

Section 134A8(1), and Barwon Sprnners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

Barwon Sprnners, at paragraPh 33

JUDGMENTTsafkas v Trende Caravans Pty Ltd

(f)

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3VCC:AS/LP/DC

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Þ

(g) ln conformity with Barwon Spinners, I must identify the injury and the

impairment said to be produced in consequence of the injury; whether

the impairment is permanent - that is, likely to last for the foreseeable

future; and whether the consequences for the plaintiff are such as to

satisfy the "very considerable" test contained in ss(38).

I have applied the principles set fo¡th therein in reaching my conclusions in

this application.

11 I am required to give detailed reasons which are as extensive and complete

as the Court would give on the trial of an action and, in doing so, to disclose

my pathway of reasoning in dealing with the evidence and the issues raised

by the application.

The Plaintiffs background

12 The plaintiff was born in 1954. He is now fifty-eight years otd.a ln 1968, when

the plaintiff was approximately fourteen years old, he migrated from

Macedonia with his family to Australia.s The plaintiff is a married man with

three adult children.

13 The plaintiff was educated to Form 4 level at Preston Technical School. ln the

time since then he has been predominantly employed as a factory hand. He

commenced his work with the defendant in July 2O02.6

lnjury with the Defendant

14 The plaintiff, in the course of his employment with the defendant, worked as a

manufacturer of caravans. The majority of his work was performed at a

workbench. ln his affidavit dated 15 July 2011, the plaintiff described the

injury occurring in the following circumstances:

PCB 14PCB 14PCB 14

Tsafkas v Trende ""r"i:rorn#ff,I

4VCC:AS/LPIDC

"On or about 17 September 20Q7, when working at my work bench, I was

struck at the back of the head behind the right ear by a large, heavy ball

of putty.

I continued working, finishing my shift."7

l5 The plaintiff attended at the Northern lndustrial Medical Clinic on the day

following the incident. On 13 October 2OO7 the plaintiff attended on his usual

general practitioner, Dr Jim Romas. Dr Romas pract¡ses at Rochdale Medical

Centre.s

16 The plaintiff was referred to Dr John Merory, neurologist, on 23 October

2oo7.e

17 The plaintiff was made redundant by the defendant on 11 December 2007.10

It was not until after that time that he was referred to Professor Michael Wong,

psychiatrist, whom he first attended on 11 February 2008.11 The plaintiff has

been regularly attending Professor Wong since that time. The plaintiff has

also been treated by a psychologist, Ms Shalika Ranaweera, since 2010.

18 The plaintiff has also received injections for headaches from Dr Clayton

Thomas, consultant in rehabilitation and pain medicine, in August and October

2011.12

Medical treatment

On the day following the incident at work, the plaintiff attended at the Northern

lndustrial Medical Centre.13 There was no report tendered in this case from

that medical centre.

20 On 13 October 2007, the plaintiff attended his own general practitioner,

Dr Romas, at the Rochdale Medical Centre.la At that time, the plaintiff

PCB 15PCB 30PCB 39PCB 99PCB 42PCB 35PCB 15


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5VCC:AS/LP/DC

complained about poor mentation, forgetfulness, dizziness and headaches.

Dr Romas was originally treating the plaíntiff for physical injuries. He referred

the plaintiff to Dr John Merory, neurologist, on 23 October 2007.

21 Dr Merory noted that on examination of the plaintiff, he could not find any

definite neurological signs. Examination revealed fairly full neck movement

but with complaints of crepitus. The plaintíff was complaining of being tender

over the right occiput. Dr Merory noted that the CT scan of the brain was

normal, incidentally showing pansinusitis.

22 Dr Merory's diagnosis was as follows

"He appears to have suffered some concusion [sic] and cervical injuries.I would expect a gradual but definite recovery. There are somefunctional features and I suspect some psychosocial issues but I havenot probed for this."15

I note that Dr Romas refers to these as "functional features".16

The plaintiff continued to complain of vertigo.lT

The plaintiff was made redundant on 11 December 2007.18

Dr Romas referred the plaintiff to Professor Michael Wong, psychiatrist, who

first saw the plaintiff on 19 February 2008.1e

27 On the plaintiff's first attendance on Professor Wong, 11 February 2008, the

plaintiff gave a history of being shot at with a staple gun over a period of

2 years. Professor Wong also took a history of the impact to the back of the

pfaintiff's head in September 2007, leaving the plaintiff feeling dizzy and

anxious. Professor Wong's history of the pre-illness personality of the plaintiff

was that the plaintiff described himself as "easygoing" and "happy-go-lucky".

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PCB 30PCB 39PCB 31

PCB 16PCB 99PCB 31

6rsarkas v rrende

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This description is consistent with the evidence he gave during the course of

this application.

28 ln early 2008, Professor Wong diagnosed the plaintiff as suffering from an

adjustment disorder with anxiety and depressed mood. Professor Wong

stated that this condition was a direct result of "the stress" the plaintiff

experienced at work.2o

29 Since that time, Professor Wong has been treating the plaintiff on a monthly

basis with some longer breaks during the 2009 year. Professor Wong

continues to treat the plaintiff and he prescribes the medications of Epilim,

Lexapro and lmovane.

30 Professor Wong continues to certify the plaintiff as unfit for work.

31 The plaintiff has also been referred to Dr Richard Gerraty, neurologist. ln a

report dated 12 March 2009, Dr Gerraty took a history of the plaintiff being hit

with a lump of putty. He also took a history of the plaintiff being shot at with a

staple gun whilst at work and an earlier history of migrane. Dr Gerraty opined

as follows:

"Neurological examination is normal.

It is conceivable that some of his current symptomatology could be post-traumatic migraine related despite the absence of prominent headacheand he may well respond to Sandomigran and I have prescribed thistoday."21

32 It is to be noted that Dr Gerraty was aware that at the time he prescribed

Sandomigran, the plaintiff was also being prescribed Valium and Lexapro by

his then treating psychiatrist.

33 The plaintiff has also been seen by Dr Clayton Thomas, consultant in

rehabilitation and pain medicine. The plaintiff saw Dr Thomas on 5 March

PCB 44PCB 40


7VCC:AS/LP/DC

22

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2010. On that day, the plaintiff complained of a constant headache. The

tenderness to the back of his right skull was noted by Dr Thomas, who

thought, from a physical point of view, it might be as a result of an injury to the

great occipital nerve, accounting for such sensitivity to the right side of the

skull.22

34 Dr Thomas noted that he was of the view that the plaintiff's emotional

problems certainly appeared to be overwhelming him.

35 On 23 August 2011 and 12 October 2011 , Dr Thomas performed injections to

assist with the plaintiff's headaches.23

36 Dr Thomas's treatment of the plaintiff is all related to physical-based pain and

injury. Those physical-based injuries are not the subject of this application.

37 The plaintiff has also received treatment from Ms Shalika Ranaweera,

psychologist. ln her final report dated 16 March 2013, Ms Ranaweera states

that the plaintiff is unable to work due to the severity of his depression and

general psychological state. Moreover, his physical capacity, due to his

injuries, has caused major physical restrictions.2a The opinion expressed by

the treating psychologist mixes up the causation of the plaintiff's difficulties

between a psychological state and his physical incapacity due to his injuries.

38 The treatment of the plaintiff by his medical practitioners has been a

combination of physical and psychological treatment.

The Plaintiffs evidence

3e ln this proceeding the plaintiff relied upon two affidavits sworn on 1 July 2011

and 11 January 2013 respectively. The plaintiff gave evidence and was

cross-examined.

40 ln his first affidavit, the plaintiff deposed

PCB 61

PCB 35PCB 74C


IVCC:AS/LPIDC

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"Further, on or about 17 September 2OO7,l suffered multiple injuries as aresult of being struck on the head by a large, heavy ball of putty. As aresult, I haveéuffered physical, psycñologicãl and emotional injuries."25

The plaintiff in this application relied upon the single incident which occurred

on 17 Septembe12007, to establish his serious injury.

ln his affidavit he stated that he was working at his work bench when he was

struck in the back of the head behind the right ear by a large heavy ball of

putty. The plaintiff deposed that he had been knocked forward and the blow

from the putty had dislodged his earmuffs. He stated that he felt immediate

soreness and pain. He continued working on that day and finished his shift.

He subsequently went home. He stated that overnight he had experienced

headaches and dizziness and he was upset at what had occurred to him.26

The plaintiff stated that he attended work the following day but was sent to a

doctor at the Northern Industrial Medical Centre. He stated that he later

attended his own general practitioner at Rochdale Medical Centre in Lalor.

He was referred for a CT scan and prescribed medications of an anti-

inflammatory nature. The plaintiff deposed that he continued to experience

throbbing pain in the head. He experienced difficulty with lying down, and his

sleep was very disturbed. He re-attended his general practitioner, Dr Jim

Romas, complaining of having headache, dtzziness and an unsteadiness like

vertigo, as a continuing problem for him.

The plaintiff stated that he was referred to Dr John Merory and Mr Richard

Gerraty, specialist neurologists. The plaintiff stated that his symptoms of

sleep disturbance, including having nightmares about the incident involving

the putty ball, continued to concern him.

The plaintiff stated that he had been teased by co-workers and that they

would fire staple guns and the like at him, causing him to be feadul of injury to

his eyes. The plaintiff stated that he found these episodes of teasing very

25

26PCB 14PCB 15 paragraph 10

9 JUDGMENTTsafkas v Trende Caravans Pty LtdVCC:AS/LP/DC

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upsett¡ng. I note that the course of conduct, as it may be described, by the

co-workers was not pursued by the plaintiff in this case to establish his serious

ínjury certificate.

The plaintiff continued to be seen by his general practitioner, Dr Ramos. ln

February of 2008, due to his ongoing and persisting symptoms, he was then

referred to Associate Professor Michael Wong, a psychiatrist, who prescribed

Lexapro, Epilim and Valium.27 He was also referred to psychologist Shalika

Ranaweera for treatment.

The plaintiff deposed that he continued to experience head pain and

headaches. He described the pain in the head as always being there. He

also stated that he experienced neck pain. This part of the plaintiff's deposed

evidence is repeated on a number of occasions throughout the affidavits and

his viva yoce evidence. The symptoms that he is describing are physical

symptoms of pain to the head and neck area.28 The plaintiff stated as follows:

"Because of the injuries, my capacity for physical work has beenmarkedly affected. I am no longer capable of full{ime, physical workbecause of the persisting symptoms and problems I experience.I believe my experiences in the course of my employment with theDefendant have had a marked effect on my emotional health andwellbeing."2e

ln this part of his affidavit, the plaintiff is combining both the physical injuries

he received as a result of the impact from the putty ball together with his

experience of teasing by co-workers referred to earlier in these reasons. This

raises the very real difficulty of disentangling the psychological and psychiatric

consequences of the putty ball incident from the physical injuries received in

the putty ball incident. lt also raises the difficulty of psychiatric or

psychological injuries as a result of a course of conduct alleged against the

co-workers in teasing the plaintiff.

49 ln his second affidavit sworn on 11 January 2013, the plaintiff deposed

PCB 17

PCB 18

PCB 18

rsarkas v rrende ""."i:Ro#ff,]

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"l have not returned to work. Because of my injuries, I am unable towork. I believe I am no longer capable of working because of myinjuries. My injuries continue to affect me badly, especially theemotional and mental injuries."30

The plaintiff goes on to depose that he never recovered from his physical

injuries which he received in the incident of September 2OO7 -31

The plaintiff deposed that since he was struck on the back of the head, he has

continued to have pain and headaches. The plaintiff deposed that he had

injections to try and improve his headaches and head pain. He stated that

those injections were performed in August 2011, and repeated again in

October 2011. He stated the symptoms did not improve and remained the

same.32 The plaintiff again is complaining of physical injuries and treatment

for his physical symptoms when referring to the injections.

The plaintiff then deposes to the consequences as a result of the injuries that

he received in the incident of September 2007. He stated that he struggled to

keep his emotions under control and was emotionally aggravated. He stated

his sleep patterns were poor as a result of the injuries. He noted that he did

not take any medication to assist him in his sleep. He said he was now

unable to continue with his fishing or shooting trips, due to the symptoms he

suffers as a result of his injuries. When the plaintiff is describing his

symptoms, he used the phrase "before the injuries" or "before my injuries",

when describing a difference between how he was prior to the incidents

referred to in his application and how he is now.33

The plaintiff was cross-examined at length about his prior medical complaints.

ln his affidavit, the plaintiff had described the period before the injuries as "life

was good, I was a happy relaxed person".34 The medical history put to the

plaintiff, and part of the notes in Exhibit 2, reveal a different picture.

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PCB 20PCB 21 paragraph 5PCB 21 paragraph 7PCB 21

PCB22

JUDGMENTTsafkas v Trende Caravans Pty LtdVCC:AS/LP/DC

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In cross-examination, the plaintiff was asked about his attendance at his

general practitioner, Dr Ramos on 15 October 1997. The general

practitioner's notes appeared at DCB 101. The plaintiff was asked about the

history of dizziness and feeling stressed given to his general practitioner on

that occasion. ln evidence, he denied that he had given that history and then

subsequently said that he was not sure.35

The plaintiff was then asked about an attendance on his general practitioner

on 20 July 1998. The history of that attendance appeared at DCB 104. The

plaintiff stated in his evidence that he had no recollection of attending the

doctor for dizziness and chest pains on that occasion. He also had no

recollection of the diagnosis of anxiety and hyperventilation. The plaintiff also

had no recollection that he was prescribed Lovan, an antidepressant

medication, at that time.36

The plaintiff was asked about his visit to his general practitioner on

7 September 1998. The history of that attendance appears on DCB 104.

At that time, the plaintiff was still taking Lovan medication. He complained

of dizziness to his general practitioner. ln his evidence, he stated that he had

no recollection of attending the doctor lor dizziness at that time. The plaintiff

was asked about two attendances on his general practitioner in 2000. The

first attendance was 22 June 2000, where the plaintiff attended upon his

general practitioner complaining of headache. The second attendance was

2 November 2000, where the plaintiff complained of a throbbing headache

and was prescribed Sandomigran. These attendances appear at DCB 108.

ln his evidence, the plaintiff denied any recollection of attending his doctor for

the complaints of headache or being prescribed Sandomigran.3T

The plaintiff was asked about his attendance on his general practitioner on

21 May 2001. The entry for this attendance appears at DCB 109. On that

JUDGMENTTsafkas v Trende Caravans pty Ltd

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VCC:AS/LPIDC12

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occasion it was recorded that the plaintiff complained of headache and neck

pain. The plaintiff in evidence in this application stated that he might have

attended the doctor on that occasion but he was not sure.3u

On 31 May 2002, it was recorded by the general practitioner that the plaintiff

attended complaining of a right-sided headache and migraine symptoms.3n

This visit to the doctor was at a time immediately before he commenced

employment with the defendant, Trende Caravans, in July 2002. I note that

this attendance records the headache as being right-sided. This headache is

in the exact area of the injury that the plaintiff now complains of. The plaintiff

stated in his evidence that he had no recollection of attending the doctor on

that occasion.ao

The plaintiff was asked about his history of medications which are listed at

DCB 1 15. The two separate occasions when the plaintiff had been prescribed

Sandomigran, of 2 November 2000 and 31 May 2002, were shown to the

plaintiff. The plaintiff stated that he had no recollection of taking the

medication Sandomig ran.o1 On 17 October 2005, the plaintiff attended

Dr Jim Romas complaining of neck pain radiculopathy.a2 The plaintiff was

referred for a CT scan of his neck. ln his evidence, the plaintiff stated that he

had no memory of this attendance or testing.a3

On 5 June 2006, the plaintiff returned to his doctor with complaints of

throbbing headache and right-sided headache. lt was noted in that entry that

the plaintiff had no left-sided symptoms despite an indication from the

CT scan that there was pathology of nerve root impingement on the C7 left

side.aa

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T49DCB 110T50T50DCB 117T52DCB 117


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The plaintiff attended the same general practitioner the next day on 6 June

2006. He was prescribed Voltaren tablets on that occasion. The diagnosis of

his condition was osteoarthritis to the neck.as The plaintiff had no recollection

of attending his general practitioner on two successive days.a6 He said that

he thought he may have tripped and lost his balance and hurt hís back.aT

The plaintiff then returned to his general practitioner on 20 June 2006,

complaining of numbness over the right side of the head.aB The plaintiff in his

evidence stated that he may have attended Dr Nassios for that complaint on

this occasion.ae

The plaintiff then attended at his general practitioner on 30 October 2006

complaining of episodic dizziness with paraesthesia in the legs. He also

complained of being stressed with his work situation.so ln his evidence, the

plaintiff conceded that he may have complained of dizziness and had no

recollection of the paraesthesia down the legs. However, he was clear that he

had complained about the stress at work situation.sl The plaintiff in this case

complains about dizziness and symptoms relating to headaches and in

particular to his right-sided headache. He has given evidence that he has

effectively no recollection of prior attendances on his general practitioner for

those symptoms. At the same time he gives evidence as a recollection of

complaining of stress at work. In this application, the ongoing stress at work

is not the subject of his application for serious injury as it related to the

incident arising from the impact of the putty ball on 17 September 2007.

The plaintiff in his evidence exhibited examples of selective memory and

convenient recollections. As the medical opinions rely upon an accurate

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DCB 117T54T53DCB 117T56DcB 118T58

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history being given by the plaintiff, it raises a difficulty in this case about a

proper assessment of the medical opinions.

On 1 May 2007, the plaintiff attended his general practitioner complaining of

neck pain and headache for about two weeks.s2 ln his evidence the plaintiff

had no recollection of this consultation with his general practitioner.s3

The plaintiff was asked about his attendance at his general practitioner on

27 June 2007. On that occasion he reported that the headache in the

morning was now better. He was reassured by his general practitioner that

the dizziness was coming from his neck.sa ln his evidence the plaintiff stated

that he did not have a memory of attending his general practitioner on that

occasion, and added:

"No, no. I don't know why my memory is - it's very bad at the moment."ss

The attendance by the plaintiff on his general practitioner on 27 June 2007 is

the last attendance on his general practitioner prior to the incident bringing

this matter to Court.

The plaintiff was cross-examined about prior claims made in respect of a low

back injury in the 1980s and also a transport accident claim in the year 2000.

These claims related to physical injuries which also carried with them the

symptoms declared by the plaintiff ol dizztness and referred pain up into his

neck area.

The plaintiff attended on his general practitioner on 5 Novembe¡ 2010. The

history given to his general practitioner at that time was that he had fallen

through the plaster roof at his home and fractured ribs and needed medication

for that pain.56 In his evidence, the plaintiff stated:

"Q: What were you doing up on the roof?--

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DCB 119T59DCB 120T 70, L13-14DCB 125


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A: l've had the insulation in the roof from I don't know how many yearsand it was blow insulation. This time to lndians came and knock onthe door asking me to put the insulation and I told them, "No." Andthey went up the roof and put the insulation in. But they threw it allover the place and a lot of the insulation was on top of the down-lights.

Q: So you went up to move it, did you?--

A: So I went to move them because in case it catch fire.

Q: You did not call your brother to go up and move it for you?--

A: No.

Q: Dr Nassios has recorded that you fractured your ribs when you fell,is that right?--

A: Yes.

Q: You needed some medication and "due to see a specialist nextweek," is that right? Did you go to see a specialist?--

A: For the ribs?

Q: After the fall?---

A: No, the medication was given to me by the hospital.

Q: You went to the Northern Hospital, is that right?--

A: No, Austin.

Q: How long were you at the Austin for?--

A: Four days, I think.

Q: You were in the Austin as an in-patient for four days?--

A: Yeah.

Q: What did they say was wrong with you?--

A: Fractured ribs.

Q: You saw a specialist there?--

A: No - | can't remember.

Q: Do you know what medication they gave you?---

A: One of them was a very strong one, it was the morphine and therest of them I don't remember. All together there were about six,seven tablets.

Q: lt is fair to say, isn't it, that that was fairly stressful falling through aroof and having to be in the Austin for four days?--

A: Not really. I was in pain. lwas in pain

Tsafkas v Trende ""r"j:r?.n#ffrl

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Q: So it did not cause you any stress or concern, that situation?--

A: Concerning what waY You mean?

Q: Worry. Were you worried?---

A: I was in pain. How can I say? I was in pain."s7

70 I find that it is clear from this evidence that the plaintiff did not feel physically

constrained by any injuries he received as a result of the putty incident when it

came to doing work around the house. ln his other evidence he had referred

to doing the gardening work and other tasks in keeping the house' The

general level of activity by the plaintiff around his home, including getting up

into the roof space to deal with the insulation, is indicative that he is more

physically active and feels as if he can achieve these tasks than the way in

which he presents to Professor Wong. I find that there is an inconsistency

between the presentation of the plaintiff to Professor Wong and the level of

activity he is prepared to engage in, in his day-to-day life.

Medical opinions

71 ln respect of the psychiatric and psychological impairment suffered by the

plaintiff as a result of the incident on 17 September 2007, the following

medical practitioners have given opinions.

72

Dr Jim Romas, general practitioner

Dr Ramos prepared a number of medical reports in respect of the plaintiff's

condition. The reports are dated 20 April 2010,21 October 2010, 26 June

2012 and the final report on 15 February 2013. Dr Ramos referred the plaintiff

to Professor Michael Wong, psychiatrist, on 19 February 2008.58 The

predominant issues addressed in his first three reports relate to matters of

physical injury to the plaintiff as a result of the incident the subject of this

application. ln his last report he stated as follows:

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"He still remains very markedly impaired gentleman with significantmental and Psychiatric problems. Physically he still has the samecomplaints of vertigo, headaches, right hand weakness.

ln conclusion remains [sic] a man with significant impairment withespecially regard [sic] to his mental state. His headaches are stillpersistent and are related I feel to mainly to his [sic] Psychological andmental state."5s

Dr N R Rose, psychiatrist

The plaintiff was sent by the defendant for examination and assessment by

Dr N R Rose, psychiatrist, on 25 August 2008. Dr Rose prepared a report

dated the same day. The purpose of the independent medical examination

was to determine if the plaintiff suffered from stress or a psychological injury.60

At this time the plaintiff was being treated by Professor Wong.

The plaintiff gave Dr Rose a history of having no motivation and not doing any

gardening.6l He also gave a history of no prior psychiatric illness.62 At the

time of the assessment Dr Rose diagnosed the plaintiff as having no work

capacity due to psychiatric injury. Dr Rose recommended a further

assessment in three to six months'time. This did not occur.

Dr Rose's assessment is now nearly five years old. Professor Wong and

Dr Duke have had more recent treatments and assessments of the plaintiff.

Dr Rose's assessment of the plaintiff in August 2008 does not assist me in the

assessment of the plaintiff's condition at the time of the hearing.

Dr Michael Piperoglou

The plaintiff was referred to Dr Piperoglou for medico-legal reporting

purposes. Dr Piperoglou examined the plaintiff on 11 December 2012.

Dr Piperoglou's report is dated 11 January 2013. The plaintiff stated to

Dr Piperoglou that he had been persistently the subject of jokes and hav¡ng

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staples fired at him from a staple gun at his place of work. The final incident

was the putty ball incident. The plaintiff gave a history to Dr Piperoglou that

he experienced anxiety and depression after being hit by the putty ball.63

Dr Piperoglou noted that the plaintiff had lost interest in life in general. The

plaintiff was no longer interested in gardening or fishing, which were activities

he used to enjoy.6a

ln the discussion section of Dr Piperoglou's report he stated:

"The injury is consistent with the stated cause i.e. chronic stress,harassment and fear of his physical safety over at least a two-yearperiod."65

Dr Piperoglou then went on to outline his diagnosis as a major depressive

disorder and an anxiety disorder. lt is at least of moderate severity.66

Dr Piperoglou has a different cause for the conditions suffered by the plaintiff

compared to the cause of the injury pursued in this application. Whilst

Dr Piperoglou takes note of the putty ball incident, he attributes the injury to

the longer period of time that the plaintiff had been employed and harassed at

his place of employment. Dr Piperoglou describes the condition as of

moderate severity. ln cases of mental or behavioural disturbance or disorder,

the statutory test is that the consequences to the plaintiff have to be to the

extent of being severe.

Shalika Ranaweera, psychologist

The plaintiff had been referred to Ms Ranaweera, psychologist, by his general

practitioner, Dr Ramos. Ms Ranaweera prepared two reports for the purposes

of this application dated 18 May 2012 and 16 March 2013.

ln the first report Ms Ranaweera gave the following opinion:

"l my opinion (sic), due to his work place injury, Victor is limited bothpsychologically and physically. Emotionally he feels that he cannot work


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at his previous place of employment as he does not feel safe. Thisseems to bring on an anxiety attack. He is finding it difficult to come toterms with his loss and feels depressed most of the time.

Victor appears to be continuing to re-live the accident trauma in apsychological form and is still battling with sustained physical injuriesfrom the accident. This seems to be debilitating his current lifecircumstances."6T

The psychologist at that stage expressed some optimism as to the therapeutic

outcome for the plaintiff as a result of the psychological treatment.

82

85

83 ln her later report, Ms Ranaweera gave the following opinion:

"ln my opinion Victor remains unable to work due to the severity of hisdepression, and general psychological state. Moreover his physicalcapacity, due to his injuries, has caused major physical restrictions."6s

84 ln the same report, the psychologist notes:

"Victor is not able to return to pre-injury duties as he is physically andpsychologically unfit to conduct any lifting and presents with a prolongedunhealthy state of mind. ln addition, he may experience somepsychological retraumatisation if he enters the previous workenvironment as he does not feel supported in his workplace."un

The reports by the psychologist Ms Ranaweera squarely raise the problem of

the inter-relationship between the physical injuries suffered by the plaintiff and

the psychological state of the plaintiff. The psychologist has not separated out

the respective symptoms and/or consequences between the physical injuries

and the psychological impact on the plaintiff.

86

Professor Michael Wong

Professor Michael Wong is the treating psychiatrist for the plaintiff. Professor

Wong prepared five medical reports in respect of this application. The reports

are dated 26 February 2008, 26 February 2010, 29 March 2012,6 December

2012 and the final report dated 14 March 2013. ln this hearing Professor

Wong was cross-examined by the defendant's counsel.

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Professor Wong first saw the plaintiff on 11 February 2OO8.7o Since that time,

Professor Wong has consistently and persistently treated the plaintiff on a

fortnightly or monthly basis except for a period between 3 June 2009 and

10 November 2009.71 Professor Wong in his report dated 6 December 2012

sets out the background that he was told by the plaintiff as to his condition.

It reads as follows:

"When he was hit at the back of head by a clay ball in September 2007and no one claimed responsibility he started to become unwell feelingdizzy and anxious. Over the subsequent 5 months and before his firstpsychiatric consultation in 2008 he said he had been feeling increasinglyanxious and depressed experiencing nightmares and becoming fearfulwhen going to public places such as shopping mall. He said he had losthis interest, motivation, energy, attention and concentration. He said he

was repeatedly bothered by dizziness and other non-specific somaticsymptoms. He said he had not been able to return to work and as amatter of fact he was dismissed by his employer soon after the incident.That caused much emotional stress and financial hardship."72

ln that same report, Professor Wong states that the plaintiff's past health was

unremarkable. This statement is at odds with the extensive medical treatment

and complaints of symptomatology in particular in relation to dizziness that is

in the evidence of this case. Professor Wong also has taken a history of

employment which does not set out the previous injury and period of time that

the plaintiff was out of work as a result of his back injury.

ln that report, Professor Wong diagnoses the plaintiff with an adjustment

disorder with anxiety and depressive mood.73 Professor Wong sets out that

the plaintiff had no previous history of mental illness and there are no other

causes for his adjustment disorder, apart from his work-related physical and

mental injuries.Ta Professor Wong's op¡nion at that time was that the plaintiff

was psychiatrically unfit to return to his pre-injury level of work. He found that

condition was likely to persist into the foreseeable future.


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The most recent report of Professor Wong, dated 14 March 2013, sets out the

current medication prescribed to the plaintiff in the form of Lexapro

20 milligrams per day, and Epilim 500 milligram twice per day. Professor

Wong in that report confirms his previous diagnosis of chronic adjustment

disorder with mixed anxiety and depressive features. ln reference to reports

prepared by Professor Michael Duke, psychiatrist, Professor Wong stated that

the symptoms experienced by the plaintiff do not warrant a separate diagnosis

of undifferentiated somatoform disorder as proposed by Dr Michael Duke.

On 20 March 2013, Professor Wong gave evidence in this case. ln his

evidence, Professor Wong confirmed that he still regularly sees the plaintiff on

a monthly basis. He confirmed that the medication the plaintiff was prescribed

was Epilim and Lexapro. The plaintiff sometimes uses Valium to control his

emotional distress. Professor Wong has certified the plaintiff as unfit for work

from the first time he saw him in 2008 until the current time.

Under cross-examination, it became clear that Professor Wong had not been

given a full history of the relevant symptoms suffered by the plaintiff prior to

his attendance on Professor Wong in 2008. Professor Wong's evidence was

as follows:

"Q: He did not make you aware of any pre-existing anxiety issues hemay have had?--

A: No, he did not.

Q: Or of any depressive difficulties he may have had in the past?--

A: No, he did not.

Q: So your impression is basically this was a man who was very wellpsychiatrical ly and psycholog ical ly u p until approximately 2006? ---

A: Yes, that's correct."7s

93 Professor Wong was cross-examined and it became clear that:

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He had not been told of the anxiety reported in 1990 in respect of the

plaintiff.T6

He was not aware of the anxiety and stress problems reported to

Dr Ramos by the plaintiff in 1997.77

He was not aware of the anxiety and hyperventilation repoiled by the

plaintiff in July 1998.78

He had been told that the headaches suffered by the plaintiff had

commenced as a result of the incident in Septembe¡ 2OO7 '7s

He had not been told about the headaches and dizziness reported in

October 1996.80

He had not been told about the treatment for dizztness in September

1ggg.81

He had not been told the headaches and/or throbbing headaches

reported in June 2OOO.82

He was not aware that the plaintiff had been prescribed Sandomigran in

the past.83

He had not been told that the plaintiff had suffered right-sided headache

and migraine in May 2000.8a

He had not been told that the plaintiff had complained of dizziness at

work on 7 September 2006.85


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o He did not know that the plaintiff had complained on 13 october 2006

about episodic dizziness with paraesthesia in the legs and stress with the

work situation.s6

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After all of these pieces of medical history had been pointed out to Professor

Wong, his evidence on those issues was:

"Q: All of this tends to indicate, doesn't it, that this is a plaintiff who hasgot some - including the psychiatric elements I took you to earlierfrom the 1990s, this is a plaintiff who has got some predisposition tothese sorts of problems, being dizziness, headaches and also thepsych iatric difficulties?--

A: That is correct."87

ln his evidence, Professor Wong disagreed that the diagnosis of adjustment

disorder was no longer applicable. And he also disagreed that the

maintenance of the condition now is due to internal factors rather than the

original work injury.88 Professor Wong disagrees with Dr Duke's diagnosis of

an undifferentiated somatoform disorder.se Professor Wong was unable to

distinguish the symptoms relating to the physical injuries and the psychiatric

condition of the plaintiff. The evidence in this regard was:

"Q: Are you linking that to the physical injury or the psychiatric injury?--

A: I think he has sustained both physical and psychiatric injuries asevidenced in the history of his current WorkCover claims.

Q: When you say what he has suffered is not in excess of what wouldbe expected, are you there referring to the physical or thepsychiatric part of it?--

A: I think it is academic but I think we should not - or we - or at least I

am not in the position to be able to tease out the interactionbetween his bodily symptoms and his psychiatric symptoms on thisoccasion.

HIS HONOUR:

O You can't separate them, is what you mean?---

A: Yes, I think it seems that he suffers both psychological and physicalinjuries at this work place and it seems to happen at the same time

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and teasing them out I think is not a task that I am able to do so,

Your Honour."so

ln his evidence, Professor Wong put forward a number of causes for the

plaintiff's current psychiatric and psychological condition. One of the causes,

according to Professor Wong, was that the plaintiff is distressed by the

outstanding nature of the investigation of his WorkCover claim.el Another one

of the causes of the stress to the plaintiff is that the investigation into what

actually happened to the plaintiff has not been completed'e2

Professor Wong stated:

"A: Yes I think the patient continues to fail to understand why he hasbeen victimised and lthink the understanding of the nature of hisinjury is important. He continued to feel that he has been injured,physically and psychologicalfor a no end, probably no good reason.

¡93

Professor Wong later in his evidence states that the failure to locate any

former colleagues to support his claim and the lack of progress of his claim

continues to put a lot of stress and strain on the plaintiff's daily life.ea

Almost in frustration, Professor Wong gave this answer in his evidence:

"A: Your Honour, aS I have already repeated myself, that the stressesand the consequences perpetuate as a result of the lack ofcompletion of the assessment of his work related injuries.I continue to insist that it's a better way to represent my view ratherthan the wordings as;iust mentioned by the counsel."

Professor Wong's final position in relation to diagnosis was that:

"A: I think I have got necessary and sufficient information from whatlgather and I think from his work related injuries, physical andpsychological, to substantiate that to his current experience,anxiety, depression, and non-specific somatic symptoms areadequately and completely addressed and explained by adjustmentdisorder with mixed anxiety and depressive symptoms without anyneed for any additional diagnosis."e5

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101 Professor Wong has given that diagnosis in a situation where he was not in

possession of the full diagnostic history from the plaintiff, nor what he referred

to as the other external factors.

102 ln relation to the work capacity of the plaintiff, Professor Wong stated that the

plaintiff was unable to return to work. Professor Wong did not say that the

plaintiff was unable to work in the general sense, just that he was unable to

return to his pre-injury work.e6

103 ln summary, Professor Wong was continuing to consult with and treat the

plaintiff on a monthly basis. He also continued to prescribe the medications of

Epilim, which is a mood stabiliser, and Lexapro, which is an antidepressant

medication. On occasions the plaintiff was also prescribed Valium to control

his emotional distress and Temazepam to assist in sleeping. Professor Wong

completely disagreed with the opinion of Dr Michael Duke, psychiatrist.

Defendant's medical evidence

Dr Paul Kornan

104 Dr Paul Kornan, psychiatrist, prepared a report dated 26 July 2010. The

plaintiff gave a history to Dr Kornan that he had not had any previous stress

problems in his life príor to the injury relating to this application.eT The plaintiff

had informed Dr Kornan that he was someone who had previously liked to go

out a lot with his wife and children and to have a laugh with them. Dr Kornan

assessed the plaintiff as having an adjustment disorder with mixed anxiety

and depressed mood.eB ln Dr Kornan's opinion, the plaintiff d¡d not suffer from

any limitation in respect of his daily activities of living from a psychiatríc

viewpoint.se Dr Kornan assessed the plaintiff's impairment in a psychiatric

sense as being caused by his injury with the ongoing pain and discomfort that

has led him to be depressed, angry, irritable and tense. Dr Kornan was of the

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view that the psychiatric impairment is a secondary impairment to the physical

injuries. ln that regard, if Dr Kornan's assessment is accurate, it does not

assist the plaintiffs claim for serious injury based on a psychiatric or

psychological impairment.

105

Dr Michael Duke, psychiatrist

ln this matter Dr Michael Duke prepared reports dated 19 August 2009,

6 October 2009, 17 November 2009, 28 May 2012, 26 February 2013,

7 March 2013 and two reports dated 14 March 2013. The contest and conflict

between the treating psychiatrist, Professor Wong, and the medico-legal

assessment psychiatrist, Dr Michael Duke, was a significant matter in this

particular hearing. I ordered that in this case it was appropriate for Dr Duke to

attend to give evidence and be cross-examined so that I was in a position to

properly assess the psychological and psychiatric condition of the plaintiff.

106 Dr Duke first assessed the plaintiff on 19 August 2009. This assessment

occurred approximately in the middle of the period between 3 June 2009 and

10 November 2009 when the plaintiff did not see Professor Wong. ln his

evidence, Dr Duke described the symptoms of the plaintiff as follows:

"A: Mrs (sic) Tsafkas complained of a range of symptoms which in my

view were not adequate in number or severity to qualify him for thediagnosis of adjustment disorder any longer. He had receivedtreatment from not only his general practitioner but Professor Wongsince November 2007 which in my estimation had proved sufficientto diminish his depressive symptoms."10o

107 The diagnosis made by Dr Duke was an undifferentiated somatoform disorder

108 When Dr Duke examined the plaintiff in May 2012, he answered as follows

"A: Mr Tsafkas, when I saw him in May 2012 had ongoing physical

symptoms which I consider to be the undifferentiated somatoformdisorder. As a result of the continuation, the lack of amelioration ofthose symptoms he had once again acquired a depressive illnesswhich I consider to be a secondary adjustment disorder. So despitehaving recuperated to a degree in 2009, by the time I saw him again

three years later ongoing symptoms of a physical nature and

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presumably these have worn him down and made him depressedagain."1o1

It was clear from Dr Duke's evidence that by May of 2012 the plaintiff's

psychiatric condition was a secondary condition to the physical complaints

that the plaintiff was experiencing.

Dr Duke was cross-examined about this differentiation in diagnosis. The

following exchange occurred during the course of evidence:

"Q: Are you saying that Mr Tsafkas did have an adjustment disorder atthe time and it was one that had continued from shortly after theevents of September 2OO7?--

A: ln my first report of August 2009 I formed a conclusion that theinitial adjustment disorder had been ameliorated hopefully bytreatment from Professor Wong but that he had ongoing physicalsymptoms congruent with undifferentiated somatoform disorderwhich by 2010 according to Dr Kornan and 2012 on my directobservation had a new disorder, a new adjustment disorder hadoccurred and I felt this was secondary to his ongoing unremittingsymptoms."l02

Dr Duke was then asked about the treatment given to the plaintiff by Professor

Wong. Dr Duke very carefully distinguished between his role as an

independent medical assessor and the position that Professor Wong was in in

relation to a patient and treating practitioner's therapeutic alliance.103

There is a clear clash or difference between the two psychiatric assessments

that are contemporary with the time of this application given by Professor

Wong and Dr Duke. The plaintiff has the onus of proof in this case. lt is clear

that the plaintiff is continuing to complain of physical related injuries as a

result of the incident on 17 September 2007. The complaints of pain are in

the back of the head, buzzing in the ears, and referred pain from, as he

described it, his back up to his neck up to his head. The anxiety and

depressive nature of his symptoms arise from a reaction to his physical

injuries. The complication for the plaintiff is compounded when the evidence

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of Professor Wong is taken into account, particularly to do with the complaints

made by the plaintiff about the failure to fully investigate the incident giving

rise to this claim by the employer. This disappointment on the part of the

plaintiff or the depressive reaction to it as described by Professor Wong is not

causative of his psychiatric symptoms which are said to have arisen on the

17 September 2007.

113 I accept that both Professor Wong and Dr Duke have earnestly and honestly

attempted to properly assess and give an opinion in respect of the condition

suffered by the plaintiff. I am not satisfied that the plaintiff has proved that his

psychiatric and psychological condition for which he is being treated by

Professor Wong is caused by the incident in September 2007. I am also not

satisfied that the psychiatric or psychological impairment suffered by the

plaintiff is sufficient to satisfy the test under the Act of being "severe".

Consequences of the alleged psychiatric condition to the plaintiff

Sleep

114 The plaintiff claims that his sleep is disturbed by the psychiatric and

psychological reaction to the incident in September 2007. lt is clear from his

evidence and the evidence of his wife that the plaintiffs sleep is disrupted by

both the continuing pain from his old back injury and also from the head injury

as a result of the impact from the putty ball. In particular, Mrs Tsafkas gave

evidence as follows:

"Q: So that is what affects his sleep, is it, the fact that it hurts when heputs his head down on the Pillow?---

A: I said to you that when he puts his head on the right side, it hurtshim. That is what I said."loa

115 The evidence of Mrs Tsafkas indicates that the cause of the sleep disruption

is the physical injury she describes to the right rear side of the plaintiffs head.

That was the point of impact of the putty ball in September 2007. I am not

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satisfied that the interruption to the plaintiff's sleep is a result of any

psychological or psychiatric reaction by him.

Pain

The plaintiff has given evidence that he suffers pain as a result of his injuries

in September 2007. The overwhelming force of the plaintiff's evidence is that

the pain he suffers is as a result of his unresolved physical injuries. These

injuries are in combination: his lower back, which is an old injury; his neck

injury, which he says occurred in September 2007; and the impact point to the

right side of his head at the back. The pain consequences the plaintiff

complains about are not related to any psychiatric or psychological condition.

Sport

The plaintiff states that he has sporting consequences as a result of the

injuries received in September 2007. The first consequence he says is that

his general practitioner, Dr Ramos, had refused to fill in the appropriate forms

for him to continue with a gun licence. He stated the reason for this is that he

is angry and upset. lt is for this reason that he has had to give up shooting.

The fact that the plaintiff now suffers from anger and mood swings, I find, is a

secondary condition resulting from the physical injuries. I do not accept that it

is a psychiatric reaction to the incident on 17 September 2007.

The second sporting activity the plaintiff complains has been taken from him

as a result of the incident on 17 September 2007 is that he no longer goes

fishing. ln his evidence, the plaintiff conceded that he had gone fishing on a

number of occasions but just dropped a line over the side. Whilst I accept the

plaintiff may have reduced the amount of fishing that he engages in at the

current time, compared to those times prior to September 2007, I do not

accept that this is a significant consequence for him. The position is that he

can still do it, but elects not to.

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Activities of daily living

Mrs Tsafkas gave evidence that the plaintiff did the odd jobs around the house

including household stuff, as she described it, doing the dishes, hanging out

the clothes and the gardening. In short, she stated, if anything is needed, yes

he does it.105 Mrs Tsafkas confirmed that the plaintiff had fallen through the

roof whilst attempting some maintenance job at the house. I do not accept

that the plaintiff's activities of daily living have been limited in any way by his

psychiatric or psychological condition arising from the September 2OO7

incident. lndeed, it appears as if his physical injuries have not limited him in

this regard.

Medication and ongoing treatment

The plaintiff is continuing to receive treatment from Professor Wong and his

general practitioner. He continues to be prescribed and take medication of

Epilim and Lexapro. Whilst the necessity to take medication and continue to

receive therapeutic treatment from Professor Wong and Ms Ranaweera, the

psychologist, is a significant impost upon the plaintiff and indicative of

something of some consequence, I do not accept that this treatment is for a

psychiatric or psychological condition per se. The psychological and

psychiatric condition is secondary to his physical injuries which remain

unresolved despite extensive medical examinations by neurologists and

occupational therapists to diagnose and attend to those physical injuries. I am

not satisfied on the balance of probabilities that this treatment is directly

related to anything to do with his injury on 17 September 2OO7. The plaintiff

had a long history of anxiety and depressive-type symptoms leading up to his

employment with the defendant. He has never at any time told his treating

psychiatrist or psychologist about this history. The evidence they give in

regard to the cause of his current position is compromised by that lack of

psychiatric and psychological history.


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Loss of earning capacity

ln this application there is no dispute that the plaintiff has not worked since the

termination of his employment with the defendant. The issue in respect of the

loss of earning capacity certification is whether or not the injuries described as

psychological and psychiatric are the cause of the plaintiff's inability to work.

As I have previously outlined in these reasons, there is an inter-relationship of

physical injury and psychological/psychiatric response by the plaintiff. The

plaintiff has presented a case which is said to be productive of consequences

in relation to his incapacity for work and also an impact on his loss of

enjoyment of life. The plaintiff bears the onus of disentangling the injuries

relied upon, both physical and psychological or psychiatric, and proving the

consequences of that impairment to those separate body functions or

consequences. In this case, the plaintiff is required to satisfy the Court that

the pain and suffering consequences or loss of earning capacity

consequences, when judged by comparison with other cases in the range of

possible mental or behavioural disturbances or disorders, can be fairly

described as being more than serious to the extent of being severe. I do not

accept that the consequences outlíned by the plaintiff in his application reach

this standard.

ln conclusion, the plaintiff has the onus of proof. The plaintiff has failed to

disentangle the physical injuries from the psychological and psychiatric

consequences. The plaintiff has failed to establish that the consequences for

him are of the standard required under the Act.

For these reasons, the plaintiff's application for serious injury in respect of

pain and suffering damages and loss of earning capacity is dismissed.

124 | will hear the parties on costs

¡UOCrr¡ENTTsafkas v Trende Caravans pty LtdVCC:AS/LP/DC

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IN COUNry Revised Suitable Publication · 2013. 11. 20. · manufacturer of caravans. The majority...

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