Argent (a pseudonym) v Victorian WorkCover Authority
[2021] VCC 442
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
| MONICA ARGENT (A PSEUDONYM) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 15 and 19 March 2021 | |
DATE OF JUDGMENT: | 31 March 2021 | |
CASE MAY BE CITED AS: | Argent (a pseudonym) v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 442 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – pain and suffering – sexual assaults – psychiatric injury – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Woolworths Limited v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Transport Accident Commission v Katanas [2017] HCA 32
Judgment:The plaintiff is granted leave to bring a proceeding to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A C Dimsey | Hounslow Lawyers Pty Ltd |
| For the Defendant | Ms R N Annesley QC with Ms F A L Ryan | Thomson Geer |
HIS HONOUR:
Introduction
1In January to February 2006, when the plaintiff was fourteen years of age, she obtained casual employment during her school holidays with a café known as Café X[1] as a sandwich hand and waitress.
[1] Café X is a pseudonym.
2The owner of the café sexually assaulted the plaintiff. The plaintiff did not describe the conduct of the owner which constituted the sexual assault in any of her three affidavits. There is some reference to what occurred in histories recorded by three psychiatrists who provided reports on a medico-legal basis.[2]
[2]Dr Sandra Hacker, psychiatrist, at the Plaintiff's Court Book (“PCB”) 63; Professor Peter Doherty, psychiatrist, at Defendant's Court Book (“DCB”) 5, and Dr Diane Neill, psychiatrist, at DCB 12
3The plaintiff’s application for serious injury was limited to the pain and suffering consequences resulting from the infliction of a psychiatric injury.
4Mr A C Dimsey of counsel appeared for the plaintiff. Ms R N Annesley QC appeared with Ms F A L Ryan of counsel for the defendant.
5The plaintiff reported the occurrence of the assaults to police, who investigated what occurred, and subsequently charged the owner of the café with a number of offences. As far as I can ascertain, the owner was successfully prosecuted. Dr Diane Neill, psychiatrist, was provided with what she describes as “Victoria Police Incident Report and case Progress notes”. I was not provided with this, but it is not material to my consideration of the issues in this application, because the defendant accepted that the plaintiff suffered a compensable injury. Otherwise, no issue was raised relevant to the nature and extent of the sexual assault, save for what I will refer to next.
6It will be seen from the content of the reports of Dr Sandra Hacker, psychiatrist, Associate Professor Peter Doherty, psychiatrist, and Dr Neill, psychiatrist, that the plaintiff was troubled by other events in her life which have contributed to her current diagnosed psychiatric condition. A significant part of the cross-examination and the final addresses were devoted to an analysis of events which preceded and post-dated the sexual assault. The essential distinction between the positions occupied by the plaintiff and the defendant is that the plaintiff submitted that her current diagnosed psychiatric condition is significantly contributed to by the occurrence of the sexual assault, whereas the defendant submitted that its contribution is far less significant.
7The defendant submitted that the sexual assault represented only a minor aggravation of the plaintiff’s diagnosed mental conditions. The plaintiff submitted that the injury was not an aggravation at all but was rather an injury itself which operated on environmental and developmental vulnerabilities experienced by the plaintiff.
8I now propose to summarise as much of the issues raised by the defendant as is necessary to capture the essence of the defendant’s submission, that the plaintiff encountered many other problems in her life, both preceding and post-dating the sexual assault, and consequently, that the impact of the sexual assault is to be seen as a minor aggravation of her diagnosed mental conditions. I propose to limit my summary to the references in the evidence made by the defendant in its written submissions dated 12 March 2021. By implication, the defendant submitted that these references are representative of the evidence of the many other problems encountered by the plaintiff.
9However, in doing so, it is necessary to make the following observation – some of the evidence relied upon by the defendant goes back as far as when the plaintiff was in primary school, when I think it is reasonably obvious from the plaintiff’s evidence that her ability to recall is tarnished by the effluxion of time. Similarly, what occurred subsequent to the sexual assault is likewise tarnished by the effluxion of time. It is for that reason that I accept the defendant’s submission that documents recording statements made by the plaintiff and observations by clinicians are more likely to be reliable than the plaintiff’s recollection of important events.
10I think it is essential to identify the documents and clinical notes which the defendant relied upon to illustrate the problems the plaintiff encountered both before the occurrence of the sexual assault and subsequently. They are the clinical notes which have been commented on by Dr Hacker, Dr Neill and Professor Doherty.
11The relevant clinical records are as follows:[3]
· Victoria Police Incident Report and case Progress notes, as at 22 May 2015.
· Worker’s Injury Claim Form dated 16 August 2018.
· Clinical records of Ms Ann Staberhofer, psychologist.
· Drummond Street Services clinical records.
· Northside Clinic clinical records.
· Active Mind and Body clinical records.
· Inside Out Child and Family clinical records.
· Psychology Melbourne clinical records.[4]
[3] Professor Doherty at DCB 5, Dr Neill at DCB 10, and Dr Hacker at PCB 70
[4] I will refer to the collection of these clinical records as “the medico-legal clinical records”
Pre-Assault
The Plaintiff’s mother
12The plaintiff agreed that her mother was an alcoholic. Whether it was as a result of her alcoholism or a combination of it and her behaviour as a mother, the plaintiff agreed that her mother was neglectful of her. She agreed that her mother’s problems contributed to her mental health issues over her life.[5]
[5] Transcript 21
13The plaintiff saw Ms Sarah Branchflower, psychologist, for treatment. The plaintiff first saw her on 18 December 2018. She provided a report dated 17 April 2019,[6] and her clinical notes were reproduced into the defendant’s Court Book.[7]
[6] PCB 60-61
[7] DCB 66-94
14Ms Branchflower recorded that the plaintiff told her that when she was in Grade 4 her “mum’s drinking got worse”, which coincided with the plaintiff changing schools, entering into toxic friendships, suffering personality change, and suffering rejection by her father. I assume that the plaintiff was about eight or nine years of age at that time, which would be the average age of a child at that year level. Under cross-examination, the plaintiff agreed that her mother’s alcohol consumption deteriorated from about the time when she was in Grade 4, that she was not emotionally present for the plaintiff during her childhood, that she was not always physically present, and that she experienced feelings of neglect, and I assume as a product of her mother’s behaviour.[8]
[8] Transcript 31
15The plaintiff saw Ms Susan Ellis, psychologist, at an organisation known as Links Psychology. It would appear that she first attended on 23 July 2014.[9] At a consultation on 30 July 2014, Ms Ellis recorded that the plaintiff’s mother was “not present” and that she used alcohol heavily.[10] At another consultation on 13 October 2015, Ms Ellis recorded that the plaintiff’s mother was “hardly there”, and was a “bad alcoholic”.[11]
[9] DCB 36
[10] DCB 39
[11] DCB 48
16The plaintiff saw a Mr Dean Smith, psychologist, at an organisation known as Active Mind and Body on 13 September 2016. He recorded that the plaintiff told him that both of her parents, her siblings, and members of her extended family had mental health issues which were mostly depressive. He recorded that the plaintiff said that she was bullied at school, and that she regarded home as not being a safe place. He also recorded that the plaintiff was the mother’s carer, which she denied, and that her mother was suffering from depression and alcohol dependence.[12]
[12] DCB 65
The Plaintiff’s father
17The plaintiff denied that her relationship with her father was strained and difficult prior to the occurrence the sexual assault;[13] however, the defendant referred to a record of how the plaintiff described her relationship with her father which paints a very different picture.
[13] Transcript 21
18The plaintiff agreed that she was a shy, quiet child and that she suffered a hearing problem not discovered until she attended kindergarten. She agreed that one of her earliest memories at kindergarten was of wetting herself. Her mother comforted her, but her father yelled at her.[14]
[14] Transcript 25
19The plaintiff saw Ms Ellis on 30 July 2014, who recorded the wetting incident at kindergarten. She recorded that the plaintiff’s father yelled at the plaintiff, something about the plaintiff spilling things on the carpet, and her mother being passive and her father yelling at her.[15] Ms Ellis also recorded on 23 July 2014 that her father criticised her “on a daily basis”,[16] that he was constantly critical of her from when she was in Grade 4, that her relationship with him caused her distress,[17] and that her father had a controlling personality.[18]
[15] DCB 38 and Transcript 26-27
[16] DCB 36
[17] Transcript 40-41
[18] Transcript 41
20On 15 February 2019, Ms Branchflower recorded that the plaintiff told her that she had been in conflict with her father since she was “young”, and that she had a vivid memory of her father “transitioning to not liking me” after the plaintiff became friends with another child in Grade 4. She also recorded that the plaintiff felt that her father was unhappy with her because of the person that she had become.[19]
[19] DCB 71-72
21On 13 March 2018, the plaintiff was referred to Ms Amelia Murdock, psychologist, by Dr Michelle Dutton, general practitioner. Ms Murdock recorded that the plaintiff told her that her relationship with her father was “tumultuous” and that he was unable to provide her with support and protection that she needed in her childhood/adolescence. Furthermore, that the sexual assault impacted upon her relationship with her father.[20]
[20] PCB 53 and Transcript 30
22The plaintiff was examined by Dr Hacker, psychiatrist, on 12 May 2020. She recorded that the plaintiff told her that her relationship with her father was difficult prior to the sexual assault.[21]
[21] PCB 68 and Transcript 31
23On 8 March 2019, Ms Branchflower recorded that the plaintiff told her that her father told her that she was “unlikable”. He described her as being “unlovable/hard to love - who would want to date you?” which was apparently said when she was in Year 10. She described her father’s attitude to her as “never said a nice thing about me, always critical”.[22]
[22] DCB 76-78
Siblings
24On 15 February 2019, Ms Branchflower recorded that the plaintiff told her that the plaintiff’s sister and two of her sister’s friends picked on her when the plaintiff was in primary school, that they never bonded or played together, and there was no affection between them. Her siblings played together, but “she was alone”.[23]
[23] DCB 71
25On 13 September 2016, Mr Dean recorded that the plaintiff told him that she had “No positive relationship with anyone in her family growing up”.[24]
[24] DCB 65
26Under cross-examination, it was put to the plaintiff that she was in conflict with her siblings. The time when it was suggested that occurred appears, from preceding questions, to be prior to the occurrence of the sexual assault, however, the plaintiff agreed that she was in conflict with her siblings, but her recollection was that it was when she was a teenager. She described her relationship with her sister as being “very strained” before she entered her teenage years. She described being bullied by her sister and two of her sister’s friends at school, and by some of the boys in her friendship group.[25]
[25] Transcript 41-42
27On February 2019, Ms Branchflower recorded that the plaintiff told her “being left out/ganged up on by her siblings, early teens (11-12 y/o)”. She described an image of her sister being nasty to her and her brother giggling when her sister behaved that way.[26] Under cross-examination, the plaintiff agreed that her siblings behaved in the way recorded in these clinical notes.[27]
[26] DCB 74-75
[27] Transcript 43-44
Bullying at school
28Under cross-examination, the plaintiff agreed that she had been bullied at school to some extent. On 15 February 2019, Ms Branchflower recorded that the plaintiff told her that she became “involved in friendship groups in primary school and high school that were toxic/didn’t fit in”. She also recorded that the plaintiff told her that when she was in Grade 6, she cried, realising that she was unhappy. That clinical note also refers to not being liked, arguing with boys and other events in which she appears to have been the victim of conduct of other students.[28]
[28] DCB 71-72
Depressed as a child
29Under cross-examination, the plaintiff was referred to the clinical notes of Ms Ellis and an occasion when the plaintiff saw her on 13 October 2015. Ms Ellis recorded that the plaintiff told her that she felt lonely before she met a friend named “Daisy”[29] and had been “depressed for a long time …” and was “depressed as a child”.[30]
[29] Daisy is a pseudonym.
[30] Transcript 44 and DCB 48
Preliminary observations
30I have not limited my treatment of the defendant’s submissions to merely reading the excerpts of clinical records referred to by the defendant. The fact that the defendant chose to tender the whole of the clinical notes from pages 34-94 of its court book imposed an obligation on me to look at all of the records.
31With the benefit now of the defendant’s summary of the excerpts of the clinical notes, and with the additional benefit of now having read sufficient of the whole of them, I am in a position to make some preliminary observations regarding the plaintiff’s psychiatric condition prior to the occurrence of the sexual assault. I do so before summarising and then analysing the opinions of Dr Neill, Professor Doherty and Dr Hacker.
32I think it is a reasonable observation that prior to the occurrence of the sexual assault, the plaintiff’s mother was in a parlous state because of her addiction to alcohol. Her alcoholism impacted upon her relationship with the plaintiff in the many ways which resonate in the excerpts of the clinical notes. I think it is also a reasonable observation that the conduct of her father and siblings was demonstrably undermining of the plaintiff in her schooling, her socialisation, and in her relationship with them in their family context.
33The plaintiff endured all of this up until the time when the sexual assault occurred; however, there are two additional observations which must be made to put all of this into some measure of context.
34Firstly, the plaintiff survived the unfortunate difficulty she experienced in her schooling, her socialisation and her relationship with her parents and siblings. Indeed, as I journey further into the facts post the occurrence of the sexual assault, it becomes plain that she completed her schooling and was able to engage in tertiary education successfully. All of this plays a part in measuring the extent to which she suffered from a psychiatric condition prior to the occurrence of the sexual assault.
35Secondly, and to some degree allied to the first observation I have just made, is the fact that clinical notes need to be treated with some care when reliance is had on them as if they were uncontroversial and recorded precisely a state of affairs at the time when the notes were made. In Woolworths Limited v Warfe[31] Kaye AJA made an observation which I think has application here:
“In respect of this aspect of the cross-examination, and of the appeal, it is important to bear in mind the limitations which attend the reliance, by a court, on the records by medical practitioners, in their reports, of the histories and symptomatology described by plaintiffs to medical practitioners. Those histories are an important part of the information, upon which the medical practitioner forms a view as to matters such as the diagnosis and prognosis in relation to the plaintiff’s injuries. However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. They are often, at best, an approximate paraphrase or précis of the account given by the plaintiff to the medical practitioner. Sometimes, the discrepancy, between the account recorded by the medical practitioner, and the evidence of the plaintiff, cannot be adequately explained, even taking into account the limitations which attend the recording by a medical practitioner of the history given to the practitioner by the plaintiff. Nevertheless, it is important to bear in mind the nature and purpose of the history, recorded by medical practitioners in their reports, and of the limitations on their accuracy which I have just described.”[32]
[31] [2013] VSCA 22
[32]at paragraph [112], and also Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [105]
36Unlike other applications for serious injury where entries in clinical notes are relied upon to either reinforce the plaintiff’s evidence or to contradict it, the entries can be cryptic and not capable of clear meaning. Here, to some extent, the notetaking of the psychologists appear to be quoting the plaintiff which, to some degree, takes it into a different category of a reliable clinical note; however, the notes appear not to entirely capture the context in which the plaintiff was operating domestically, socially, vocationally and within the context of her family dynamics. I simply repeat that the plaintiff continued with other pursuits apparently in an ordinary or normal way, and in particular, her secondary and tertiary education.
The aftermath – from 2006-2018
37The defendant submitted that the evidence does not demonstrate that the plaintiff was adversely affected in any significant way following the occurrence of the sexual assault. Again, the defendant relied upon clinical notes to not only demonstrate that, but to also demonstrate that there were a host of other problems which were more telling in increasing the significance of the plaintiff’s psychiatric condition which had troubled her from her early childhood.
38The plaintiff’s first affidavit is not particularly edifying of the course of events following the occurrence of the sexual assault which can be linked to treatment for the consequences of the sexual assault. The plaintiff merely referred to seeing a counsellor at the school she was attending, but is unable to recall whether she mentioned the sexual assault or not. In 2010, her father took her to see a mental health practitioner at Head Space in Balaclava. Then, she reeled off having seen the following, without expressly saying that it was for treatment linked to the sexual assault, but it would appear that is what she meant:
· In February 2012, she saw Ms Staberhofer under a Mental Health Plan
· In 2013, she attended the Drummond Street Services Therapy
· Between 2013 and 2014, she attended Links Psychology (Ms Ellis)
· In 2015, she attended a psychologist at the Northside Clinic
· In 2016 and 2017, she attended Mr Dean Smith
· In 2017, she attended Ms Johnson at body therapy in Bellingen in New South Wales
· In 2018, she attended Ms Murdoch [scil Murdock].[33]
[33] PCB 32-33
39The plaintiff subsequently swore a further affidavit in her Limitations of Actions Act 1958 application in which she described her ignorance of the availability of a common law claim against the defendant, and how she came to understand that she could make such a claim. It was after she read a book by Helen Garner known as “This House of Grief” that she became aware that she could make a claim on the Crime Assistance Tribunal for compensation as a victim of crime. Potentially, it was this event which became something of a trigger for treatment and diagnosis of the psychiatric condition under which the plaintiff was labouring; however, whether it was an actual trigger for her connection between the sexual assault and it being causative of her awareness of a psychiatric condition was a matter of serious controversy between the plaintiff and the defendant. I will return to this later in these reasons.
40The defendant expended a significant effort in pointing to other events in the plaintiff’s life between fourteen and eighteen years of age which it submitted are more significantly causative of her current psychiatric condition. Again, I propose to limit my summary to the references in the evidence made by the defendant in its written submissions dated 12 March 2021. The defendant concentrated on evidence which suggested that the plaintiff was more significantly troubled by continuing problems relating to her mother, father, siblings, intimate relationships, difficulty relating to men and other socialisation issues which suggest that the plaintiff was not placing any emphasis, or not much emphasis, on the occurrence of the sexual assault and the problems that it apparently produced for her.
41Under cross-examination, the plaintiff agreed that she had not discussed the impact of the occurrence of the sexual assault with the persons from whom she sought treatment. She said that she had not been able to broach the subject with them,[34] and that she had either minimised the impact upon her of the occurrence of the sexual assault, or engaged in denial of it. She added that she was never offered the opportunity to deal with it, and that she felt that she had to get on with it and forget it.[35] It was something which she repeated to Dr Neill, that she did not want to talk about the occurrence of the sexual assault and had not talked about it except to her lawyer, despite having sought treatment from a number of psychologists.[36]
[34]The transcript refers to the word “breach” rather than “broach”. Clearly, and in the context of her answer, she meant broach - Transcript 47-48
[35] Transcript 48
[36] DCB 27
42Under further cross-examination, the plaintiff said that she could not remember whether she made mention of the occurrence of the sexual assault to the persons who treated her.[37] She felt that she had counselling after the occurrence of the sexual assault, but could not say for certain whether in fact that was correct. Dr Neill recorded that the plaintiff told her that she had counselling at her school because of “attitudinal issues and bad behaviour”, and was unsure whether that counselling took place before or after the occurrence of the sexual assault.[38]
[37] Transcript 19
[38] DCB 23
43In the plaintiff’s first affidavit, she described significant consequences of her current psychiatric condition which she attributed to the impact upon her of the occurrence of the sexual assault.[39] The defendant submitted that the plaintiff did not refer to other impacts upon her mental health which it submitted also significantly contributed to her current psychiatric condition. The plaintiff agreed that the other mental health issues which she experienced following the occurrence of the sexual assault significantly impacted upon her mental health.[40] The plaintiff denied that those other mental health issues had a far greater impact upon her mental health than the occurrence of the sexual assault and its consequences to her.[41]
[39] PCB 34-36
[40] Transcript 19-24
[41] Transcript 24
44It was in the course of this part of the cross-examination that the plaintiff attempted to tackle the issue of unravelling the contribution to her current psychiatric condition from the contribution by the impact of the other mental health issues. She gave three answers which I considered were utterly fair answers.
45The first answer was to a question whether her motivation in seeking treatment before 2018 did not relate to the occurrence of a sexual assault. She said:
“It feels quite hard to answer that because I don’t quite - the issues I was going and seeking therapy for were quite complex and varied and I myself don’t have an understanding of the root cause of the reasons, you know, that I was going. In retrospect, maybe I see that it’s all interlinked and interwoven.”[42]
[42] Transcript 24
46The second answer was to a question about her father being of a controlling personality and that his relationship with the plaintiff caused her mental health issues:
“I just don’t know. I mean, I feel like it’s something that a psychologist or a psychiatrist would offer me. I don’t know. It’s caused me, yeah, distress.”[43]
[43] Transcript 41
47In relation to a history she gave to Dr Hacker about the battle she has concerning whether the assaults affect her, she said:
A:“It’s very complicated. It feels very messy in my head to understand. It’s very, very confusing for me. It’s quite hard to put myself into like feeling like a victim and I feel like I survive for quite a while saying it didn’t affect me, so it becomes confusing - it becomes quite confusing for me and hard to make sense.
Q: Do you feel at times that it didn’t affect you at all?---
A:No, because I might have that thought of diminishing the impact and then the thought continues and I unpack it further and I always reach a place of acknowledging that of course it did, you know, but it takes me a while to shift down into that gear.”[44]
[44] Transcript 50
48It may be premature to make this observation before turning to the next stage of the defendant’s cross-examination of the plaintiff, however, what is unusual about this application is that the plaintiff was fourteen years of age when she was sexually assaulted. Most children of that age do not behave with the maturity, sophistication and experience of life of adults in making considered value judgements, and I think that was probably made all the more difficult for the plaintiff by the fact that she had problems dealing with schooling, socialisation and her relationship with her parents and siblings. It struck me that the answers provide a potent explanation for the dilemma facing the plaintiff in trying, through her own process of reasoning, to formulate the attribution of the occurrence of the sexual assault and its consequences, and the other problems which she encountered before the occurrence of the sexual assault, and subsequently up until 2018. I will return to this later in these reasons.
The Plaintiff’s mother
49On 9 November 2015, Ms Claire Weightman, psychologist, recorded that the plaintiff told her that she was not responding to “therapeutic techniques” which I assume relate to psychological treatment. There was an intensifying of “severe abandonment and mood dysregulation and helplessness”, and a note in brackets relevant to her history of neglect and her mother’s alcoholism. She concluded that the plaintiff was suffering from severe depression, extremely severe anxiety and high severe stress. The treatment plan was for the prescription of two types of medication, among other things.[45]
[45]The clinical notes of the Northside Clinic contain entries made by medical practitioners and entries made by psychologists. The cross-examination described Ms Weightman as a counsellor or psychologist
50The context in which the clinical note is to be read is the plaintiff’s breakup with her partner, Daisy. The plaintiff agreed that the breakup had a significant effect upon her mental health. She said that the breakup was “a catalyst for a whole other (sic) things in my life crumbling … triggering of a big breakdown …”. She qualified that by adding that it was not necessarily the breakup which resulted in that impact upon her mental health, but the impact upon her of feelings of trust, insecurity, and she described what was happening as being like “a stone rolling”.[46] I should add that under cross-examination, the plaintiff could not remember the background to the clinical note, but did not contest that if the clinical note recorded each of these matters, that it must have represented the state of affairs that existed at the time.
[46] Transcript 56-58
51On 17 September 2014, Ms Ellis recorded that the plaintiff told her that her mother was the subject of maltreatment at the hands of her father.[47] The plaintiff agreed that her mother was subject to emotional abuse, but not physical abuse at the hands of her father, and she denied witnessing any domestic violence between her mother and father. She described having no “vivid memories” of the interactions between her mother and father in her teenage years.[48]
[47] DCB 45
[48] Transcript 31-32
52On 13 August 2014, Ms Ellis recorded that the plaintiff told her that her mother had a cardiac arrest three years previously and was in “a bad way - not eating/drinking …”.[49] Under cross-examination, the plaintiff was referred to a clinical note made by Dr Catherine Lazaroo, general practitioner, on 4 January 2012, who recorded that the plaintiff told her that her mother had been unwell and that her own unwellness had “triggered past trauma issues, finding her symptoms worsening, trouble sleeping and loss of pleasure”.[50] The plaintiff had no memory of seeing Dr Lazaroo and having a mental health plan prepared. The plaintiff agreed that her mother’s unwellness played significantly on her mental health, and that her relationship with her mother through her childhood, teenage years and early 20s was strained.[51] The background to what I have just summarised is that the plaintiff was nineteen years of age when her mother had the cardiac arrest and was admitted to an intensive care unit. Her reaction to this was that she thought her mother was going to die. She resisted the suggestion that she had an emotional response to her mother’s condition. She said that she did not know how she felt at the time.[52]
[49] DCB 41
[50] DCB 64
[51] Transcript 34-35
[52] Transcript 33
53Under cross-examination, the plaintiff agreed that when she was nineteen years of age, her mother told her that her father had raped her when she was drunk. She agreed that it caused her significant trauma. She described the additional disruption to her relationship with her father as “it added fuel to the fire” and “it added additional resentments …” to her relationship with her father.[53] Later, the plaintiff said that the revelation of the rape was distressing at the time, but not something which now causes her any anxiety.[54]
[53] Transcript 33
[54] Transcript 49
54On 17 September 2014, Ms Ellis recorded that the plaintiff told her that she was grieving over her mother, her father, and her family because of the way her father had treated her mother.[55]
[55] DCB 45
The Plaintiff’s father
55The defendant relied on much the same evidence which I have summarised regarding the plaintiff’s mother in relation to her father, for example his maltreatment of her mother, the allegation of rape and her increased resentment of her father.
Intimate relationships
56The plaintiff entered into a relationship with another woman, named Daisy. There is very little in the plaintiff’s affidavits about the status of any relationship with a partner except for a brief reference in her second affidavit.[56]
[56] PCB 39
57The plaintiff attended Drummond Street Services with Daisy for the purpose of having counselling about their relationship. The name of the clinician is not identified in the clinical notes which were the subject of cross-examination. The plaintiff attended on 3 July, 22 May and 4 June, 2014, all in relation to difficulties in her relationship with Daisy. On 22 May 2014, the author of the clinical note recorded that the plaintiff told her that she had been in a relationship for two years and that there had been “physical, verbal and emotional abuse in the relationship”.[57]
[57] DCB 35
58On 9 July 2014, Dr Dutton recorded that the plaintiff told her that she had anger management issues and that she felt that she was becoming emotionally abusive towards Daisy, and that she felt that it stemmed from her difficult childhood.[58]
[58] DCB 62
59Under cross-examination, the plaintiff said that she and Daisy were probably “quite verbally abusive to one another”. She said she could not remember there being any physical abuse. She added that there was perhaps sometimes emotional abuse. She agreed that the counselling that she and Daisy sought was limited to their relationship and not in relation to the occurrence of the sexual assault.[59]
[59] Transcript 52-53
60On 23 October 2015, Dr Pauline Cundill, general practitioner, recorded that the plaintiff was twenty-three years of age and presented in a “distressed state”. She had separated from Daisy in Daylesford two months previously and had moved to Melbourne. She recorded that the plaintiff was experiencing “Poor appetite, inter[r]upted sleep, difficult to relax, difficult to concentrate”, and had some suicidal thoughts, but with no plans or intent. She also recorded that the plaintiff was seeing Ms Ellis. Her treatment plan was to prescribe the plaintiff with medication.[60]
[60]DCB 61, and also a clinical note relevant to the same issue on 18 September 2015 recording the plaintiff's difficulty by Dr Sarah Gelbart at DCB 61
61The plaintiff was cross-examined about her unhappy relationship with Daisy, the counselling that she and Daisy sought, and the impact of the breakdown of her relationship with Daisy. Additionally, on 3 April 2019, Ms Branchflower recorded that the plaintiff met Daisy when she was twenty. They fought, which distressed the plaintiff, and their subsequent break up “triggered a severe depressive episode” in the plaintiff.[61]
[61] DCB 79
Men
62Under cross-examination, the plaintiff said that a “whole host of things” affected her trust of men, and “it was the incidence that I had with this case, that affected my trust with men”. I understood that to mean that it was the occurrence of the sexual assault which had that impact upon the plaintiff.[62]
[62] Transcript 49-50
63On 3 April 2019, Ms Branchflower recorded that the plaintiff told her of intimate relationships which she had with men from her school days which the defendant submitted demonstrated nothing unusual, and was inconsistent with the occurrence of the sexual assault having a negative impact upon her ability to have a relationship with men, whether intimate or otherwise.[63]
[63] DCB 79
64On 31 July 2019, Ms Branchflower recorded that the plaintiff told her that a man named Reuben,[64] who was a friend of her father’s, had a tendency to sexualise her from a young age. He commented on her looks and said that she should marry his son. It is noteworthy, however, that additionally, she recorded that the plaintiff told her “When thinking of him [Reuben], has the same feeling of disgust as when she thinks of the cafe manager”.[65] Under cross-examination, the plaintiff remembered Reuben and his contact, but said she did not have “many memories of it”.[66]
[64] Reuben is a pseudonym.
[65] DCB 93 and Transcript 61-62
[66] Transcript 61-62
Other factors
65The defendant referred to a number of other factors which it put into the same category of other events in her life which have contributed to her current diagnosed psychiatric condition. I do not propose to summarise them in the same detail as I have with other issues thus far. Each tend to be part of the patchwork quilt which the defendant ultimately submitted demonstrated a picture different from that contended for by the plaintiff:
· during her high school years, the plaintiff did not fit into a friendship group. She felt disliked. She would argue with boys. She was singled out by other students: Ms Branchflower – 15 February 2019.[67]
[67] DCB 72
· avoided staying at home through her teenage years, even when her mother resided in the family home.[68]
· both of her parents, siblings and extended family members had suffered depression: Mr Smith – 13 September 2016.[69]
· use of Lexapro at age sixteen years: Mr Smith – 13 September 2016.[70]
· during her high school years felt neglected by friends and left out. Bullied by boys at school. Felt picked on: Ms Ellis – 13 October 2015.[71]
· during her high school years felt marginalised and insecure: Dr Neill – 3 December 2020.[72]
· history of depression since the age of sixteen years, and in her to early 20s: Ms Murdock – 30 August 2018.[73]
· treatment for depression with accompanying suicidal ideation beginning at the age of eighteen years, and on and off for the subsequent six years or more: Ms Murdock – 30 August 2018.[74]
[68] Transcript 32
[69] DCB 65
[70] DCB 65
[71] DCB 48 and Transcript 42
[72] DCB 20 and Transcript 43
[73] PCB 52
[74] PCB 53
The claimed consequences
66In the plaintiff’s first affidavit, she described suffering anxiety and depression resulting from the occurrence of the sexual assault which has significantly impacted upon the quality of her life, her studies, employment and her personal relationships. She set out an elaborate description of the particular consequences which I have reproduced below:
“The consequences include the following:
· I have significant problems with my self-esteem, confidence and selfworth.
· I have suffered episodes of major depression.
· I need to take medication to stabilise my mood. On occasions when I have tried to wean myself from the medication, my condition has deteriorated. On three occasions, when I went off the medication, I felt suicidal and had to go back onto the medication.
· It upsets me that I believe I will have to be on medication for the rest of my life and that I cannot cope without it.
· There are side effects to the medication, including what I call twitches and brain zaps when my head seems to vibrate.
· I suffer high levels of anxiety over thinking the future and worrying about both the past and the future.
· This anxiety has particularly affected my sleep. At times I have suffered from insomnia. I worry about my condition deteriorating to what it has been in the past.
· I focus on keeping a structured, stable and routine schedule. I have many rituals to keep me on track. For example, I get up at 6.00am, read and take some time out to be quiet and settled before starting the day. I used to walk or cycle to work which helped clear my mind. Since moving, I now catch a bus. At lunch time I try to get out of the office and sit outside on the kerb. I try to leave work on time so as to not destabilise my routine and suffer psychological consequences. Again, I used to walk or ride home to clear my mind. I make sure I go to bed at the same time each night. This strict routine can become oppressive, but it seems to be the only way I can manage my mental health and stay on top of my symptoms.
· I find that being outdoors and in nature is calming. On occasions I go camping, either with friends or on my own or with environmental groups, doing some volunteer planting and restoration of the environment.
· My whole life is focused on managing my mental health problems.
· My friendships have been affected by my mental health. I do my best to keep a few friends, who do offer me some support.
· I have difficulty forming relationships. I am presently not in a relationship. I find it difficult to trust others.
· I have difficulty relating to men and even forming platonic relationships with men. I am not able to trust them. This is debilitating, both on a social level, but also in the workplace.
· I feel fragile. I make many active choices and sacrifices to keep some stability in my mental health. For example, if I socialise, I go home early. I do not drink when I socialise which makes me feel somewhat isolated.
· I have lost all flexibility in my life. My life is focused on maintaining my mental health. I feel as though I have curated my whole life to stop myself derailing.
· Presently, there are no men in the workplace, so it is easy to manage professional relationships. However, this is an ongoing concern for me, and I believe that it is unlikely that in the future I will be able to avoid professional relationships with men in the workplace. For example, I have had many jobs, many of which I have left, or been fired, because I have demonstrated a bad attitude to the men in the workplace.
· After this happened to me, I was a very angry teenager, both at school and at university. I became isolated from my family unit and in particular from my brother and sister. I still feel isolated from my siblings. I have virtually no relationship with my father and I just keep in contact with my mother now and then. As a male, I feel distrustful of my father in particular.
· At times I feel hopeless and helpless.
· Very often I am not happy.
· I feel fortunate that I am in my current job which I enjoy. This has provided me with some stability in my life.”[75]
[75] PCB 34-36
67In the plaintiff’s second affidavit, she added the following:[76]
· She continued to see Ms Branchflower. The counselling was interrupted by the onset of COVID-19. She found counselling sessions over Zoom to be unsatisfactory. She plans to return to see Ms Branchflower.
· She attends “Al Anon” (Alcoholics Anonymous) undertaking a 12-step program which requires her to go to two meetings per day.
[76] PCB 39-40
68The plaintiff attended Alcoholics Anonymous for the purpose of obtaining assistance for herself in the setting of her mother’s alcoholism. She described the assistance she obtained as helping her to live with someone who has a drinking problem. She stopped going after attending for some years. She has returned to the program run by Alcoholics Anonymous in the last six months. She described the current program as being directed to “general life” and also living with people with an addiction.[77]
[77] Transcript 35-36
69The plaintiff no longer uses antidepressants. She last used medication of that kind in about September 2020. She prefers natural therapies using St John’s wort, which she describes as a natural antidepressant, and Ashwagandha root, which I understood from the context of her evidence to have the same effect.[78]
[78] Transcript 63
70The plaintiff recently commenced seeing a different general practitioner. Unfortunately, the transcript did not capture his name but only part of it – “Dr Zachary”. She had seen him once as at the first day of the hearing.[79]
[79] Transcript 63-64
71The defendant submitted that the other events in her life, which I have endeavoured to summarise, have contributed to her current diagnosed psychiatric condition and inevitably the consequences which she claims result from the occurrence of the sexual assault.
72It is clear thus far that the plaintiff was exposed to family, schooling, relationships and other matters which, when taken alone, would impress a layperson as amounting to a history likely to leave a psychological/psychiatric imprint upon the plaintiff. That, of course, is a conclusion that might be sustainable, if not for the fact that the plaintiff completed her schooling, entered into tertiary studies and has pursued vocations.
73I should, at this point, refer to how the plaintiff has fared since completing her secondary education. In summary:
· She completed her secondary schooling in 2009.
· She completed a Diploma of Interior Design and Decoration in 2011.
· She completed a Bachelor of Interior Design in 2014 with honours.
· Following the completion of her Bachelor’s degree, she worked in five jobs.
· In May 2018, she worked as an interior designer, working full time.
· She resigned from the latter job at the end of 2019 and commenced a Certificate III in Conservation and Capital Land Management.
· She then began working as a casual employee in a nursery, but working full-time hours.
· She moved to an 18-acre bush block with a number of other people. The agreement was to work on the property, so she reduced her work at the nursery to two days per week and then ceased working at the nursery to manage studies and work on the bush block.
· At present, she works with an environment/bush employer doing conservation work. She is employed as a casual employee, but working full-time hours.
The medical evidence
74I will firstly summarise the evidence on which the plaintiff relies, commencing with Ms Murdock and Ms Branchflower.
75Ms Murdock examined the plaintiff on 13 March 2018, which was the date of commencement of seven 50-60-minute sessions of counselling. She saw the plaintiff on referral by Dr Dutton. She provided a report dated 30 August 2018.[80] It would appear that she obtained an adequate history of the plaintiff’s earlier life. In paragraph 5.3, she made the following observations in relation to the plaintiff’s developmental history:[81]
“The applicant experienced early developmental stress and disturbed attachment in the context of growing up with a mother who was an alcoholic, emotionally unavailable and neglectful. The applicant’s relationship with her father was also tumultuous and he was unable to provide the support or protection needed in childhood/adolescence. It is thought that sexual assault in adolescence exacerbated already fragile sense of self, leading to feelings of guilt, shame, inadequacy, worthlessness, and distrust of others. These psychological states continue to surface and impact her relationships … .”
[80] PCB 50-55
[81] PCB 53
76Then in relation to the impact of the occurrence of the sexual assault, Ms Murdock said:
“… In particular, the assault impacted her relationship with her father, causing a shift in the way she saw herself as a sexual object. The applicant continues to experience difficulties trusting men and in intimate relationships in general. The applicant also has a sense of self-blame and that she is fundamentally flawed, hence seeking diagnosis of ASD to try to explain her ‘flaws’. The applicant reported and demonstrated strong emotional response to talking about the assault. It is clear that the applicant’s beliefs about herself in the world have been negatively influenced by the assault and have had a substantial negative impact on her relationships, self-esteem and mental health.”
77The plaintiff first saw Ms Branchflower on 19 December 2018. In addition to her clinical notes, she provided a short report dated 17 April 2019 which appears to me to be an overall summary of her opinion based upon the plaintiff’s clinical presentation.[82]
[82] PCB 60-61
78In relation to her diagnosis of an injury suffered by the plaintiff as a result of the occurrence of the assault, she said:
“The work incidents in 2006 significantly impacted Ms. Argents (sic) sense of self-worth and the ongoing trauma from the incident has contributed to episodes of major depression. Ms. Argent takes anti-depressant medi[c]ation to help stabilise her mood and attends ongoing therapy to manage her symptoms which are fluctuating. The incident appears to have affected her relationships with people, including her father, and has an ongoing impact on intimate relationships with men.”[83]
[83] PCB 60
79In relation to whether she required ongoing treatment, she said:
“As Ms. Argent still experiences a trauma reaction when thinking about the work incidents or is triggered in some way (e.g. in present relationships with men), she requires ongoing treatment in order to process and resolve the distress associated with this. We have recently started using eye movement desensitization and reprocessing (EMDR) therapy to process the trauma, aiming to resolve the distress of the memories of the work incidents and reduce present triggers.”
80Dr David Spencer, general practitioner, from the Northside Clinic provided a medical report dated 10 March 2019.[84] The plaintiff had been attending his clinic since 2012. He first saw the plaintiff in September 2019 for treatment of her psychiatric condition. He no doubt had access to the clinic records.[85] The clinical records demonstrate that he treated the plaintiff before that date for non-related medical conditions. On my reading of the clinical notes, it would appear that he first saw the plaintiff for treatment of her psychiatric condition on 16 November 2018. It would appear that he made attempts to link the plaintiff to medical professionals who could afford the plaintiff treatment.
[84] PCB 56-59
[85] DCB 52-64
81Dr Spencer referred to the plaintiff seeking “psychological care” in 2012, 2014, 2016, 2017 and 2018. He noted a history of relapsing depression and anxiety which had significantly impacted upon her personal relationship with partners, friends and colleagues. He noted that some of the symptoms included reduced sleep, irritability and a tendency to be overwhelmed easily and to become angry. He also noted other issues relevant to her mother’s ill health and feelings of abandonment. In particular, he noted that the plaintiff had been assessed by Associate Professor Saji Damodaran, psychiatrist. He examined the plaintiff at the request of the WorkCover insurance agent on 7 September 2018. He provided a report which I will turn to shortly, dated 10 September 2018.[86]
[86] DCB 79-88
82Dr Spencer accepted the diagnosis made by Dr Damodaran of chronic Post-Traumatic Stress Disorder resulting from the occurrence of the sexual assault. It was on that footing, and I presume also his own clinical judgement, he referred to the impact of the occurrence of the sexual assault:
“Particular impact arising from this event include interpersonal, academic and school performance resulting in suspensions and warnings. Acute anxiety, recurring issues with initiation of sleep, and recurring depression are recurring themes. It affected her ability to trust people, especially men. She has had recurrent periods of isolation and being withdrawn. She reported in her Psychiatric evaluation to feeling suicidal at times. She has also experienced distressing flashbacks. She reports feeling traumatised by continuing the claim under the Victim of Crimes Act (sic) which requires her ongoing revisiting of the event.”[87]
[87]The quotation appears to be a passage lifted by Dr Spencer from the report of Dr Damodaran; however, it would appear by inference that it is a passage with which Dr Spencer agreed
83Dr Spencer then referred to the antidepressant medication the plaintiff had been prescribed, and the treatment that he considered would be beneficial to her. He considered the treatment would have the aim of helping her to continue to find a better way of coping with her symptoms and maintaining a better mood and ongoing employment.
84I should next refer to Dr Damodaran. The defendant submitted that his opinion is based solely on the history given by the plaintiff of the consequences of the occurrence of the sexual assault without him being given the benefit of the medico-legal clinical records. He did, however, make a reference to “a previous report” relevant to the tumultuous relationship the plaintiff had with her father, who had a dismissive parenting style. He referred to the description “dismissive parenting style” in quotation marks which I assume means that it is a quote from some other source. The only person who initially used the word “tumultuous” in the context of the plaintiff’s relationship with her father was Ms Murdock. It may be that he was provided with her report. He did not include a reference to what he was provided in the schedule to his report except for a reference to the Worker’s Claim Form.[88]
[88] PCB 89
85Dr Damodaran was of the opinion that the plaintiff was suffering from a chronic Post-Traumatic Stress Disorder with residual features, along with dysthymia, which he considered was partially in remission. He considered that her fluctuating symptoms of depression, occasional anxiety, social anxiety, sleep difficulties, irritability and interpersonal difficulties were mild in severity. He added that he considered that the psychiatric condition which he diagnosed was a significant work-related injury. He considered that she required psychiatric treatment to focus on management of her interpersonal difficulties, improving her self-esteem and improving her overall sense of trust and self-esteem. He otherwise considered that she had a capacity for the work she was performing at that time as an interior decorator and in hospitality.
86Dr Hacker examined the plaintiff on 12 May 2020. She provided a report dated 21 May 2020.[89] She was provided with documentation relevant to the plaintiff’s claim that the occurrence of the sexual assault significantly contributed to her psychiatric condition.[90] She was not provided with the medico-legal clinical records until much later when it was forwarded to her under cover of a letter from the plaintiff’s solicitor dated 15 February 2021. In addition to the medico-legal clinical records, she was provided with the reports of Dr Neill and Professor Doherty, and the plaintiff’s second affidavit. She then provided a second report dated 25 February 2021.[91]
[89] PCB 62-69
[90] PCB 62
[91] PCB 70-76
87Dr Hacker summarised the content of the medico-legal records in her second report. After doing so, she said that the summary needed to be read in the context of the “described psychiatric symptoms” provided by the plaintiff outlined in her first report. She considered that the medico-legal records demonstrated that the plaintiff had a disturbed early childhood being raised by an alcoholic mother and a rigid father. She derived from the medico-legal records the observation made by “her treating professionals and to me, that the assaults changed her view about men including her father”. She then made a series of observations which I propose to quote to capture the full effect of her opinion.
88Firstly, Dr Hacker described the plaintiff’s own opinion as follows:
“It was her opinion that the psychological impact of the sexualisation imposed upon her in her early adolescence made her feel disgusted and even more objectified, presumably triggering past bullying and demeaning situations in her childhood when she felt humiliated, objectified and powerless, and these emotional experiences were now specifically related to men.”[92]
[92] PCB 74
89Dr Hacker then expressed the following opinion:
“At a time when she was a young adolescent establishing her sexual identity, the assaults interfered with her previous potential for untroubled sexual development. She then developed a heterosexual orientation accompanied, following the assaults, by conflict and distress, leading her to engage in same-sex relationships in an unsatisfactory manner characterised by at times violent disruption, as she attempted homosexual relationships with a heterosexual orientation, being triggered in heterosexual circumstances.
Ms Argent appears to have been highly avoidant of emotional experience, given the extreme distress, associated as noted in the EMDR sessions, with recollections of the assaults and thus removed herself from much feeling, using mechanisms such as dissociation and avoidance that she said she developed as a child to deal with being teased and bullied.”[93]
[93] PCB 74
90Dr Hacker then commented on the opinion of Professor Doherty that the plaintiff’s psychiatric condition was based in constitutional factors relating to the mental health problems in her family, and the nature of her upbringing which he considered would have given rise to psychological and psychiatric problems. Dr Hacker disagreed:
“I respectfully disagree with this opinion noting that while agreeing that Ms Argent had a constitutional vulnerability to psychiatric illness and had a range of significant negative developmental experiences during her school days and within her family prior to the assaults, which no doubt have contributed to Ms Argent’s psychiatric difficulties, the assault interfered with her potential for untroubled development of her sexual identity.
Ms Argent called upon the mechanisms of avoidance and disassociation that had assisted her to manage the challenges in her early childhood and since has avoided perceptions of objectification in her relationships and in her external appearance.”[94]
[94] PCB 75
91Dr Hacker then commented on the opinion of Dr Neill that the plaintiff’s prior conditions were both constitutional and environmental in nature and the issues with her mother and father would have resulted in the plaintiff suffering her current mental condition even if the sexual assault had not occurred. Although, she was of the opinion that there was a work-related component which she described as emotional distress blame and grievance. She considered that the occurrence of the sexual assault “contributed to a minor aggravation of her diagnosed mental conditions”. Dr Hacker disagreed:
“I respectfully disagree with these opinions noting that the issue which appeared directly after the assaults according to Ms Argent was her difficulty in managing relationships with older men accompanied by an experience of disgust. On this ground alone there was no childhood experience which is likely to have contributed to the specific experience of disgust and subsequent distortion of her adolescent sexual development.
I note that Ms Argent continued whenever interviewed, to have considerable difficulty talking about her feelings and the assaultive experience itself, especially when having to disclose details of the assaults to men. Psychological mechanisms of avoidance and disassociation which probably assisted the management of negative affect prior to the assaults, following the assaults were then used excessively. The session of EMDR by Ms Branchflower where the assault was to be investigated lead (sic) to acute distress. In my opinion this is a measure of the impact for triggering which the assault brought to mind many years later.
Neurological research indicates that this physiological responses to such events precede cognitive awareness and can overwhelm the capacity for narrative cognitions and this is demonstrated and noted by Dr Neill, essentially confirming the impact of the assaults.”[95]
[95] PCB 75-76
92Despite the absence of the medico-legal records when Dr Hacker first examined the plaintiff, she nonetheless diagnosed that the plaintiff was suffering from a Chronic Major Depressive Disorder (a Severe Dysthymic Disorder) with significant traumatisation features. She emphasised the impact upon the plaintiff by referring to the effect of that psychiatric condition on the plaintiff’s domestic, recreational, social and personal activities outlined in paragraphs 32, 36, 38, 42-43 and 45 of her first report. The content of those paragraphs is too extensive to quote here, but are consistent with the consequences which the plaintiff referred to in her first affidavit from which I have quoted above.
93It occurs to me that Dr Hacker was fully briefed, as it were, and certainly to the same extent as Dr Neill. The distinction between what Dr Hacker and Dr Neill were provided when compared with Professor Doherty is that Processor Doherty did not examine the plaintiff. He undertook a review of the medico-legal records. This is something I will return to later in these reasons. When weighing up the whole of the plaintiff’s history, Dr Hacker then expressed the following opinion:
“Therefore in my opinion, despite constitutional, early developmental trauma from bullying, family conflict and her mother’s alcoholism, there is a significant contribution arising from the sexual assault during Ms Argent’s employment to her present psychiatric condition.”
94Dr Neill examined the plaintiff on 3 December 2020. She provided a report of very considerable length dated 3 December 2020.[96] At the time of her examination, she had been provided with the medico-legal records. She undertook the same process of summarising the medico-legal records as did Dr Hacker, and also the opinion of Professor Doherty, who she described as having undertaken a “desktop psychiatric review of the provided documentation”. That documentation comprised the medico-legal records.
[96] DCB 9-33
95Dr Neill considered that the plaintiff was suffering from a Generalised Anxiety Disorder and borderline personality traits. She described both conditions as chronic conditions and she provided a prognosis saying “the prognosis is unchanging but with prospect of improvement with specific treatment”. She then expressed her opinion on the relationship between the diagnosis she made and the occurrence of the sexual assault:
“In my opinion, the prior conditions, which are both constitutional and environmental in nature, and for that matter unrelated stressors such as her mother’s worsening mental health and the parental marital breakdown, would have resulted in the same outcome as now for the worker.”[97]
[97] DCB 31
96Dr Neill was asked for her opinion of the difficulties facing the plaintiff in separating the role the alleged incident in 2006 had in influencing her current mental condition, from other unrelated stressors. She said:
“The worker has difficulty in nominating in what way the alleged incident in 2006 influences her mental condition, and no specific symptoms were identified, other than:
· it bubbles up / is on her mind when something else is looming
· she believes her problematic relationship with her father / disgust with all male relatives started at that time; this is contradicted by history recorded in treatment
· she feels her struggles with sexual identity related to the alleged sexual abuse.”[98]
[98] DCB 30
97Dr Neill then commented on the accuracy of the plaintiff’s descriptions of her childhood and adolescence in the role that it might have played in influencing her medical condition. She noted that the plaintiff had difficulty in providing an accurate description of her childhood/adolescent events. She considered that the plaintiff’s personality trait of intense unstable affects/feelings has resulted in explicit/episodic/narrative memory functions being overwhelmed, which she said were evident in the plaintiff’s mental state examination and history demonstrating episodes of dissociation on the plaintiff’s part. She then commented on the laying down of memory by children and how different those memories are from adults who form memories, and that the plaintiff’s experiences in her family life did “not favour memory maintenance”. She added that it is inevitable that memory, including personal memory, is lost over time.
98Dr Neill then considered there was a work-related contribution to the plaintiff’s diagnosed psychiatric condition which she considered was persisting and manifested itself “as a component of her emotional distress, blame, and grievance”. She then considered that the level of contribution was a minor aggravation of her diagnosed psychiatric condition. What underwrote her opinion is a short summary found in the last paragraph of her report:
“In brief, there are unrelated:
· constitutional elements noting the specific diagnoses; the worker was a shy, quiet child with hearing problems; there is a strong family history of both anxiety and depression; and there is a significant family history of intergenerational trauma (including childhood sexual abuse).
· adverse environmental factors including: mother being emotionally unavailable due to her own trauma, alcohol abuse, and passivity; critical, controlling, yelling father; bullying for a number of years through primary school; alienation from siblings; and ambivalent peer relationships.”[99]
[99] DCB 31
99Professor Doherty was also provided with the medico-legal records. He provided a report dated 9 November 2020. He did not examine the plaintiff. He also summarised the medico-legal records. I note that he was not provided with the plaintiff’s affidavits. Based upon his understanding of the plaintiff’s family history, he described her as having had a very disturbed childhood, and that there were very significant psychologically damaging issues in the plaintiff’s life which occurred before the occurrence of the sexual assault, and psychologically significant matters which occurred after the occurrence of the sexual assault. Additionally, he considered that the presence of mental health problems within the family gave rise to constitutional factors which would have given rise to psychological and psychiatric problems for the plaintiff whether or not the sexual assault occurred.
100Professor Doherty also commented on the alleged vagueness of the plaintiff’s recollections of what occurred in her childhood which he believed would lead to her memory being vague, patchy and subject to suppression or repression. He added that her memory is not only distorted, but can be repressed and suppressed due to the nature of what she experienced as a child and by the passage of time, and that psychologically damaging traumatic issues in childhood can result in memory being repressed because they are not dealt with or processed at that time and can become lost to conscious remembering.
101Despite being asked to do the desktop psychiatric review, Professor Doherty was asked a series of questions, but not one about the contribution of the occurrence of the sexual assault to the plaintiff’s current psychiatric condition. It would appear that the purpose of the desktop psychiatric review was to create some measurement of stressors encountered by the plaintiff before and after the occurrence of the sexual assault.
Synthesising the evidence
102Whilst I have no difficulty understanding the plaintiff’s evidence, what I have found difficult is merging the plaintiff’s evidence with the evidence of her treating medical practitioners, psychologists and counsellors in the context of the questions raised by the defendant, and then the battleground created through the competing opinions of Dr Hacker and Dr Neill. I should say at this point that I am not much impressed by the opinion of Professor Doherty and wonder why it was acquired. If it was only to review the medico-legal records and give an opinion of what he could make of them, then to some degree there is little or no controversy between he and Dr Hacker and Dr Neill. I do not doubt that the evidence of the treating medical practitioners, psychologists and counsellors demonstrates that the plaintiff was at least a troubled young girl before the occurrence the sexual assault and subsequently primarily because of her environment. However, in the absence of the plaintiff’s affidavits and having her explain relevant history as she did with all of the other medical practitioners, psychologists, counsellors and the medico-legal psychiatrists, it results in me preferring the opinions of the medical practitioners who were fully briefed, as it were.
103My synthesis of all of this evidence can be brought down to the following conclusions.
104Firstly, I do not doubt the opinions of the medico-legal psychiatrists that the plaintiff has difficulty with memory. Again, there is nothing controversial about that, and indeed, the defendant did not attack the plaintiff’s credit, but did attack her reliability. I referred to a number of answers given by the plaintiff where I think she was making the best effort she could to try to put aspects of her life into a context to try to work out what consequences are validly linked to the occurrence of the sexual assault, as opposed to other contributors. The plaintiff very fairly occupied the position that she found the task difficult, and it was really a matter for those with the requisite skill as psychiatric/psychological assessors to answer the questions that she was being asked at the time when she gave the relevant answers.[100]
[100] paragraphs [42]-[44] above
105Secondly, it is not lost on me that the plaintiff was very young when she first encountered difficulties at the hands of others at a time when she was a primary school child and some years before the occurrence of the sexual assault. I do not think it is outside the realms of general knowledge and experience of life that children tend to have memories captured and retained differently from adults. To that extent there does not seem to be any particular controversy between Dr Hacker, Dr Neill and Professor Doherty.
106Thirdly, the issues in the plaintiff’s life both before and after the occurrence of the sexual assault are relatively well documented in the clinical notes of each of the psychologists and counsellors who the plaintiff saw throughout those periods. The content of the clinical notes are not necessarily inconsistent with the occurrence of the sexual assault being any less productive of the plaintiff’s current psychiatric condition because the occurrence of the sexual assault was not mentioned along the way. What the clinical records relied upon by the defendant demonstrate is treatment/counselling of the plaintiff for the issues that troubled her at the time.
107Fourthly, I do not accept the defendant’s submission that in some way the plaintiff’s exposure to Garner’s book only created some level of curiosity in the pursuit of victims of crime compensation.[101] It occurred to me that there was a point in time when the plaintiff developed a more acute awareness of her psychiatric condition and no doubt mused as to its cause. There was a point in time when the occurrence of the sexual assault came into sharper focus for the plaintiff, and through her own process of reasoning she concluded that there is strong link with its production and the occurrence of the sexual assault. Dr Hacker considered the timing issue and made the following observation which I think is entirely consistent with the evidence given by the plaintiff of her process of reasoning:
“In my opinion Ms Argent only became aware of the full extent of the impact of the assaults in about 2018. Ms Argent still finds it quite difficult to comprehend the magnitude of the impact of the assaults (see especially paragraphs 37 and 44). This is certainly evidence by her inability even currently to communicate verbally exactly what was done to her. This compartmentalisation which still exists is evidence of her capacity and attempts to disassociate or detach not only events themselves but the impact of the assaults.”[102]
[101] Transcript 97-100
[102] PCB 68
108Fifthly, and around the time when the plaintiff created that sharper focus, her process of reasoning was exposed to Ms Murdock when the plaintiff saw her on 30 August 2018, to Ms Branchflower when the plaintiff saw her on 19 December 2018, and to medical practitioners at the Northside Clinic, and in particular, Doctors Dutton and Spencer. They understood sufficient of the plaintiff’s history to know that the consequences of the occurrence of the sexual assault were not the only stressor which the plaintiff had endured through her life up until she exposed her process of reasoning to them. Notwithstanding that, they strongly implicated the consequences of the sexual assault as a contributor to the plaintiff’s psychiatric condition.
109Sixthly, both Dr Hacker and Dr Neill were provided with the medico-legal records. They read them, and they summarised them, and they then did what psychiatrists do – they undertook a mental state examination and when they merged all of what they had before them they appear to me to have attacked the issue in a broadly consistent way, but where they parted company is the emphasis which they each chose to place on the reliability of the plaintiff in the creation of the sharper focus, or whether her lack of reliability, together with the other stressors, significantly reduced the contribution of the occurrence of the sexual assault to her current psychiatric condition.
110Seventhly, I found the plaintiff to be a truthful witness. She readily acknowledged the difficulty she had in answering questions asked of her related to the history of other stressors and whether they contributed in some way to her current psychiatric condition when compared to the occurrence of the sexual assault as a contributor. The plaintiff acknowledged that the other stressors existed, and that the evidence demonstrates that there was a need for her to obtain levels of treatment to deal with those other stressors; however, equally, she acknowledged that the occurrence of the sexual assault survived in her memory through her teenage years and beyond. I think that the plaintiff ultimately put the occurrence of the sexual assault into its proper perspective, and then better understood its real impact upon her which comes out very clearly in the histories obtained by Ms Murdock, Dr Spencer and Ms Branchflower, and then Dr Hacker. In the end, I prefer the analysis made by Dr Hacker.
111Eighthly, I prefer the evidence of Ms Murdock, Dr Spencer, Ms Branchflower and Dr Hacker when weighed against the whole of the evidence. It occurs to me that each of them obtained a reasonably clear history from the plaintiff of the perspective into which the plaintiff put the occurrence of the sexual assault. I think the way in which they have dealt with the history they obtained from the plaintiff is well reasoned, and makes eminent sense why the plaintiff eventually obtained the perspective she did, and then better understood the real impact upon her of the sexual assault. Furthermore, the emphasis they have placed upon why it is that the consequences of the occurrence the sexual assault are the real cause of the plaintiff’s current psychiatric condition is well-founded and soundly based in fact.
112Ninthly, it follows that in preferring the opinion of Dr Hacker, that I prefer her diagnosis that the plaintiff was suffering from a chronic Major Depressive Disorder (a severe Dysthymic Disorder) with significant traumatisation features. I also prefer the quantum of the contribution described by Dr Hacker as a significant contribution. I think that the conclusion she reached in that respect is likewise well-founded and soundly based in fact.
113Accordingly, I accept the plaintiff’s submission that this was not an aggravation of the plaintiff’s diagnosed psychiatric condition, but was rather an injury itself which operated on environmental and developmental vulnerabilities experienced by the plaintiff.
Not the end of the matter
114The defendant submitted that there are a number of factors which militate against a finding that the impairment consequences contended for by the plaintiff are “severe”:
· she has lived independently from her parents since the age of eighteen years.[103]
[103] Transcript 65 and 69
· she has completed tertiary education at a reasonably high level.[104]
· she has a reasonable work history.[105]
· she was bullied by a co-worker which caused her to cease work as an interior designer, not the occurrence of the of the sexual assault.[106]
· she has formed romantic relationships and is not avoidant of sexual intimacy.[107]
· she no longer takes prescription medication to treat her psychiatric condition.[108]
· she is not receiving any counselling from a psychologist or counsellor, and has never sought treatment from a psychiatrist in relation to the sexual assault.[109]
· her relationship with her mother, father and siblings has improved.[110]
· she has very good supportive friendships.[111]
· her mood is improved when compared with her teenage years.[112]
· whether the occurrence of the sexual assault is on her mind depends on whether there is something looming in her life such as an examination.[113]
[104] See the summary in paragraph [73] above
[105] PCB 39 and Transcript 67
[106] Transcript 64
[107] PCB 39, DCB 21 and Transcript 59
[108] PCB 39 and Transcript 63
[109] Transcript 63
[110] Transcript 35, 40 and 68
[111] Transcript 69
[112] Transcript 70
[113] DCB 17
115Essentially, the defendant submitted that what the plaintiff has retained demonstrates that even if I accept that the plaintiff has suffered the impairment consequences for which she contends, what she has retained demonstrates that she has fared tolerably well, and at a level inconsistent with her impairment consequences equating with being “severe”.
Are the consequences “severe”?
116The word “severe” in paragraph (c) of the definition of “serious injury” is now accepted to be a stronger word, in relative terms, than the word “serious” found in paragraph (a) of the definition.[114]
[114] Mobilio v Balliotis [1998] 3 VR 833 and Noonan v Victoria [2013] VSCA 289
117In Transport Accident Commission v Katanas,[115] the High Court dealt with the range of considerations that need to be taken into account in determining whether the impairment consequences are “severe”. The appellant before the High Court put the point on appeal in the following way:
“Assuming that the majority of the Court of Appeal were correct in their characterisation of the primary judge’s formulation of the ‘possible range’, the appellant argued that there was no error in the primary judge's formulation. In the appellant’s submission, given that the respondent did not complain of pecuniary or occupational consequences, and that there was no suggestion of unnecessary treatment, the range as formulated by the primary judge was not stated in a ‘false and incomplete way’ but was appropriate and adapted to the respondent's case. Further, in the appellant's submission, by holding that the range as formulated by the primary judge was of only ‘limited utility’, the majority of the Court of Appeal had ‘relegated what in [Humphries v Poljak] is an important part of ‘the question’ to a matter of ‘limited utility’ and ‘introduced a new and unexplained concept [of] ‘the line’’. According to the appellant, the majority’s reasoning thus had the effect of ‘displacing or trampling upon that part of the [Humphries v Poljak]formulation directed to the evaluation of an instant case against the range of comparable cases’. And, it was said, that would place judges in the future in a quandary as to how reasons for judgment could be ‘framed by reference to [the range or spectrum] if any statement of the range would inevitably be erroneous for incompleteness’.”[116]
[115] [2017] HCA 32
[116] at paragraph [20]
118The High Court rejected the point, observing:
“The appellant’s contentions should be rejected. Assuming that the majority were correct in their characterisation of the primary judge’s formulation of the ‘possible range’, it is clear that the range, as so formulated, was incomplete because it had regard to only one criterion of the comparative severity of a mental disorder or disturbance: the extent of treatment made necessary by the disorder or disturbance. That precluded consideration of other relevant criteria of comparative severity – for example, in this case, the severity of the respondent’s symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent’s daily activities, family life, social life and educational pursuits. Because the range as formulated was incomplete, it was prone to skew the assessment of severity and cause the assessment to miscarry.”[117]
[117] at paragraph [21]
119I accept the defendant’s submission that the plaintiff has made many achievements which I do not propose to repeat because I have referred to them in some significant detail in the course of summarising the evidence. However, to the extent that the plaintiff’s many achievements point to retaining a capacity to function tolerably well or having recovered from the impairment consequences resulting from the occurrence of the sexual assault, does not gainsay that the plaintiff has not been left with impairment consequences which are “severe”.
120The plaintiff’s evidence impresses me that the impact of the occurrence of the sexual assault did not leave the plaintiff’s state of consciousness or that her memory has been so compromised that she is seriously unreliable. I do not accept the thesis advanced by Dr Neill and Professor Doherty in that respect. I do accept that it is evident to some degree, but not to such a degree that Dr Spencer, Ms Murdock, Ms Branchflower and Dr Hacker were unable to sufficiently divide the impact of the occurrence of the sexual assault from the impact of the other stressors in the plaintiff’s life both before and after the occurrence of the sexual assault.
121What this leads me to is an acceptance of the plaintiff’s evidence both from her affidavits and in her oral evidence essentially consistent with what she deposed to in her first affidavit which I have quoted in whole. What the plaintiff deposed to is a depressive state and anxiety which required prescription medication. A range of symptoms of suicidal ideation, impact on sleep, lack of focus on simple activities, a need to focus on her mental health problems, impact on friendships and relationships, difficulty relating to men, feelings of fragility and feelings of hopelessness, helplessness and unhappiness, and interference with her interest in socialising and engaging in ordinary interpersonal relationships, and a poor prognosis, and the need for psychological treatment.
122I think to focus on what the plaintiff has retained is to skew the assessment of the severity of the plaintiff’s impairment consequences. Her evidence demonstrates a very extensive catalogue of impairment consequences intruding on practically every aspect of her daily life. True it is that she has retained a capacity to function at a level, but I repeat, that does not gainsay the catalogue of impairment consequences being “severe”, especially when the fact that the plaintiff is twenty-nine years of age and will probably catalogue that impairment of consequences for the foreseeable future.
123Finally, I think that the permanent impairment consequences of the mental or behavioural disturbance or disorder, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses are “severe”.
Orders
124I will grant the plaintiff leave to bring a proceeding to recover damages for pain and suffering.
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