IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE:

WORKCOVER DIVISION F12615305

BETWEEN:

JOSEPH HOSNY Plaintiff

-and-

VICTORIA RACING CLUB PTY LTD Defendant

MAGISTRATE: Ginnane

WHERE HEARD: Melbourne

DATES OF HEARING: 4, 5 & 6 September 2017

DATE OF JUDGMENT: 8 September 2017

CASE MAY BE CITED AS: Hosny v Victoria Racing Club Ltd

MEDIUM NEUTRAL CITATION: [2017] VMC015

REASONS FOR JUDGMENT

…

Accident Compensation Act 1985 – physical assault at work - psychiatric injury – 130 week notice of termination- whether current work capacity – whether if no current work capacity not likely to continue indefinitely – prior conviction for fraud - failing to report work while in receipt of payments of compensation under the Act- serious injury application – untruthful affidavit – nature of statutory compensation under Act as opposed to common law proceeding for damages – need to assess all evidence of capacity as opposed to adopting a blanket approach to credit - whether worker’s untruthfulness and dishonesty renders him unreliable in account of current capacity- nominal evidence by defendant by way of previous vocational assessment – identification of certain jobs - no current work capacity likely to continue indefinitely - plaintiff’s claim successful – notice of termination set aside

APPEARANCES Counsel Solicitors

For the Plaintiff Ms M Yerusalimsky Nowicki Carbone

For the Defendant Mr M Richards IDP Lawyers

2

HIS HONOUR:

1. The plaintiff seeks to set aside the Notice of Decision by the authorised agent dated

22 May 2015 that terminated weekly payments of compensation and of payment of

medical and like expenses.

2. The plaintiff was born in Naples on 19 March 1957. He is age 60. He came to

Australia at 9 years of age. He completed year 11 schooling. He undertook studies at

the RMIT but completed no courses. Since finishing his education he has worked in a

number of positions frequently associated with mail sorting. As well he has performed

work as a porter at a number of hotels. His substantial period of work has been at the

races and at the football employed by the MCC and the VRC. He also undertook

employment at the Moonee Valley racing Club. Much of this work if not all of it has

been on a casual basis.

3. The plaintiff commenced employment with the defendant on a casual basis in 1995

and was performing his work largely during the currency of the Spring Racing

Carnival. It was in the course of his duties of employment with the defendant on 3

November 2007 that the plaintiff suffered his work-related injury. He was in charge of

a small shuttle bus that ferried guests from marquees to the front gate of the

Flemington race track. He was assaulted by a passenger, an actor apparently, with

the surname of Gann. He was attended to by the doctor on site for St John’s

Ambulance, Dr Dutch and then two days later on 5 November 2007, he attended on

his then treating General Practitioner David Frost who observed minor physical

injuries. He was referred to a psychologist Maria Mercuri on 16 November 2007 and

in February 2008 to a psychiatrist Dr Rowan McIntosh who diagnosed PTSD.

4. He lodged his claim form (Exhibit P1) on 10 January 2008.

5. He commenced a common law claim for damages in the County Court of Victoria in

April 2012.

The plaintiff’s evidence

6. In his evidence in chief the plaintiff was asked whether after the incident he went

back to work with the defendant and he said he did not. He said that he continued to

work elsewhere however after the accident. He said he worked at the MCG on the

Boxing Day test. He said he also worked at the MCG during 2008 and 2009. He said

he might “have done some shifts” but these were on the advice of his psychiatrists.

He said Dr McIntosh knew that he was working because “he was the one who

3

advised me to work”. He said Dr Frost gave him Workcover completed certificates of

capacity which he would merely sign.

7. He said his condition worsened in 2008 and he developed a fear of being around

people and of going out. He said at the date of the accident he had been living with

his wife in St Albans but in consequence of the injuries and the loss of remuneration

from work and his injury his marriage was ruined. He said that he and his wife are

now divorced. He said prior to the work accident the marriage was good. He said

after his marriage collapsed he was itinerant for a time. He said he now has a

Ministry of Housing home and has been in that place for about a year. He said he is

no longer seeing Dr Frost and Dr Stokes is now his General Practitioner. He

continues to see Mr McIntosh. He gave evidence about the suite of medications he

takes including Seroquel, Lovan, Valium, Epilim and Temaze.

8. He says he suffers panic attacks and suffers from nightmares. He said he has been

on medication for the better part of 7 or 8 years. He said prior to the work injury he

was not on medication. He said at the date of the injury he weighed 108 kg but is

now currently 76 kg. In terms of his daily life he said he merely “hangs around the

community Centre” located at his home.

9. He said his memory is poor he cannot remember dates. He said his concentration is

poor he said he used to like the footy but not anymore. He said he requires to read

something 6 or 7 times in order for him to realise that is already read it. He said he

used work in a mail room where he could remember more than 700 names but now

cannot. He said he is very anxious and cannot take public transport times. He said

his sleep is “no good”. He said invariably it will be 2.00 or 4.00 am before it drifts off

to sleep but he wakes up again at around 7.00am.

10. The plaintiff was cross-examined. He said he had suffered back injury “a long time

ago”. He said this was when he was employed with Skybus and he had a claim for

back and neck and a finger injury when employed with Aviva. It was suggested that

he was aware of the importance of certificates of capacity he said, “not greatly”.

11. He accepted that he can read and speak English competently. He was taken to his

curriculum vitae and although he professed not to have a particular memory of all of

the entries contained in it, he was prepared to say that he adopted the contents of it

“if that is what it says”.

12. He said he is an insulin dependent diabetic. He disputed that his weight loss was

attributable to medical advice to lose weight because of his diabetes. He denied that

4

he had any gambling or alcohol-related problems prior to November 2007. He was

directed to his bank accounts and the substantial diminution in a short space of time

of his redundancy payment of in excess of $11,000 he received from Aviva in

October 2007. He denied that he gambled away the money on pokies at hotels.

There is some basis in the evidence of bank withdrawals to suggest an improvident

existence during a period of time.

13. The entry made by Dr Dutch from St John’s Ambulance on the date of the accident

identified several punches to the left cheek having been inflicted on the plaintiff but

the no evidence of bruising and he recommended the plaintiff have a routine follow-

up.

14. Following the assault the plaintiff worked a full shift on Cup Day as he did on Oaks

Day and Stakes Day. He said in evidence that in fact that it was only after the last

day of the Spring Racing Carnival that he no longer returned to work with the

defendant.

15. However the plaintiff did work at the MCG on the Boxing Day test in 2007. He was

directed to a letter from the Victorian WorkCover Authority (the VWA) dated 3 March

2008 and the advice contained in it that he must report if he returned to work with

anyone else. He failed to do so. He said he did not comprehend the requirement

imposed on him in the letter.

16. The plaintiff was directed to his application in support of his S 134 AB application for

the grant of a Serious Injury Certificate in the County Court and in particular to the

affidavit he swore on 6 May 2007. He was taken in particular to paragraphs 34 and

38 of the affidavit and his statements to the effect that he had not returned to any

form of employment since the incident of assault on 3 November 2007. The plaintiff

when confronted with this said that he thought what he deposed to was intended to

relate only to returning to work with the defendant. It was as an untruthful statement

and one he continued to prosecute before me. Despite the plea of guilty to the

criminal charge the plaintiff’s evidence to me exhibited a reluctance to accept his

conduct. In the course of final address counsel for the plaintiff submitted that the

plaintiff’s mental state may have been such that at the time he was unaware of the

nature of his conduct. I do not accept that submission. I believe the plaintiff

understands right from wrong.

17. However, the plaintiff did receive a Serious Injury Certificate and thus was allowed to

commence proceedings at common law for damages. He did so but as far as the

5

defendant is concerned the claim against it was dismissed in the course of the trial

before her Honour Judge Davis and the proceeding continued solely against Mr

Gann. Gann did not participate in the trial of the proceeding. The plaintiff was

awarded $325,000 in damages by her Honour Judge Davis. In the course of the trial

however it became apparent that the plaintiff had been undertaking employment at

the same time he had been receiving weekly payments of compensation. He had not

however at that stage been charged with any criminal conduct. Her Honour made

positive findings about the plaintiff’s evidence. They are not findings I share.

18. The VWA commenced criminal proceedings against the plaintiff in the Magistrates’

Court. The plaintiff pleaded guilty to one charge of obtaining financial advantage by

deception. He was sentenced on 9 September 2014 to term of imprisonment of 6

months wholly suspended for a period of 24 months and he was ordered to pay

$49,787.20 by way of compensation under the Sentencing Act (1991) together with

costs in excess of $7,000. No amount has been paid in satisfaction of or reduction of

the award of compensation or costs.

19. As a result of the plaintiff’s conviction Gann applied out of time to set aside the

judgement of Judge Davis. The application was granted but his Honour Judge

Brookes was not satisfied that fraud had been established and so the judgment in the

plaintiff’s favour stood. I am told that Gann has an appeal on foot against the decision

of judge Brookes. The determination of that appeal is not a reason for me to delay

the publication of my reasons for decision.

20. It is evident that on numerous occasions the plaintiff gave false answers regarding

his working history since the assault. These falsities were made to a suite of different

people an over the course of extended periods of time. Indeed it was on the basis of

the plaintiff’s deception that his GP caused certificates of capacity to issue. In

addition to deceiving his GP the plaintiff also was untruthful by omission to his

treating psychiatrist Rowan McIntosh. I am satisfied that the plaintiff gave incomplete

information to Dr McIntosh about the extent of the work he undertook after the

assault in November 2007. Coincidentally the failure to report his work occurred in

and about the times that Dr McIntosh was urging the plaintiff to make an effort to

attempt some limited work as part of his overall treatment of the plaintiff. As far as Dr

McIntosh was concerned and unawares of the work being performed he found that

the plaintiff “was not up to it.”

6

21. In considering the plaintiff’s conduct I am reminded of the statements made by

Warren CJ and Hargrave AJA in Sejranovic v Berkeley Challenge Pty Ltd [ 2009]

VSCA 108 that:

“In a number of cases, this court has referred to the fact that medical opinions

may, to varying degrees, be dependent upon the accuracy of the patient or

claimant as a historian. A medical opinion1 which is based upon an account

by a patient or claimant as to his or her symptoms may have little or no

probative weight where the court determines that such witness is not reliable.”

22. I was not impressed by the plaintiff. In the course of the hearing and when subject to

cross examination he remained reluctant to admit his falsehood. In cross examination

the plaintiff was confronted with his past dishonesty. On some occasions when

questioned as to why he had made false statements to doctors the plaintiff’s

response were remarkably lacking in memory when the answer to the questions

would have elicited an unfavourable response whereas in responding to other

questions he cavilled with counsel both as to the form of questions and the accuracy

of their comment. There may have been some attempt by the plaintiff to feign a lack

of sufficient comprehension or understanding of some questions when confronted

with his past dishonesty.

23. The plaintiff’s willingness to give false information in relation to his work capacity and

history in the period soon following the assault makes me approach his evidence on

matters of contention and that depend very much on self-appraisal of symptoms and

their effects on with caution in the absence of clinical evidence to provide

corroborative support. However, the fact alone of the plaintiff’s dishonesty does not

mean that his evidence should be discarded in toto. I think it would be wrong of me to

treat the plaintiff’s previous bad character of itself and without recourse to other

evidence as determinative in all material respects of a resolution of the question of

his capacity for suitable employment.

24. The Act is a piece of beneficial legislation and it calls for determinations by those who

administer it, and the Court who stands in the shoes of the decision maker and is

seized of all the powers of the same, to consider various statutory tests in relation to

a determination made for entitlements to compensation in the form of weekly

payments and medical and like expenses for injury. These benefits are anchored by

some fundamental underpinnings; that is that the injury arise by reason of or in the

1 Underlining added

7

course of employment and as is the present case, that after a second period of

entitlement, a plaintiff must establish that he has no current work capacity and that

the same is likely to continue indefinitely and that the operative reason for such a

state of affairs is that the work injury continues to be a material contribution to that

state of affairs.

The plaintiff’s medical evidence

25. The plaintiff relied on considerable amount of medical material. The plaintiff’s counsel

as well referred me to Exhibit P 7 which appears to constitute a typed note of a

telephone contact of 25 June 2008 between a case officer and the plaintiff’s treating

psychologist Miss Mercuri. It reads:

Discussion with treater Mercuri, the worker’s psychologist… revealed that at

this time the worker was improving but still had symptoms of his stress. She

confirmed that he had attempted to do work in crowds and even a short shift

in the mail room. Even though he was not in a crowded place is still had

difficulty focusing and concentrating and completing his tasks of sorting.

Hence at this stage any job can be problematical for him and he is not

suitable for a Voc/Jsa program. To his credit is eager to return to gainful

employment and this will happen in due course. Ms Mercuri was not able to

provide a timeframe for this expected improvement.

26. The plaintiff’s counsel submitted in her final address that this note of record of

conversation was indicative of the plaintiff’s integrity in so far as it disclosed via his

then treating psychologist the fact of him having attempted to do some work including

a short shift in a mail room. Rather in my view the note is to the contrary and reveals

again at the date that it purports to record a conversation the person to whom it might

be expected the plaintiff to give full and frank information concerning his health and

his work capacity has failed to do so. If the note is to have any probative worth, and I

doubt that it does, it only goes to reinforce the fact that the plaintiff was at this time

providing piecemeal information to those charged with his care and treatment.

27. As to the work the plaintiff did perform after the assault on 3 November 2007 and

most particularly in his casual employment status with the Melbourne Cricket Club

there is the following by way of evidence. The defendant relied upon the employment

history in the period from 5 August 2007 until 26 October 2010. If one looks at the

period of time recording pieces of employment following the assault it reveals

relevant employment from 26 December 2007 until 12 September 2009. It records

ongoing employment of the plaintiff either as an attendant or working at the passout

8

gates or at various ramps within the stadium. It shows the times that the plaintiff

logged on and logged off on such occasions and his employment hours varied but

included periodic work anywhere from as little as 4.5 hours to 10.25 hours. The

plaintiff’s evidence was that he did not find this work straightforward and indeed in

the carriage of it he was subjected to characteristic symptoms of post-traumatic

stress disorder. He said his condition and his ability to undertake this work was so

impaired by his condition that it was necessary for him to ask and for his employer to

accommodate him working in more secreted and less public areas of the MCG. That

account is to some extent corroborated by affidavits furnished as part of the

investigation of the plaintiff’s fraudulent receipt of benefits by 2 officers employed with

the Melbourne Cricket Club. An affidavit by Vincent James made 3 July 2014 sets out

that the deponent was employed as a supervisor of event day staff and had known

the plaintiff for some years as a casual event staff employee. He said that the plaintiff

was for “a period of time” under his “direct supervision”. He went on to say that he

recalled the plaintiff telling him about the assault that occurred at the Flemington

Racecourse. He said as well that the plaintiff told him that he was nervous about

working by himself therefore James placed him in a position alongside other

employees in the Football Club Members area. He deposed that this is an area that

is quieter than general public areas and that the plaintiff’s role involved general

customer service, checking tickets, directing patrons towards the seats and keeping

the area generally clear. He went on to say that he recalled “a couple of occasions”

when he observed the plaintiff “a bit agitated.” He said that he had a conversation

with him on these occasions and observing his agitation and he allowed him to leave

a few minutes early so as to avoid the crush of people exiting the ground. He said

that although the plaintiff appeared on occasions to be “subdued and nervous” he

was able to perform his duties and that otherwise than leaving early “on a couple of

occasions he completed his full shifts.”

28. The other affidavit provided from employees of the Melbourne Cricket Club is that of

Anne Turville. She opposed to being employed as the Events Staffing Supervisor.

She deposed that she knew the plaintiff “reasonably well.” She said the plaintiff

commenced employment on 22 August 1989 and he worked shifts based on his

eligibility and availability. She deposed to sometimes talking to the plaintiff on the

telephone and being able to “tell that he was not well that day”. She said his voice

appeared to be “quiet, timid and shaky”. She said however it was not like this on all

occasions. She corroborated the statement in the affidavit of Mr James that the

plaintiff was allocated shifts in the Olympic Stand, an area known to be “quieter than

9

other areas;” however she went on to say that quiet though the area may be, it does

require of necessity and interaction with people “and crowds and this cannot be

avoided”. She deposed to not being aware of any instance where the plaintiff was

unable to complete his duties when he was at work although he was known to

contact her on occasions when scheduled to work advising of his inability to do so

due to ill health.

29. The further medical evidence relied upon by the plaintiff in support of an ongoing lack

of capacity for employment consist of the reports of Doctor Entwistle psychiatrist, the

plaintiff’s current GP Dr Stokes, Mr Kaplan and Mr Seri. I will deal with the salient

parts of their reports in turn.

30. The defendants’ assault on the plaintiff’s claim is an understandable and beguilingly

attractive argument. However, in my opinion, it is for these very reasons that I think it

is necessary to analyse the matter with care and in a nuanced manner. Whilst I

accept that a man of dishonest character warrants particular scrutiny when testifying

about matters that depend exclusively or very largely upon an acceptance of his

word, it does not follow that a man of dishonesty and questionable character cannot

suffer a genuine and compensable injury within the meaning of the Act or that in

consequence of the same be subjected to real restrictions. I have approached the

evidence keeping in mind the following principles:

First, proved dishonesty in claiming compensation of weekly payments under

the Act invites greater caution in any subsequent application made by a

plaintiff;

Second a man convicted of dishonesty may nonetheless find himself having

suffered an injury that attracts a right to benefits under the Act;

Third, proved dishonesty whether arising under the Act or otherwise is not a

disentitling factor under the Act

31. I have also assessed the evidence in light of the following statement by the Court of

Appeal in Dordev Cowan & VWA [2006] VSCA 254 at [14] (omitting citations) and

that:

It is not surprising, however, that the appellant’s credit was the principal focus

in the case, given that the respondents contended that she was, in effect,

10

fabricating or otherwise impermissibly exaggerating the effects of the injury on

her in terms of pain and suffering and ability to work. It is plain enough that

the appellant’s credibility was relevant not only to the question whether her

own evidence in that regard was to be accepted, but it was also relevant to

the reliability of the medical evidence on which she relied to establish her

case, because the opinions of her specialists were essentially dependent on

the credibility or reliability of her account of the history of the injury and its

effects on her. This was well recognised by the learned trial judge. As I have

noted, after a comprehensive analysis of the evidence, his Honour concluded

that the appellant was not a credible witness and that she did not give to the

medical practitioners an accurate account of the history of the injury and of its

effects on her in terms of pain and suffering and disability. These findings

were, I think, plainly open to his Honour and were not challenged by the

appellant. It follows that his Honour was entitled to take the view that he could

accord only limited probative weight to the evidence.

32. By written notice dated 25 May 2015 the plaintiff was advised relevantly:

“You are no longer entitled to weekly payments and medical and like

expenses because you are not incapacitated for work…

Your incapacity for work is not materially contributed to by an injury arising

out of or in the course of your employment.

Your incapacity for work is not materially contributed to by an injury which

entitles you to compensation.

You are no longer requiring any medical treatment for your injury.

The medical and like expenses you are claiming a not for an injury which

entitles you to compensation under the Act.

The medical and like expenses you are claiming relates to an injury which

arose out of an event or circumstances which does not entitle you to

compensation under the Act.

The dishonesty and work performed

33. On 6 May 2009 the plaintiff made an affidavit in support of his application for

common law damages. In the hearing for common law damages and subsequently

established separately before me in this hearing it became apparent that the plaintiff

11

had in fact returned to work subsequent to his injury that he failed to disclose this fact

to his employer or to the authority. During the period of time these jobs of work were

performed subsequent to his injury he obtained certificates of capacity from his

treating GP over the period for March 2008 to 15 September 2009. Each certificate

certified the plaintiff as totally unfit for work. Each certificate was signed by the

plaintiff. Each certificate contained a declaration that the plaintiff had not engaged in

any form of employment since the previous certificate was obtained. Each

declarations was false. I am satisfied they were knowingly false. I do not accept the

plaintiff’s explanations which varied in the course of his evidence before me to the

effect that he did not make the mark declaring that he had not engaged in any form of

employment but that it had been placed there by his doctor but later that really can’t

now remember. He accepts however he signed the declaration but he says he did

not read it or comprehend it. I believe he read it but whether he now comprehends

the effect of his perfidiousness is open to question.

34. The extract of the record of the conviction in this Court is that on 1 September 2014

the plaintiff was convicted and sentenced to an imprisonment term of 6 months on

one charge of obtaining financial advantage by deception. That sentence was wholly

suspended for an operational period of 24 months. The plaintiff was ordered to pay

$49,787.20 to the authority under the Sentencing Act 1991 together with costs and

the amount of $7,457.

The medical evidence

35. I heard oral evidence from Dr Rowan McIntosh and Associate Professor Doherty. In

addition I was supplied with an abundance of medical reports.

36. Dr McIntosh has seen the plaintiff from the early stages following the assault in

November 2007. A substantial number of reports have been made by him and were

put in evidence. I have reviewed each of them. In addition to consultations with the

plaintiff Dr McIntosh has and continues to prescribe significant dosages of high-grade

medications to the plaintiff. Dr McIntosh accepted in his viva voce evidence the

benefits associated with progressively weaning the plaintiff from his tranche of

medications but he said there had been some recalcitrance on the plaintiff’s part in

agreeing to his medication being adjusted downwards. Dr McIntosh has treated the

plaintiff since referral in February 2008. Dr McIntosh has attributed a diagnosis by

way of a variation of PTSD. Dr McIntosh expressed his judgement that the plaintiff’s

condition progressed by way of an upward trajectory “in the first six, twelve to

12

eighteen months” and reached its zenith he thought “in 2010.” Despite this Dr

McIntosh encouraged the plaintiff to the extent he felt capable of returning to some

form of work. Dr McIntosh however was deceived by the plaintiff and was unaware of

the significant regular casual work undertaken by the plaintiff after the work injury and

throughout the period particularly from March 2008 to 15 September 2009. When

asked if this disclosed work capacity altered his opinion as to the plaintiff’s current

condition Dr McIntosh said it did not. In a report dated 15 July 2009 among other

matters Dr McIntosh stated: “It’s only in the past couple of months that he has been

able to persistently go to local shopping centres/local parks (for brief periods). Prior

to this he was stuck at home (his brother’s house) for days at a time, rarely venturing

out the fear that he would “almost certainly” be attacked by some other

deranged/intoxicated/drug affected individual”.

37. Of course it is not Dr McIntosh alone who formed an opinion of incapacity based on

the plaintiff’s account of his psychological condition. In fact Dr Entwistle, psychiatrist

also conducted an independent medical examination of the plaintiff in a report dated

13 February 2012 wrote:

Mr Hosny has Chronic Post Traumatic Stress Disorder. This is a work caused

condition. He remains unwell. His treatments have assisted him to maintain

some equilibrium. Nonetheless his condition remains at a severe level.

As indicated Mr Hosny will never work again. He has a serious psychiatric

condition…

38. Doctor Entwistle’s opinion changed as a result of being advised of the plaintiff’s

criminal conduct. In a subsequent report dated 30 August 2012 and following the

provision to him of the transcript of court proceedings he wrote:

I note that Mr Hosny attended the Court in April 2012 in relation to Common

Law application and that during those proceedings it came to light that he had

been employed at various times since his injury on 3 November 2007.

Based on my assessment of him and his account to me, Mr Hosny suffers

from a psychiatric condition in the form of PTSD.

On each of the occasions that I have seen him, based on his account and his

presentation to myself I considered that he had no capacity for employment.

In perusing the transcript it appears that Mr Hosny in fact did work and did so

at least until September 2009 when he worked as an attendant from 5 pm

13

until 10:15 pm at the MCG at the Collingwood v Adelaide match. As such

there are questions as to Mr Hosny’s veracity….

Given that he claimed to me when I saw him in March 2009 that he was not

able to work, but was in fact actually working, it is apparent that Mr Hosny’s

assessment of his work capacity and statements to that affect to myself were

an under estimate of his work capacity from a psychiatric perspective.

Whether or not anything has changed significantly in regard to his further

work duties, i.e. whether his psychiatric condition has worsened to the point

where he is genuinely not able to work, is again a question of evidence2

rather than a psychiatric opinion.

39. On the application to seek an extension of time for Gann to make application to set

aside the judgement of her Honour Judge Davis awarding the plaintiff damages the

court said the following:

In summary it was submitted on behalf of the respondent that the mere fact

that, for a relatively short period between 2008 and 2009, Hosny has been

able to engage in some work, although he claimed trial that this was not the

case, did not warrant the drastic step being taken of granting this extension of

time.

We could see the force of some of the submissions. Nonetheless, having

read the transcript of Hosny’s cross-examination closely, it seemed to us that

his plea of guilty indicated that he had deliberately falsified his evidence in

certain important respects, nevertheless succeeded in persuading the trial

judge that he was a truthful witness in all aspects of his evidence. Further, the

medical evidence adduced on his behalf was also based on a patently false

history. That calls into question the soundness of the damages verdict. Had

her Honour known that Hosny was in fact lying about the extent to which he

had been rendered unable to work, it may well have been, in our view, that

some significantly less amount than $325,000 would have been awarded

against Gann by way of damages.

40. I am mindful of the content of those comments by the Court about the moderating

effect the full extent of the plaintiff’s untruthfulness might have had on the trial judge’s

verdict for damages in the common law trial whereas I am called onto perform a

2 My emphasis

14

different function which is statutorily prescribed task to make a determination as to

current capacity for weekly payments and medical and like expenses. The historical

importance of the plaintiff’s false evidence about work performed in the period after

the assault in 2007 strikes me as having different work to do in a common law action

to a determination of a statutory claim for weekly payments of compensation together

with medical and like expenses for ongoing and indefinite incapacity for work. The

dishonesty whilst an important matter and one that necessarily tempers my view of

the plaintiff’s evidence may not prove determinative of the statutory test and

outcome.

41. Associate Professor Doherty has a distinctly different if not a somewhat jaundiced

view about the veracity or the lack of veracity of the plaintiff and its impact on his

ability to form a meaningful diagnosis of any psychiatric condition. However,

Professor Doherty in his oral evidence, referenced his opinion not only by to the

plaintiff’s historical deceit, but also on his own judgement formed on examination of

the plaintiff. In his report dated 20 April 2015 following examination he wrote:

He told me he is not sociable and he does not go out. He told me he

occasionally goes to church in the city for peace and quietness. He told me

he does not take public transport in peak hours. He told me he avoids crowds.

He told me he does not go to the football and the last time he worked at the

MCG was 5 or 6 years ago. He told me mostly those thoughts go through his

mind and he told me he feel scared.

With regard to his own views about his current work capacity, he told me he

had no confidence and cannot concentrate. He told me he could not hold onto

a job. He told me has no ability to do anything.

His care worker, who attended the IME examination with him, said the

following. He told me he is a warm and friendly person. He told me his very

caring. He told me he had recently given a talk to his peers about his life

experience in front of about 20 people. He told me that happened about a

week ago.

The worker has been diagnosed within the supplied material as having a

post-traumatic stress disorder. The worker gives a history of a severe assault

on him in compensable circumstances. The worker’s history is unreliable.

The worker was examined by a doctor at the racetrack who found no

objective evidence of an assault. The worker, in the stand agreed that there

15

was no blood or bruising however is said he was sore everywhere and it was

noted the worker continued working at the same racetrack for the next few

days. Transcript of the Supreme Court hearing clearly indicates the worker

was examined by staff doctor on the racetrack immediately after the claimed

assault. The transcript indicates that the worker claimed an assault on Derby

Day, that is the Saturday and attended the Melbourne Cup on Tuesday and

work for the employer on Melbourne Cup Day and on Oaks Day, the following

Thursday.

At the present time I could not identify a diagnosable psychiatric condition.

The history of the claimed assault and the psychiatric symptoms thereafter

are not reliable.

It is clear the worker continued working in various employments over the next

year or so.

His life circumstances considerably deteriorated. He became homeless. He

drank heavily. He was awarded compensation in civil proceedings. He was

charged and convicted of fraud.

In my opinion there is no current connection between the reported symptoms

and the claimed injury sustained on 3 November 2007. That is there is no

material contribution that work makes, to the current reported psychiatric and

psychological symptoms.

The worker is not incapacitated for work at the present time. The worker has

a current work capacity from a psychiatric point of view solely.

The worker has a capacity from a psychiatric point of view to participate in

retraining and New Employment Services.

He claimed he was suffering a range of psychiatric symptoms and could not

be employed.

That is simply not the case and he continued in various employments for a

couple of years. In due course that was found out in the worker was convicted

of fraud. In the meantime he had won a personal injury settlement against the

person who assaulted him, claiming severe psychiatric condition

consequential to the assault.

16

When I examined the worker there was no evidence of a psychiatric condition

related to the claimed assault. It was a heavy reliance on alcohol, which

appears to be less the case now. There has been deterioration in his personal

circumstances.

42. Doctor McIntosh in a report dated 9 June 2015 (Ex D 7) struck me as “covering his

bases” to coin a phrase, regarding the plaintiff. He wrote that the plaintiff:

…was probably a rather naive and somewhat socially awkward/somewhat

inept individual-who struggled thereafter to manage his symptoms in the

months after the assault.

I think it is only reasonable to highlight from my perspective, Mr Hosny seems

to have always been a relatively consistent historian-apart from conveying to

me with a great degree of accuracy-as to how many days he did

volunteer/work-after the original assault3.

My professional impression is that in the early weeks/months of his

unwellness Mr Hosny was significantly psychiatrically compromised. At my

behest, he did agree to try to go to work on a number of days, as it was my

fear that if he didn’t attempt to maintain some sort of work ethic-(and therefore

some sort of social contact close bracket- that he would continue his

downward spiral into more florid unwellness.

43. Not all of the reports relied upon by the plaintiff had been prepared in circumstances

where the author or treater has been unaware of the plaintiff’s fraud. In his report

dated 26 June 2015 Dr Stokes who is the plaintiff’s current treating general

practitioner wrote as follows:

“The report from Doctor Doherty, whom I gather has only met Joe on one

occasion, seems the sole basis for ceasing his claim. In the 5 years I have

been Mr Hosny’s GP, I feel he would not at any point have been fit to work in

any capacity. I see Mr Hosny 2 to 3 times per month in relation to his

WorkCover issue and his NIDDM. He is perpetually anxious and on edge. His

thought processes tend to be disorganised and chaotic. His short-term

memory is poor. Doctor Doherty states he could return to his pre-injury duties,

a suggestion I find difficult to conceive given Mr Hosny can barely remember

3 Presumably with “not” a great deal of accuracy

17

when he has an appointment to see me and has to be sent reminders as to

when to attend.”

44. Psychiatric reports from Dr Kaplan dated 17 May 2016 and 24 May 2017 were

additionally relied upon by the plaintiff. In the first of them and as a result of

examination conducted of the plaintiff Dr Kaplan referred to the following matters:

The account of the assault at work on 3 November 2017 the substantial

treatment under the care of the psychiatrist Doctor McIntosh commencing

February 2008

The plaintiff’s regime of medicines

45. In relation to the plaintiff’s work history since the assault Dr Kaplan took a history

from the plaintiff which whilst not on all fours with an account based on the

documentation, is pregnant with indications revealing the plaintiff’s vagueness and

that is consistent with the plaintiff’s presentation in much of his evidence before me

as is the plaintiff’s descent into panic attacks and that resulted in the plaintiff requiring

a break in his cross-examination before me.

46. Doctor Kaplan noted the plaintiff’s plea of guilty to one count of obtaining property by

deception arising from the receipt of weekly payments of compensation whilst

working during the time of the receipt of such payments. Dr Kaplan recorded the

plaintiff as having said that although he signed his certificates of capacity provided by

his GP he did not fill out the certificates and he cannot recall whether he told his

doctor that he was undertaking some work. This is consistent with the ultimate

evidence given by the plaintiff in the hearing before me. Doctor Kaplan recorded as

well that the plaintiff telling him that Dr McIntosh had encouraged him to perform

work. I have already referred to the incongruity and inconsistencies between Dr

McIntosh’s knowledge and encouragement to the plaintiff to do some work as best he

thought himself capable and his lack of knowledge about the actual work the plaintiff

performed.

47. In relation to the plaintiff’s current psychiatric condition and characteristic

symptomology associated with it, Dr Kaplan stated:

Mr Hosny said that he developed panic attacks after the assault and has

continued to suffer from panic attacks since then…The condition is triggered

by exposure to crowds, sudden loud noises or having to venture into

unfamiliar places. His condition has undergone some improvement and is

18

now able to use public transport could only do so during quiet periods, and for

that reason came to exhibit examination by taxi.… Mr Hosny reported that he

feels anxious “most time-I’m always anxious.” He is irritable and short

tempered and he commented “I wasn’t like that before”.

….

Mr Hosny stated that he suffers from insomnia. He commented “I’d be lucky

to get 4 hours sleep a night”

Mr Hosny stated that he has difficulty with his short-term memory and he

misplaces objects.

48. In addition Dr Kaplan referred to a number of other matters that had been prevailing

on the plaintiff’s life which contributed to his mental health including the relationship

with his wife deteriorating and ultimately ending, his homelessness prior to finding

and being placed in his Ministry of Housing accommodation, the circumstances

themselves of the litigation involving his assailant and the criminal conviction and

compensatory order and costs that attach to him.

49. Doctor Kaplan wrote:

Mr Hosny was traumatised by the frightening assault to which she was

subjected in the course of his work in 2007 and he developed Post-Traumatic

Stress Disorder. His condition has subsided since then although he still

experiences some traumatisation features including nightmares and intrusive

thoughts regarding the assault coupled with hypervigilance and a heightened

sense of vulnerability. It is difficult to predict the long-term prognosis of this

condition; however, he is likely to experience some persisting symptoms for

the foreseeable future, and any future experience was life is threatened is

likely to lead to an aggravation of his condition.

…

Mr Hosny is suffering from a Panic Disorder with Agoraphobia. This condition

was triggered by the assault and property occurred in the context of an

underlying vulnerability related to the loss of his mother during his late

childhood. Although this condition has undergone some improvement, he

continues to experience symptoms of at least moderate severity, and the

condition continues to have a major impact upon his lifestyle. The prognosis

19

of this condition is variable; however, it often runs a chronic fluctuating course

and can be aggravated by stress.

Mr Hosny also describes symptoms of depression and anxiety in this

condition is probably related to his post-traumatic stress disorder symptoms

and to the changes which have occurred in his life and his inability to lead his

normal lifestyle. His condition is therefore probably best characterised as an

Adjustment Disorder with Mixed Anxiety and Depressed Mood. He is likely to

remain prone to anxiety and depression as long as he is unable to resume his

normal lifestyle and while his collar quality-of-life remains compromised.

Mr Hosny currently has no capacity for his preinjury employment or any other

employment as a result of his psychiatric conditions. He appears to have

struggled with the limited employment in which engaged after the assault and

was unable to continue with that employment given the persistence of his

psychiatric conditions at his age, it is likely that his incapacity for work will

persist for the sustainable future.

With regard to the questions addressed to Mr Hosny during his cross-

examination before the Court on 26 April 2012, it is likely that he would have

struggled to respond thoughtfully and in a measured way under those

stressful conditions being cross-examined by a skilled barrister given his

psychiatric conditions, and in particular his anxiety, his difficulties with

concentration and memory, his loss of confidence, and his panic disorder. His

ability to analyse and respond thoughtfully to the questions in his cross-

examination would have been compromised. His underlying anxiety would

have been heightened in the circumstances and may have, at least in part,

undermined the admissions he made in evidence and to reason thoughtfully

when answering questions.

As part of his psychiatric conditions, Mr Hosny has difficulty with his memory

and concentration, he experiences anxiety, particularly in public places in his

lost confidence. These factors would all have compromised his capacity to

analyse questions addressed to him, make decisions in regard to those

questions, and provide considered evidence.

50. In a report dated 24 May 2017 following a further examination of the plaintiff on 18

May 2017 Dr Kaplan wrote that the plaintiff had commenced prescription of Lovan,

two tablets daily. In relation to psychiatric condition Dr Kaplan wrote:

20

Mr Hosny reported that he still suffers from panic attacks and he avoids

“going out at all costs and was I have to go”. He only ventures out to attend

appointments and for essential needs.

….

Mr Hosny stated that he still finds himself thinking about the assault and he

commented “that’s why I can’t sleep. I’m reminded of things I see on the

television”. He has nightmares about the assault which occurs several times a

week and which waking.

…

Mr Hosny stated that he still feels depressed and is often in tears. He

commented “I’ve got no confidence” he has experienced thoughts of suicide

and on several occasions in recent months he has called Lifeline.

…

Mr Hosny stated that he goes to a Community Centre on the ground floor of

his apartment block to watch television as it does not own his own television.

He has no friends and he feels lonely.

…

Mr Hosny stated that he has difficulty with the short-term memory and needs

to write reminder notes for self. His concentration is poor he commented “I’ve

got one interesting life and that’s the footy-and I can’t even do that-read about

the footy and that.

51. Dr Kaplan wrote that in his professional opinion:

Mr Hosny continues to suffer from symptoms which would properly qualify for

a diagnosis of Post-Traumatic Stress Disorder and his condition is related to

the assault to which she was subjected in 2007. He continues to experience

recurring nightmares and intrusive thoughts regarding the assault, he

describes the avoidance features and hypervigilance and he experiences a

heightened sense of vulnerability. Given the duration of his condition in the

failure of his condition to improve, his prognosis is likely to be unfavourable

and any future experience where life is threatened is likely to aggravate his

psychiatric condition.

21

Mr Hosny continues to suffer from a Panic Disorder associated with

Agoraphobia. As indicated in my earlier report, this condition was probably

triggered by the assault occurred in the context of an underlying vulnerability.

This condition does not appear to have altered significantly over the past year

and his prognosis remains as described in my earlier report.

Mr Hosny also continues to suffer from symptoms of depression and anxiety

and these symptoms are probably partly symptomatic of his Post-Traumatic

Stress Disorder and partly due to the changes which have occurred in his life

and his loss of quality of life. His condition is best characterised as an

Adjustment Disorder with Anxiety and Depressed Mood and is likely to

continue as long as he is unable to resume his normal lifestyle.

Mr Hosny’s capacity for employment remains as described in my previous

report. His psychiatric condition has had a major impact upon his social life,

recreational activities and his general quality of life and this impact is likely to

persist for the foreseeable future. It is likely to require a continuation of his

current treatment is treatment as long as he suffers from significant

symptoms.

52. The plaintiff was also examined at the request of the plaintiff’s solicitors by Dr Nathan

Serry who has provided two reports in close proximity namely a report of 24 August

2017 and 1 September 2017. In the first report Dr Serry, a consultant psychiatrist,

referred to a good deal of the documented history pertaining to the plaintiff arising

from the assault that occurred at the racetrack on 3 November 2007. Doctor Serry’s

history does not include the full sweep of employment on a casual basis the plaintiff

undertook after the assault but this absence of the full panorama of work has been a

common thread through the reported histories given by the plaintiff to his treaters. In

relation to his findings arising from his mental state examination of the plaintiff Doctor

Serry wrote:

Your client was an intense and highly anxious historian. He was able to

establish some eye contact but developed restricted rapport. He

demonstrated a reduced affective range and he appeared depressed and his

self-report of his level of anxiety was consistent with his presentation. He also

described panic attacks, irritability, significant avoidance behaviour and very

prominent post-traumatic anxiety features regarding the assault itself.

22

53. Doctor Serry diagnosed the plaintiff with chronic post-traumatic stress disorder and a

chronic major depression with anxious features and with features of panic. He

reported that the plaintiff’s condition is directly related to his employment with the

defendant. He regarded the plaintiff’s condition psychiatrically as having stabilised

but one that nonetheless will require ongoing expert management from his treating

psychiatrist “for the sufficient foreseeable future”. He opined that in consequence of

the plaintiff’s psychiatric condition “he has no capacity to perform preinjury duties, an

incapacity that is likely to be permanent”. He went on to express the opinion that in

consequence of the plaintiff’s psychiatric condition “he has no capacity to perform

suitable employment, taking into account his incapacity, age, education, place of

residence, skill and work experience”.

54. In his second report Dr Serry in response to being asked by the plaintiff’s solicitors to

comment on matters relating to the plaintiff’s ongoing casual employment from about

March 2008 until September 2009 and for a period of time working in a mailroom (the

period of approximately 2 weeks full-time work that the defendant has identified) and

his plea of guilty to the charge of obtaining financial advantage by deception in 2014,

he wrote:

I note the contents of the report of IME Associate Professor Doherty dated 20

April 2015. Associate Professor Doherty stated that at the time of his

assessment, he could not identify a diagnosable psychiatric condition and

said that the history of the claimed assault on the psychiatric symptoms

thereafter were not reliable.

I also note the enclosed report of Independent psychiatrist Doctor Stern, a

supplementary report in which he recommended a graduated return to work.

Whilst there is some dispute in relation to aspects of the history provided by

your client the vast majority of medical opinion appears to support the

conclusion that your client has developed a significant psychiatric condition,

not inconsistent with the diagnosis made by myself.

I would have such respectfully disagree with the conclusions reached by

Associate Professor Doherty in his assessment and confirm that my opinion

has not changed in any way from that expressed in my report dated 24

August 2017.

55. In relation to other material relied upon, I note that the defendant has provided further

affidavits from personnel including an affidavit by Leigh Saville an employee of the

23

Moonee Valley Racing Club who produced records of work undertaken by the plaintiff

consequent to his injury in particular from approximately 22 November 2007

concluding 25 August 2008. There was no work between 15 December 2007 and 25

August 2008 with the Mooney Valley Racing Club. In regard to the position relating to

the work undertaken, that being a casual operations attendant, the deponent wrote

that:

As an Operations Attendant his duties would have included greeting and

assisting all patrons, giving directional information to patrons as requested

and ensuring that only accredited members and patrons into certain areas on

race day meetings. This role involves working in and around large crowds and

requires a high level of customer service.”

56. Ms Saville acknowledged that she does not know the plaintiff personally.

57. The defendant also produced an affidavit made by the plaintiff’s previous General

Practitioner, Dr Frost. It was to Dr Frost that the plaintiff initially attended after the

assault at the track. He noted that he issued certificates of capacity certifying the

plaintiff unfit for any duties. He said he formed this view based on the plaintiff’s

presentation that he was unable to work together with information received by Ms

Mercuri who had been treating the plaintiff in relation to psychological wellbeing.

Doctor Frost was unaware of the extent of the casual work the plaintiff was

performing. In fact Dr Frost deposed that the plaintiff had told him that he had tried

one or possibly two shifts but could not cope and had gone backwards with his

condition and was unable to work. Doctor Frost states that had the plaintiff told him

that he was working in any capacity he would not have issued him with WorkCover

certificates certifying him unfit for any work at that time.

58. An affidavit to like effect was made by Dr Chaudary in regard to a certificate of

capacity he issued for the plaintiff on 29 July 2009. He deposed that had he been

made aware that the plaintiff had returned to any form of work he would not have

signed the certificate declaring the plaintiff unfit for all work. Another affidavit from yet

another practitioner Dr Uta was produced by the defendant and in respect of a

certificate of capacity provided on 2 September 2008 Dr Uta deposed that had the

plaintiff informed him that he was working in any capacity he would not have issued

the WorkCover certificate of capacity certifying him under fit for all work.

59. Doctor Entwistle deposed in an affidavit made for the VWA that at no stage during

any of his consultations with the plaintiff was he advised that the plaintiff had been

24

working and had he been advised of the same report “would have included that

information and I would have found that he had a capacity for employment”. The

Entwistle affidavit was made on 10 July 2014. Doctor Entwistle deposed that he

would not have found the plaintiff lacked the capacity for employment at that time.

60. The defendant as well referred to and relied upon the reports of Dr Stern. His reports

are substantially historical in nature and their probative worth in relation to the matter

I am called upon to determine is problematic. Nonetheless Dr Stern refers to the

following matters. In dealing with the plaintiff’s mental state examination he wrote:

When I asked about employment he said he was prepared to return to the

MCG within the next few weeks. He is also applied for mailroom admin jobs.

His put his name down with recruitment agencies. He was hopeful of the

future.

61. The defendant pointed to this account as reflecting an instance where the plaintiff

was prepared to give false and misleading information to his treaters. I accept that

submission. Be that as it may in the opinion of Dr Stern the plaintiff was at the date of

his report “suffering from post-traumatic stress disorder related to the assault at work

on 3 November 2007”. He expressed the view that the plaintiff’s employment is a

material and significant contributing factor. He went on to expressed the opinion that

initially the plaintiff was totally psychiatrically incapacitated but he was now fit for a

graduated return to work initially on his casual jobs including work with the VRC. He

was of the opinion that the plaintiff psychiatric prognosis is of continuing

improvement.

62. In Dr Stern’s report dated 30 September 2008 he referred to having received

additional information including a vocational assessment that identified employment

options as a mail and filing clerk, a ticket seller, a stock and purchasing clerk and a

car park attendant. Doctor Stern expressed the view that the positions identified in

the assessment report are suitable for the plaintiff and that he would be

psychiatrically fit to commence job seeking activities for these options.

63. In a third report dated 14 March 2012 Dr Stern was provided with a swag of

additional information including a substantial number of reports from Dr McIntosh

embracing the period from 29 February 2009 until 28 April 2011, together with

reports from Miss Mercuri, Dr Berkowitz and others . On examination after dealing

with and addressing the plaintiff’s psychiatric symptoms and his present complaints

of depression and anxiety, disturbed sleep, lack of energy and distressing

25

recollections of his assault, Dr Stern summarised his findings. These findings

included that as a result of the assault the plaintiff developed chronic post-traumatic

stress disorder. He was of the opinion that there has been a deterioration since his

previous examination of the plaintiff in June 2008 and that the plaintiff’s depression is

now the level of a major depressive disorder. He concluded that the plaintiff was

psychiatrically incapacitated for all work including his preinjury duties and hours or

alternate suitable duties and hours. And that the incapacity for work is now “probably

indefinite”.

64. In an affidavit made by Dr Stern for the VWA in July 2014 he deposed that at no

stage during his consultations with the plaintiff did the plaintiff advise him that he had

been working and had that been known to him his report would have included that

information and “he would have found that he had a capacity for employment at that

time”.

65. Doctor Paul Kornan is a psychiatrist. His report is dated 3 April 2009 and was made

following examination of the plaintiff on 25 March 2009. He wrote that in overall terms

the plaintiff psychiatric state is “marked, and significant.” He believed the plaintiff was

currently totally unfit for employment and was doubtful he would return to the

workforce.

66. I was provided as well by the defendant with vocational assessment report of

September 2008. I have already in passing referred to it in light of the identified

positions being mentioned in Dr Stern’s report. The vocational assessment is of little

if any current value.

67. The substantially contradictory opinions as to the plaintiff’s current condition finds its

high-water mark in the opinions and evidence of Associate Professor Doherty.

Associate Professor Doherty is the outlier amongst the persons who have attended

to the plaintiff certainly in so far as he has expressed in his reports, and continued to

press in his oral evidence before me, a somewhat reluctant acknowledgement that

the plaintiff perhaps even suffered the assault in the first instance for reasons that

include a lack of apparent physical evidence of the same as reported by the St

John’s Ambulance Doctor. Furthermore Associate Professor Doherty’s evidence both

in his written reports and his oral evidence is heavily weighted against any aspect of

the plaintiff’s diagnosable condition reached by other treaters being accepted due to

the plaintiff’s fraudulent and criminal conduct associated with his limited period of

work in receipt of WorkCover payments. I do not overlook the fact that associate

26

Professor Doherty said in his evidence, consistent with his written reports, that on his

examination of the plaintiff there were no observable signs of symptoms on

presentation upon which others have placed reliance. I am unwilling to give

determinative weight to Associate Professor Doherty’s one occasion of examination

of the plaintiff in preference to the many assessments and opinions expressed by

others who have seen the plaintiff more often but, in particular, Dr McIntosh. In those

instances where these doctors have moderated their opinions it has been because of

the plaintiff having worked at times when they had certified his psychological state as

precluding him from doing so. It should not assumed that I found Dr McIntosh’s

evidence entirely satisfactory. I have already identified some difficulties associated

with his evidence such as the opinion about the time of the upward trajectory of the

plaintiff’s PTSD that coincided with the period of work the plaintiff was performing on

a casual basis and his period of two weeks apparent full-time employment.

Nonetheless standing against this is that Dr McIntosh has expressed the view that

although the plaintiff’s mental state has stabilised to some extent, the characteristics

attended on his diagnosed state remains such that they would preclude him from any

work capacity. On balance, and overall, I accept Dr McIntosh’s opinion and indeed

the opinions of other independent medical examinations relied upon by the plaintiff

who confirm Dr McIntosh’s view of the plaintiff’s condition.

27

The Law

68. The legislative framework makes allowance that an injured worker is entitled to

receive weekly payments of compensation after the expiry of the second entitlement

period (130 weeks) if he has “no current work capacity” and he is likely to continue

indefinitely to have no current work capacity. Accordingly payments of weekly

compensation cease unless the worker can establish that that he has no current work

capacity and that such a state of affairs is likely to continue indefinitely.

69. “Current work capacity” in relation to a worker, means a present inability arising from

an injury such that the worker is not able to return to his or her pre-injury employment

but is able to return to work in suitable employment.

70. “No current work capacity”, in relation to a worker, means a present inability arising

from an injury such that the worker is not able to return to work, either in the worker’s

preinjury employment or in suitable employment.

71. The language of s 5(1) of the ACA directs me to have regard to “the nature of the

worker’s incapacity and the details provided in medical information including, but not

limited to, the certificate of capacity supplied by the worker”. That definition is

sufficiently encompassing as to allow me to have regard to and give weight where

appropriate to the plaintiff’s previous conduct in considering the nature of any current

and ongoing incapacity. I have in the foregoing passages endeavoured to convey the

fact that I have considered the plaintiff’s previous dishonesty.

72. Relevantly “suitable employment” in s 5(1) of the ACA is defined as follows:

Suitable employment, in relation to a worker, means employment in work for

which the worker is currently suited –

(a) having regard to -

(i) the nature of the worker’s incapacity and the details provided in medical

information including, but not limited to, the certificate of capacity supplied by

the worker; and

(ii) the nature of the worker’s pre-injury employment; and

(iii) the worker’s age, education, skills and work experience; and

28

(iv) the worker’s place of residence; and

(v) any plan or document prepared as part of the return to work planning

process; and

(vi) any occupational rehabilitation services that are being, or have been,

provided to or for the worker; and

(b) regardless of whether –

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally

available in the employment market;

73. The parties did not address these provisions but I do have before me some evidence

that falls to be considered in light of them and I should make reference to it. I regard

the plaintiff’s condition of PTSD and the manifestation of the same in terms of

symptoms such as anxiety, panic attacks, isolation, fear of open spaces and crowds

and the use of public transport as relevant to the overall consideration of the question

of the concept of him being able to undertake suitable employment. The nature of the

plaintiff’s pre injury employment would be unsustainable in light of his condition. The

fact that work of the type that had been performed preinjury by the plaintiff being

performed on a casual basis for a period in 2008 to 2009 is relevant but overall it

does not diminish my judgement that that there is no suitable employment. The work

that he did casually perform in 2008 at the MCG was work that was moderated to

better isolate the plaintiff according to the affidavit of James. The plaintiff’s age tells

against suitable employment. His experience and capacity in spoken and written

English and the array of work skills collected over his pre-injury working life are

objective achievement by him that should stand him in good stead but the capacity

for the plaintiff to deploy these skills in a work place has been eroded by reason of

the effects of his work injury. The worker’s place of residence is a matter of neutrality

because in the absence of any identified positions or the geographic region in which

they might be thought to exist, I am unable to form a judgment. There was no pursuit

by the defendant in the evidence to have me take regard to any plan or document

prepared as part of the return to work planning process and neither was I directed to

any occupational rehabilitation services that are being, or have been, provided to or

for the worker.

29

The suitable employment test

74. In Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622, the Court of Appeal said:

The concept of ‘suitable employment’ will, of course, give rise to difficulties

from time to time, but the thrust of the definition is plain enough. It looks to the

possibility of employment after injury; and hence the reference to ‘work for

which the worker is currently suited’. Age, education and experience are

among the matters relevant, as are also the nature, and no doubt the extent,

of the workers incapacity and, of course, preinjury employment. Obviously

employment is not to be regarded as ‘suitable’ if situated too far from the

worker’s place of residence; … The expression “whether or not that work is

available” emphasises that the definition is looking at the capacity to work,

meaning that physical capacity for employment. If the worker is of an age, is

sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is

able physically to do a particular job, and that his “suitable employment”

whether or not the job is currently available.

75. In Manthopoulos v Spencwill Nominees [26 April 2012] His Honour Magistrate

Garnett said:

It is still necessary for the court to determine whether the suggested

employment exists, to analyse the employment requirements from the

physical, and if necessary, a psychological aspect and to apply the relevant

matters as set out in the definition of suitable employment in s 5. After

undertaking this analysis, applying “a degree of realism” and after

disregarding industrial factors, a determination can be made as to whether

the worker has a capacity for “suitable employment”. Furthermore, when

considering whether a worker has a capacity for “suitable employment”, the

suggested suitable employment needs to be analysed by specific reference to

the particulars of the job, the medical restrictions on personal characteristics

of the worker in addition to the factors set out in the definition.

76. The plaintiff need only establish a prima facie case that no suitable employment

exists. In such a situation he will then be entitled to succeed unless I am satisfied that

the defendant has produced evidence sufficient to raise some specific alternatives for

consideration. In my view, and being realistic, the defendant is required to adduce

evidence sufficient to give rise to a real possibility that there are particular types of

30

employment available in the community which the plaintiff is capable of performing.

Thus there arises an evidentiary onus on the defendant. Largely speaking the

matters will be factual in nature and fall to the defendant to adduce. That has not

occurred.

77. I note too the statements by His Honour Judge GD Lewis in Holt v Kleyn Plant Hire

Pty Ltd (unreported County Court) when he said:

However, employment, even of the lightest kind must involve punctuality,

regular attendance and consistent capacities to the work required. The

plaintiff is adamant that on his ‘bad days’, which he experiences with

regularity, he would not be able to cope with any realistic employment.

78. In my opinion, and lest it be thought that I have overlooked the work of the type

identified in the historical vocational assessment the defendant tendered, I would not

regard them as “suitable employment” and they are not realistic in light of a

consideration of the evidence relevant to the factors set out in s 5 of the Act.

79. I have been provided with reasons for decision of Courts who have had the plaintiff’s

circumstances before it and transcript. Some of the reports were furnished upon the

provision of the same to the authors of them. I have been directed to parts of the

same and given reference to transcript. Their probative worth fall to be considered in

the manner in which I have already weighed the plaintiff’s prior dishonesty. It is

sufficient to say that this conduct has not dissuaded me from finding that the

plaintiff’s work injury no longer materially contributes to his current and indefinite

incapacity. There are other influences that contribute to his state but the fact that

other facts are in play will not defeat the claim so long as the work injury remains

material. In my judgment for the reasons expressed I am satisfied that it does.

Material contribution

80. I am satisfied that the plaintiff has no current work capacity and I am satisfied by way

of proof on the balance of probabilities that the incapacity is a material contribution to

that incapacity in the sense material connotes anything above de minimis (see Lord

Reid in Bonnington Castings Ltd v Wardlaw [1956] A.C. 613.

Conclusion

31

81. It is difficult to reject the notion that had the plaintiff not engaged in his previous

dishonesty that he would have been highly unlikely to have been met by the notice of

termination that has led to this three day hearing. The medical evidence, save for the

opinion of Associate Professor Doherty, diagnoses a recognisable injury described in

one form of language or another as a combination of symptoms of PTSD with a

depressed mood and anxious disorder and the effects of it are sufficiently disabling to

permit of the characterisation required of the plaintiff under the Act that enables me

to conclude that the plaintiff has discharged his burden of proof and the notice must

be set aside.

82. I will hear the parties as to the final form of order and of costs.