Plaintiff v Defendants

Plaintiff v Defendants - [2013] VSC 536 - VSC 2013 case summary — Zoe

[68]

4. The reasons for the Panel's opinion are as follows:

The Plaintiff stated that he began working with National Mutual in April 1986. He said that he was employed as an analyst/programmer, on a full-time basis.

He said that he began working with a division of National Mutual called Nexis in 1988, but that this division was always part of National Mutual. He reported that on the whole he had enjoyed his work with National Mutual/Nexis.

He reported that he had an appraisal at the end of 1993, and two other workers got a better appraisal and better pay than he did. He disagreed with this, and wanted it corrected. He did not sign the appraisal, and felt that he was being blamed for other people's errors.

The Plaintiff told the Panel that he was deliberately not working hard in 1994 because he was unhappy with the appraisal. He admitted that this was partly to get at his employer for the negative appraisal.

He stated that in September/October 1994 Nexis was purchased by Suncorp Metway. At that time he said he raised the issue that he was in his view still a National Mutual employee. He said that the general manager of Nexis did not transfer National Mutual employees to Nexis and he thought this was an attempt to get away from paying redundancy payments from National Mutual. He said that he spoke to the human resources manager at Suncorp Metway, but the human resources manager didn't want to talk about who his employer was. The Plaintiff said that he forgot to tell the human resources manager about his negative appraisal at the end of 1993.

The Plaintiff added that two days prior to the sale of Nexis he spoke to a human resources manager (the Panel was unclear whether this was a human resources manager at Suncorp Metway or National Mutual) who he alleged agreed that the Plaintiff was a National Mutual employee and told the Plaintiff that he would get 4-5 weeks pay. The Plaintiff said that this "stank" because he felt he was entitled to a redundancy payment. He reported that on the first day after the sale of Nexis he asked for an employment contract. He said that two weeks later he got a bit of paper but he didn't sign this.

The Plaintiff said that he approached his union, and alleged that he was told to "go with the flow" and accept the situation.

The Plaintiff reported that at the time of the purchase of Nexis by Suncorp Metway he was still generally happy in himself, there were no family problems, and he was keen to work until the age of 55 years.

The Plaintiff stated that for the first two months of working for Suncorp Metway he had little to do and got a bit bored. He said that he started working a bit harder for his new boss, and hoped to get a pay rise, but was disappointed when he did not get one.

He reported that in April 1995 he became angry because he noted that contract workers were earning more than he was. He said that because of his anger he attended his general practitioner. He also reported that he was angry that he had not been given a work contract, and didn't get a pay rise that he expected. In addition to his anger he reported impaired sleep, lowered mood, tiredness, an increased need for coffee, and reduced concentration. When he saw his general practitioner he was given three days off from work.

The Plaintiff said that sometime between February and June 1995, when he tried to get to sleep at night he started imagining his former manager at National Mutual and began having thoughts of attacking him, with a knife, or hammer. At that stage he did not think of acting on these thoughts.

The Plaintiff said that in about October 1995 he read about depression and re-attended his general practitioner, asking for a referral to a psychiatrist. He then attended a psychiatrist, Dr Cooper, in December 1995. The Plaintiff said that Dr Cooper suggested that he leave his job when his long service leave was available. The Plaintiff said that he told Dr Cooper of his thoughts of violence but that Dr Cooper did not take this seriously. He only saw Dr Cooper on one occasion at that time.

The Plaintiff said that he began thinking of acting on his violent thoughts towards his former employer from about March 1996. He said that because he did not want to get caught if he carried out any murders, he began reading forensic science books.

The Plaintiff said that he resigned from Suncorp Metway in April 1996. He said that his long service leave became available at that point, and that he was advised by Dr Cooper to leave. He had been looking for a job elsewhere from January 1996, and said that he had a job lined up for when he left Suncorp Metway. He also told the Panel that he left Suncorp Metway partly so he could take legal action against his former employer.

He commenced working with Coles Myer in April 1996. He told the Panel that at that time his mood was still a little lowered, but he was more optimistic because he could take action at the Australian Industrial Relations Commission (AIRC). He said that he went to the AIRC in May 1996. The Plaintiff said that at that hearing National Mutual mentioned that they could launch a counter claim for vexatious litigation. He voluntarily left Coles Myer at the end of 1997, because he said he could earn more money as a contractor.

The Plaintiff said that from the start of 1998 he did contract IT contract [sic] work in his own business. From the end of 1998 until August 1999 he did contract IT work overseas. He said that during his spare time he read legal books, and that in the back of his mind he was saving up money for future legal costs. From August 1999 until November 2000 he worked for Telstra in IT work. He said that he thought in that time he was "slightly depressed, I suppose", and he was continuing to think of taking legal action.

The Plaintiff said that in November 2000 he returned to his general practitioner and told him about his thoughts of killing people. He was referred back to Dr Cooper whom he saw in January 2001. Dr Cooper referred him to Professor Mullen for a second opinion in June 2001. He said he had submitted his first WorkCover claim in December 2000.

The Plaintiff said that he did further contract work in the United Kingdom from June 2001. He was to work into 2002, but the contract was ended in November 2001 because the business he was working for was taken over. He returned to Australia in February 2002.

The Plaintiff said he has not worked since he returned to Australia in February 2002. The Plaintiff said that because of his thoughts of killing people at work, it was best not to go. He also said that going to work was "putting the cart before the horse", and that he would use the WorkCover process to improve his mental health by resolving the National Mutual situation.

The Plaintiff also reported that in February 2002 his wife suggested a separation. He said that she wanted him to go to work. He said that he wanted to follow through his WorkCover claim.

In February 2002 the Plaintiff said that whilst he was lying in bed watching the TV news his mother-in-law attended to take his daughter to school (she had already taken his son to school). He said that she yelled at him, that she was in a bad mood, she came in and turned off the television and wouldn't leave the bedroom. He reported that he got increasingly angry and threatened her, saying, "if you don't go, I'll hit you". He said that he punched her, but she still didn't move. He told the Panel that he said to her "if you don't go, I will hit you with a chair". She did not move, so he said he hit her with the chair twice. He said that she noticed that she was bleeding and called for her granddaughter. He said he saw some blood and got a tea towel, before calling an ambulance. He said that his reaction was that he felt tired, so he therefore had a cup of coffee. He said he had no thoughts about his mother-in-law; no anger, no sadness for her, but he did feel a bit uneasy.

The police arrived, and the Plaintiff said that he was admitted to the Austin Hospital psychiatric unit for two weeks. He was treated with Efexor-XR 150 mg daily, which he said calmed him down and dampened his emotions.

After discharge from hospital he lived in a number of youth hostels until October 2002,·before returning to live in the family home until mid-2003. During that time he slept on a mattress on the floor. There was a financial separation in June 2003, following which he shared a flat, before living in his own rented flat since June 2006.

The Plaintiff said that he continued to consult Dr Cooper at 1-2 monthly intervals until mid-2006. During that time he ceased the Efexor-XR medication in 2004, to see how he was without it. He said that he was more alert off the medication and he did not become depressed. He stopped seeing Dr Cooper in mid-2006 because he felt it was of no use, and monitoring him was not useful to him. He reported that he continued to see his general practitioner at monthly intervals.

The Plaintiff said that he has spent much of his time since 2002 pursuing his legal claim. He said that if his current legal claim failed, he might go and kill people, but he would also pursue a separate legal claim for his superannuation. He said that he could not go and work now because he would not be able to handle his thoughts at work, he would not be able to concentrate, and he also needs time to get National Mutual to correct their mistakes. He said it was a full-time-job to improve his mental health and gain time for his financial and legal settlement.

The Plaintiff described the following current symptoms:

[70]

The Plaintiff said that he attended a gym most days. He said that he spends about two hours per day on the Internet, looking at dating sites, e-mailing people and sending jokes. He reported spending some time doing legal research, in particular looking up WorkCover cases. He said he recently had a girlfriend, but the relationship had broken down. He reported that he did not see his children very often, and he was a bit disappointed that they do not contact him. He said that his ex-wife was not supportive of his legal claim; he said that a lot of damage had been done and he needed to correct this, and hence the imperative of settling his legal cases favourably.

The Plaintiff denied any past psychiatric history (prior to 1994) and takes no antidepressant medication currently. He has no active psychiatric treatment. He said that he drinks the occasional glass of wine, but does not use any illicit substances.

The Plaintiff told the Panel that he was born in England. He is one of four children. He said that his family were not very well off financially, and that it was a strict upbringing. He said that he was told off a bit, and was controlled by both parents. He reported that his father punished him with a stick. Despite all this he said that he was moderately happy overall, and had some friends.

He reported that he kicked his pet cat a few times as a child, moderately hard. Between the ages of 8-10 he said he stole twice, and lit two fires, one near a church. On one of the fire lighting occasions the fire brigade were called. He said that he was involved in some fights between the ages of 9 to 15 years.

He said that he attended school to advanced levels, before doing a university degree in mathematics. He said that whilst at University he was never lonely, and had a few friends, but never had a girlfriend. From 1982 he has worked in the computer/IT industry.

The Plaintiff said that he came to Australia in 1979, because he wanted to travel and then become a resident here. He married in 1983 and the couple had three children, now 19, 20, and 22 years. He reported that he had hit his wife on two occasions. He told the Panel he was once playing chess when his wife came in and deliberately knocked over some chess pieces. He said that he punched her in the face, causing bruising to her face. He was the subject of an Intervention Order following the incident with his mother-in-law in 2002.

On mental state examination the Panel noted that the Plaintiff presented as a small man, with balding grey hair and a beard. He had a cold stare. He appeared restricted in affect, and did not appear depressed, anxious or agitated. He was not tearful. He related his history in an obsessive manner, with an exact knowledge of dates and details. He did not appear distressed at all about the details described to the Panel, including the violent and homicidal fantasies, the assault on his mother-in law, or punching his wife, for example. He appeared to have a single-minded determination about him. There were no frank psychotic symptoms expressed, such as auditory hallucinations, thought control, or clear delusions. His cognition was normal; he appeared of above average intelligence, and his concentration and memory were objectively normal.

The Panel accepted that the Plaintiff was upset by the changes at his place of employment between 1994 and 1996. The Panel noted that he attended his general practitioner in 1995 and was seen by a psychiatrist in December 1995 and that Dr Cooper diagnosed the Plaintiff as suffering from an Adjustment Disorder with depressed mood at that time.

The Panel noted however that the Plaintiff was able to stay at work during this period and he voluntarily left his place of employment in April 1996, to take up other full-time employment. He had consistent paid employment history both in Australia and the United Kingdom until late 2001. The Panel noted that the Plaintiff did not seek psychiatric help in Australia or the United Kingdom for any psychiatric or psychological condition until he returned to his general practitioner in December 2000 (the date of his first Workcover claim).

The Panel carefully took account of the following:

[72]

The Panel also carefully considered the information provided to the Panel, as outlined in the Schedule of Attachments. It particularly noted the opinions expressed by the treating doctors, Dr Cooper and Dr McColl, and their diagnoses. The Panel also particularly noted the diagnoses made by other examining psychiatrists (including the possible diagnosis of querulous paranoia made by Professor Mullen), as well the comments made by the psychologist Dr Kennedy.

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.

Dr Steven Adlard (Presiding Member)

For and on behalf of the Medical Panel Date: 30/11/07

[92]

Before this Court the contention has been put again which was put to the Supreme Court, that the evidence did not support a finding that the delusion causing the respondent's incapacity for work was anything more than an effect, or a symptom, or a manifestation of the underlying mental disease. It was said that the only permissible conclusion on the evidence of the expert witnesses was that the disease itself, as distinguished from the particular delusions to which it gave rise from time to time, was not made any worse by the incident of 1st December 1960, and that therefore the definition of "injury" is not satisfied in this case. The argument took it for granted that the collection of substantives in the definition - aggravation, acceleration, exacerbation, deterioration - could be rolled into one so that the question for decision could satisfactorily be rendered: whether it was open to the Commission on the evidence to find that the development of the respondent's new delusion as a result of the incident of 1st December 1960 was a worsening of the disease from which she suffered or was only a new manifestation of a disease which itself was not worsened. But fallacy lurks in paraphrase. To ask whether the disease became worse or merely issued in the new delusion while itself being no worse is to invite a discussion upon which a court could not properly pronounce unless guided for the whole distance by expert evidence, that is to say a discussion as to whether the nature of the relevant kind of mental disease is such that a distinction may legitimately be drawn between the disease, as an underlying general condition, and the particular delusions stemming from it under the influence of particular occurrences or circumstances.

To pursue that discussion, however, seems to me to risk distraction from the real point of the case. The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse. Moffitt J placed at least some of his emphasis upon the word "exacerbation", and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.

[94]

A rigid separation of a disease from its symptoms is difficult in the field of psychosomatic and neurological ailments. In the field of purely functional mental disorders I think it is impossible. What was urged for the appellant was that the irrational actions, hallucinations and delusions of a person afflicted in mind as the applicant was are but the symptoms of an underlying deep-seated disease of the mind: and that one cannot say that the disease itself has worsened merely because changes occur in, for example, the nature of a delusion or in the objects upon which a fixed idea is focussed.[37] That I shall assume to be so. But to go from the idea that irrational beliefs and behaviour betoken an underlying disorder of the mind to thinking of the mind as an entity, a disorder of which may manifest itself in symptoms that are apart from rather than a part of the disease itself, seems to me a mistakenly simple view of a complex phenomenon. As I cannot conceive of the mind apart from its functioning, I cannot conceive of it as being disordered or diseased apart from its manifestly disordered functioning. I therefore find it impossible to conceive of the malady as distinct from its manifestations. They are, it seems to me, of its essence. That view may be the result of the limitations of my knowledge. I am not equipped to consider questions of that kind. Nevertheless the view that I take accords, I think, with the manner in which, for the purposes of classification, mental disorders are commonly described and given what one of the witnesses in this case called "a diagnostic label". Classification of functional abnormalities of mind appears to be based largely on the manner of their manifestations, in emotional states, irrationalities, delusions, and aberrations in behaviour. That, at all events, is the conclusion that I draw from what the two psychiatrists said in this case. The applicant was said to be suffering from schizophrenia. Doctor Ellard described this form of mental disorder in terms of a syndrome. So far as the evidence showed, it could not be described otherwise.

The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious.[38] The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.

[101]

This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed[43] her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus[44] her existing delusional tendencies in a particular way: it was a cause of her condition only in the sense that it acted as a precipitant. That may be true: nevertheless, Doctor Ellard agreed that "something obviously happened in December to her to cause a change in her way of life".

The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus[45] for her delusions. But it was this event at work that in fact did so.

At a glance

Court

Decision date

Before

Source

Judgment (177 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)