Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48

Reported Decision : (2002) 23 NSWCCR 725

Compensation Court of New South Wales

CITATION : Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48 Gregory Rootsey PARTIES : v Tiger Nominees Pty Ltd MATTER NUMBER(S) : 42265 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 03/07/02 EX TEMPORE JUDGMENT DATE : 07/03/2002

FOR APPLICANT: Ms B Ross instructed by Willis Bowring appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos instructed by Goldrick Farrell Mullan appeared for the respondent.

JUDGMENT: 1. Mr Gregory Paul Rootsey who currently resides at Gerroa claims weekly payments of compensation from 17 April 2001 to date and continuing for either total or partial incapacity. The applicant had been employed by the respondent as a driver of waste disposal vehicles. At the time the applicant was employed by the respondent he lived at Mascot and worked out of the respondent's depot at Rockdale. He would drive garbage trucks to and from the Menai tip. The applicant had commenced working for the respondent in October 2001 and was unfortunately injured on 15 February 2001. I infer the applicant had been employed for approximately three months by the respondent. 2. The applicant left school at the age of 15 and for most of his adult work life worked as a truck driver often in interstate haulage. The applicant, immediately after leaving school, worked for three years as an apprentice signwriter but the evidence does not suggest that the applicant obtained a qualification as a signwriter. For two years the applicant worked as a hotel barman but essentially for the rest of his working life he worked as a truck driver. On 15 February 2000 the applicant was negotiating the curve of the Princes Highway into Acacia Road at Kirrawee, Acacia Road being a bypass of the original Princes Highway which passed through the main shopping centre of Sutherland. The highway now travels along part of Acacia Road. The applicant was in the lane closest to the kerb on the left-hand turn. Unfortunately, he had to swerve slightly to avoid a utility truck and the back wheels of his rig mounted the gutter causing the vehicle to roll to its right-hand side with the truck blocking the southbound lanes of the highway at that intersection. 3. The applicant received a laceration injury to one of his arms which was bandaged at the site by ambulance men. The applicant noticed immediately no ill effects of the injury until he awoke the following morning and noted stiffness and soreness throughout his body. He attended upon a general practitioner Dr Placanica at Mascot and was given a certificate to be off work for two weeks. However, during that two weeks it appears the applicant suffered an adverse psychiatric reaction to the injury. Dr Placanica referred the applicant to Mr Tom Jones, a clinical psychologist at Kogarah. Mr Jones first saw the applicant on 6 March 2001. The applicant told Mr Jones that since the accident he had lost weight, approximately 1/2 a stone; he had lost his appetite; he had been easily moved to tears and was irritable; that his sleep was broken; that his memory and concentration had been poor and that he did derive little pleasure from activities which he normally enjoyed and he had a feeling that his life was not no longer worth living. 4. The reasons why the applicant developed those symptoms are given in the applicant's oral evidence to me and are explained more fully by Mr Jones in his reports. The applicant clearly prided himself on being a highly skilled truck driver who had never had an accident in the course of his long driving history. The occurrence of the accident was a blow to the applicant's self-esteem as a professional truck driver. Furthermore, the accident happened at about 3.30 pm on a Thursday. The Princes Highway where it turns left into Acacia Road between Kirrawee and Sutherland is a very busy section of carriageway and at that time of the day one might expect parents to be moving their children between school and their after-school activities. The applicant's truck when it rolled very fortunately did not collide with or crush any other vehicles. As Mr Jones points out, the applicant became pre-occupied with a question of what would have happened had there been a person in the way when he rolled his truck and the thought of that made him unwilling to drive his truck. Mr Jones noted that history when the applicant saw him on 21 March 2001. 5. Mr Jones sums up the position well in a paragraph of his report of 29 June 2001 addressed to the respondent's insurer: Mr Rootsey presents as a psychologically unsophisticated man, who took pride in his achievements and skills as a truck driver, but who was not in the habit of closely examining his own thoughts and feelings. From his account, he had been happy in his work, and in his relationships with his children and with Ms Wilson prior to the MVA. He appeared to have been shattered by the MVA, particularly in the sense that the MVA had severely decreased his confidence in being able to drive a truck, and given that, according to him, he had been primarily driving trucks since approximately age 18, it was difficult for him to imagine what else he could do to earn a living. From his account, the MVA has robbed him of his status as a competent truck driver. He doubted that other truck drivers would see him as being competent, now that he had, 'tipped my truck' . 6. Unfortunately, the applicant did not follow the old adage that the best thing to do when you fall off a horse is to get back onto the horse. Indeed, Mr Jones suggested that very approach when he first saw the applicant on 6 March 2001 but unfortunately is not carried through. 7. The applicant has persisted with symptoms since first coming under the care of Mr Jones. I believe it noteworthy that Mr Jones administered Beck depression inventories on both 21 November 2001 and more recently on 28 June 2002, that is last week. On both those occasions the applicant's scores placed him, according to Mr Jones, in the severely depressed category although there was improvement in the applicant's symptoms between the two tests, an improvement to which the applicant himself admits. According to Mr Jones, the applicant's clinical scales scores suggest that he has continued to experience marked degrees of anxious arousal, depression, anger and irritability, disturbing memories, defensive avoidance symptoms, difficulty integrating his own emotions, self-doubt and attempts to suppress his disturbed feelings. Mr Jones offers this view as the applicant's ability to work: Although Mr Rootsey continues to obtain occasional hours of work, as already described, his success in employment re-entry has been minimal since the time of his motor vehicle accident. His lack of self-confidence, irritability and distractability, limit his prospects of obtaining more work. His lack of formal qualifications and experience outside the trucking area also limit his prospects, and his poor concentration ability limits his ability to participate in retraining. Although he remains anxious when driving, he continues to be able to travel as a car driver, although he has not driven any vehicles since his MVA. His ability to function in his relationship with Ms Wilson remains impaired as a result of his increased tendency to irritability and low mood, but despite this, his relationship with her continues, and appears likely to be able to persist. 8. The applicant maintains that he can no longer drive a truck. The inference I draw from his evidence is that it would cause a vast increase in symptoms. The applicant now actively fears driving trucks and were he required to do so he might develop a panic attack and it is to be noted that the applicant has developed panic attacks in the past. On 21 March 2001 the applicant told Mr Jones that, "I won't drive trucks again" and that has been the position the applicant has maintained since, with one exception to which I shall shortly turn. Unfortunately, Mr Catsanos for the respondent misread that history given in Mr Jones's clinical notes as that the applicant wanted to return to driving trucks but it was clearly a misreading. 9. The applicant's earnings were quite great. It is agreed that the applicant's earnings exceed at all material times the statutory maximum. Compensation was paid to the applicant until 16 April 2001. As at that date the statutory maximum is $1237.80. It is currently $1281.30. The applicant's earnings obviously exceeded those amounts. However, the current weekly wage rate was at all material times $659.60 per week. In other words, the current weekly wage rate is 1/2 of what the applicant might have been earning but for injury. Whilst on compensation he was only paid the current weekly wage rate which is all that the Act allows. That caused the applicant financial problems. The applicant was living in rented accommodation at Mascot in a three-bedroom house. One could understand that the rent would be somewhere between $200 and $300 a week. 10. The applicant also had a caravan and paid rental for the site at a caravan park at Gerroa where the applicant currently resides. The applicant maintained the caravan on its site at Gerroa in order to be near his two sons who were living with the applicant's former wife at Orient Point just south of Nowra. The applicant was paying maintenance for his two children to his former wife. I have no hesitation in accepting that the applicant's two sons, Jackson aged 15 and William aged 12, were mainly dependent upon the support on the applicant at all material times. Because the applicant's income was halved by the injury the applicant noticed immediate economic effects. By 21 March 2001 the applicant was considering having to move to Gerroa near the Nowra area. On 1 April 2001 the applicant gave notice of termination of the lease on the property at Mascot. Because of his financial problems the applicant felt it was imperative to return to work truck driving. He asked for and obtained from Dr Placanica a clearance to return to work. The clearance certified the applicant fit to return to work on 10 April 2001. 11. The applicant's evidence is that on the morning of 10 April 2001 he had a panic attack at the prospect of going back to driving trucks. He rang his employer and told him that he was unable to return to work. The applicant said that that afternoon he rang his employer and told his employer that he had to quit. In cross-examination it was suggested to the applicant that he rang a Mr Bill Jessup not early in the morning of 10 April 2001 but just before the lunch break and said that he had been drinking heavily the night before and that he, the applicant, would be at work in a 1/2 an hour. It was then alleged that Mr Jessup told the applicant that he had already arranged for another driver to occupy the truck that the applicant ought to have driven and that the applicant could come to work on the following day. It appears to be common ground that some time after lunch on 10 April or perhaps it was Wednesday, 11 April 2001 the applicant telephoned up and resigned his employment. The applicant denied saying to Mr Jessup that he had been drinking heavily the night before and denied that he did not ring up until shortly before the lunch break. 12. Mr Jessup was not called nor was his absence from the witness box adequately explained. The respondent attempted to tender a document which would indicate what evidence Mr Jessup might give but no attempt was made to call him nor was any adjournment sought for that purpose. In the circumstances, I must accept the applicant's version of what happened on either 10 or 11 April 2001. Prior to that time the applicant had returned to work on alternate duties. They were working in the yard of the respondent's depot at Rockdale. A good description of the applicant's working on restricted duties and his reaction to it is given in one of Mr Jones's reports. Mr Jones says this: On 6 April 2001 I saw him again. At this stage he was back in his workplace, not driving, but hosing down the yard in the truck depot. He said that he felt humiliated doing this task, pointing out that if done at all, this would normally be the job of a boy. He said that he felt ashamed seeing his other driver mates who were continuing to drive, while he stood there, 'useless' with the hose. He said he was going to push himself to return to truck driving, became he saw no other alternative to driving again. 13. It was on the following day that he obtained a clearance to return to his normal work. 14. The applicant's evidence before me indicates very strongly that his attitude to working in the yard had the effect on him as set out by Mr Jones in the passage I have just quoted. As I have said, compensation was paid to the applicant until 16 April 2001 and the applicant then appears to have gone on to social security benefits which were less than $200 per week. It can be seen therefore that the applicant's income very rapidly declined. That has led to a number of problems. The major problem is that the applicant has been unable to pay maintenance to his former wife. The applicant told me that after using up all his financial assets, he was unable to make further maintenance payments after October 2001. The applicant's former wife will no longer permit the applicant to have contact with his own sons, notwithstanding orders that the applicant has from the Family Court of Australia. The applicant tells me that he was unable to afford the costs of litigation involved in enforcing the orders previously made by the Family Court. 15. The applicant clearly is upset about both his inability to support his sons and his lack of contact with them. This has been submitted by Mr Catsanos, was not causally related to the applicant's injury. I reject that submission. To me there is direct cause between the applicant's injury, his loss of income, his inability to pay maintenance and what, on the applicant's evidence, is the vindictive attitude of his former wife in denying him contact to his own children. Provided that there is a direct chain of causation there is still a link between an event and a compensible injury. There is no doctrine of remoteness in workers compensation law parce an obiter dictum of Beasley JA in Australian Iron and Steel Pty Ltd v Cheetham [1996] 11 NSWCA 9. The obiter dictum of her Honour is quite inconsistent with what Kirby P, as he then was, in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 - and the cases there cited, in particular Dunham v Clare and in Ystradowen Colliery Company Limited v Griffith. One should also have regard to the speech of the Lord High Chancellor in George Taylor and Company v Clark (1914) 7 BWCC 871 at 872. 16. The applicant's symptoms also include irritability and anxiety and one can accept, as the applicant tells me, that they interfere with his relationship with his lady friend, a Ms Wilson, and even with his relationship with his other friends. That is completely understandable and acceptable. It has been submitted by the respondent that the applicant's problems no longer relate to the motor vehicle accident with which I am concerned but rather to underlying problems in the applicant's relationship with his lady friend and his other friends. I reject that submission. It is contrary to the thrust of the applicant's evidence which I have no hesitation in accepting. Furthermore, it does not explain why these events should suddenly develop after the motor vehicle accident and there is not a scintilla of evidence to suggest that there was any dysfunctionality in the applicant's relationships prior to the accident. 17. The next defence raised by the respondent is that the applicant's symptoms are related not to the effects of the motor vehicle accident in question but rather to alcohol abuse or alcohol dependency or the like. The applicant admitted to first taking alcohol at the age of 18 and being thereafter a regular taker of alcohol in the form of beer. The applicant told me that he would drink between four and six stubbies per day after work. The applicant clearly might at times indulge in binge drinking and indeed at approximately age of 35 the applicant did some binge drinking at a football presentation evening leading him to being charged with driving with the prescribed concentration of alcohol in his blood. The applicant referred to the level as ".2-something". That is clearly a high reading and it is clear that the applicant must from time to time take a lot of alcohol. In fact, the extent of the reading indicates that the applicant was probably a hardened, seasoned or experienced drinker. However, the applicant lost his licence for six months as a result of that charge but there is no other evidence to suggest that the applicant's drinking was interfering either with his ability to work or with normal functioning in life. 18. Since the applicant's injury he has become depressed. One can accept that the applicant might turn to the bottle for solace. The applicant admits he has. The applicant admits to some binge drinking after the motor vehicle accident but now maintains that he has returned his drinking to its pre-injury level. That the applicant might turn to the bottle for solace is acknowledged by Dr Samuell in his report of 14 May 2001. Dr Samuell saw the applicant for the respondent on 2 May 2001. He is a psychiatrist. Dr Samuell said: "It would appear Mr Rootsey turns to alcohol as a method of coping". In that regard the doctor is quite accurate. One can also accept that since giving up working for the respondent, the applicant has been largely unemployed and has a lot more time on his hands and one can appreciate that he might drink more than he otherwise would out of not only depression but also boredom. 19. To me there is a direct causal link between the applicant's increased alcohol consumption for a period of time and the motor vehicle accident in question. Mr Catsanos asked me to accept that the sole ongoing problem is the applicant's alcohol habit, a submission that I do not accept because clearly the applicant's habit was a habit that he practised for some 35 - 40 years before the accident with which I am now dealing. To me, everything points to the applicant turning to alcohol as a solace following upon the injury and his symptoms and the respondent must take the applicant as it finds it. Mr Catsanos suggested that this is a case in which s 9A ought apply. However, as I read s 9A the employment must be a substantial contributing factor to the event causing the injury; that is, to the receipt of the injury, rather than to be a substantial contributing factor to the ongoing incapacity. The fact that the applicant's alcohol habit may have become increased, in my view, is the direct results of the depression and anxiety following upon the injury rather than the alcohol causing the depression and anxiety de novo. 20. Here the applicant relies mainly on the opinions of Mr Jones. Mr Jones proffers two diagnoses; they are post-traumatic stress disorder which appears to have been suggested to him by the applicant's referring general practitioner Dr Placanica and of a major depressive disorder which is the diagnosis of a biochemical dysfunction in the brain which is generally thought to be idiopathic, constitutional or genetic. I am unable to accept either of those diagnoses because everything in this case speaks of the applicant developing reactive anxiety and depression. Indeed, Dr Eli Revai, another psychiatrist qualified by the respondent, refers to the applicant's "depressive disorder" and I accept that as being an adequate diagnosis of the problem that the applicant has suffered as a result of this injury. 21. Dr Samuell believes that the applicant's inability to drive trucks is the result of his own conscious freely-made decision rather than being determined by its psychiatric illness. I do not accept that to be the case. Bearing in mind the applicant's long history in truck driving I accept that but for this injury that he would be working; that he would, if he could, but I accept that he generally believes that he cannot and bearing in mind the mechanism suggested by the applicant's own evidence and by Mr Jones's opinions, histories and opinions, I accept that it was not a conscious freely-made decision on the applicant's behalf but rather he has developed a morbid fear of returning to work as a truck driver which might lead to the onset of a panic attack. Furthermore Dr Samuell appears to suggest that only applicant's ongoing psychiatric problem relates merely to alcohol but I do not accept that either. 22. Dr Revai for the respondent was somewhat inconclusive. He said this: I do not believe that Mr Rootsey's claim for psychiatric disability can be accepted as reasonable at present, until he has been detoxified. If his depressive disorder is still present thereafter, one would then be prepared to accept the claim. 23. Dr Revai appears to accept firstly that there is a depressive disorder; secondly, that it could be related to the motor vehicle accident in question but that it might be related to the applicant's alcohol habit with the only way of finding out to be to remove the applicant from alcohol. Bearing in mind the evidence I have heard, I have no hesitation in accepting that the depressive disorder is the direct consequence of the applicant's motor vehicle accident. I accept the applicant is unfit to return to work as a truck driver. The probable earnings but for injury are agreed to be the statutory maxima under s 40. They are from 17 April 2001 to 30 September 2001 $1237.80 per week; from 1 October 2001 to 31 March 2002 $1259.20 and from 1 April 2000 to date, $1281.30. 24. The next question is what work could the applicant do. He has been looking for work as a barman either at hotel or clubs. He has obtained some casual work as a labourer erecting metal garages on the south coast for a couple of hours a day when work is available and being paid $60 per day for such work. However, that work is intermittent and has only recently commenced. Clearly, the applicant has throughout the period with which I am dealing an ability to do manual work although I accept that it would be inappropriate for the applicant to work in the transport industry because of the problem it would cause to his morale, bearing in mind his experience when he was working in the respondent's depot hosing down the depot and washing trucks. The applicant could clearly do work such as a console operator, he could do work as a barman in a club, he could do labouring work. In my view, he has ability to sell his labour market in the open labour market reasonably accessible to him of $550 per week. In saying that, it appears to me the appropriate labour market ought be seen as being Sydney. After all, the applicant was employed at Rockdale and lived at Mascot whilst working for the respondent. 25. However, one could also accept an argument that the labour market is where the applicant is now - the south coat of New South Wales because of his enforced move there by economic circumstances resulting from his injury. Even so, there is work available in the Nowra and Wollongong and Kiama areas where the applicant could, in my view, earn $550 per week. The applicant is entitled to the mathematical differences subject to the appropriate statutory limits. 26. Mr Catsanos has asked me to give reasons on one submission he put to me. The applicant looked for work, applied for a job as a transport co-ordinator but did not receive a reply to his application for that job. The applicant believes that if he had obtained that job he would have earned just as much as a truck driver, if not more. He also believed that he could do that work. Whether his beliefs are correct or not I do not know. The respondent called no evidence thereon. However, one would expect that work as a transport co-ordinator might these days require some computer literacy and certainly clerical skills and nothing in this case suggests that the applicant has any developed clerical, managerial or computer skills. Furthermore, the job of a transport co-ordinator is not, in this Court's experience, one that is readily available or usual and therefore really does not, in my view, represent the open labour market. Furthermore, there might be many different categories of transport co-ordinator. If an employer had a very large fleet of trucks. The applicant clearly does not have the managerial expertise to cope. If a fleet was only small the transport co-ordinator might himself have to step in from time to time to drive a truck, but, then, another consideration of course is that if the fleet is only small the amount of remuneration might not be as great as that of a truck driver because, for example, truck drivers can work longer hours earning overtime rates which a person such as a co-ordinator might not do. However, there being no direct evidence as to either whether the applicant has the capacity to do the work or what the work entails or what it returns I am unable to accept that it was something which the applicant was fit to do in the open labour market reasonably accessible to him. 27. I have inquired of counsel for the parties if any further reasons for judgment are required and told that none is so required. For those reasons I make an award for the applicant for: $659.80 per week from 17 April 2001 to 16 August 2001 pursuant to s 36; $413.80 per week from 17 August 2001 to 30 September 2001; $421.00 per week from 1 October 2001 to 31 March 2002; and $428.40 per week from 1 April 2002 to date and continuing pursuant to s 40. 28. I order the respondent to pay the applicant's medical and like expenses pursuant to s 60. 29. I order the respondent to pay the applicant's costs. Ms B Ross instructed by Willis Bowring appeared for the applicant. Mr J Catsanos instructed by Goldrick Farrell Mullan appeared for the respondent.