IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-20-05158

JOHN KRNJIC	Plaintiff	
		
v		
		
BUNNINGS GROUP LTD	Defendant	

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JUDGE:	HIS HONOUR JUDGE PILLAY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 June 2021	
DATE OF JUDGMENT:	25 June 2021	
CASE MAY BE CITED AS:	Krnjic v Bunnings	
MEDIUM NEUTRAL CITATION:	[2021] VCC 831		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application –  pain and suffering, and loss of earnings leave sought, psychiatric injury – major depressive disorder – credit 
Cases Cited:	Petkovski v Galletti [1994] 1 VR 436
Judgment:	Application granted – both heads

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P Elliot QC with 
Ms G Jardine	Rubicon Legal	
			
For the Defendant	Mr R Stanley	Wisewould Mahony	

HIS HONOUR:

1	Mr Krnjic was born in Croatia on 17 July 1967. He was born with significant congenital deformities. He was employed by Bunnings from 2009 until mid-2016 when his employment was terminated. The circumstances of that termination have led, allegedly in Mr Krnjic’s case, to him contracting a severe mental impairment. He argues that this severe mental impairment satisfies a finding of serious injury both as to pain and suffering consequences and also as to loss of earnings consequences. His case is simply that his psychiatric injury has rendered him totally and permanently disabled and that this has been his condition since ceasing employment in mid-2016. The Defendant’s case is that the injury sustained while at Bunnings is simply an aggravation of a pre-existing psychiatric injury and that such aggravation could not be considered to have severe impairment consequences. To that extent, the Defendant relies on video surveillance which it argues strongly suggests Mr Krnjic has exaggerated the extent of his impairment but, more importantly, demonstrates real capacity to obtain employment.
2	For the reasons which follow, I do not accept the Defendant’s arguments and I will grant leave to Mr Krnjic in respect of both pain and suffering and loss of earnings capacity.
Relevant history
3	As noted, Mr Krnjic was born with very significant congenital deformities. He suffers from a palsy on the left side with deformation of his cranium. He is blind in the left eye and has a withered and severely deformed left arm. He is partially deaf in the left ear. He completed high school and attended two years of tertiary education before dropping out. Due to the war in Yugoslavia he came to Australia in 1988 and resettled with his wife. In Australia, he worked as a gardener and cleaner and then as a satellite installer of small dishes for about 10 years. However, his congenital deformities led to him being granted a disability support pension in about 2001. Despite this, he was determined to find work. He approached Bunnings in Preston to allow him to work for them on work experience for two weeks. At the end of that time, he gallantly volunteered that he could do any job expected of an able-bodied person. He challenged Bunnings that if he was not able to do an able-bodied person’s job then he would quit. By reason of this forthright and can-do attitude, he impressed his employers and they kept him on. It would be an understatement to consider this a significant achievement. Having viewed Mr Krnjic’s evidence and the deformity of his left arm in the witness box, as well as on the video surveillance, his left hand is almost useless. The arm itself is withered, the hand is limp and he can exert very little force with it. At best, he can use the left arm to trap materials underneath the armpit. Despite these matters, he was able to hold down a permanent job with essentially unrestricted work duties for 25 hours per week from the time he started with Bunnings in 2009 until he was terminated in mid-2016.
4	It is relevant to say something about his initial employment with Bunnings beginning in 2009. I have set out above some of the facts which identify the determination of Mr Krnjic to gain employment despite his physical impediments. What is also true and made abundantly clear by the material is that Mr Krnjic viewed employment as a way to contribute to the community. This was important to him as, by reason of his disabilities, he had a significant degree of isolation and separation from the community. He had also had the breakdown of his second marriage around the time of starting with Bunnings. The job at Bunnings was both a way to form social groups and also to feel as if he was contributing. These were very important matters to him. It is also highly relevant that he was exercising the residual occupational capacity he had. This made his determination to push through with his job at Bunnings all the more remarkable. It was therefore an extremely valuable position. In short, it was a position which he treasured and which gave him a great sense of worth and belonging.
5	Shortly after he commenced employment in 2009, he was subject to some harassing behaviour by another staff member. This behaviour went on for several years. During this time he was shouted at and threatened by another employee named Freddy. Subsequently, he made a WorkCover claim around the end of 2011. He was diagnosed with anxiety and depression at the time and was off work for about three months. He was assessed by psychiatrist Dr Krapivensky, engaged by Bunnings, who diagnosed Mr Krnjic with a temporary condition identified as an adjustment disorder with mixed emotional features. She was of the view that it was a temporary condition which would get better. It is to be noted at this time that Mr Krnjic was expressing a desire to remain at work and to go back to work as soon as possible. This is to his credit as it shows a willingness to persevere in the face of further adversity. After resolving matters with Bunnings, he returned to work in his normal position in March 2012. He was on no medication and had no ongoing treatment at this time. He worked his normal hours of 25 hours per week from that time onward. It does not appear that there was any treatment by Dr Todaro, his treating doctor.
The 2011 psychiatric injury
6	As I have set out in the introduction, the Defendant argued that not only was there a diagnosable psychiatric injury sustained in 2011 but that it continued until the sustaining of further injury in 2016. It is necessary then to set out my findings as to whether the psychiatric injury from 2011 continued after this time. I find there were no ongoing symptoms and certainly no ongoing psychological impairment after March 2012. I note that Dr Todaro subsequently in a report dated 16 November 2020, diagnosed an aggravation of mild depression occurring by the reason of the events in 2015 and 2016. The Defendant relied on this report to support its argument that the 2011 injury continued and was aggravated in 2016. I do not accept that argument given the reporting of all of the other doctors on this point. In particular, I place great weight on the reporting of Dr Honeyman in her report of 9 September 2016 which is a contemporaneous recording. Also Dr Prytula in his report of 11 August 2016, and the report of Dr Das and most importantly the reporting of Dr Rigby. I note in this regard that the last three reporters are psychiatrists. In contrast, Dr Todaro’s final report is that of a GP and is given some three years after the events occurring in 2016. Each of the opinions I accept on this point, Dr Honeyman, Dr Prytula, Dr Das and Dr Rigby conclude that the 2011 psychiatric injury was resolved by the time of Mr Krnjic’s return to work in March 2012. Accordingly, I make the finding that there was no ongoing psychiatric injury after March 2012. It follows then that I do not accept the Defendant’s argument that the compensable injury sustained by Mr Krnjic in 2015 and 2016 at Bunnings was an aggravation injury in the sense described in Petkovksi v Galletti. 
The psychiatric injury suffered in 2015 and 2016
7	Turning then to the injury which did occur during employment in 2015 and 2016 at Bunnings. It was accepted by the Defendant that a compensable injury was sustained. Mr Krnjic has set out the circumstances which led to that injury in his affidavit and they do not need to be repeated as they were not contested. In summary, they detail a number of interactions between himself and management occurring between 3 June 2015 and 7 July 2016. The last event was the receipt by Mr Krnjic of a letter advising him that he was banned from the Bunnings Preston store. The medical reporting which occurs throughout 2016, and is contemporaneous, records a significant deterioration in Mr Krnjic’s mental state during this time. Dr Todaro reports depression and that Mr Krnjic’s mental state had deteriorated. As a result, Mr Krnjic began seeing a psychologist. Such treatment occurred under the care of Dr Honeyman. She noted at this stage that Mr Krnjic was experiencing social withdrawal, lack of motivation, difficulty with sleeping, a decrease in appetite and isolation. However, it was hoped that there could be a return to work gradually if issues with Bunnings could be resolved. However, this was not to be the case. Dr Honeyman made a telling point, even at this early stage, that the inability to contribute as a valuable member of the community was having a significant effect on Mr Krnjic.  Dr Todaro made valiant attempts to ensure Mr Krnjic returned to work but ultimately she had to refer Mr Krnjic to Dr Rigby a consultant psychiatrist. Around this time, the reporting of Dr Prytula records that there was an adjustment disorder with anxiety and depressed mood of mild severity. He did, however, continue to note that Mr Krnjic wished to return to work if issues with Bunnings could be resolved.
8	Throughout 2017, the situation continued to be the same. That is, treatment regularly with Dr Honeyman, consultations with Dr Todaro and also ongoing consultation with Dr Rigby. His condition worsened. In mid-2019, Mr Krnjic attended Dr Rigby and presented with hypervigilance, sleep disturbances, nightmares, flashbacks and despair. There was reportedly no current work capacity. This reporting was similar to that by other specialists at the time. Dr Strauss, medico-legal practitioner who provided opinion for the Plaintiff in March 2019, opined that there was a chronic adjustment disorder of moderate severity. It was thought that there was some capacity for work if issues with Bunnings could be resolved. However, Dr Shan, medico-legal psychiatrist reporting for the Defendant, considered there to be clinical anxiety with a depressed mood and an adjustment disorder. Together these symptoms resulted, in his opinion, in no current work capacity. 
9	It is at this point that the first fault line in the medical reporting becomes apparent. On the one side lies Dr Shan and on the other, the other medical practitioners in the case. This division occurs because of a further report of Dr Shan dated 9 September 2020 which diagnosed “longstanding personality issues of a fixated nature”. It also noted a “lack of concordance” between observations by Dr Shan and other materials. The Defendant relied on the reporting of Dr Shan. It urged the Court to accept the later reporting of Dr Shan on two fronts. First, that Mr Krnjic was exaggerating his symptomatology. It based that argument on video surveillance which it was said gave the lie to much of what was deposed to in Mr Krnjic’s affidavits. Second, that the psychiatric condition of Mr Krnjic was rooted in congenital factors and the injury occasioned at Bunnings was mild in nature. I reject both arguments. I do so for the following reasons.
Credit of Mr Krnjic 
10	Dealing with matters of credit. Having viewed Mr Krnjic give evidence and be cross-examined I formed the view that his demeanour was that of a truthful person attempting to answer as best as possible. He did not attempt to obfuscate. He volunteered material against his interest. For example, it was suggested from his affidavit material that he had been to Sweden twice over the last five years. In evidence, Mr Krnjic clarified that as being three times.  He had also never hidden the fact of his trips to Sweden to see his parents and brother. All this fortifies my acceptance of his evidence. Next, it was suggested that he had not been truthful in disclosing the amount of assistance (work) he did with a friend. In his affidavit, he had made no mention of work done in 2021 with a friend. This is despite swearing two affidavits in the last two months. Video surveillance showed that he had attended sites with a friend and been there for some hours while the friend did some handyman work. There is no doubt that Mr Krnjic attends at the sites in high visibility work clothes and attempts to unload light materials from the back of the ute. Mr Krnjic’s evidence was that this was no more than social activity designed to assist his mental state. He gave evidence that two of the jobs were to assist church members and that he attended the sites with a member of the church and friend, John Franopoulos. 
11	Overall, while it is true that these matters were not disclosed in the latest affidavit they do not show anything overly inconsistent with what has been deposed to in the affidavit material. It does show Mr Krnjic attending at Bakers Delight and McDonald’s to pick up food and then returning to the jobsites. However, he has already deposed to being able to go out to the shops and drive. At the worksites, whilst he attends for several hours, he is generally only with John and is not shown to do any real physical work. This too is largely consistent with his affidavit. I note that he also disclosed to Dr Rigby that he had performed some work assisting a friend. I do not consider that he has attempted to hide this assistance he provides to Mr Franopolous. Overall then, the video surveillance does not support Dr Shan’s opinion of the “lack of concordance” or the Defendant’s submission in this regard, that Mr Krnjic is largely untrustworthy, as to how impaired he really is.
12	Further, the video does not actually show any real functional capacity. It is to be recalled that Mr Krnjic’s case is that he is psychiatrically unable to return to work. Dr Rigby makes clear that it is the employment environment itself, that he is not able to tolerate. There is nothing in the video surveillance that demonstrates an ability to tolerate an employment environment such as this. Rather, what is seen in the video is an isolated snapshot of a man attending with a friend for companionship.
13	Second, Dr Shan’s thesis that there are long-standing personality issues is not one supported by any other doctor that has provided a psychiatric opinion in this case, being Dr Krapivensky, Dr Prytula, Dr Strauss and most importantly Dr Rigby. No other doctor provides an opinion similar to that of Dr Shan. Most importantly, Dr Rigby who has been treating Mr Krnjic for many years and currently on a weekly basis wholeheartedly discounts this thesis. There is no particular evidence which supports Dr Shan’s thesis. I note further this theory was not raised in his first report of 18 March 2019. For these reasons I put Dr Shan’s opinion to one side.
Whether the psychiatric injury sustained was severe 
14	Lastly, considering whether or not the psychiatric injury sustained by Mr Krnjic meets the relevant threshold of being considered severe I find that it does. I make that finding on the following bases. It is a condition which has now been extant since the middle of 2016 and has in fact been deteriorating. That is a period of some five years. That is a considerable period of time to live with such an injury. That injury, I find, is a major depressive disorder with hypervigilance, sleep disturbance, nightmares, flashbacks and despair. I find that there is suicidal ideation but no planning. I find that this condition has required regular psychological counselling and over the last year weekly psychiatric consultation with Dr Rigby. The condition is of such severity that there has been referral by Dr Rigby to the Austin Psychiatric Trauma Service however, due to the COVID-19 pandemic Mr Krnjic has not been able to obtain an appointment. I find the condition requires regular treatment and has required increasing doses of the drug Lexapro, which is now at 40 mg a day. I find that despite that treatment, Mr Krnjic’s condition is such that he struggles to get through each day and feels tired and irritable constantly. He has broken sleep. As to loss of earnings capacity, I find that it has left him in a position where he is unable to return to work and I find that he is totally and permanently disabled by reason of the psychiatric injury. I find that one of the most significant impairment consequences for Mr Krnjic is the fact that he has lost his ability to return to work at the Bunnings Preston store. I find that this was a rare position and much valued by reason of Mr Krnjic’s background situation. As such it was highly prized by him and in the words of Dr Rigby was a “vital and central aspect of his life”. The deprivation of this component of his life can only be in my opinion seen as a severe impairment consequence. As a result of this finding, I consider that not only has he sustained requisite loss of earnings but that the loss of his work and the factors set out above lead to the conclusion that he sustained a serious injury. Leave will be granted under both heads.