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IN THE COUNTY COURT OF VICTORIA
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02176
JACOB NAPTHINE
Plaintiff
v
AJA INDUSTRIES AUSTRALIA PTY LTD
Defendant
---
JUDGE:
HIS HONOUR JUDGE O'NEILL
WHERE HELD:
Geelong
DATE OF HEARING:
31 July and 1,4 August 2014
DATE OF JUDGMENT:
7 August 2014
CASE MAY BE CITED AS:
Napthine v AJA Industries Australia Pty Ltd
MEDIUM NEUTRAL CITATION:
[2014] VCC 1237
REASONS FOR JUDGMENT
---
Subject:
Catchwords:
Legislation Cited:
Judgment:
ACCIDENT COMPENSATION
Serious injury application – psychological injury – Major Depressive
Disorder – whether consequences to the plaintiff “severe” – significant
pre-existing psychiatric history and treatment
Accident Compensation Act 1985
Leave granted in respect of pain and suffering and economic loss.
---
APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr C W R Harrison QC with
Ms S A Lean
Maurice Blackburn Pty Ltd
For the Defendant
Mr R Meldrum QC with
Ms G-J Cooper
Wisewould Mahony
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HIS HONOUR:
Preliminary
1
The plaintiff alleges he was the subject of bullying by an employee of the
defendant over the period from September to November 2005. As a result, he
has suffered a Major Depressive Disorder and has not resumed any
employment since November 2005.
2
This is an application for leave to bring proceedings pursuant to
s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury
suffered in the course of the plaintiff’s employment with the defendant, in
particular over the period from September to November 2005. The nature of
the injury is a permanent severe mental disorder being a Major Depressive
Disorder.
3
The application is thus brought under ss(c) of the definition of “serious injury”
as contained in s134AB(37) of the Act and leave is sought in respect of both
pain and suffering and loss of earning capacity.
4
The plaintiff, and his treating psychiatrist, Dr Ajeet Singh, were called to give
evidence and be cross-examined. In addition, affidavits of the plaintiff, of
several of his co-workers, of representatives of management of the defendant,
and of the plaintiff’s mother, together with various medical reports and clinical
notes were tendered into evidence. I shall not refer to all of that material in
the course of this judgment, but rather those parts of the evidence and reports
which appear to me to be of most relevance and which I have relied upon in
coming to the conclusions referred to later in this judgment. The statutory
scheme set forth in the Act which prescribes and regulates applications of this
nature, and the principle authorities of the Court of Appeal are well known,
and it is unnecessary for me to revisit the various relevant sections, and those
authorities.
VCC:AS
1
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
Relevant background
5
The plaintiff was born in 1975, and is now thirty-eight years of age.
He
attended school to Year 10 and then commenced but did not complete an
apprenticeship in carpentry and joinery.
In about 1992, he obtained
employment with a company, Jacaranda Industries, and worked there from
that time until 2003.
The company was involved in cabinetmaking and
according to his affidavit, by 2003, he was in charge of the joinery shop. In
2003, the business changed hands, and he went to work for another joinery
company for a short period. A director of the new owner of Jacaranda, the
current defendant, asked the plaintiff to return and take up his position as
production manager of the joinery shop.
6
In 2004 and 2005, he was working long hours, sometimes seven days a week,
and up to 16 hours per day.
His income for the year ended 2005 was
$88,431.00.
7
Again, according to his affidavit, in October 2004, he attended the Geelong
Hospital for symptoms of stress. He was referred to Dr Singh (who is now his
treating psychiatrist) and he recalled “having a couple of attendances at the
hospital”.
He said that there were “personal problems” which caused his
attendance, but these settled down, and he continued to work the long hours.
He said that his real problems commenced when the defendant employed a
general manager, Mr Mark Adolphs, as part of a re-organisation of the
business.
8
The plaintiff’s “economic” description of his prior psychological problems, was
somewhat different to the real situation.
9
According to a letter from Dr Marcus Benjamin, psychiatrist, of the Geelong
Hospital, dated 21 November 1991, the plaintiff attended claiming “my life is
pretty screwed up”. His girlfriend at the time had been raped, and he wanted
to kill the person who did it. He also complained of difficulties at home, in
particular, clashes with his mother. The letter records:
VCC:AS
2
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
“With regard to suicide he sometimes thinks about it. Recently he got a
large bottle of alcohol, drank it and decided that he would go into the city
and jump off Bay City Plaza and kill himself. However, on the way he
got side tracked into a pin ball parlour and then went home.
He considers that one day he will kill himself, although he is not sure
about this. … .”1
10
Dr Benjamin assessed the plaintiff as presenting with a character disorder of a
severe degree and probably with a poor prognosis.
He described the
plaintiff’s behaviour as relatively explosive and uncontrolled and that it was
likely he would fall into difficulty with the law.
11
According to various material contained in the Defendant’s Court Book, the
plaintiff, for a long period, has suffered migraine headaches.
12
According to a clinical note of the Barwon Health Mental Health Service, 2 the
plaintiff attended on 28 October 2004. He complained of having depression
for about six years with daily migraines. He reported occasional thoughts of
suicide and described a plan to drive his car and crash it. The thoughts of
suicide were said to be becoming increasingly intensive. The notes record
that the plaintiff’s father had recently had a stroke, although he had limited
contact with him. The plaintiff was said to be unable to recall the last time he
felt well.3
He was treated by Dr Singh,4 who diagnosed him as suffering a
Major Depressive Disorder. At that time, he was taking Dothiepin.5
13
According to a home visit of 4 November 2004, the plaintiff complained of loss
of energy, enjoyment, sex drive and self-esteem. His work for the defendant
was said to no longer be satisfying for him.
14
The plaintiff was treated on a number of occasions in October, November
2004 and January and February 2005. According to a note of Kim Cross,
clinical psychologist, of 18 February 2005, the plaintiff was said to have
1
2
3
4
5
VCC:AS
Defendant’s Court Book (“DCB”) 85
Part of the Geelong Hospital
DCB 92.1
Who was a Registrar at the hospital at the time
An anti-depressant, although from the notes it would appear it was used to treat migraines
3
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
suicidal ideation every day, although the consequences of suicide to his family
was said to prevent him from acting upon the thoughts. It was said that he
distracted himself by working long hours.
15
In a final notation of 20 April 2005, the plaintiff’s mental state appeared to
improve and it was said that he had less suicidal ideation.
The workplace injury and its consequences
16
As stated, in August 2005, the defendant employed a manager, Mr Mark
Adolphs.
The plaintiff found that he could not get along with him and
according to a statement he had earlier provided to an investigator, 6 he felt
harassed, demeaned and threatened by Mr Adolphs. He was demoted as
manager of the joinery area. He was given menial tasks, including cleaning
up and emptying rubbish. In early October 2005, he met with one of the
directors, Mr Tinetti, and raised his concerns about the work environment.
Nothing was done to improve the situation.
17
A number of co-employees, Messrs Boucher and Scholtes, provided affidavits
which were generally supportive of the plaintiff’s claims about the workplace
environment. On behalf of the defendant, an affidavit of Mr Tinetti, a director
of the defendant, and Mr Palmer, a former employee, paint a somewhat
different picture. According to the affidavit of Mr Tinetti, the plaintiff’s overtime
was cut back and through a re-organisation of the company, the plaintiff was
given the opportunity to perform some administrative duties, which he
struggled with. Mr Tinetti denied that the plaintiff was ever harassed or bullied
by Mr Adolphs. Whether the plaintiff was subjected to the bullying as alleged
will be a matter to be determined ultimately at trial.
18
According to the plaintiff, because of the overtime he was working, he earned
a substantial wage and was consequently paying a large amount of tax. He
said it was suggested to him that he purchase a car on a hire purchase to
6
VCC:AS
Plaintiff’s Court Book (“PCB”) 17-19
4
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
ease his taxation bill.
19
By November 2005, he was psychologically unwell and was taken by his
mother to the Emergency Department of the Geelong Hospital. He again saw
Dr Singh. He ceased work on 20 November 2005, and has not returned to
any employment since.
20
According to a letter from Dr Singh to the plaintiff’s treating general
practitioner, Dr Virgona,7 the plaintiff said that he had last felt well in
September of 2005. He complained of the new management structure at the
workplace and his tension with the new manager. He claimed that he had
been singled out for harsh treatment. He complained of feeling helpless and
stressed, which had precipitated a significant deterioration in his mental state
with depressive symptoms and suicidal ideation.
Dr Singh noted that the
plaintiff continued on Dothiepin, an anti-depressant. At that point, Dr Singh
diagnosed the plaintiff as suffering an Adjustment Disorder with Depressed
Mood. He noted that the plaintiff clearly had a vulnerability to mood problems
which had been controlled by medication. He said that the workplace stress
has precipitated his problems and that it would be damaging for him to return
to the workplace.
21
By a further letter of 16 December 2005 to the workplace insurer,8 Dr Singh
diagnosed the plaintiff as suffering an Adjustment Disorder with Depressed
Mood (severe) with a differential diagnosis of Major Depressive Disorder –
melancholic type (severe).
22
Dr Singh continued to treat the plaintiff through 2006 and noted that he
continued to struggle with ongoing depression and suicidal ideation. He had
not acted on the ideations, but was considered a serious suicide threat. His
medication was adjusted and Lithium was added. Electroconvulsive therapy
(ECT) was discussed, but not proceeded with.
7
8
VCC:AS
Another anti-depressant,
PCB 56A-B
PCB 54-56
5
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
Parnate, was added. Dr Singh confirmed that the workplace stressors had
precipitated the plaintiff’s problems, and said that he was totally incapacitated
in 2006 for any form of employment. He described the plaintiff as being at risk
of suicide, as one of his higher risk patients.
He described the plaintiff’s
recovery as fragile.
23
According to Dr Singh’s report of February 2008,9 by that time, the plaintiff
was suffering a Major Depressive Disorder – melancholic type – recurrent,
severe, and now treatment resistant. He said that the plaintiff did not respond
to high doses of anti-depressant medication and he had marked residual
depressive symptoms and a poor capacity to tolerate stress. Another course
of ECT was offered but declined. Dr Singh considered the plaintiff totally
incapacitated for any employment, and with a poor prognosis.
24
The plaintiff has continued under the care of Dr Singh through to the present
time. He sees him now approximately every two to three months. He remains
on high doses of anti-depressant medication.
Dr Singh said that he still
considered the workplace stressors as being responsible for developing the
severe depressive illness.
He was provided with the earlier reports and
clinical notes of the plaintiff’s previous attendances, both in 1991 and 2004,
and said that those notes did not change his opinion. He said the plaintiff
continued to struggle with low mood, poor energy and reduced stress
tolerance. He was on high doses of an anti-depressant, Duloxetine, and that
his mental disorder, which included severe depressive symptoms, had
persisted despite ongoing medication and counselling. He said the plaintiff
was unable to cope with job seeking, although had succeeded in some parttime courses.
He said the plaintiff had a permanently reduced stress
tolerance. He noted:
“… Mr Napthine’s capacity to cope with part time light paid duties
remains untested as over the past nine years since he first was referred
to me Mr Napthine has been unable to cope with return to work and
struggled with part time training courses. This suggests that his stress
9
VCC:AS
PCB 43-48
6
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
tolerance and capacity to cope are likely permanently diminished making
any regular paid employment (even part time) unlikely in my opinion. He
may be able to cope with casual light duties, but again this is untested
and he runs the risk of relapse into a suicidally depressed state akin to
what he suffered in the past.”10
25
He said the plaintiff had no meaningful work capacity. He said the plaintiff did
have the capacity to cope with his activities of daily living, albeit limited and
slowed.
26
Dr Singh attended to be cross-examined. He was taken to various entries in
his clinical notes which recorded that the plaintiff had been undertaking some
casual work.11
It was also noted that the plaintiff had completed several
courses. The first was in 2008, at the Gordon Institute, 20 hours per week
over five months. The course involved metal work. He passed the course
and gained a certificate.
He undertook another course in 2009, a more
advanced course in the same area, approximately two-and-a-half days per
week with preparation time. Again, the course went for five months, and the
plaintiff was able to complete successfully all of the requirements. In 2010, he
commenced the third course in engineering, again at the Gordon Institute, but
was unable to complete the course and left it in about June 2010. He had
commenced the courses at the suggestion of Dr Singh so that he could
become more socialised, and live a less isolated life. The plaintiff accepted
that the skills he learned increased his employment prospects.
27
Given the plaintiff’s pre-existing psychological problems, it was put to Dr Singh
by Mr Meldrum, Senior Counsel for the defendant, that the period of
workplace stress played no more than a minor role in the plaintiff’s present
situation. Mr Singh responded:
“… In my opinion this gentleman had pre-existing emotional
vulnerabilities not sufficiently handicapping to lead to role failure in the
workplace. My position is after the period of work stress, he developed
escalation of pre-existing less severe problems that reached a level to
cause a persisting handicap. And so to say that somebody might have
common cold level depression preceding a work stressor and then this
10
11
VCC:AS
PCB 39
DCB 113-114A
7
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
is why they have got a double pneumonia type depression later is a non
sequitur. I see it all the time. Patients might have a subtle mood issue
which doesn’t lead to role failure and inability to work. In his case, a
longitudinal pattern is in spite of his issues when he was younger, in
spite of his depressive episode in 2004 which appeared to recover well
with medication. He was able to work full-time and not only that, work
long hours and this to me suggests that his pre-existing mental health
contacts and symptoms were not at a handicapping level. The
handicapping level of syndrome emerged after what appears to be a
period of high stress associated with management change at his
previous employer. 12
…
And before the stressor alluded to at work in 2005, despite any issues he
may have had, he was able to function full-time, not only full-time but
regular overtime as a worker. That capacity to tolerate stress was there,
That capacity to work was there. After this period of high stress at work,
he seems to have lost that capacity ongoing, leaving him unable to cope
with regular work. To my mind, that is the difference.”13
28
Further, in relation to the plaintiff’s work capacity, and the effect of the
depressive episode of 2004, Dr Singh said the following:
29
Q:
“… This is a long-lasting, quite significant depression isn’t it?---
A:
Yes, he had a multi pre-existing depressive syndrome that didn’t
lead to him not being able to work.
Q:
Yes, but some people who are depressed and quite severely
depressed, quite severely psychologically impaired continue to
work, don’t they?---
A:
Many.
Q:
It is only an indication not the index of the importance of the
depression?---
A:
It’s a key measure. So the functional measures of impairment and
handicap, not only in psychiatry but across medicine, are key
measures of level of illness and handicap. An inability to function
in work or home settings are core measures. So whilst he did
have problems he was being seen as an outpatient in an
outpatient clinic, not hospitalised, seeking help, continuing to work,
compliant with medication. So he wasn’t in extremis in the
spectrum of handicapping severe depression at that point.”14
Further:
Q:
12
13
14
VCC:AS
“Doctor, you’ve got a psychiatric history that on the face of this this
is at least two to three years?---
Transcript (“T”) 69, L27
T70, L21-29
T74, L20 – T75, L6
8
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
A:
30
That’s correct, of a non-handicapping depression where he could
continue to work. He only lost the ability to work after the period of
work stress in September 2005. It’s a non sequitur to say, a nonhandicapping depression is a pre-existing history of a
handicapping depression.
In my opinion they’re separate
things.”15
In September 2012, Dr Singh attempted to wean the plaintiff off antidepressant medication, and reduced the dosage. By March 2013, the plaintiff
appeared to have a relapse of depressive symptoms, and the medication was
returned to its higher level.
31
According to the plaintiff’s affidavit, he currently takes anti-depressive
medication, Cymbalta, and Seroquel. He takes occasional valium. He sees
his general practitioner, Dr Virgona, from time to time to obtain prescriptions
for the medication. He sees Dr Singh every two to three months. He lodged a
WorkCover claim, and was paid weekly payments of compensation until 2009.
He complains of feelings of upset, helplessness, panic and, at times, suicidal
ideation. He says he gets very little enjoyment out of life and feels depressed.
He receives a Newstart benefit and lives with his sixty-five-year-old mother,
who continues to work as a teacher.
32
In the course of cross-examination, he accepted he had done some work for
his mother helping her restore and maintain her house. This included painting
the house over four to five weeks, and replacing windows and weatherboards.
He also helped a friend remove an old kitchen in about 2012, and drew up on
a computer, plans for a new kitchen. In mid-2012, he did some fencing work
for a friend. It was carried out over several days. He said he felt fatigued,
overheated and nauseous.
33
He said in evidence that he did not think he had the capacity to deal with the
stress involved in a workplace.
15
VCC:AS
T76, L18-25
9
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
The Defendant’s medical reports
34
The plaintiff was examined by a number of consultant psychiatrists at the
request of the solicitors for the defendant.
35
To Dr Rose, in December 2005, he said that he had a period of depression
“two years ago which appears to have come out of the blue and without any
reason”.16 He told Dr Rose that six months before he developed his current
bout of depression, all of his pre-existing symptoms had resolved. Dr Rose
said the plaintiff had a vulnerability to depression, as evidenced by his preexisting depressive illness, but that when he examined the plaintiff, he was
suffering a major depressive episode, and was unfit for all work.
36
In a further report of February 2006, after he had consulted with the plaintiff
again, he confirmed he was still suffering a Major Depressive Disorder,
precipitated by work stressors.
He acknowledged that the plaintiff had a
vulnerability to depression, and that he continued to be unfit for any form of
employment.
37
The plaintiff was examined by Dr George Mendelson, psychiatrist, in June
2006.
To Dr Mendelson, the plaintiff said that apart from migraines from
which he had suffered over many years, he had no significant psychological or
emotional problems in the past. Dr Mendelson concluded that the plaintiff
continued to suffer persistent emotional symptoms, although his psychiatric
condition had improved with treatment. He noted the plaintiff said he would
like to return to work but that it was inappropriate for him to do so, as if he was
subjected to any further workplace stressors, it was highly likely there would
be an exacerbation of his psychiatric symptoms. He concluded the plaintiff
was suffering an Adjustment Disorder with Depressed Mood.
38
The plaintiff was examined by Dr Dush Shan, psychiatrist, in February 2008.
The plaintiff said that aside from some counselling when there was a family
breakdown, there was no past psychiatric history. Dr Shan concluded the
16
VCC:AS
DCB 4
10
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
plaintiff was suffering a Major Depressive Disorder, and had no capacity for
work at that time.
39
Dr Shan’s views continued in his second report of February 2009, and said
the plaintiff had no capacity for employment.
40
The plaintiff saw Dr Nigel Strauss, psychiatrist, in September 2008.
The
plaintiff said that he had some counselling in the past as a teenager, and apart
from migraines and anti-depressants which he took for approximately a year
for his headaches, he denied any prior psychological or psychiatric treatment.
Dr Strauss concluded the plaintiff suffered a Major Depressive Disorder as a
consequence of his employment in 2005.
He said the plaintiff still had
residual symptoms associated with a Major Depressive Disorder.
41
In a further report of December 2013, Dr Strauss was provided with further
information in relation to the depressive episode of 2004. Dr Strauss said the
plaintiff tended to play down the 2004 episode, and would not elaborate on
what had occurred.
He said that he saw Dr Singh in 2004 because of
personal problems but the situation had improved and the treatment stopped.
Dr Strauss noted the plaintiff had successfully completed two certificates in
engineering in 2008 and 2009.
He concluded that while the plaintiff did
complain of symptoms of anxiety and depression, those symptoms were mild
and did not warrant the medication he was taking. He suggested a lower
dose of anti-depressants, and that he was caught up in the compensation
process which was a major factor affecting his mental health. He concluded
the plaintiff had residual symptoms of a Major Depressive Disorder but that
eventually the symptoms would disappear, although the plaintiff would remain
vulnerable to further bouts of depression. He said that the contribution to his
current state of the workplace experience in 2005 was limited.
42
In his report of December 2013, Dr Strauss noted that he had been provided
with details of the treatment of the plaintiff both in 1991 and at the Geelong
VCC:AS
11
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
Hospital from October 2004 to February 2005.
Dr Strauss said that the
clinical notes showed that the plaintiff had improved progressively and that by
December 2004, the notes of the Geelong Hospital suggested that he had
objectively improved. Dr Strauss concluded that the plaintiff had simply a
longstanding depressive problem which had been going on for several years
prior to 2004. He said that it was likely the plaintiff did not suffer any workrelated problems but rather, his problems had been constitutional and that he
had suffered depression for many years. He said that the plaintiff had not
suffered any work-related psychiatric illness as a result of the events in 2005.
43
The plaintiff was examined by Dr Alan Jager, psychiatrist, in December 2013.
Dr Jager was provided with a range of information, including the plaintiff’s
affidavit and the various reports of Dr Singh. The plaintiff gave no history of
past psychiatric problems. Dr Jager, having examined the plaintiff, said that
he suffered a Chronic Major Depressive Disorder. He said the plaintiff’s past
history of depression, and a possible family history of psychiatric illness,
represented constitutional factors which, in the absence of the workplace
stress of 2005, caused the plaintiff’s problems. Dr Jager was provided with
the affidavits of Mr Palmer and Mr Tinetti, and said:
“When one takes into account the affidavit material and the plaintiff’s own
response it is likely that he experienced another sense of abandonment
when in his mind he was unfairly relieved of duties and overtime
opportunities. His poor coping resources resulted in him adversely
reacting to those changed work circumstances with the escalation of
suicidal thinking. His inability to reconcile those problems and a
tendency to externalise blame which is part of Borderline Personality
Disorder is the likely explanation for him earnestly believing that his
current situation is related to events which are now in the quite distant
past.”17
Conclusions
44
There are two principal issues to be determined in this application. The first is
the nature and extent of the plaintiff’s prior depressive illness, and its impact
upon his current psychological state.
17
VCC:AS
The second issue concerns the
DCB 70
12
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
diagnosis of the plaintiff’s current condition and, in particular, his capacity for
work.
45
I accept the submission of Mr Meldrum, for the defendant, that the plaintiff had
a significant pre-existing depressive disorder, diagnosed by Dr Singh in 2004
as a Major Depressive Disorder.
This involved regular attendances for
treatment at the Geelong Hospital over the period from October 2004 to
February 2005, and the prescription of significant ant-depressive medication.
46
I was unimpressed with the plaintiff’s failure to disclose full details of this
disorder to many of the psychiatrists to whom he was referred by the
defendant. While he did make reference to this episode in his affidavit, as Mr
Meldrum said, it was “economical” and far from fulsome. I am of the view the
plaintiff is attempting to sheet home all of the blame for his current
predicament upon the workplace stressors of September to November 2005.
To some degree, this reflects upon his credit, although I have concluded that I
am satisfied the plaintiff did suffer significant episodes of stress, in particular
because of the work management practices of Mr Adolphs over that period.
Whether those practices amount to bullying or intimidating behaviour will be a
matter to be determined ultimately at trial.
47
It is to be noted that after the treatment at the Geelong Hospital in 2004 and
2005, the plaintiff was able to maintain full-time employment, working long
hours with considerable overtime in his job as a leading hand or manager with
the defendant.
Further, it would appear from the hospital notes that the
plaintiff’s condition did improve with the provision of medication and
counselling and there is no record of any attendance for psychological
treatment from April 2005 through until November 2005. The plaintiff, at the
time, was clearly a person vulnerable to the onset of depressive symptoms.
He was prescribed anti-depressant medication in 2004, and he continued to
take it up until he returned for treatment in 2005. The symptoms of which he
was complaining in 2004 were not dissimilar to those of which he was
VCC:AS
13
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
complaining in 2005, in particular, that he had suicidal ideation to the point of
actually planning a suicide by driving his car at higher speed.
48
The episode in 1991 where he attended the Geelong Hospital, again with
suicidal ideation, is of less significance.
He was young at the time and
apparently the subject of episodes of stress, including his girlfriend being
raped, and difficulties at home. However, he appeared to recover from these
issues as he grew and matured. Overall, he has an impressive work history.
49
I accept the submissions of Mr Meldrum, for the defendant, that the episode of
2005 represented an aggravation of an existing depressive disorder, which
had previously improved with treatment and was not of sufficient severity to
prevent the plaintiff carrying out his employment.
50
I accept that whatever the cause, in September to November 2005, he was
the subject of stress within the workplace and, as a result, his Major
Depressive Disorder was aggravated.
On any view, it was a major
aggravation, and the plaintiff has required continuous treatment and
significant doses of anti-depressant medication since.
Of particular
significance is that he has been unable to resume any workplace duties.
51
I was impressed with the reports and evidence of Dr Singh, the plaintiff’s
treating psychiatrist.
He gave evidence in a measured and authoritative
manner. While accepting the plaintiff did have prior depressive problems, he
said that a significant measure of the seriousness of the current depressive
episode was the fact that he was unable to work from 2005. I accept his
opinions, and prefer them to the various other psychiatrists retained by the
defendant.
Dr Singh has been the plaintiff’s treating psychiatrist now for
nearly ten years. He has an intimate knowledge of the plaintiff’s situation and
symptoms, and I accept his opinion as to the current diagnosis and, in
particular, the prognosis for the plaintiff’s return to work.
Many of the
defendant’s consultants accept the plaintiff suffers a Major Depressive
VCC:AS
14
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd
Disorder. There are varying views as to the association of that Disorder with
the workplace events of 2005, but again, I prefer the opinion of Dr Singh that
those events represented a significant aggravation of his condition.
52
I further accept the opinion of Dr Singh that the plaintiff has very little work
capacity. He is on very significant doses of anti-depressant medication and
although, as was pointed out by Mr Meldrum, that the plaintiff has made no
complaints of suicide ideation over the period from September 2010 until
February 2014, I accept that he is still significantly in the grip of a Major
Depressive Disorder.
53
He has been able to complete a number of metal work courses and has done
some modest casual work here and there. But that is a long way short of
being of sufficiently robust mental health to enable him to work on a
permanent part-time basis, let alone a full-time basis.
54
Mr Meldrum further asserted that the records of Dr Singh of casual work from
time to time showed that he was actually working and receiving an income.
Although I have reservations about the plaintiff’s credibility because of his
failure to disclose his pre-existing condition, there is little evidence to support
the proposition that he has been working, and Dr Singh, in the course of his
evidence, said that his attempts at return to work were modest.
55
All in all, I am satisfied the plaintiff has suffered a significant aggravation of his
underlying Major Depressive Disorder by the workplace events of 2005. Most
importantly, the aggravation has been sufficient to prevent him from being
able to return to any form of employment from that time through to the
present.
There is nothing to suggest that that situation will significantly
change in the future. For those reasons, I am satisfied the consequences to
the plaintiff reach the “severe” level as the legislation requires.
56
The plaintiff’s application, both as to pain and suffering and economic loss
succeeds. I shall make consequent orders.
VCC:AS
15
JUDGMENT
Napthine v AJA Industries Australia Pty Ltd