Cherry v Murrays Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cherry v Murrays Australia Pty Ltd [2023] NSWPIC 425
APPLICANT:	Rochelle Cherry
RESPONDENT:	Murrays Australia Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	22 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for psychological injury; worker claims that she was the victim of an assault by a work colleague after a Christmas party; whether worker sustained a psychological injury as a result of that assault; reference to Nguyen v Cosmopolitan Homes in determining if assault occurred; Held – satisfied on the balance of probabilities that assault occurred as described by worker; not satisfied from a review of the evidence that the worker sustained a psychological injury as a result of the assault; award for the respondent.
determinations made:	The Commission determines: 1. The applicant did not sustain an injury arising out of or in the course of her employment with the respondent on 23 December 2015. The Commission orders: 2. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Rochelle Cherry, the applicant in these proceedings, claims that she sustained a psychological injury in the course of her employment with the respondent, Murrays Australia Pty Ltd, as a result of being the victim of a sexual assault by a co-worker following an office Christmas party on 23 December 2015 and the subsequent lack of support from the respondent following this incident.
In the Application to Resolve a Dispute (ARD) filed on behalf of Ms Cherry it is stated in “Injury Details”: “The injury is by the nature of a disease and/or aggravation of same.”
Ms Cherry makes a claim for a lump sum payment for 20% whole person impairment pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of this psychological injury.
Dispute notices have been issued by EML on behalf of the respondent dated 26 May 2021 and 12 May 2022 wherein liability is disputed on the grounds that Ms Cherry did not sustain an injury arising out of or in the course of her employment with the respondent or that Ms Cherry’s employment is not the main contributing factor to the contraction of a disease or aggravation of that disease.
Liability is also disputed by the respondent on the grounds that there was no report of injury or claim for compensation made within the time required by the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a psychological injury arising out of or in the course of her employment (s 4 of the 1987 Act), and
(b) whether the applicant can make a claim for compensation despite not making a claim within six months after the injury happened (s 261 of the 1998 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a conference and hearing before Member Young on 22 June 2023. Mr Stockley appeared on behalf of the applicant. Mr Rickard appeared on behalf of the respondent.
The hearing could not be completed on that day and a timetable was set by Member Young for the filing of written submissions.
That timetable was completed by the filing of written submissions in reply by the applicant on 18 July 2023.
Regrettably, Member Young became indisposed and was not able to deliver a decision for this dispute in a timely manner. This dispute was reallocated to myself for determination. I have reviewed all of the documentary evidence referred to below. I have read the written submissions file by both parties. I have read a transcript of the hearing conducted on 22 June 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 6 June 2023;
(d)    Application to Admit Late Documents filed by the respondent on 15 June 2023;
(e)    Application to Admit Late Documents filed by the applicant on 28 June 2023, and
(f)    Application to Admit Late Documents filed by the respondent on 30 June 2023.
The Application to Admit Late Documents on 28 June 2023 attached a copy of a decision of the Professional Standards Committee dated 6 March 2023 regarding the conduct of Dr Vickery, although it was not related to this dispute. Member Young gave leave to have that decision filed as a late document, but also allowed the respondent to object to the document once it had the opportunity of considering it.
Mr Rickard on behalf of the respondent did object to that decision being admitted into evidence in his written submissions dated 10 July 2023 as being irrelevant to the matters for adjudication before the Commission. As will become apparent, the decision of the Professional Standards Committee dated 6 March 2023 will have no relevance to the decision in this dispute and there is no reason for that document to be admitted into evidence.

Oral evidence

There was no application to cross examine Ms Cherry or for her to adduce oral evidence. There was no application to cross examine or adduce oral evidence from any witnesses relied upon by the respondent. The respondent was granted leave to cross examine Kenneth Isaacs, the brother of Ms Cherry, who had provided a statement dated 24 January 2023.

FINDINGS AND REASONS

Whether Ms Cherry sustained an injury in the course of her employment with the respondent

The evidence from Rochelle Cherry

Ms Cherry has provided statements dated 30 December 2022 and 5 June 2023.
Ms Cherry states she commenced employment with the respondent as a reservations consultant approximately five years before the incident on 23 December 2015. She states that she enjoyed the work, did not have any problems in her interaction with management, and intended to be a long-term employee.
Ms Cherry states that on 22 December 2015 she attended the Christmas party for the respondent at the Cruise Bar at Circular Quay. She estimates that she had three or four red wines over a three or four hour period. She states that after the party she went to the Four Seasons Hotel with some of her colleagues but did not consume any alcohol there.
Ms Cherry states that she left the hotel at about 11.00pm and agreed to share a taxi with Doug Fitzgerald, the Canberra Express manager, and her assistant manager Dan Altschul. Ms Cherry states that Mr Altschul was dropped off first and then as the taxi ride continued, Mr Fitzgerald grabbed her leg twice and she pulled away. Ms Cherry states that when the taxi stopped for Mr Fitzgerald to get out at his hotel the Central Station, he grabbed her head and forced his tongue into her mouth on two occasions. She states that she tried to pull away but could not do so.
Ms Cherry states that she was shocked and burst into tears, and she was screaming and crying in the taxi. She states that she called Dan Altschul within 30 seconds of Mr Fitzgerald leaving the taxi to report the assault. She states that Mr Altschul laughed when she spoke to him about this.
Ms Cherry states that the day of 24 December 2015 was, to the best of her recollection, her first day back in the office after the incident. She states that Mr Altschul continued to treat the incident as a joke. She states that she also spoke about the incident to another manager, Tim Gordon, a manager in the Canberra office, Lyn McCulloch, and her work colleagues Geraldine Cave and Yvette. Ms Cherry states that no incident report was completed and she did not take any time off work following the incident.
Ms Cherry states that she resigned her employment with the respondent on or about 14 February 2016 because of the way that work colleagues were talking about her. In her second statement dated 5 June 2023 she states that in addition to reporting the incident to Mr Altschul, she “also reported the incident to others in the Murrays Pitt Street, Brendan, Lynne, Tim, Geraldine and Yvette and was not supported at all.”
Ms Cherry states that she suffers from complex post-traumatic stress disorder and the assault severely triggered her symptoms. She states she has been treated by Dr Lee at the Aboriginal Medical Service, Dr Martin, psychiatrist, and Judith Withers, psychologist. Ms Cherry states that she also received treatment under a mental health plan from Susie Sharman, psychologist, during 2016.
Ms Cherry states that she reported the incident to Waverley Police Station on 25 June 2018.
Ms Cherry states that while working for the respondent she had a second job as a disability support carer with Eastern Suburbs Respite. She states that she was employed with Eastern Suburbs Respite from July 2015 until August 2019 and left that organisation after she reported an incident involving an assault. She states that she felt that the management of that employer was not supportive of her when she reported the incident.

The evidence from Kenneth Isaacs

Kenneth Isaacs is the brother of Ms Cherry and has provided a statement dated 24 January 2023.
Mr Isaacs states that he was staying with his sister at her house at Maroubra in early 2015. He states that Ms Cherry was happy and seemed very content with her job with the respondent.
Mr Isaacs states that during 2015 he moved to the Gold Coast. He recalls that Ms Cherry contacted him in January or February 2016 about the incident which occurred after the Christmas party. He states that he could see how much this incident distressed Ms Cherry. He also states that Ms Cherry did not want to talk about the incident in much detail and would completely shut down when any conversation about the incident arose.
Mr Isaacs encouraged Ms Cherry to speak to someone at the respondent about the incident because it needed to be reported and dealt with. He states that he recalls Ms Cherry being extremely upset that her colleagues had turned their backs on the after she disclosed details of the incident.
Mr Isaacs states unequivocally that the incident after the Christmas party took Ms Cherry from a stable position back to a place of extreme upset.
Mr Isaacs was also cross-examined by Mr Rickard on behalf of the respondent. Mr Isaacs said that he had an “inkling” that his sister was having difficulties with her partner when he stayed with her in the early part of 2015. However, he stated he unequivocally considered Ms Cherry to have been a happy person prior to the incident in December 2015.

The evidence of Douglas Fitzgerald

Douglas Fitzgerald initially provided a statement dated 8 February 2019, although it was not signed until 19 June 2023. Mr Fitzgerald states that he is employed by the respondent as Express Manager in Canberra.
Mr Fitzgerald states that the Christmas function in December 2015 went from around 6.30pm to 10.00pm. He had approximately four to five glasses of white wine over the course of the event and that he was reasonably sober. He states that about 10 people walked over to the Four Seasons Hotel at the end of the function, including Ms Cherry. Mr Fitzgerald states that he stayed there for about two hours and had two good sized drinks while he was there.
Mr Fitzgerald states that he can recall Ms Cherry drinking at the Four Seasons Hotel and that she was not excessively drunk but also not sober.
Mr Fitzgerald states they got a taxi from the hotel. He states that he was sitting in the front seat of the taxi and Ms Cherry was sitting on the passenger side of the back seat. He states that Ms Cherry rolled down her window as he left the taxi and said “thanks, goodbye” and he gave her a peck on the cheek. He states that he believes that they both initiated the kiss on the cheek.
Mr Fitzgerald states that there was no physical contact between himself and Ms Cherry while they were in the taxi, although he probably would have given her a hug, as he does with all other staff.
Mr Fitzgerald states that he first became aware of the allegations made by Ms Cherry in late 2018.

The evidence of Daniel Altschul

Daniel Altschul has provided a statement dated 26 February 2019. Mr Altschul states that in December 2015 he was employed as a Manager with the respondent.
Mr Altschul states that he attended the Christmas function in December 2015. He states that he had five glasses of red wine while he was there. He states that he left the function with some others at around 12.30am and went to the Four Seasons Hotel. Mr Altschul states that he recalls that Mr Fitzgerald was refused service at the hotel due to his level of intoxication. He states that he had a Southern Comfort and coke at the hotel.
Mr Altschul states that there is no doubt that Mr Fitzgerald was quite intoxicated because before leaving the function Mr Fitzgerald started “talking deeper” to Mr Altschul than he had ever done before. He states that Ms Cherry was also intoxicated because her speech was slower.
Mr Altschul states that he left the hotel with Mr Fitzgerald and Ms Cherry and got a taxi. He states that he sat in the front seat because he usually gets car sick in the back of a car. Mr Altschul states that he was dropped off at the respondent’s office and walked to the Central Hotel where he was staying the night.
He states that he was contacted by Ms Cherry about an hour later, and believes it was by telephone, and Ms Cherry said: “Doug kissed me” and “Doug slipped his tongue in”. He asked Ms Cherry to explain, and Ms Cherry said that Mr Fitzgerald went to kiss her on the cheek but then turned his head and tried to stick his tongue in her mouth. Mr Altschul states that Ms Cherry was annoyed but there was no indication that she was distressed or anguished or in pain.
Mr Altschul states that he worked with Ms Cherry on the day following the Christmas function and Ms Cherry did not indicate to him that she was upset about the incident or that she wanted to make a complaint about it.

The evidence from Tim Gordon

There is no statement from Tim Gordon, but there is a summary of details provided to an investigator retained by the respondent. It is reported that Mr Gordon is a Duty Manager with the respondent.
It is recorded that Mr Gordon was on annual leave between 20 December and 28 December 2015, but he did attend the Christmas function.
It is recorded that Mr Gordon recalled that Ms Cherry told him of the incident involving Mr Fitzgerald when he returned from leave in late December 2015. It is recorded that Ms Cherry told him in passing of words to the effect of: “he tried to kiss me on the way out of the taxi.” It is recorded that Mr Gordon considered that there was nothing about this comment which alerted him to Ms Cherry being upset.

The evidence of Geraldine Cave

There is a statement from Geraldine Cave not signed but dated 22 February 2019. Ms Cave states was employed as a Reservations Consultant with the respondent at the time of the Christmas function in December 2015.
Ms Cave states that she did not attend the Christmas function. She states that she recalls having a discussion with Ms Cherry about the incident involving Mr Fitzgerald which occurred after the Christmas function. She states that Ms Cherry was crying, upset and disgusted by what had happened. Ms Cave recalls that Ms Cherry told her that she said goodbye to Mr Fitzgerald, and he leaned in and kissed her on the face. She does not recall Ms Cherry telling her anything else about the incident.
Ms Cave states that she cannot recall any other conversations about the incident, does not recall any gossip around the office, and does not know anyone else who may have known about the incident.

The evidence of Shannon Murray

Shannon Murray initially provided a statement dated 21 February 2019, although it was not signed until 16 June 2023. Mr Murray states that he is VIC/ACT Manager for the respondent.
Mr Murray states that he did not know Ms Cherry prior to receiving an email from her on 23 February 2018 regarding an alleged sexual assault in a taxi she shared with Mr Fitzgerald after the Christmas party in December 2015. Mr Murray describes some email communication between himself and Ms Cherry for the purposes of arranging a meeting. That meeting eventually occurred on 4 June 2018.
Mr Murray states that he attended the meeting on 4 June 2018 and listened to details provided by Ms Cherry of the assault. He states that he asked Ms Cherry what the respondent could do for her and she replied: “I just want compensation.” Mr Murray states that he told Ms Cherry that the respondent was not in a position to make an offer. He states that the respondent then sought legal advice and an external investigation company was appointed to conduct an investigation of Ms Cherry’s complaint.

The medical evidence

There are clinical records from two general practices which Ms Cherry has attended – Matraville Medical Centre and the Aboriginal Medical Service at Redfern.
The clinical records from the Aboriginal Medical Service commence on 20 February 2018.
The clinical records from Matraville Medical Centre commence on 6 February 2015. There are entries made on 30 March 2015, 21 April 2015, 5 May 2015, 11 June 2015 and 1 September 2015 of Ms Cherry complaining of symptoms of stress due to domestic violence.
There are also clinical records in evidence from Prince of Wales Hospital. There are records for a period of admission for Ms Cherry from 26 March 2016 to 1 April 2016. The discharge summary states that Ms Cherry presented with diabetic ketoacidosis (DKA) and with a history of lethargy, malaise, dizziness and nausea since returning from a trip to New York, as well as a two day history of lower back pain and a few weeks of blurriness.
The discharge summary also refers to Ms Cherry having a depressed mood in regard to her new diagnosis of diabetes. There is an entry in the clinical notes on 29 March 2016 of: “Feeling ‘depressed’ and afraid of ‘dying at home alone’”, and previously being on anti-depressants for post-traumatic stress disorder.
There is a page of handwritten notes from Rebecca Johnson, social worker, on 29 March 2016 in the records from Prince of Wales Hospital which refers to Ms Cherry having a demanding workload as a disability support worker, being a survivor of domestic violence, and having sustained an injury to her foot at work. The “client concerns” are listed as “work, bills, new diagnosis.”
The first entry in the clinical records from Matraville Medical Centre following the incident after the Christmas function is on 5 April 2016 and after Ms Cherry’s admission to Prince of Wales Hospital. The entry includes: “feeling depressed, anxious as [sic] beed Diagnosis with IDDM.” There is reference to a referral to Ms Suzie Sharman, who is a psychologist. There is no reference to the incident on 23 December 2015.
The referral to Ms Sharman dated 5 April 2016 includes the following:
“recently admitted to POWH with diabetic acidosis, newly DX with IDDM, after she returned from New York to represented United Nation about women under abuse from partner. Now insomnia, depressed, anxious about her diabetes.
She had history of abuse from ex-husband, she separated now and lives by herself.”
The next entry on 13 April 2016 includes a record of anxiety and depression, and the development of a Care Plan. There is again no reference to the incident on 23 December 2015. A Care Plan which is dated 5 April 2016 (ARD paragraph 286) does not contain any reference to the incident on 23 December 2015.
There are handwritten notes in evidence from Ms Sharman for attendances by Ms Cherry between 23 April 2016 and 9 June 2016. Although the notes are not easy to read, I could not locate any reference to the incident on 23 December 2015. Furthermore, in a report from Ms Sharman dated 27 September 2016, which provides a brief summary of her treatment of Ms Cherry, she identifies that the need for psychological therapy for Ms Cherry is that “she was struggling with the complications of a recent diagnosis of diabetes.”

There are 17 entries made by Dr Limanto at the Matraville Medical Centre between 3 May 2016 and 6 June 2018 which are mostly for treatment for diabetes, but sometimes there are also records of symptoms of anxiety and stress. There is no reference to the incident on 23 December 2015.
There is then entry on 13 June 2018 by Dr Limanto which is recorded as a “long consult” for anxiety and depression. There is then a record made on that same day by Hannah Kim, psychologist, at Prince of Wales Hospital with the reason for referral being:
“Rochelle presented to her practice distressed and expressing suicidal thoughts. Rochelle crying over the phone feeling overwhelmed with psycho-social stressors: physically sick from virus and not coping with diabetes management and financial stress. She also feels like a burden to everyone.”
The records from Prince of Wales Hospital record that Ms Cherry was admitted to the Eastern Suburbs Community Health Service within the hospital from 13 June 2018 to 21 June 2018. An entry made on 16 June 2018 includes in “History of Presenting Problem”: “Decompensating in context of early childhood history of severe sexual and physical abuse”. In a separate entry on that same date for “Current Legal Issues” it is recorded: “Currently in process of pursuing workplace complaint of sexual assault.”
There is an entry made by Dr Limanto on 19 June 2018 of a referral to Judith Withers, psychologist. There are handwritten notes for Ms Cherry’s first consultation with Ms Withers on 22 June 2018 which record details of the incident on 23 December 2015 and that Ms Cherry reported the incident to for managers and nothing was done. The entry for the consultation also includes Ms Cherry being the survivor of mental and physical assault.
Ms Withers writes in a report dated 5 November 2018:
“I refer to Rochelle who I have seen, and am seeing, professionally, subsequent to her sexual assault. The assault happened two and a half years ago and the perpetrator was a manager from her workplace. Rochelle continues to suffer from the trauma. She has sought help from the Acute Care Team at the Prince of Wales Hospital.”
Ms Withers also writes: “She was pressured to resign from her job because she lodged a complaint with the police, and she is unemployed and under severe financial stress.”
The first record made by Dr Limanto in regard to the incident following the Christmas party appears to be on 16 August 2018, which includes the following:
“went to work from 23 july mon wed Friday
got letter from ex workplace Murray the lawyer on Friday 27 July
reg ix of sex assault at work at Murray
got upset about it
causing her anxiety”
Dr Limanto provides the following referral to the Prince of Wales Hospital on 11 September 2018:
“unwell with delusional ideas with seeing something black marks in her face then she used nail clipper to try to remove it, She is under stress with her current renting unit for sale, need to find new unit, with her uncontrolled IDDM.”
The records from the Prince of Wales Hospital on 11 September 2018 include the following:
“Today Rochelle describes a significant history of acute stressors - ongoing legal proceedings related to a past workplace sexual assault, accommodation being put up for sale - which she feels may have precipitated a relapse in her skin picking.”
There is also a record made of early childhood severe sexual and physical abuse.
The first reference to the incident on 23 December 2015 in the clinical notes from the Aboriginal Medical Service is on 4 February 2019 in which Dr Roberts records that a boss tried to grab Ms Cherry and kiss her, and that her concerns were not heard at her workplace and she was laughed off by staff.
Dr Canaris, consultant psychiatrist, has provided a report at the request of Ms Cherry’s lawyers dated 27 October 2021.
Dr Canaris records details of the assault following the Christmas party. He records that Ms Cherry “rang Dan - I was screaming - I reported it.” Dr Canaris also records “nothing was done about it…they laughed at it.”
Dr Canaris records that Ms Cherry reported the assault to the police. He records that she reported the assault to her general practitioner who told her to concentrate on her diabetes and at a later date said to Ms Cherry not to go through with this or the doctor would lose her licence.
Dr Canaris records that Ms Cherry “couldn’t do a steady job” after she left her job with the respondent. On further enquiry he records that Ms Cherry was only working casually and was called in when needed.
Dr Canaris records that Ms Cherry relives the assault “every day”. He records that Ms Cherry is the survivor of a dysfunctional family and she relives her childhood abuse and at times it is sad and upsetting.
Dr Canaris acknowledges that the first mention of the assault in her medical file is on 10 August 2018. He notes that there are occasional references in the documents provided to him of the sexual assault and that much of the time Ms Cherry is described as having difficulties with her diabetes. Dr Canaris notes that Ms Cherry’s medical file documents depression in 2004, bipolar affective disorder and schizophrenia in 2005, and schizoaffective disorder in 2012. He also notes entries by the general practitioner in the year preceding the assault of difficulties that Ms Cherry was having with an abusive and violent ex-husband.
Dr Canaris nonetheless opines that Ms Cherry’s complex post-traumatic stress disorder and associated diagnoses were reportedly stable at the time of the workplace assault. He considers that the workplace assault appears to be the main contributing factor to her psychological decompensation because Ms Cherry had worked steadily for the one employer for many years at the time of the assault.
Dr Vickery, psychiatrist, has provided reports at the request of the respondent dated 27 January 2021, 11 March 2021 and 5 April 2022.
In his first report dated 27 January 2021, Dr Vickery records a history of the incident on 23 December 2015 which is consistent with the evidence of Ms Cherry. He also records that Ms Cherry told four managers of what occurred, but they made a joke about it.
Dr Vickery records that Ms Cherry has been suffering from anxiety and depression arising from childhood sexual and emotional abuse since she was 30 years of age.
Dr Vickery concludes that Ms Cherry’s ongoing incapacity is directly resultant from her complex post-traumatic stress disorder arising from her childhood and from which she has been suffering for 25 years or so.
In his second report dated 11 March 2021, Dr Vickery is asked if Ms Cherry suffered an aggravation of a pre-existing psychological condition as a result of the incident on 23 December 2015, and he answers that her recommencement of work with the respondent following the alleged incident is not consistent with her version of events.
Dr Vickery also opines that he does not believe that Ms Cherry suffered a workplace injury.
The third report from Dr Vickery dated 5 April 2022 is provided in the context of a s 66 claim. Dr Vickery concludes:
“It is my opinion on the basis of all the information available that Ms Cherry’s ongoing incapacity is due to her decompensation due to her complex Post Traumatic Stress Disorder arising from her childhood and ‘finding my mum dead and all the physical and emotional and sexual abuse’ from which she has been suffering for twenty five years in the context of significant housing, financial and social stressors and the subsequent onset of Major Depressive Disorder in 2019.”
Dr Vickery also considers that Ms Cherry’s motivation in reporting the alleged incident is financially motivated. He also considers that it is significant that the onset of her current incapacitating psychopathology was documented due to another assault at a subsequent place of employment which triggered childhood memories of abuse.
Dr Vickery confirms that based on all the information available that Ms Cherry’s psychiatric condition and incapacity is not due to the alleged incident on 23 December 2015.

Determination

The respondent does not specifically dispute that Ms Cherry was the victim of an assault in the early hours of 23 December 2015 in the dispute notices which were issued on 26 May 2021 and 12 May 2022, but rather that her account of what occurred should be rejected.
Mr Stockley on behalf of Ms Cherry submits that only two people know what happened and that Ms Cherry’s account should be accepted as it is otherwise unchallenged.
Mr Rickard on behalf of the respondent submits that although Ms Cherry was not cross-examined, that does not mean that her evidence should not be the subject of challenge where appropriate.
The determination of questions of fact on the common law test of the balance of probabilities was addressed by McDougall J (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, when His Honour said at [55]:
“The position may be summarised as follows:
(1)A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
There are a number of reasons as to why I am persuaded, on the balance of probabilities, that Ms Cherry was the victim of an assault as she has described.
Firstly, although Ms Cherry states that she rang Mr Altschul within 30 seconds of Mr Fitzgerald leaving the taxi, whereas Mr Altschul states that the phone call was made about an hour after he left the taxi, Mr Altschul’s evidence nonetheless corroborates Ms Cherry’s claim that she was assaulted by Mr Fitzgerald. This corroboration is made shortly after the incident occurs and can be relied upon.
Secondly, both Mr Gordon and Ms Cave confirm that Ms Cherry told each of them about the assault. Neither Mr Gordon nor Ms Cave provide details of when this occurred, but it had to have been within several weeks of the assault because Ms Cherry had resigned her employment with the respondent by mid-February 2016.
Thirdly, the evidence from Mr Fitzgerald is not reliable or credible when compared to the evidence from Mr Altschul. Mr Fitzgerald does not state that Mr Altschul was in the taxi at all. However, Mr Altschul’s evidence that he was not only in the taxi, but that Mr Fitzgerald was in the back seat with Ms Cherry, is supported by the credible evidence from Mr Altschul that he chose to sit in the front seat because he otherwise gets sick in a car.
Furthermore, the reliability of Mr Fitzgerald’s evidence must be placed in doubt by the evidence from Mr Altschul that Mr Fitzgerald was significantly intoxicated by the end of the night because Mr Fitzgerald was refused service at the Four Seasons Hotel and he started “talking deeper” to Mr Altschul at the function.
I have a sense of actual persuasion from a consideration of the evidence which I have just referred to that Ms Cherry was the victim of an assault as she has described.
Whether Ms Cherry was the subject of gossip by other employees of the respondent and not supported by the management of the respondent after she reported the incident is a more difficult task to determine on the evidence. However, such a determination it is not necessary because there is no medical opinion that any actions taken by the respondent or its staff, or lack of action taken by the respondent in response to complaints by Ms Cherry, were a cause of any psychological injury sustained by her.
Dr Canaris records from Ms Cherry that “nothing was done about it” and “they laughed at it.” However, Dr Canaris identifies the main contributing factor to her psychological decompensation to be the workplace sexual assault. He does not identify the alleged attitude of other employees or lack of action taken by the respondent in response to complaints made by Ms Cherry as being a cause of her psychological injury.
Ms Withers records in her notes that the management of the respondent did nothing after she reported the incident, but in her subsequent report dated 5 November 2018 states that Ms Cherry continues to suffer from the trauma of the sexual assault. Ms Withers does not implicate the lack of action taken by the respondent as being a cause of Ms Cherry’s psychological injury.
The critical issue to determine is whether the incident which occurred in the early hours of 23 December 2015 has caused Ms Cherry to sustain a psychological injury. That task is very difficult for Ms Cherry to establish on the available evidence.
Ms Cherry states that immediately following the incident she was shocked and burst into tears, and she was screaming and crying in the taxi. However, she provides no evidence of her psychological symptoms over the ensuing days and weeks. This is important because some three months after the incident Ms Cherry is having psychological treatment and the records from that treatment make no reference whatsoever to the assault.
The evidence from Ms Cherry’s brother, Kenneth Isaacs, is an attempt to provide some confirmation that the decline in Ms Cherry’s psychological condition has been due to the assault. He states unequivocally that the incident after the Christmas party took Ms Cherry from a stable position back to a place of extreme upset.
However, there are a couple of reasons as to why the evidence from Mr Isaacs should be discounted. Firstly, Mr Isaacs was no longer living with Ms Cherry when the assault occurred, but he was instead living on the Gold Coast. He therefore no longer had regular, face-to-face contact with his sister which will allow him to make observations as to how he saw a change in her demeanour.
Secondly, Mr Isaacs is seemingly unaware that some three months after the assault his sister was seeking psychiatric treatment which, based upon the records from Dr Limanto, Prince of Wales Hospital and Ms Sharman, was due her response to her diabetic condition and on a background of past domestic violence and pressing financial concerns. It is therefore difficult to accept Mr Isaac’s conclusion that it is only the assault which took Ms Cherry from a stable position back to a place of extreme upset.
In regard to the medical evidence, it is not just days, weeks or even months but some two and a half years after the assault before there is any record of this incident having a psychological effect upon Ms Cherry such that she needed some treatment.
There is no attendance at all by Ms Cherry at Matraville Medical Centre in the three months following the assault. Her first attendance following the assault is on 5 April 2016 and is for psychological symptoms associated with her diabetic condition and follows a week long admission at Prince of Wales Hospital. However, there is still no record of any treatment associated with a psychological condition caused by the assault in some 17 attendances made by Ms Cherry in the following two years.
Although the discharge summary from Prince of Wales Hospital for Cherry’s admission between 26 March 2016 and 1 April 2016 refers to that admission being for diabetic ketoacidosis and a history of lethargy, dizziness and nausea, the notes for that period of admission also refer to Ms Cherry being depressed and having a low mood. Yet there is no reference to the assault some three months earlier as contributing to Ms Cherry’s psychological condition.
I consider the entry made by the social worker on 29 March 2016 to be of significance. I accept that a social worker is not a medical practitioner, but the entry made by the social worker on this day allowed Ms Cherry to describe at some length the concerns which were impacting on her life. Those concerns were summarised as: “work, bills, new diagnosis.” There is no mention of the assault some three months earlier or the impact that assault may have had upon Ms Cherry.
Dr Limanto provides a referral to a Ms Sharman, psychologist, upon her discharge from hospital, but there is still no reference to the assault in December 2015 in the referral.
I consider the material provided by Ms Sharman to be of particular significance. Ms Sharman initially sees Ms Cherry four months after the assault and then sees her on at least another three occasions over the next six weeks, yet I could not in Ms Sharman’s notes any reference to the assault occasioned to Ms Cherry. There are details reported by Ms Sharman of Ms Cherry growing up in a very disturbed family, of having an abusive partner, of the effect of the diagnosis of diabetes upon her, and financial concerns, but no mention of the assault or the effect the assault have had upon her.
Without some explanation from Ms Cherry, it is simply inexplicable how an incident which she contends has severely triggered previous symptoms of post-traumatic stress disorder does not appear in any medical material for some two and a half years following that event.
The attendance of Ms Cherry at Prince of Wales Hospital from 13 June 2018, which the notes from the hospital record as being for: “Decompensating in context of early childhood history of severe sexual and physical abuse”, occurs just nine days after Ms Cherry has a meeting with Mr Murray. However, Ms Cherry provides no evidence regarding any connection between that meeting and a deterioration in her psychological symptoms. That connection is not explored by any expert, other than Dr Vickery who concludes that the claim that has been made by Ms Cherry is financially motivated.
The records from Prince of Wales Hospital for Ms Cherry’s admission in June 2018 do not include the assault in December 2015 as part Ms Cherry’s problems and is only included as “Current Legal Issues.” It is only when Ms Cherry attends Ms Withers on 22 June 2018 that a record is made by a medical practitioner of the assault having some effect upon Ms Cherry’s psychological condition.
Mr Stockley understandably submits that the Commission would be mindful of the warnings to treat the probative value of clinical records with caution. However, Ms Cherry had ample opportunity when attending her general practitioner, speaking with a social worker or other staff when she was in hospital for a week in March 2016, and having at least four consultations with a psychologist only some four months after the assault, for there to be some record of the assault and the effect the assault may have had upon Ms Cherry.
Mr Stockley submits that the records are not devoid of mention of the assault and provides two examples. However, both those examples from records from Prince of Wales Hospital – an entry on 11 September 2018 of “ongoing legal proceedings related to a past workplace sexual assault” and on 24 September 2019 of “Concern regarding a past workplace sexual assault” – are made almost three and four years respectively after the assault occurred.
Mr Stockley submits that the clinical reporting of other stressors does not diminish the evidence of Ms Cherry, particularly where she has not been challenged in cross-examination. He submits that it also does not negative proof of the injurious effects of the assault.
Mr Rickard in response refers to what was said by President Keating in Department of Education and Training [2018] NSWWCCPD 134 (Ireland) at [91]:
“…The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”

I have weighed the evidence of Ms Cherry and Mr Isaacs with other objective evidence, and also the absence of evidence of a complaint made by Ms Cherry regarding the assault and the absence of treatment due to that assault for a period at least two and a half years after the assault occurred, and have concluded that Ms Cherry has not been able to reach the requisite standard of proof to establish that she did sustain a psychological injury in the incident on 23 December 2015.
Although Dr Canaris acknowledges that the first mention of the assault in her medical file is on 10 August 2018, he is still prepared to conclude that the assault is the main contributing factor to her psychological decompensation. That conclusion appears to be based upon Ms Cherry being able to work steadily for many years before the assault, and that although Ms Cherry had a long history of psychological problems, the assault on 23 December 2015 was self-limiting.
However, in my view Dr Canaris does not adequately engage in a consideration of the significant delay in Ms Cherry in failing to inform a medical practitioner that she was the victim of an assault in December 2015 and that this event was a cause of her psychological problems. This is partly due to Dr Canaris not having access to material from Ms Sharman and Prince of Wales Hospital which I have found to be crucial in a determination of this dispute.
Dr Canaris accepts that following the assault Ms Cherry became anxious and depressed, complaining of daily flashbacks of the sexual assault, and accompanied by low energy, insomnia and poor concentration. However, Dr Canaris makes no attempt to identify a timeframe during which these symptoms occurred. This is important because of the lack of any evidence of these quite significant symptoms in the medical material which has been reviewed for two and a half years following the assault.
There is also no evidence to support the claims made by Ms Cherry to Dr Canaris that Ms Cherry reported the assault to her general practitioner (presumably Dr Limanto) and that the doctor told her to concentrate on her diabetes, and “not to go through with this or else she will lose her licence”. These are serious allegations which Dr Canaris appears to accept without reservation.
The inadequate history recorded by Dr Canaris, along with him not having access to crucial medical material, leads me to conclude that the opinion he has provided has not been given in a ‘fair climate’ as referred to by Samuels JA (with Hutley and Priestley JJA agreeing) in Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at [509G]-[510B].
Mr Stockley submits that Dr Vickery appears to agree in his report dated 5 April 2022 that Ms Cherry has a significant psychiatric disability which he ascribes to her troubled past and which is responsible for her ongoing incapacity, but Dr Vickery does not in a clinical sense deny injury per se.
However, Dr Vickery also concludes that Ms Cherry’s psychiatric condition is not due to the incident on 23 December 2015 and that she has no impairment as a result of a work injury. These conclusions are reached after an extensive review of both lay and medical material in the report dated 27 January 2021 and 5 April 2022.
I therefore do not accept the submission made by Mr Stockley that the opinions provided by Dr Vickery lead to a conclusion that Ms Cherry did sustain a psychological injury as a result of the assault occasioned to her on 23 December 2015.
I have reviewed all of the available material in this dispute. I am satisfied that Ms Cherry was the victim of an assault on 23 December 2015. However, I am not satisfied that she sustained a psychological injury arising out of or in the course of her employment with the respondent as a result of that assault.
There will therefore be an award for the respondent.

[2023] NSWPIC 425

22 August 2023