IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION DAMAGES COMPENSATION SERIOUS INJURY DIVISION

Revised Not Restricted

Case No. CI-09-05758 ERIC O'ROURKE v STATE OF VICTORIA --JUDGE: WHERE HELD: DATE OF HEARING: DATE OF JUDGMENT: CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION:

Plaintiff

Defendant

HER HONOUR JUDGE KINGS Melbourne 26 and 27 August 2010 8 September 2010 O'Rourke v State of Victoria [2010] VCC 1310

REASONS FOR JUDGMENT --Catchwords: ACCIDENT COMPENSATION Accident Compensation Act 1985 serious injury claimed for psychiatric injury in respect of pain and suffering and loss of earning capacity leave granted. --APPEARANCES: For the Plaintiff For the Defendant Counsel Mr P Y Rattray QC with Mr S R McCredie Ms M A Hartley SC with Ms M Dib Solicitors Slater & Gordon Ltd Lander & Rogers

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

!Undefined Bookmark, I

HER HONOUR:
1

This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (the Act) for psychiatric injury suffered by him in the course of his employment with the defendant between October 1999 and his retrenchment in 2004. The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.

The plaintiff brings this application pursuant to clause (c) of the definition of serious injury to be found in s.134AB(37) of the Act.

There, serious injury is defined as meaning permanent severe mental or permanent severe behavioural disturbance or disorder.

The plaintiff relied upon two affidavits sworn 14 July 2009 and 29 July 2010. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which is tendered in evidence. I have read all the tendered material.

Relevant Legal Principles

5

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 s.134AB(37) of the Act.1

The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is described as a Major Depressive Disorder.

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, his employment with the defendant on or after 20 October

S.134AB(19)(a) of the Act 1 JUDGMENT O'Rourke v State of Victoria

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1999;2 (b) the mental or behavioural disturbance or disorder must be permanent that is, permanent in the sense that it is likely to last for the foreseeable future;3 (c) the consequences to the plaintiff of the mental or behavioural disturbance or disorder in relation to pain and suffering or loss of earning capacity must be severe that is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe.4
8

The test for severe as set out in paragraphs (b) and (d) of s.134AB(38) of the Act is sometimes referred to as the narrative test.

In addition, in relation to loss of earning capacity consequences, the plaintiff has a specific burden to establish:5 (a) that as at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;6 and (b) that after the date of hearing he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.7

10

In determining the application, the Court: (a) must make the assessment of serious injury at the time the application

2 3 4 5 6 7

S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11] See Barwon Spinners (op cit) at paragraph [33] S.134AB(38)(b) and (d) of the Act S.134AB(19)(b) and (38)(e) of the Act S.134AB(38)(e)(i) of the Act S.134AB(38)(e)(ii) of the Act 2 JUDGMENT O'Rourke v State of Victoria

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is heard;8 (b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment;9 (c) notes that s.134AB(38)(b) of the Act provides that the consequences of an injury in terms of pain and suffering and loss of earning capacity are to be considered separately. In the event that a worker satisfies subparagraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of pain and suffering damages only; (d) if a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages (i.e. both for pain and suffering and loss of earning capacity).10 The Issues
11

The defendant contends that: (a) The impairment consequences of any mental or behavioural

disturbance or disorder from which the plaintiff suffers are not severe as defined in s.134AB(38)(b) and (d) of the Act. (b) In the alternative, the impairment consequences of any mental or behavioural disturbance or disorder from which the plaintiff now suffers are not permanent, in that he has not had specialist psychiatric treatment which could affect his prognosis. (c) The plaintiffs capacity for suitable employment would result in him earning more than 60 per cent of his pre-injury earnings determined in
8 9

10

S.134AB(38)(j) of the Act See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63] 3 JUDGMENT O'Rourke v State of Victoria

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accordance with s.134AB(38)(e) and (f) of the Act. The Plaintiffs Evidence
12

In his first affidavit, sworn 14 July 2009, the plaintiff deposes that: He was born on 29 January 1957, is now aged fifty-two, is married and has two children, aged twenty-two and eighteen. He receives the Emergency Services Superannuation Scheme pension (ESSS pension) and has a small part-time job working as a private investigator, mainly WorkCover cases with video surveillance. Recently he changed his activity as an investigator from surveillance to factual, conducting interviews, but could not tolerate the work because it was too stressful. He is not working very much at all. He was previously employed with Victoria Police for nearly thirty years in the surveillance unit, which he enjoyed, and he took great pride and satisfaction in competently performing his work. He experienced

significant difficulties with the manager of his unit, and considered he was unfairly treated. He attempted to address the work issues, and He suffered from anxiety, depression,

attended a mediation.

hypervigilance, difficulty sleeping, and was constantly ruminating about what occurred at work. He also received abuse from another senior sergeant, and decided to leave surveillance. Because of his symptoms, he sought a temporary transfer to alternate work at Werribee, and then later Bacchus Marsh, but found it difficult to function. He continued with this work for approximately two years. He consulted his general practitioner in May 2004 and was certified unfit to work, and was prescribed anti-depressant medication and referred to a psychologist.

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In 2005, he was assessed by the Police Medical Officer as being permanently incapacitated for any form of police work.

In 2006, he was granted an ESSS disability pension on the grounds of his work-related stress condition.

In late 2006, he undertook a private-investigator training course and commenced part-time work as a private investigator, working about two days a week.

He is presently taking Aurorix, 600 milligrams per day, and Temazepam when required. His sleep patterns remain affected. He has suffered oral thrush and dry mouth and abdominal upset because of the medication, which he has now been taking for four years.

He suffers lack of motivation, irritability, poor concentration, impairment of memory function, considerable difficulty in sleeping, which becomes worse with work activity, teeth grinding, and low libido. He feels

depressed, and cannot handle stress. His relationship with his wife has deteriorated. The following activities are affected: Gardening, he has spurts of

motivation but gardening takes forever. He used to enjoy travelling in a 4-wheel drive all over Australia. He used to ski, but because of his

condition he is too anxious and stressed, and has stopped skiing. He does not read as often as he used to, because of difficulty with concentrating. He had an interest in photography but rarely pursues that activity. He is socially inept and has been binge drinking to escape it. He cannot accept criticism. He has only played golf twice in two years. He used to invest in residential property developments with a business partner, but this has been reduced, because he no longer has the income or interest. Prior to suffering his injury, he was in receipt of an income at the rate of approximately $80,000 gross per annum.
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believes he would only be earning $20,000 gross per annum.

13

In his second affidavit, sworn 29 July 2010, the plaintiff deposes that: He remains significantly affected by the psychiatric injury and is affected by symptoms associated with depression. He continually feels depressed, anxious, and worthless. His self-esteem and self-confidence have decreased significantly. He lacks energy, and his concentration is diminished. He has difficulty getting to sleep about three times per week, and sometimes sleeps during the day. He avoids crowds, and does not like going shopping as a consequence. He does not like seeing members of the police force. As a result of his condition, he and his wife have grown apart, but still live together. He currently takes Aurorix, 300 milligrams twice a day, and Temazepam to help him sleep, up to five times a week in a bad week. He becomes panicky, and cannot handle pressure. He has developed high blood

pressure, which he believes is stress and anxiety-related. He can only work a few hours a week as a general rule an average 5 hours per week over the last year. He used to work 15 hours a week, but was reliant on having a co-worker with him. available, and he cannot work on his own. He is currently working as a casual part-time worker with Wyndham City Council, setting up functions for community events, and occasionally doing some bar work. He earned $12,600 in that job in the 2009/10 financial year. Cross-Examination of the Plaintiff
14

His co-worker is not

The plaintiff was extensively cross-examined and gave the following pertinent evidence:

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As part of his police work, he had qualified with a Certificate IV in Training and Assessment and worked as a trainer.

After he left the police force, he was given a Certificate III in Investigation.

After leaving the police force, he was approached to do training and assessment work with respect to surveillance, and set up a business as a private surveillance investigator.

He conceded that he cancelled his skiing trip in 2004 due to problems with his back. Since then he has had two attempts at skiing. He tried to downhill ski but was having panic attacks, falling over a lot, so he tried cross-country skiing, which was a bit less treacherous when he has a panic attack. He has only cross-country skied once. He conceded he should do it more often.

He says now, looking back on his psychological condition, he had been in a deteriorating psychological condition for a long time prior to ceasing work in May 2004, he just had not identified it.

He was referred to Mr Carfi, a psychologist, and continued to see him until some time in 2006. Mr Carfi discussed with him how to deal with issues, and he acquired some coping strategies, so by mid-2006, he had made a marked improvement. However, he said by late 2005, he had not got back to normal.

He said in 2005/2006, he had gone from sleepless nights, night after night, to where he was getting some good nights sleep. He said getting off to sleep and waking up were issues, but that he probably had four or five nights of undisturbed sleep.

He agreed that he feels panicky at times when under pressure. He gave an example of feeling panicky under pressure when he was doing an

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errand, parked his car, was walking to the shop, and found his wallet was not in his pocket. He panicked and had to turn back and go home. He says he gets panic attacks when he receives a phone call asking him to do surveillance work, and that occurred most recently last week. He avoids social encounters. In re-examination, he said he cannot

engage in conversation. He gets clumsy. He mixes up words. He accepted that there were periods of a month at a time when there was no issue, and then there are periods when everything seems to upset him. When he feels depressed he feels hopeless, helpless,

useless, worthless, with low self-esteem and confidence, and those words are part of who he is all the time. He said he could use the computer for Excel, PowerPoint and Word programs, and he had done photographic entries on the computer. He was asked about gardening, and said that he would have told a doctor he has some wins in the garden but he lacks motivation, but it goes in fits and bursts. He agreed that he could go and buy the paper or milk but he did not do the shopping. In re-examination, he said that he went to the shopping centre with his wife; he did not like being in a crowd. examination, he said he could not do the weekly shop. He was asked about his medical treatment. He said he had seen his general practitioner, Dr Black, regularly, until Dr Black retired in mid2009. He then went to a super-clinic and saw Dr Emerson, who has now left that clinic. For the last three or four months he has seen Dr Ghani. He gets prescriptions from Dr Ghani but has not discussed his issues with him. Currently he is taking Aurorix daily and Temazepam as In cross-

required. He agreed he was not seeing a psychiatrist, but said he might

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get Dr Ghani to refer him to one. He was asked about his career and earning capacity. He agreed that he had set up a business in surveillance. He said he was working with three other people who were former colleagues, ex policemen who supported him and kept him afloat, but that they are now unavailable. He has tried to work with other people, but it has not been satisfactory, and he often feels uncomfortable. His former colleagues provided him with leadership and instruction, as he just does not have that in him now. He would dearly love to be working full-time at a job which he was good at. He was asked about doing factuals. He said his personal skills are not what they should be for that type of work. When you interview people it can be quite confrontational, and he does not have those confrontational skills. He was asked about working undercover. He said he had tried it, but he was unsuccessful. He was working at the local Council, preparing meeting rooms, setting up tables and chairs. He had worked on two occasions in the bar this year. He was asked about his property investments. He had a partner who did all the work. He was like a silent partner. He was asked about attending a public company meeting in Sydney for the purposes of asking questions at that meeting. He said that was a failed undercover operation. He could not get into the meeting, and in re-examination, he said that was because he had a panic attack. He was also asked about working for Toll Holdings. He was required to work in the warehouse, to watch the comings and goings in the warehouse. He worked 4 to 5-hour shifts. He was concerned he would be identified. His alcohol consumption went through the roof. He had to give the job away.

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He was asked in re-examination about insurance investigations and undercover operations. He said he loses concentration. He gets

anxious. He said with surveillance you have got to keep cool, calm and collected, and he cannot do that. When he committed to working more than four or five days, after the first day he had to take the next day off. He gets tired, and his aggravation levels increase. He is very difficult to live with at home. He is flat, unresponsive, and sleep is a real issue He said his aim has always been to get back to full-time work. He wants to get off the pension. There is no dignity in receiving it. Further, the longer he is on the pension, the payout diminishes. It is an endless strain, and it is not the right position to be in. The Plaintiffs Medical Evidence
15

In October 2004, Dr John Russell, rehabilitation provider with Victoria Police, provided a Stress Intervention Report. It was his view that the plaintiff had been profoundly affected by a variety of scenarios in some of the toughest areas of policing. He demonstrated quite clear flat affect and was at a point where he wished to consider other options.

16

Based on the results of a Personality Assessment Inventory test, he said, in respect to treatment, the plaintiff was currently too disorganised or felt too overwhelmed to be able to participate in meaningful treatment. With regard to diagnostic considerations, the test suggests that a Post-Traumatic Stress Disorder and Major Depressive Disorder, single episodes, should be considered.

17

In a letter dated 15 December 2005 to the Commander, Intelligence and Covert Support Department, Dr A McKenna, Assistant Police Medical Officer, said that the plaintiff was permanently unfit for all police duties and recommended retirement on ill-health grounds.

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18

In August 2008, Dr Rhyll Black, occupational physician and general practitioner, said she had been treating the plaintiff since May 2004 regularly. She considered he was suffering a Post-Traumatic Stress Disorder resulting from the cumulative effect of his work with the police force. She said he was certified unfit for work. She prescribed anti-depressant medication and In 2005, the

referred him to Mr Gus Carfi for psychological counselling.

plaintiff was assessed by the Police Medical Officer as permanently incapacitated for any form of policing duties. Dr Black said in late 2006, the plaintiff commenced part-time work as a private investigator. Provided he works no more than two days a week, his condition remains stable. She said the diagnosis was a Major Depressive Disorder. In her opinion, he had

sustained a significant degree of permanent impairment as a result of his work-related injury. While his condition has slowly improved, he remains

partially incapacitated for employment. She said his condition is unlikely to improve further in the future.
19

In August 2004, Mr Carfi, psychologist, reported that the plaintiffs recovery and attainment of the pre-morbid level of functioning was guarded. He

accepted his condition was work-related. In October 2008, he diagnosed the plaintiff with a Major Depression and Anxiety Disorder and said if the plaintiff were placed in a pressured situation he could easily and quickly decompensate. Mr Carfi thought the plaintiffs condition was likely to be

permanent, in that his ability to function in a work setting for which he is skilled, trained and experienced remains severely limited.
20

The plaintiff was examined by Dr Lester A Walton, consultant psychiatrist, in May 2009 for the purpose of his review under the ESSS pension. It was his view that the plaintiff would never be fit for normal police duties nor fit for alternative duties within the police force. He thought he was able to work parttime but did not consider it would amount to more than a two-day per week commitment. He said the plaintiff had a Chronic Depressive Disorder which

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was now in partial remission.

He thought his extended work stress had

caused a disturbance of neuropsychiatric brain function. He anticipated that his psychological dysfunction would remain the same for the foreseeable future. He considered the plaintiffs psychological counselling, mood

stabilising and sleeping medications were the appropriate treatment regime. He had no recommendations to make regarding additional treatment.
21

In April 2007, Dr Peter Smith, consultant psychiatrist for the ESSS pension, diagnosed a Major Depressive Disorder with guarded prognosis. He said that workplace related pressures had played a major contributing role. He said that irrespective of treatment, it is improbable that alterations in treatment would assist the plaintiff returning to work now or in the foreseeable future. He said he is only able to work on a part-time basis at the present time.

22

In May 2009, Mr John King, psychiatrist, said the plaintiff was never likely to be fit for normal duties and is not fit for alternate duties in the police force. He said he was capable of working on average one day per week in the surveillance area. He diagnosed a Major Depressive Disorder. He said he had made a partial recovery which he did not expect to improve.

23

In a report of June 2007, Dr Nichole Phillips, psychiatrist, examined the plaintiff for the purpose of review of the ESSS. It was her view that the

plaintiff was currently fit for alternative duties for work outside of the ESSS pension. She noted that he had worked as a private investigator two days a week but found it difficult to increase his hours beyond that. She felt he was unfit for full-time employment. She did not consider that he would improve much further than where he currently was; that is, he is likely to stay much the same. In respect to his medical management, she said there was nothing further she could say.
24

In October 2008, Dr David Weissman, psychiatrist, provided a report to the impairment benefit specialists for Victoria Police. He noted that liability had

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been accepted and the assessment was for the workers permanent impairment only. Dr Weissman said the quality of the plaintiffs affect was labile, tearful, distressed, anxious and depressed. It was his view that the plaintiff was an open, honest and genuine historian who he had no difficulty in accepting the validity or voracity of his account. He thought the plaintiff was a stoical, ethical and conscientious person, and he described his pre-morbid personality as positive, confident and outgoing. This has changed since the work injury. He assessed the plaintiff as having a Major Depressive Disorder. Psychiatric assessment concluded that he was suffering from a Chronic Major Depressive Disorder with Anxiety and features of traumatisation due to his work-related injury.
25

As to the plaintiffs prognosis, Dr Weissman said it was fairly good, though he may be prone to exacerbation or aggravation of his depression and anxiety symptoms in the future at times of stress. He noted that he was only just coping with work and his current workload involved 15 hours per week doing much less stressful duties than in his previous employment.

26

In December 2008, the Medical Panel accepted that the degree of psychiatric impairment was permanent within s.91 of the Act.

27

In July 2010, Dr Michael Epstein, psychiatrist, saw the plaintiff at the request of his solicitor. The plaintiff complained of difficulty with sleeping at least two or three nights per week with initial, mid and late insomnia. He said he

avoided shopping and avoids any contact with his former employer and is upset when seeing members of the police force. He complained of occasional nightmares, about the way he was treated at work and flashbacks at least weekly. He said he felt panicky at times when under pressure and avoided social encounters. He complained of being depressed two or three days per week, lasting for an hour or so. He is able to distract himself. During those times he feels hopeless, helpless, useless, worthless but less tearful. His selfesteem and self-confidence has been reduced.
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He said he was bored,

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restless, frustrated, lonely, isolated, irritable, exhausted and agitated. He has problems with memory and concentration. His libido remains low and he has infrequent sexual activity. His relationship with his wife has become quite distant. He is currently taking Aurorix, 300 milligrams twice per day, and

Temazepam, one tablet four or five nights per week. Dr Epstein noted that his affect was restricted and he appeared depressed and mildly anxious.
28

It was Dr Epsteins view that the plaintiff had developed (after 20 October 1999) a generalised anxiety disorder with features of depression that occurred in the context of work-related harassment between 1998 and 2002. His

condition continued to trouble him despite psychological treatment and the use of anti-depressant medication. He said the plaintiff attempted to work on a part-time basis but has difficulty coping when he has attempted to work more than a few hours per day. Dr Epstein said the plaintiff had experienced a significant reduction in the quality of his life, affecting his work capacity, his relationships and his recreational enjoyment. It was his view that the plaintiff was unable to return to his pre-injury employment and his prognosis for returning to full-time work is poor. He said his condition was stable.
29

In April 2009, a Vocational Assessment Report was prepared by Katrine Green Consulting Pty Ltd at the request of the plaintiffs solicitor. The report concluded that the plaintiff would be suitable for the following work: private investigator/surveillance officer part-time work, most likely being a maximum of two days per week security work two 4-hour shifts training and development professional sessional basis only courier, provided it was related to policing surveillance/security industries on a sessional basis only.

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The Defendants Medical Evidence

30

The plaintiff was medically examined by Dr Timothy J Entwisle, psychiatrist, in November 2005 and April 2010. In 2010, Dr Entwisle considered the plaintiffs condition was in remission. It was his opinion that the plaintiff had an He

Adjustment Disorder with Depressed Mood and Anxiety in remission.

thought he presented as essentially the same as when he saw him in 2005. He considered his condition was related to the injury sustained in the course of his employment. Dr Entwisle considered he had a capacity for work. He noted that he had engaged in work via the local Council three to four days a week for 2 to 3 hours per day, as well as surveillance work once or twice a month when it became available to him. He considered his overall prognosis was good, provided he continued to focus on his daily routine. In respect to treatment, he said that the plaintiff noted if he attempted to reduce his medication his symptoms returned. Dr Entwisle considered that it was

appropriate he continued to receive treatment.

31

In February 2006, the plaintiff was examined by Dr Victor Botvinik, psychiatrist, at the request of the insurer. It was his view that the plaintiff was suffering from an Adjustment Disorder with Anxious and Depressed Mood as a result of his work-related problem. He did not believe he was fit to return to his pre-injury duties, but was fit for other suitable employment. He considered his current treatment was reasonable and justified.

32

The plaintiff was seen by Dr Dharwadkar, psychiatrist, in June 2004 and March 2005. He assessed him as having a Chronic Adjustment Disorder with anxiety and depressive symptoms, and said he was currently totally incapacitated, but said there was no total permanent incapacity.

33

Counselling Appraisal Consultants provided a vocational assessment in September 2005 which was updated in January 2006. It was considered the plaintiff had the capacity for the following vocational options:

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Private investigator Technical teacher surveillance Insurance investigator Security advisor Security officer Loss prevention officer.
34

It was accepted that a return to Victoria Police was not recommended.

The Plaintiffs Credit

35

The plaintiff impressed me as a truthful witness. He answered all questions in a direct manner. He had been described as stoic and ethical by a number of doctors who examined him. He did not exaggerate the consequences of his injury.

36

He made concessions in relation to the level of pain he suffers. The histories given by the plaintiff to the many medical practitioners he saw were consistent. He told the Court of his desire to return to work on a full-time basis. He described the strain of being in receipt of a pension. I accepted that he was a witness of truth.

Analysis of the Evidence

37

I am satisfied that the plaintiff suffered a compensable injury arising out of or in the course of his employment with the defendant.

38

The defendants medical evidence in relation to work capacity was limited, and unhelpful. In April 2010, Dr Entwisle expressed no view as to the

plaintiffs capacity to return to his pre-injury work or alternate work within the police force. He said the plaintiff had a capacity for work, then referred to the limited work the plaintiff was currently engaged in, the limited hours per day and the limited days per week. There was no view expressed as to whether

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the hours could be increased, nor whether he regarded his condition as permanent. In 2005, Dr Dharwadkar said the plaintiff was currently totally incapacitated, but there was no total permanency, while in 2006, Dr Botvinik said the plaintiff was unfit for pre-injury duties but fit for suitable employment. There was no comment as to whether that was full-time or part-time.
39

The majority of the doctors (Dr Black, Mr Carfi, Dr Smith, Dr King and Dr Russell) considered he had a Major Depressive Disorder that is exacerbated from time to time when he is under stress. Dr Weissman thought it was closer to a Major Depressive Disorder than an Adjustment Disorder. Doctors

Entwisle, Botvinik and Dharwadkar diagnosed an Adjustment Disorder with Depression and Anxiety. Disorder. proportion. Dr Walton diagnosed a Chronic Depressive

None of the doctors suggested his symptoms were out of Most reported that there was no past history of psychiatric

symptoms, treatments or hospitalisation. Most of the doctors accepted that the plaintiff would never be fit for normal police duties nor fit for any alternate duties within the Victorian Police Force, nor fit for suitable full-time employment. The plaintiffs doctors accepted that he could work part-time, around a two-day per week commitment. Most doctors thought this was for the foreseeable future. The Medical Panel thought the plaintiff had a

permanent psychiatric impairment.

40

The mental or behavioural disturbance must be permanent. The evidence of the majority of doctors satisfies me that the plaintiff will not work full-time either in his pre-injury work or any other suitable work. All of the plaintiffs doctors accepted he had a part-time capacity of two days per week for the foreseeable future. It follows that I do not accept the submission of the

defendant that the plaintiff has not had specialist psychiatric treatment which could affect his prognosis. None of the plaintiffs medical evidence suggested that he needed further treatment. In fact, a number of the doctors were asked about his treatment and considered his current treatment appropriate. There

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was no evidence before me to suggest that if the plaintiff had psychiatric treatment his prognosis would be different.
41

I am satisfied that such condition is a mental or behavioural disturbance or disorder within the meaning of paragraph (c) of s.134AB(38) of the Act of the definition of serious injury.

42

The defendant contended that the consequences of any mental or behavioural disorder from which the plaintiff now suffers are not severe as defined in s.134AB(38)(b) and (d) (the narrative test).

43

Section 138AB(38)(d) of the Act provides:

a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.

44

In Mobilio v Balliotis [1998] 3 VR 833, Brooking JA held:

I am not aware of any other decision of the Full Court, or any decision of the Court of Appeal, in which what was said on this point in Turner v Love has been endorsed and, more importantly, in Transport Accident Commission v Dennis [1998] 1 VR 702 the question whether severe in para(c) should be equated with serious was expressly left open by all three members of the Court of Appeal. I do not, with respect, find the considerations mentioned in Turner v Love sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from serious to severe betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, I would say that severe is used in the definition as a stronger word than serious. I refer to what was said in this regard by McGarvie J in his dissenting judgment in Humphries v Poljak at 159, without, as I say, adopting any particular adjective to mark the distinction.

45

The plaintiff had worked in the police force since 1975. He has been denied his vocation as a police officer and suitable work on a full-time basis. For the present time he is left with a part-time work capacity of two days per week.

46

The loss of earning capacity consequences of his mental or behavioural disturbance are that he can no longer return to his employment in the Victoria

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Police Force. He has been denied full-time suitable employment. Further, at best he can only return to part-time work which, on any view, is significant.
47

I accept that the consequences with respect to loss of earning capacity for this plaintiff in this case are more than serious to the extent of being severe. Counsel for the defendant submitted that in assessing the consequences, the significance of what has been lost, may be informed, to an extent, by what is retained.11 I was informed that the plaintiff had retained the following

capacities (in respect to earning capacity):

48

he has maintained a business partnership in property development; he has earned pocket money from share trading; he works as an investigator, and in the local Council, including bar work.

The plaintiff is a man now aged fifty-three who was employed since 1975 in the police force. He has been denied his vocation as a police officer and suitable work on a full-time basis. For the foreseeable future he is left with a part-time work capacity of two days per week performing work at a lesser level than that for which he was trained. I consider the loss he has suffered is very important to him and outweighs the capacities that he retains. Accordingly, I reject the submission of the defendant.

49

The seriousness of the injury involves a comparison with other cases in the range of possible impairments.12

50

I am satisfied that it is fair to describe the consequences of the plaintiffs loss of earning capacity as being more than serious to the extent of being severe, when judged by comparison with other cases. The plaintiff therefore satisfies the narrative test.

11 12

Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at 44 S134AB(38)(b) 19 JUDGMENT O'Rourke v State of Victoria

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Loss of Earning Capacity

51

It is then necessary for the plaintiff to satisfy the statutory test laid down by s.134AB(38)(e), (f) and (g).

52

To obtain leave in relation to loss of earning capacity, the plaintiff must establish that: (a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently s.134AB(38)(e)(ii).

53

The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between: (i) (ii) without injury earnings; and after injury earnings.

54

The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).

55

Without injury earnings consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

56

It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiffs earning capacity.

57

The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and

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JUDGMENT O'Rourke v State of Victoria

(g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.13
58

Counsel for the plaintiff provided a table14 which set out the plaintiffs earnings:
Year 1997/1998 1998/1999 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 2004/2005 2005/2006 Employer Victoria Police Victoria Police Victoria Police Victoria Police Victoria Police Victoria Police (Capital Gain) Victoria Police Supplementary Income Victoria Police Supplementary Income Victoria Police Lump Sum Superannuation ICU Surveillance Services Pty Ltd Superannuation ICU Surveillance Services Pty Ltd Toll Personnel Pty Ltd Superannuation Gross $59,889.00 $64,136.00 $67,285.00 $65,941.00 $70,774.00 $73,922.00 $22,041.00 $76,636.00 $6,248.00 $75,868.00 $5,365.00 $70,685.00 $60,075.00 $6,548.00 $20,600.00 $50,226.00 $9,000.00 $6,090.00 $53,948.00

2006/2007 2007/2008

59

I accept the submission that the plaintiffs without injury earning capacity is $76,636.00 per annum. Sixty per cent of this is $45,981.60.

60

Counsel for the plaintiff submitted that the plaintiffs income for the year ended 30 June 2004 was indicative of what he was earning, and capable of earning.

61

The income for the year ended 30 June 2005 and 30 June 2006 from the Victoria Police was made up of weekly payments of compensation.

13 14

(2005) 14 VR 622 at paragraph 70 Court Book 81 21 JUDGMENT O'Rourke v State of Victoria

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62

The evidence is that for the year ending 2009, the plaintiff has averaged approximately 5 hours per week from investigation work. He now works

casual part-time with Wyndham City Council and earned $12,600 from that job in the 2009/2010 financial year.15 Currently he is working four to five days a week and is working 2 to 3 hours, sometimes 4 or 5 hours, but he is struggling.16
63

Based on the medical evidence, I accept the plaintiff is capable of part-time work of two days per week. Based on the material relied upon by the

defendant, the Vocational Options,17 adopting the figures of a private investigator with an average gross weekly salary of $865, full-time is $44,900. Two days per week is $17,992, which is well below 60 per cent of his without injury earning capacity. The plaintiffs earnings from the Wyndham City

Council for the 2009/2010 financial year fall well below the 60 per cent of his without injury earning capacity. There was some dispute as to what his earning capacity would have been had he remained in the Victoria Police Force.
64

Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.

65

I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).

66

The medical evidence did not suggest that rehabilitation was necessary and appropriate. Accordingly, I do not consider that rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.

67

I am satisfied that the plaintiff has no prospect of retraining and re-education which would enhance his earning capacity. Therefore, I am satisfied the

plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.

15 16 17

Plaintiffs Court Book 15 Transcript 53 Defendants Court Book 55 22 JUDGMENT O'Rourke v State of Victoria

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68

Therefore, I am satisfied that the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB.

69

Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of employment with the defendant after October 1999.

70

I will hear the parties as to the precise form of orders sought and on the issue of costs. ---

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JUDGMENT O'Rourke v State of Victoria