Clarke v National Mutual Life Assurance Ltd & Ors [2010] VSCA 43

Clarke v National Mutual Life Assurance Ltd & Ors [2010] VSCA 43 - VSCA 2010 case summary — Zoe

[39]

The Panel concluded that the Plaintiff suffers from a Personality Disorder Not Otherwise Specified, (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder, and narcissistic personality disorder.

The Panel also considered the possibility that the worker could have a psychotic disorder. While no frank bizarre delusions or hallucinations were identified the Panel noted the worker's continuing rumination in relation to potential work situations and his stated intentions to kill employees of his former workplace. The Panel also noted his seeming indifference to those he has attacked previously and his general restriction of affect in the interview situation. The Panel concluded that elements of a borderline psychotic state were probably present, but a formal diagnosis of a paranoid psychotic disorder could not be substantiated.

The Panel considered the worker does not currently have an Adjustment Disorder based on its consideration of the nature of the Plaintiff's current symptoms and its findings on his presentation at psychiatric examination.

The Panel accepted that the Plaintiff did have an Adjustment Disorder with depressed mood which developed in 1995, as diagnosed by Dr Cooper, in response to workplace stressors at that time. The Panel considers this condition developed independently of his Personality Disorder and it could not be determined to be a recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment as suggested by the questions from the Court.

The Panel considers the Plaintiff's Adjustment Disorder resolved shortly after the time the Plaintiff ceased his employment (as this was the stressor causing his Adjustment Disorder) with Suncorp Metway in April 1996 and at about the time he thought of acting on his violent and revengeful fantasies, which were symptoms of his Personality Disorder and not his Adjustment Disorder.

Based on the nature of the Plaintiff's symptoms and the Panel's findings on examination, the Panel considers the Plaintiff's employment had no effect on his Personality Disorder as the continued sense of injustice for the events at work were merely a focus of his Personality Disorder and not a cause or an aggravating factor.

The Panel therefore concluded that the Plaintiff is not suffering from any recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

As the Panel considers the Plaintiff developed an Adjustment Disorder directly as a result of the circumstances of his employment and that his employment had no effect on his Personality Disorder, the Panel concluded that the Plaintiff's employment with National Mutual, Nexus and Suncorp Metway was not in fact, a significant contributing factor to any alleged recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

The Panel does consider the nature and extent of the Plaintiff's Personality Disorder is such that he is not capable of performing any work, but as the Panel has determined that the Plaintiff's initial Adjustment Disorder has resolved and that his Personality Disorder is not related to his employment, it concluded that the Plaintiff has no present inability to return to pre-injury employment arising from an injury.

[72]

52 Appeals

(1) Any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

(2) If a person intends to appeal to the Supreme Court under subsection (1), the person, within 21 days after the giving of the judgement or making of the decision, must serve notice of intention to appeal on the County Court and on each other party to the proceedings.

(3) If a person has served a notice under subsection (2), that person must lodge the appeal application within 6 months after the making of the determination or by leave of the Supreme Court (obtained before or after that period) after that period.

(4) The Supreme Court must not consider an appeal if -

(a) notice of intention to appeal has not been served under subsection (2); or

(b) the appeal application is not lodged as required by subsection (3).

(5) For the purposes of Division 6 of Part IV, the service of a notice of intention to appeal and the lodging of an appeal under that Division do not operate as a stay of a determination of the County Court.

(6) If the determination appealed against included a determination that compensation in the form of weekly payments be paid, the weekly payments must continue despite service of notice of intention to appeal or lodging the appeal application until the County Court reviews the determination in accordance with subsection (8).

(7) If the determination appealed against included a determination that compensation in a form other than weekly payments be paid, the compensation in dispute -

(a) must not be paid until the period specified in subsection (2) has elapsed; and

(b) if a notice of intention to appeal has been served under subsection (2), must not be paid until the period of six months has elapsed; and

(c) if an application has been lodged under subsection (3), must not be paid until the Supreme Court has considered the appeal and the County Court has made a determination under subsection (8) or the appeal has been withdrawn.

(8) On the making of a determination by the Supreme Court on an appeal under this section, the County Court must review its determination and make a new determination not inconsistent with the Supreme Court's determination.

(9) Section 74 of the County Court Act 1958 does not apply to a judgement or order of the County Court in proceedings under this Act or the Workers Compensation Act 1958.

[120]

60 Regrettably, each counsel pressed the judge to hear and determine the application notwithstanding that the Medical Panel's opinion might be set aside in whole or in part in the pending Supreme Court proceedings. That approach was compounded by the parties arguing, and inducing the judge to deal with, the merits as to whether the impugned opinion of the second Medical Panel had considered and in effect opined as to the proposed added injury. That is, the judge permitted debate as to whether the amendment was futile, in the sense of being untenable, and ruled upon the submission as providing the basis upon which to determine whether to grant leave to amend. The vice in proceeding as the judge did was not merely in hearing and ruling on the merits of the respondents' argument, but in determining the application at all. It was wholly erroneous as a matter of discretion to do so when that which lay at the centre of the argument on the application was subject to review in the proceedings pending in the Supreme Court. It was not a matter of whether pending review the opinion was or was not binding, as to which it might be noted that the appellant's counsel made the erroneous submission that in effect the judge could disregard the opinion by reason of the pending proceedings. The fact is that the opinion stood until it was set aside. At the very least it was uncertain as to whether the opinion would wholly or in part be set aside. Moreover, in the review proceedings the Supreme Court would have to consider the meaning and interpretation of the opinion. In that situation it was, with respect, somewhat extraordinary for the judge to hear and determine the matter and conclude on the interpretation and operation of the opinion. While the argument before the judge was not the same argument that would be made upon the hearing of the Supreme Court proceedings, it yet covered similar grounds and there was overlap. Wisdom dictated that consideration of the opinion, including its proper understanding and effect, should first take place in the pending Supreme Court proceedings.

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Clarke v National Mutual Life Assurance Ltd & Ors [2010] VSCA 43 (15 March 2010)

Parties

Legislation Cited (4)

Cases Cited (6)