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Revised Not Restricted Suitable for Publication 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