Caslick v Thiess Pty Limited

[2019] NSWDC 623

District Court

New South Wales

Medium Neutral Citation:	Caslick v Thiess Pty Limited [2019] NSWDC 623
Hearing dates:	04 April 2019
Date of orders:	04 April 2019
Decision date:	04 April 2019
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Redemption approved
Catchwords:	WORKERS COMPENSATION - COAL MINER   Proposed redemption. Significant compromise. Whether sum proposed adequate.
Legislation Cited:	Workers Compensation Act 1987
Cases Cited:	Townsend v Commissioner of Police (1992) 25 NSWCCR 9
Category:	Principal judgment
Parties:	Plaintiff - Narelle K Caslick   Defendant - Thiess Pty Ltd
Representation:	Plaintiff – O’Rourke (Counsel)   Defendant – Palamara (Solicitor)
File Number(s):	RJ00399/16
Publication restriction:	Nil.

Judgement

1. HIS HONOUR: There is before me at the current time an application for redemption in the sum of $20,000. The amount of that redemption needs to be contrasted with the claims made in both the initiating process and the current statement of claim. The plaintiff has been either totally or partially incapacitated from 18 March 2014 to date and continuing, and is entitled to the maximum statutory rate of compensation for either total incapacity or partial incapacity since that time, a period of some five years. The amount of past benefits of weekly payments of compensation amounts to well in excess of $100,000. I have also been told that the unpaid expenses claimed under s 60 of the Workers Compensation Act 1987 amount to $74,000. It is therefore completely appropriate that I carefully peruse the allegations made in the pleadings and the evidence that has been placed before me.

2. The initiating process, the statement of claim filed on 13 September 2016, claimed that on 18 March 2014 the plaintiff was injured by "victimisation" and sustained a major depressive disorder. A first amended statement of claim was filed on 21 December 2017. It is upon that document the plaintiff currently relies. It alleges a number of incidents occurring between November 2012 and 18 March 2014, but it is clear from contemporaneous histories that it was what occurred on 18 March 2014 that was the precipitating cause for the plaintiff's leaving work, leading to her claim for workers compensation.

3. The plaintiff was born in August 1970. She is now 48 years old. Her solicitors have qualified Dr Christopher Bench, a psychiatrist practising at Newcastle. Dr Bench's first report bears date 15 February 2016. That follows upon his examination of the plaintiff on 12 February 2016. Amongst other things, Dr Bench sets out the plaintiff's employment history on p 2 of that report:

"The claimant attended Jerrys Plains Primary School and Singleton High School. She completed year 10 and attained her School Certificate. She denied any history of having to repeat any grades or special education. She denied any history of suspensions or expulsions.

After leaving school, the claimant completed a secretarial course at TAFE. She then worked at Scone Veterinary Clinic as a secretary for seven or eight months and Toyota Industrial Equipment for six to seven years. She joined NBN Television as a debtors clerk where she remained for 12 months. She left work when she had her 'first breakdown'. The claimant did some casual work at Howick Mine for eight months and Dartbrook Prep Plant for three months. She then joined Shell Coal, later bought out by Anglo Coal, where she remained for a total of 15 years. She started in administration and ended up being the property coordinator. She took redundancy. She worked at Sirco Sodexo for a few months, and at Mine Assist for a few months. She took up a position with Mount Owen mine as a contractor, but subsequently worked for Thiess as a permanent full-time basis for four years. Her last day of work was 18 March 2014."

4. I have contemporaneous medical evidence available to me commencing on 28 May 2001. The plaintiff's relevant medical history before that time is set out as far as I can ascertain in a further part of Dr Bench's report. It is this:

"The claimant noted in hindsight she believes she first became depressed at age 19 [1989 or 1990]. She noted that she was 'down…really angry'. She was having difficulties with tearfulness. She did not want to do anything. She was 'dreadfully lonely' and had difficulties with hypersomnia. On the other, she noted her energy and libido were intact. Nonetheless, she was never formally diagnosed or treated for depression. The claimant noted that she had a number of other episodes of depression between [ages] 19 and 25.

The claimant noted that she had her 'first breakdown' at age 25 [1995 or 1996]. She noted her husband [Grant] was away renovating their new home. She reported that she made a very impulsive suicide attempt when she tried to gas herself in the house. She ultimately stopped herself. She specifically denied having had any biological concomitance of depression leading up to the suicide attempt. She noted that she stopped herself as 'I didn't want to die'. She called her mother. She noted 'I was hysterical…when she came I was curled up on the bed in a tight ball.'

The claimant attended upon her general practitioner Dr Alan Kirkpatrick who diagnosed her with depression. She noted that he did everything that he could to keep her out of hospital, including having referred her to a psychiatrist. She was commenced on the antidepressant Prozac. She noted having been trialled [sic] on other medications, including Avanza and Zoloft. Nonetheless the Prozac proved most effective and she was on the medication for the best part of the next 18 years. She reported having been referred to two different psychiatrists. She could not recall the name of either psychiatrist. The first psychiatrist was in Lambton. She noted there was no diagnosis made. She continued the Prozac. She only saw him on two separate occasions, describing his demeanour as unprofessional. She attended upon a psychiatrist in Tamworth. She was unsure of the diagnosis made. He did not change her antidepressant medication. Again, she only saw him on two separate occasions."

5. I continue by having access to the records produced on subpoena and tendered by the plaintiff from the Raworth Cottage Medical Practice at Singleton. The plaintiff appears to have usually attended upon Dr Cecil Ford at that practice. She first saw Dr Ford on 28 May 2001 complaining of insomnia. Sleeping medication was prescribed. A similar complaint was made on 18 January 2005 and further sleeping medication was provided. On 31 January 2005 the plaintiff complained to Dr Ford about stomach problems. On 4 February 2005 Dr Ford saw the plaintiff about suspected gastric reflux and about depression. The next mention in the records of the practice about depression was on 27 August 2012. The notes recorded by Dr Ford are these:

"Made known of past history of chronic depression and abnormal EEG suggestive of epilepsy which can be precipitated by migraine."

6. On the first occasion that Dr Ford obtained a history of depression he prescribed Fluoxetine. He continued to do so when the plaintiff complained of depressive symptoms. On 22 November 2012 Dr Ford noted that the plaintiff was still taking Fluoxetine. He discussed with her depression and its symptoms, including irritability and lability of mood and he discussed with her consideration of her medication. There was time spent deciding whether to prescribe a mood stabiliser or referring the plaintiff to a psychiatrist. The major reason for presenting at that time was a rupture of an ovarian cyst. Unfortunately the plaintiff has a long history of gynaecological problems of some complexity and significance.

7. On 23 November 2012 the plaintiff was brought to Dr Ford's rooms as an "emergency" by her mother. The history recorded is that the plaintiff had a "breakdown" and that she came labile when she was told by someone at her employer's premises to "get her act together" when she had asked for a day off work in order to have an EEG, presumably because of continuing symptoms that could be related to epilepsy. The history recorded by Dr Ford goes on to say that the plaintiff did not know why she was snappish and irritable. She gave a history to the doctor of poor sleep because of "circulating thoughts". Dr Ford noted the plaintiff had been on medication for her psychiatric condition since the age of 25, and recorded a history of the suicide attempt at the age of 25. He also obtained another history of what may have been not a real attempt at suicide, but a mechanism to draw attention to herself when she opened her father's gun case but was unable to fire the bullets. The doctor noted that she had been prescribed Zoloft in the past, but that was not helpful, that she had seen psychiatrists in the past, but one of those psychiatrists had confused her name and so she cancelled the appointment. He also noted a past prescription of Aropax. Under the heading "Management" Dr Ford said that he discussed depression with the plaintiff. He reinforced that with literature and websites concerning the Black Dog Institute. He explained the essence of cognitive behaviour therapy and other therapy. He agreed to double the amount of Fluoxetine to be taken by the plaintiff, and gave her counselling about her physical state which could improve her mental state.

8. The next reference in Dr Ford's notes to depression was on 28 May 2013. On that occasion the plaintiff was again accompanied by her mother who told the doctor that the plaintiff had had a "rough trot…depression…for few months". When the plaintiff was able to speak with the doctor there was a discussion about the plaintiff's then relationship with a man known as Ken. She had asked Ken to leave the home that they had been sharing. The doctor found it difficult to ascertain what the correct history was, but he thought it had something to do with finances. There was also an indication that each of the plaintiff and Ken may have been unfaithful to the other. The doctor suggested to the plaintiff that she leave the "matrimonial" home and move in with her mother for a while.

9. There was a further attendance upon Dr Ford on 3 June 2013. Again, the plaintiff attended with her mother. Apparently on the preceding morning the plaintiff had an overdose of medication. Her mother became alarmed, contacted an ambulance and the plaintiff was taken to Singleton District Hospital where she was reviewed and then discharged home with her mother. Dr Ford's notes continue thus:

"When asked what precipitated act: states she felt she was 'a terrible person' for doing what her partner had claimed she had done in the past and about which incident she cannot recall: an incident claimed by her partner on 1/6/13 that she had accused him of taking money out of an account and which incident the police were involved: she was not able to state whether there was in fact any loss of money involved: seems that just the accusation she was alleged to have made against him was enough to make her feel 'bad' as to take an overdose.

Patient crying and in distress and not able to make rational decision…has a follow-up appointment with Ben Kelly [psychologist] tomorrow.

Recommendation that she be admitted to the psychiatric unit at Lingard [Private Hospital] for assessment, review of medications and counselling rather [than] her request that I increase her dose of antidepressants."

10. The plaintiff was admitted to the Lingard Private Hospital on 4 June 2013 and was not discharged until 25 June 2013. The diagnosis was major depression. A subsidiary diagnosis was Cluster B personality traits. Cluster B personality traits have been explained to me by Dr Wendy Roberts, a specialist psychologist, who reported on two occasions to the defendant. In Dr Roberts' second report of 12 March 2018, which contains a mere 59 pages, Dr Roberts tells me this:

"By way of explanation, Cluster B personality disorders are thought to include antisocial, borderline, histrionic and narcissistic personality disorders. Such individuals often appear dramatic, emotional or erratic, according to DSM-5, page 646. Borderline personality disorders in particular involve a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity beginning in early adulthood and presenting in a variety of contexts.

Her description suggests a pattern of unstable and intense interpersonal relationships, recurrent suicidal behaviour, affective instability, chronic feelings of emptiness and inappropriate intense anger or difficulty controlling anger, along with frantic efforts to avoid real or imagined abandonment."

The medical evidence before me establishes most of those indicia of Cluster B personality disorder. The discharge summary from the Lingard Private Hospital is this:

"Narelle admitted with history of [indecipherable] depression over a 12 month period that climaxed in crisis with her relationship and an overdose of sleeping tablets/painkillers. She was not actively suicidal but recognised need for more intensive management of her mental health issues. She had a past history of depressive illness and a previous suicidal attempt aged 25 years. Changed from regular Prozac to Pristiq and responded well. Made good use of group therapy and individual psychotherapy sessions. Coincidentally suffered abdominal pain found on CT to be due to ovarian cyst which was conservatively managed and settled."

It is clear that the plaintiff was seen at the Lingard Private Hospital by a Dr Davies. The discharge summary indicates that the plaintiff was to be followed up by both her general practitioner, Dr Ford, and by the psychologist Ben Kelly whom she had seen at the hospital.

11. In a report of 24 September 2013 Dr Russell Davies, a psychiatrist, confirmed that he had seen the plaintiff at Lingard Private Hospital where she had been admitted for treatment of depressive symptoms in the context of a relationship breakdown. The plaintiff again saw Dr Davies at the Warners Bay Private Hospital on 24 September 2013. That contact with Dr Davies had been suggested to the plaintiff by her psychologist, Ben Kelly, with a view to potentially providing a review of the plaintiff's prescribed medication. Sometime shortly prior to 24 September 2013 the plaintiff's medication had been changed from Pristiq to Seroquel which was not particularly satisfactory, and was not as useful as the earlier medication. The plaintiff was then back on Pristiq and its dosage had been increased. The doctor's report continues with this history:

"Narelle was keen to have some further dialogue today around the possibility of Bipolar Disorder which we explored in some detail. Although she describes some episodes indicative of depression, she wasn't able to describe episodes of either mixed state, hypomania or mania and taken this cross-sexual account at face value, and from my meetings with her before, with seeing a diagnosis of Bipolar Disorder is unlikely. She does describe periods of time in which she overspends, however this usually is in the context of dysphoric depressed mood rather than elevated mood per se.

It remains a very stressful time for Narelle and she's still the victim of significant bullying and intimidation from her ex-partner who I understand has hacked into her Facebook and email account and sent lurid pictures to people in her contact list. I gather he also made threats to harm himself in front of her when she went around to his property to discuss issues around the division of assets following their separation. At the time she was effectively held hostage on the property for a period of time before she was able to escape. This has understandably brought significant distress for Narelle and she remains quite hypervigilant and fearful. I gather she did seek some contact with the police but didn't find it to be particularly useful. We talked about whether it will be worthwhile seeking further contacts with the police and possibly looking at an AVO."

Dr Davies then decided that it would be wise to further increase the plaintiff's dose of Pristiq.

12. The plaintiff saw Dr Davies again on 3 December 2013 and was given a history that things were going well, in particular in the plaintiff's new relationship with a gentleman known as Oscar. The plaintiff went to see Dr Davies again on 7 March 2014 at the Warners Bay Private Hospital. She was accompanied by Oscar. The doctor's report to Dr Ford continues thus:

"I gather there's been some significant instability in her mood and you indicate in your letter periods of hypomania. Narelle certainly concurs that there has been some difficult times and today presented severely depressed. She was tearful throughout our meeting today and described themes of hopelessness, helplessness and guilt. She had also described some thoughts of suicide, although had no formulated intent as such.

We spoke of the option of coming into hospital for a period of time, both for containment and a more asserted review of her treatment, but she was reluctant to consider this currently, with the option of going home and Oscar taking further time off work to support her. We spoke of options to in terms of review of her medication, and given that there appears to be some cyclical changes in her mood, we opt to start Lithium, 450 milligrams slow release, and I've given her a blood form to have her level checked in the next five days.

I'd like to see her weekly until things are improved. I've made her aware to contact me at any time should she change her mind around admission to hospital. I've also made her aware of the public facilities through Maitland and the Mater Psychiatric Emergency Unit which can be accessed of course 24 hours a day should she experience crises outside of these times. I also spoke with Oscar about this should he have increasing concerns for Narelle's safety."

13. One can see by that time the plaintiff's psychiatric state was very poor and that she would have been very vulnerable to any change. One would also note that there is no reference to any problems that the plaintiff was having at work. The plaintiff saw Dr Davies again at the Warners Bay Private Hospital a week later on 14 March. It needs to be noted that this is four days prior to the "victimisation" of the plaintiff at work. The doctor noted that the plaintiff had not chosen to go to hospital but had much support from her male friend 24 hours a day. The doctor's report continues thus:

"Today she reported a significant, positive shift in her mood and appears to have tolerated the introduction of Lithium without any significant adverse effects. Her level this week is 0.3 millimetres on 450 milligrams slow-release and as such represents the lower end of what we would normally be looking for. I have therefore encouraged her to increase it from 1 x 450 milligrams to two.

Today she was altogether more manifestly brighter and less distressed and appears to be sleeping well.

She has an appointment to see me again in a week's time but I have encouraged her to cancel this if things are going well, to avoid what is a long journey down from Singleton. If, however, she's experiencing difficulties, I'll be happy to see her next week, otherwise we will catch up for a more routine review a couple of weeks after that."

14. Dr Davies' next saw the plaintiff a week later on 21 March. The report that he made at that time is this:

"Seen with Oscar. Mood has dipped again since our last review which appears to be corresponding with some tensions at work. She went back to work probably much too early and found her employers to be really quite unsupportive.

She's been moved across into a different role, something which she feels is rather unfair and she's not ready to take on.

Once again we discussed the option of a hospital stay which she's declined further and tells me that she has no plans to hurt herself. She's well supported by Oscar who is taking further time off work this weekend to be with Narelle.

Her Lithium level has come up into the therapeutic range. I've given her another form to have her level checked again over the next couple of weeks."

15. Of course the plaintiff was seeing Dr Ford during the same period of time that she was seeing Dr Davies. Dr Ford saw her about, inter alia, her psychiatric problems on 29 August 2013, 28 February 2014, 3 March 2014 and then on 25 March 2014, where the doctor merely records "depression" and issued a prescription for Lithium. There were intervening examinations by Dr Ford on 4 and 5 March 2014, but there was no discussion about the plaintiff's psychiatric condition. It is significant, of course, the plaintiff did not say anything to Dr Ford about problems at work when he saw her on 25 March 2014. However, the plaintiff saw Dr Ford twice on 25 March, the first time at 4.35pm and the second time at 4.55pm. On the second attendance, if it were a second attendance, but has been merely recorded by the doctor as two different attendances, the plaintiff asked Dr Ford to place her current mental state as being covered by "workers compensation". There are numerous entries in Dr Ford's second entry of 25 March 2014, and also an entry made on 23 April 2014 about the request to have the plaintiff's mental condition classified as "workers compensation".

16. It is clear that Dr Ford was initially highly sceptical about the plaintiff's claim. Dr Bench in his first report expressed the view that the plaintiff was totally unfit for work from "late 2014 until approximately May 2015". He thought that she then would have had some partial incapacity for work, but again being totally unfit from June to August 2015, and thereafter partially incapacitated again. In her lengthier report Dr Wendy Roberts commences on p 53 her summary and conclusions. At [8.10] she pointed out that she had now been provided with much more information on the plaintiff that had previously not been available to her, including the records of the general practice to which I have referred. I do not need to go into the plaintiff's history much beyond the time that the plaintiff stopped work. However, at [8.21] of her report Dr Roberts said this:

"Ms Caslick had subsequent admissions to Maitland Private Hospital on numerous occasions in 2014/15 under the care of Dr Davies. All of these related to crises in her personal situation, although the situation which she said occurred at work was mentioned. The relationship difficulties were not only with her partners but with her mother, and only served to reinforced the diagnosis offered of Cluster B personality disorder primarily relating to borderline personality disorder and depression. A much stronger family history of depression was revealed in those documents than Ms Caslick told me."

She then explained Cluster B personality disorders and then continued at [8.23] this:

"In my opinion, both these diagnoses preceded her reporting difficulties at work. In my opinion, they are likely to have caused her to react in the way she did, rather than the other way around, where she alleges that the problems in the workplace caused her emotional reaction. This is further reinforced by Ms Caslick and Mr Jansen [Oscar] coming along after the alleged workplace incidents and having placed a different reconstruction and account of them, which is not supported by the contemporaneous records from that time, in particular, Dr Ford's records and the various accounts of the other employees who were interviewed."

17. Of course, if the concept of a substantial contributing factor applied to coalminers, that would probably indicate the plaintiff's case should fail. However, such principle does not apply to coalminers. If the decision of the former Chief Judge of the Compensation Court, McGrath CJ in Townsend v Commissioner of Police (1992) 25 NSWCCR 9 be correct law, the plaintiff would not succeed. However, it appears to me that in the circumstances of this case the plaintiff might succeed because she was reacting, albeit under the influence of her pre-existing mental condition, to what was actually happening to her at work. The question merely is for how long such effects of what happened at work continued, or made the plaintiff's condition worse. It ought be clear from what I have already quoted, and by reference to Dr Ford's notes, that the plaintiff's condition is cyclical, there are ups and downs. A problem at work could have caused the plaintiff some temporary problem.

18. I note that on 21 May 2014 the plaintiff saw Dr Ford and told him that she had seen Dr Davies on 16 May 2014, and Dr Davies had recommended no change in her medications. That would indicate to me that the effects of what had happened at work had probably passed by that time. I note that on 6 August 2014 the plaintiff attended upon Dr Ford and told him that she had been made redundant. She told the doctor that she needed a further two year referral to Dr Davies, because that is how referrals to specialists operate in our medical scheme. There is nothing unusual in requesting a further referral to a doctor who had previously been treating her. The plaintiff told Dr Ford on that day that Dr Davies had added Mirtazapine to her list of medications, but the plaintiff wanted that modified because the different drug use had led to weight gain. That again suggests that the plaintiff's concern at that time was not what had happened at work, but stabilising her medication to ensure that there was no unwanted side effect.

19. Cases of this nature are often difficult, but it is clear to me that by at least the end of 2014 any treatment that the plaintiff required would not be due to what happened at work but to the underlying condition, in particular the hospitalisations and the like that Dr Roberts referred to in [8.21] of her report could hardly be the liability of the plaintiff's former employer, and the same must relate to any treatment after that time. In the circumstances provided, I have the consent of the plaintiff, I believe it is appropriate to approve the redemption.

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Decision last updated: 05 November 2019