Cleary v Liam Andrew Enterprises Pty Ltd
[2020] VCC 1840
•25 November 2020
l
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-06231
| HELEN CLEARY | Plaintiff |
| v | |
| LIAM ANDREW ENTERPRISES PTY LTD (ACN 167 169 995) (formerly known as HELEN & DAVID PTY LTD) | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 July 2020 | |
DATE OF JUDGMENT: | 25 November 2020 | |
CASE MAY BE CITED AS: | Cleary v Liam Andrew Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1840 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – long-term severe mental or behavioural disturbance or disorder – anxiety – depression – paragraph (c) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Transport Accident CommissionvKatanas [2017] HCA 32; Humphries & Anor vPoljak [1992] 2 VR 129; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Petkovskiv Galletti [1994] 1 VR 436; Lexa v Transport Accident Commission [2019] VSCA 123; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Broadfoot QC with Mr D James | Hymans Solicitors |
| For the Defendant | Mr P B Jens QC with Mr L Howe | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff while employed by the defendant, Liam Andrew Enterprises Pty Ltd, in the course of her employment (“the workplace incident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to paragraph (c) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘serious injury’ means—
...
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; ... .”
4 The mental or behavioural disturbance or disorder relied upon is Mixed Anxiety and Depression.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the defendant, on or after 1 July 2014. As set out in s325(1), the mental or behavioural disturbance or disorder must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 By s325(2)(d) of the Act, it is the “consequences” of the mental or behavioural disturbance or disorder which produce the “pain and suffering” or “loss of earning capacity,” which must be “severe” – that is, the plaintiff must prove, on the balance of probabilities, that the mental or behavioural disturbance or disorder results in relevant “consequences” that “when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders ... [may be] fairly described as being more than serious to the extent of being severe …”. This has been referred to as the “narrative” test. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 The meaning of the word “severe” was resolved by the Court of Appeal in Mobilio v Balliotis.[2]In that case, without suggesting the use of any particular adjective to mark the distinction between the two words, Brooking JA held that the word “severe” as used in the definition under the Act, is stronger than the word “serious”.[3] Winneke P agreed with Brooking JA’s reasons and agreed that the word “severe,” where relevantly used, was a word of stronger force than the word “serious”.[4] Phillips JA[5] and Charles JA[6] made comments to similar effect.
[2][1998] 3 VR 833 (“Mobilio”)
[3]Mobilio (ibid) at 846
[4]Mobilio (ibid) at 834-5
[5] Mobilio (ibid) at 858
[6]Mobilio (ibid) at 860-861
9 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental or behavioural disturbance or disorder is “severe,” I must conclude that those consequences are more than “very considerable” to the plaintiff.[7] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[8]
[7]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (ibid); Transport Accident Commission v Katanas [2017] HCA 32
[8][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
10 The indicia of a severe mental or behavioural disturbance or disorder (there described as a psychological injury) were set out by the Court of Appeal in Papamanos v Commonwealth Bank of Australia.[9] These include: hospitalisation, psychiatric treatment, medication and suicidal ideation or attempts.
[9][2014] VSCA 167
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[10]
[10]Petkovski v Galletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[11] in an application like this, where it is alleged that the plaintiff may have had relevant pre-existing or co-existing conditions, it is the consequences of the additional injury or the aggravation of the existing injury which must be assessed. To undertake this task, the application must establish what injury was caused by the incident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[12] If I am satisfied that the additional impairment is “serious” and “long term,” then the applicant will have demonstrated that she is suffering from a “serious injury” under the Act.[13]
[11](Ibid) at 443
[12]Petkovski v Galletti (ibid) at 444
[13]Supra; see also Lexa v Transport Accident Commission [2019] VSCA 123 at paragraphs [59], [66] and [69]
13 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[14]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[15]
[14]Section 325(2)(j) of the Act
[15]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
14 Section 325(2)(i) of the Act permits me to take into account the physical consequences of a mental or behavioural disturbance or disorder for the purposes of assessing whether or not that mental or behavioural disturbance or disorder is “severe” for the purposes of the Act.
15 By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the mental or behavioural disturbance or disorder arising from the injury the subject of this application and the range of possible mental or behavioural disturbances or disorders.
16 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[16] and Grech v Orica Australia Pty Ltd & Anor.[17]
[16](2005) 14 VR 622
[17](2006) 14 VR 602
17 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
18 In addition, both parties relied upon medical reports and other materials which were contained in the court books filed on behalf of each party.[18] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[18]The Plaintiff’s Court Book was marked as Exhibit P1 (“Ex P1”). The Defendant’s Court Book was marked as Exhibit D1 (“Ex D1”).
The Plaintiff’s background
19 The plaintiff was born in July 1962 in Queensland. She is presently fifty-eight years old. She currently lives with her friend, Robert Luke. She is not currently in a relationship. Her son, who is twenty years of age, also lives with her.[19]
[19]Ex P1, p11
20 The plaintiff attended Prahran High School until Year 11. She then went to secretarial school. In 1981, she started working at the Metropolitan Board of Works. She worked at the Board of Works until 1996. When she started, she was an administrative assistant, but went on to become a technical assistant. In 1996, she took a redundancy. Her work involved general office administration tasks, such as data entry, working on property plans, filing and similar tasks.[20]
[20]Ex P1, p12
21 In 1997, she started her own business as a dressmaker, operating out of a shop in South Yarra. She then moved this business to Seaford.[21]
[21]Ex P1, p12
22 In 1999, she took time away from working, around the time her son was born. In 2000, she took on a job with the Ausdoc business in South Melbourne as a mailroom clerk. She was in the role for approximately six months. Following this, she took a few years out of the workforce and focused on looking after her son before he reached school age. In approximately 2003, she went back to work in a role as a door-to-door sales representative with Avon. She continued in this position until 2007.[22]
[22]Ex P1, p12
23 The plaintiff’s next stint of employment was in 2010, when she started her own business, making jackets for dogs, which she sold at craft markets and dog shows. She did this for around a year but it was not very profitable. In the following years, she sewed various items and continued to sell them to people that she had met at the markets through her dog-jacket business.[23]
[23]Ex P1, p12
24 In 2013, she came across an opportunity to start a car-detailing business as a franchisee. In around December 2013, her then husband and she registered a company called Helen & David Pty Ltd. She worked for this company doing labour, administration, ordering, marketing and sales. At first, they were given some leads from the franchisor but they were mostly generating their own work by way of word of mouth and marketing. In around October 2016, the name of the company was changed to Liam Andrew Enterprises Pty Ltd. This is the company that the plaintiff was working for when she suffered her injury. She last worked for this company in May 2018.[24]
[24]Ex P1, pp12-13
Pre-existing health issues
25 In her affidavit material, the plaintiff deposed that prior to the workplace incident, she had good health, with no major or ongoing health problems, either physical or psychological. She has had some minor issues with backache from time to time. These were on and off, usually triggered by intense activity. These issues did not cause her any long-term problems or keep her away from work for any length of time.[25]
[25]Ex P1, p13
26 In early February 2016, she fell badly at a worksite. This injury required treatment but has now resolved from a physical point of view.[26]
[26]Ex P1, p13
The circumstances of the workplace incident
27 In the later half of 2016, a customer of the plaintiff’s business, Mr James McGhie, and his former work colleague named Ray Miller, together with another employee of Mr McGhie named Frank, started to harass and make sexually-suggestive comments directed towards the plaintiff.[27]
[27]Ex P1, p13
28 In around August 2016, the plaintiff ran a promotion of her business offering a weekend away as a competition prize for new customers. When Mr McGhie heard about this, he commented to the plaintiff that he wanted to win so he could take her away on a “dirty weekend”. Ray Miller joined in with this conversation. The plaintiff found this quite insulting.[28]
[28]Ex P1, p13
29 On the afternoon of 5 October 2016, the plaintiff was completing work on a truck with her employee, Lyn. When they were nearly finished, she went inside to “sort out” payment with Mr McGhie. He asked the plaintiff to take her top off and threw $20 on the table. She was shocked and scared and felt uncomfortable, but she lifted her top up a little. Mc McGhie then said “I want your bra off, I want to see your titties …”. The plaintiff told Mr McGhie that she would not do that, but he said “there’s no one else here, everyone has gone home – I’ll cover you”. The plaintiff felt disgusted and just wanted to get paid for the work that she had done, so that she could leave. She left without taking the $20 that Mr McGhie had put on the table.[29]
[29]Ex P1, pp13-14
30 After this incident, the plaintiff told Lyn what had happened. Lyn suggested that she tell her then husband, which the plaintiff did. She did not want to go back to work but knew she had to, because she needed the money as the business was struggling to cover its debts. The plaintiff also contacted Ray Miller and asked him to tell Mr McGhie to “lay off” her, because she was not interested in him.[30]
[30]Ex P1, p14
31 From then on, whenever the plaintiff was at the business to check on the status of work that was being performed, Mr McGhie would end the conversation with “C’mon, give us a giggle”. The plaintiff found it very hard for her to put this out of her mind each time she would go there, but she always tried to keep things professional. The next thing that happened was her employee, Lyn, left the business. Once Mr McGhie heard about this, he assumed the plaintiff was in financial difficulty and started harassing her again.[31]
[31]Ex P1, p14
32 Another significant incident happened when Mr McGhie saw a photograph of one of the plaintiff’s friends on Facebook. This person was wearing tight clothes and Mr McGhie said to the plaintiff that she should also wear tight flesh-coloured clothes and not wear any underwear. Mr McGhie also talked about the plaintiff getting wet while doing the car detailing and that then her clothes would become see-through.[32]
[32]Ex P1, p14
33 All of this made the plaintiff feel extremely uncomfortable and worried about what Mr McGhie and his friend Ray Miller might do. Things went further when Ray Miller said to Mr McGhie that they should help the plaintiff reduce her debts and Mr McGhie said that he would pay the plaintiff $220 for one hour’s work once a week.
34 It was clear to the plaintiff that Mr McGhie meant that he would pay to have sex with her. She was extremely shocked by this and told Mr McGhie that was never going to happen. When the plaintiff was leaving on this occasion, Mr McGhie followed her up the driveway and said to her “you know what we could do? I could put my dickie between your boobs instead.” The plaintiff felt sick upon hearing this, so she left as quickly as she could.[33]
[33]Ex P1, pp14-15
35 For a period of time, the plaintiff tried to avoid having Mr McGhie as a customer, but due to financial pressures, she had to go back and do work for him. She always tried to steer clear of him as much as possible and tried to keep things professional. When Mr McGhie’s partner was at the business one day, Mr McGhie pulled the plaintiff aside and said something like “Don’t tell … [my wife] about our little arrangement, will you”.[34]
[34]Ex P1, p15
36 On one occasion in December 2017, Mr McGhie requested that the plaintiff clean the inside of his campervan which he wanted to use on the weekend. When the plaintiff arrived at the job, Mr McGhie was already there and told her that he needed the job done by 5.00pm. She called her then husband to come and help her. Mr McGhie bullied both the plaintiff and her husband during the job and kept threatening that unless the job was done to his satisfaction he would not pay them.[35]
[35]Ex P1, p15
37 Around 13 December 2017, the plaintiff was doing a job for Mr McGhie detailing three trucks. On this occasion, he also made things as difficult as he could for her. Mr McGhie’s co-worker, Frank, made comments like “stop poking you bum out at me Helen”. Frank also hit her a number of times with a “Stop/slow” sign, similar to the ones used by “lollypop ladies”. The plaintiff was almost in tears but she could not cry as she had a lot of work in front of her and needed the money “desperately”. She found Mr McGhie hard to communicate with at that time. The plaintiff reported Frank’s behaviour to Mr McGhie, who said that he would reprimand Frank. He also told the plaintiff that she should not have poked her bum out at Frank. When it came time for payment for that job, Mr McGhie started raising issues about the quality of the plaintiff’s work, and they ended up in a dispute about payment.[36]
[36]Ex P1, p16
Evidence concerning the consequences of the Plaintiff’s injury
38 As set out above, the plaintiff swore two affidavits, the first dated 26 August 2019 and the second dated 9 July 2020.
39 In summary, her evidence as to the pain and suffering consequences which she presently experiences, is as follows:
Day-to-day effects of the injury
(a) she has lost a big part of who she was. She feels like she is a totally different person now; [37]
[37]Ex P1, p17
(b) she is not able to enjoy day-to-day activities anywhere near as much as she used to. A lot of the joy in her life has disappeared. One of those things was her work. Even though she had financial difficulties and struggled from time to time, she used to take pleasure in her work, knowing that she was doing a good job for people running her own business; [38]
[38]Ex P1, p17
(c) since suffering her injury, she has been unable to trust people the way she used to in a work environment. She had been quite a trusting and open person before the incidents in her workplace;[39]
[39]Ex P1, p17
(d) she has struggled to find suitable work outside of assisting her friend, Robert Luke, with his limousine business. She is able to work with him only because she knew him before and he is a friend. For that reason she knows that he will not treat her the way that Mr McGhie did;[40]
[40]Ex P1, p17
(e) she has seen a number of psychologists since 2018, but she has had difficulty finding one who understands her situation and who is able to help her. As at 23 August 2019, she had started seeing Deidre Voss, psychologist, at Bayside Counselling, for treatment;[41]
[41]Ex P1, p17
(f) after the bullying and harassment that she experienced at the hands of Mr McGhie, she still feels violated and that her identify, self-esteem and confidence have all been taken away from her. She gets tearful and upset when she thinks about what happened to her;[42]
[42]Ex P1, p22
Ability to socialise
(g) she finds social situations difficult now. She is no longer open with people and she finds it difficult to relax in the company of other people, particularly people that she does not know well, or older men. In a workplace setting this is even worse, so it has hampered her ability to find work;[43]
[43]Ex P1, p17
(h) she has panic attacks in certain situations. She finds that she suffers from tightness in the chest and difficulty in breathing during these attacks. She has also become quite fearful of unfamiliar situations and people that she does not know. She used to be enthusiastic about life but she is now timid about lots of things;[44]
[44]Ex P1, p18
(i) since suffering her injury, she has stopped going out and seeing friends because she has not felt like it and does not like being out in public if she can avoid it, particularly if there will be a lot of people. She used to like going to the pub, and now finds crowds of people daunting;[45]
[45]Ex P1, p18
Leisure activities
(j) she feels no joy from the leisure activities that she used to enjoy. She used to take ballroom dancing lessons, which she really enjoyed. Although she had stopped this activity a few years ago, she would have liked to take it up again. She feels like she is unlikely to take this up any time soon because of the effect that her injuries have had on her social relationships. She just cannot muster the enthusiasm for something like this anymore;[46]
[46]Ex P1, p18, 20 and 22
(k) she used to love getting lost in a good book. She used to find that when she read an interesting book the time would “fly by”. Now, she can hardly concentrate enough to read four pages at a time;[47]
[47]Ex P1, p22
(l) she used to get a lot of pleasure from tending to her vegetable patch. It was her pride and joy. She loved watching the vegetables grow throughout the season. Now, to her, gardening is a distraction to get over her panic attacks, and she does not really get any joy from it anymore;[48]
[48]Ex P1, p20 and 22
(m) she finds that she has interrupted sleep a lot of the time. She will wake up and think about what happened to her;[49]
[49]Ex P1, p18
(n) she experiences panic attacks. It has gotten to the point where she suffers from a panic attack at least once a day. When a panic attack comes on, she suffers a severe shortness of breath.[50] After the panic attacks, she goes outside for fresh air or walks with her dog, and does some gardening;[51]
[50]Ex P1, p21
[51]Ex P1, p21-22
(o) she also has dramatic nightmares approximately three to four times per week, where she wakes up trying to scream and realises she cannot scream because she has a feeling like she is suffocating. The suffocating relates to her experience working for Mr McGhie, where there was a period of time when she was cleaning trucks and the staff kept closing the doors on trucks on hot days while she was inside. This made it hard for her to breathe. After her nightmares she just tries to relax and take deep breaths until the suffocating sensation goes away; [52]
[52]Ex P1, p21-22
(p) she has a dog that she takes for walks, usually once per day. She also has two rabbits. She enjoys taking care of these pets, because it gives her a chance to focus on something other than what has happened to her and what has been taken away from her because of the actions of Mr McGhie and his colleagues;[53]
[53]Ex P1, p18
Medication and treatment
(q) she received some pain medication, Mobic, for ongoing issues she had with her elbow, knee and back as a result of the assault she suffered at the hands of Frank with the Stop/Slow sign. She has tried not to be reliant on this and to “just cope” with that pain. She has also had some massages for these injuries over time. She does not want to become reliant on drugs to get by;[54]
(r) she chooses not to take any medication at present for her psychiatric condition and symptoms, as she does not want to experience any of the side effects of that medication;[55]
[54]Ex P1, pp16-17
[55]Ex P1, pp21-22
Ability to work
(s) immediately following her injury, she was unable to sustain work, doing a little bit of domestic cleaning, and some catalogue-delivery work. Neither of these were sustainable or provided a reasonable income;[56]
[56]Ex P1, p16
(t) she is currently employed with Pristine Limousine Service as a chauffeur/limousine driver and is also in charge of marketing. Her role also includes driving. The driving helps her to take her mind off the bullying and harassment that she experienced while working for Mr McGhie;[57]
[57]Ex P1, p21
(u) she is fortunate to have the job with Pristine Limousine Service. Prior to working there, she was listed with a job agency. The jobs that were found for her by the agency were in fields that were male dominated. After what she went through with Mr McGhie, male-dominated workplaces scare her and she does not have the confidence to work in those environments anymore;[58]
[58]Ex P1, p21
(v) Pristine Limousine Service was started by her friend, Robert Luke, who set up the business to help her, as he was aware of her struggle in finding a job;[59]
[59]Ex P1, p21
(w) Mr Luke is aware of what the plaintiff experienced when she worked for Mr McGhie. He allows her to choose what customers she drives for. When taking a booking, the business asks about the gender and number of passengers. She avoids doing the driving with all-male bookings. Mr Luke does the driving for those jobs. She tends to limit herself to taking jobs where all of the passengers are females or couples;[60]
(x) she experiences difficulties with her concentration. Her job with Pristine Limousine Services suits her because, apart from concentrating when driving, she is able to space out the marketing duties so that she does not have to concentrate for long periods of time. She can have a break and refocus.[61]
[60]Ex P1, p21
[61]Ex P1, p21
40 Under cross-examination, the plaintiff gave the following relevant evidence:
(a) she has lived in Baxter since July 2019. She lives there with her son and her friend, Robert Luke;[62]
[62]Transcript (“T”) 20, Lines (“L”) 20-27
(b) Robert is also her employer for the limousine business;[63]
[63]T20, L28
(c) when she was selling dog jackets at craft markets, those craft markets were held about once per month and the dog shows that she worked at were held about twice per year. The job was not very profitable;[64]
[64]T22, L1-7
(d) the company that she worked for when she was detailing cars and trucks was not particularly financially successful;[65]
[65]T24, L10-18
(e) Mr McGhie was a rude man right from the start of her association with him. She agreed that she tolerated this because she was looking for more customers and he had promised her leads and more work;[66]
[66]T25, L1-12
(f) the business did not have enough work for them to be able to get rid of Mr McGhie as a customer;[67]
[67]TT25-26
(g) she separated from her husband, David, in May 2018;[68]
[68]T26, L24-25
(h) when her employee, Lyn, left the business, that put extra strain on the plaintiff;[69]
[69]T27, L10-24
(i) she denied that her marriage to her husband David had ended long before May 2018.[70] She told one of her medical practitioners that he had Asperger’s, which she could not cope with;[71]
[70]TT29-30
[71]Ex P1, pp33-34
(j) she had had two previous marriage breakdowns prior to the end of her marriage to David. Her first husband was a controlling person. She was in that relationship for seven years. Her second husband had bipolar/behavioural issues/depression. She was married to him for fourteen years;[72]
[72]T82, L22-29
(k) she attends two general practices;[73]
[73]T30, L14-25
(l) she knows Dr Vijitha Satheesan. Dr Satheesan is her general practitioner at the Wells Road Clinic;[74]
[74]T31, L1-29
(m) her friend Robert initially came to work with her in January 2015. He only stayed for two weeks and then she had to get other people;[75]
[75]T31, L8-29
(n) she denied that she had told her general practitioner in May 2018 that she had separated from her husband and now had a new partner in Robert;[76]
[76]T32, L7-9
(o) she said that the main reason she moved in with Robert at about this time was because he had land on which she could put her caravan so that she could live in the caravan: “We were sharing the cooking facilities … I could use the bathroom and the lounge and everything but I was sleeping in my caravan;”[77]
[77]TT32-33
(p) she denied telling her general practitioner that she had been concerned because Robert would not engage in intimate relations because of his religious beliefs;[78]
[78]T33, L5-9
(q) when her husband David left, she and her son begged him to stay but he was insistent on leaving: “I really thought that we could try and work things out because I didn’t want another failed marriage but he wanted to leave;”[79]
[79]TT33-34
(r) she agreed that David took out an intervention order against her. She said this was because she needed money and she asked him for some: “He knew he left me with all these debts and he didn’t want a bar of it, he didn’t want to pay his share of what the business debts were;”[80]
[80]T34, L9-26
(s) toward the end of the time when she worked for Mr McGhie, she had determined that she had been undercharging him for the detailing work that she had been doing. Previously she had been charging a lower rate, hoping to get more work from him: “We charged him less just to be on friendly terms.”[81] She agreed that at the end of 2017, she told him that she wanted to bill by the hour. She said she changed the arrangements “because of the bullying and stress that he put me under”.[82] She agreed that charging an hourly rate led to a much higher total for each job;[83]
[81]T39, L21-30
[82]TT39-40
[83]T40, L11-13
(t) after this, she sent Mr McGhie a bill based on what she wanted to be the new arrangement. She agreed that he did not pay the new price but paid her the old price. She agreed that she said to him at the time “‘If you don’t pay me I’m going to take this further and make complaints against you’”.[84] When asked whether, if Mr McGhie had paid her, this case would be proceeding, the plaintiff replied “Not necessarily”;[85]
[84]TT40-41
[85]T41, L8-10
(u) the dispute over the money had never been resolved. She agreed that this was when she stopped working for Mr McGhie;[86]
[86]T42, L11-17
(v) she agreed that she had been receiving Centrelink payments on the basis that she is a single person and not in a relationship with anyone;[87]
[87]TT42-43
(w) she said that if a doctor had recorded that she had a new partner, this is a reference to Robert being a “business partner”;[88]
[88]T43, L13-26
(x) she denied that she had been lying to Centrelink about her relationship status. She denied that she had been lying to the Court about her relationship with Robert;[89]
[89]T44, L3-16
(y) she denied having discussed marriage with Robert;[90]
[90]T45, L1-6
(z) she was taken to a note made by Deidre Voss, psychologist, where the entry read, in part:
“‘Session centred on partner (no sex as he is Christian and does not believe in sex before marriage)’.”
In response to being shown this note, the plaintiff replied:
“I told her that we are not in a relationship. That is … It’s a business partnership, we are friends.”[91]
[91]T46, L1-25
(aa) she was pressed about this matter and agreed that she told Ms Voss the matters that were recorded in the note, namely that there had been no sex between her and Robert as he is a Christian and does not believe in sex before marriage:
“Yes, I said that but I said we’re not … in a relationship … We’re not even up to that stage anyway, we’re partners.”[92]
[92]T47, L1-7
(bb) an entry in the same note which reads “‘No plans on marrying as divorce not finalised’” was put to the plaintiff for comment. To this, she replied:
“… I’m not marrying anyone right now … I told her that I’m not marrying anyone because I’m not in a position to, and obviously I’m not in the right frame of mind to even be thinking about anything like that right now.”[93]
[93]T47, L5-16
(cc) another entry in the same note was put to the plaintiff for comment:
“‘Suggested couples counselling. Client’s partner seeing another psych.’”
in response to this, the plaintiff replied:
“Because we do have arguments but it doesn’t mean we’re a couple, it just means so we can get on while living in the house together.”[94]
[94]T48, L10-14
(dd) it was put to the plaintiff that both her general practitioner and also her psychologist have recorded that she had found a new partner. The plaintiff said “I don’t agree with that”;[95]
[95]TT49-50
(ee) she was taken to various entries in the doctors’ notes. One of those entries recorded that on 9 April 2014, she had obtained a mental health care plan concerning relationship issues that had arisen at that time. In response to being shown this note, the plaintiff replied:
“It was to do with the franchise, that’s where all my stress was coming from … it was the most stressful year because they were breathing down our throats all the time.”[96]
[96]T52, L10-18
(ff) she agreed that she had been referred to an organisation called “Life Works” at this time. She agreed that this was to do with the stress she was then experiencing;[97]
[97]T52, L19-25
(gg) she agreed that in April 2015, she was so “stressed out” that she was suffering from hair loss. She said that her stress was due to problems with the franchise that she had taken on with her then husband;[98]
[98]T54, L16-31
(hh) she agreed that this had nothing to do with Mr McGhie;[99]
[99]T55, L1-8 and T56, L2-11
(ii) the plaintiff was asked whether or not there was a period of time during which her doctors were strongly suspicious that she may have been suffering from serious ischemic heart disease. She agreed with this proposition. She acknowledged that she was asked to have an angiogram, which caused her great stress. She agreed that she underwent that procedure;[100]
[100]T56, L17-31
(jj) she agreed that in March 2016, apart from suffering then from chest pain and then from breathing problems, she was under a lot of stress from her workload. In response to this proposition, she replied: “Yes, well that was the time where we were … pushed quite a bit by the franchisor.” She agreed that this had nothing to do with Mr McGhie either;[101]
[101]TT57-58
(kk) the stress caused by Mr McGhie occurred during the course of the calendar year 2017. She said that it started slowly and then “just built up more and more and more over time”;[102]
[102]T58, L24-30
(ll) it was suggested to her that at no stage up until November 2017 had she mentioned any issues to do with Mr McGhie to her doctors. She replied:
“The doctor will just say see a lawyer or something like that, what can they do? I don’t want to go on drugs.”
(mm) when pressed in relation to this matter, she agreed that she had not told the doctors anything about McGhie at that time. She further stated:
“… because I’d finished with him, that’s why. And I wasn’t going back so I thought maybe my stress would go down … because I was keeping it to myself, I was trying to deal with it while still trying to do the job.”[103]
[103]TT59-60
(nn) it was put to her that she had not hesitated to report workplace-based stress in the calendar years 2015 and 2016. She agreed with this proposition but said that in relation to the issues with Mr McGhie –
“I just didn’t specifically mention it to them because I was just caught up in everything that was going on at the time and I’m just following what the police told me and I went by their instructions to go to human rights and that’s what I did. I just put it all in a document and wrote everything down that happened and I just followed through with what their requirements were.”[104]
[104]T60, L6-16
(oo) she began living with Robert in September 2018 when she moved to Mount Eliza;[105]
[105]T63, L7-12
(pp) the plaintiff confirmed that her complaint to the Human Rights Commission was terminated following a conciliation at which the parties could not agree on how to resolve it. That was on 27 August 2018. The plaintiff agreed that she was emotional, teary and upset by that outcome. She was under the impression that the Human Rights Commission might award her some compensation;[106]
[106]TT64-65
(qq) she agreed that in August 2018, she was also suffering stress in relation to the intervention order David had taken out against her. She said that “anybody would” be stressed by that situation: “You’ve been silenced, you can’t talk. Of course it’s going to create stress;”[107]
[107]T66, L19-30
(rr) a note in the general practitioner’s records which recorded that she was “moving into her new partner’s place in two weeks in Mt Eliza” was put to the plaintiff for comment. The plaintiff confirmed that she did not have a business with Robert at that time. She said she was doing his paperwork at that time because she has experienced in bookkeeping. She was asked whether she had described Robert as her new partner because she was doing “a bit of paperwork for him”. She denied this proposition. When pressed on this issue, she then said:
“Yes, business partnership because we both had a Bartercard account and he was paying off my Bartercard by me working for him, so that was prior to doing the limousine work.”[108]
[108]TT67-68
(ss) she agreed that when she went to see her general practitioner following the failure of the Human Rights complaint, she complained of emotional upset, pain in her right knee and pain in her right elbow. The notes also disclose that she made complaints of pain in her back. She agreed with all of these propositions;[109]
[109]T68, L16-22
(tt) in February 2019, she had consulted her doctor for predominantly orthopaedic injuries, including right elbow pain, low back and right knee pain. She acknowledged that the note was to the effect that she was seeing lawyers for her WorkCover claim. She agreed that she was attending the doctor predominantly in relation to orthopaedic injuries;[110]
[110]T71, L2-9
(uu) in April 2019, she went to her doctor to obtain medical clearance to drive a limousine for Pristine Limousine Services. She also agreed that at this stage, she came in for a prescription for her weight-loss medication;[111]
[111]T71, L11-22
(vv) she agreed that she had attended at a general practitioner’s clinic to obtain a WorkSafe Certificate of Capacity in relation to what were referred to as “numerous injuries over the span of the past few years working at her job”. It was noted that her lawyer has advised her to make a WorkSafe claim in relation to her physical injuries. She acknowledged that the doctor told her that since she had never seen the plaintiff for any of these injuries, she could not complete this capacity assessment/claim form adequately;[112]
[112]T72, L18-28
(ww) it was put to her that despite being a reasonably regular attender at the second general practitioner’s clinic, Epichealth, she had not mentioned any psychological difficulties to that general practitioner. In response to this, she replied: “Like I said, I didn’t tell the doctor everything … because I can’t be wasting their time all day listening to my problems.” It was suggested to the plaintiff that in the period from 2017 to 2019, she did not mention any psychological difficulties to any of the doctors in this practice. In response to this, the plaintiff replied: “I don’t know … Maybe they didn’t record anything. I can’t remember.” It was suggested to the plaintiff that there was a real prospect that she had never mentioned anything to do with the harassment claim to the general practitioners at Epichealth. In response to this, the plaintiff replied “May not have, I don’t know. I can’t remember;”[113]
[113]T73, L3-25
(xx) she was taken to a note of Dr Tan at Epichealth dated 17 October 2019. The noted read: “Boyfriend unwell.” In response to this, she replied: “I don’t know why that’s there, I just don’t understand … I don’t even remember who Dr Tan is;”[114]
[114]T74, L3-19
(yy) it was suggested to the plaintiff that prior to the COVID-19 pandemic, she had been hoping to continue with the limousine business in partnership with Robert. She agreed that she had been going to some effort to grow the business and to make contacts for the business. The business presently has two cars: a Ford Fairlane and a Mini Cooper. She said the furthest she had driven the cars was to Ballarat from Baxter. She took three passengers in the Mini Cooper on that trip, which took two-and-a-quarter hours each way;[115]
[115]TT77-78
(zz) her doctors have certified her as appropriate to be a limousine driver. She agreed that it is better for her when she is working;[116]
[116]T79, L14-26
(aaa) she agreed that she felt much better now that she is working:
“I don’t like to be bored … With the limousine work, it gets me out of the house, it’s good that way. I’m not ready to retire yet.”[117]
[117]TT79-80
(bbb) the intention when she returned to work was to begin on a minimum of fifteen hours weekly on 8 August 2019, with a view to increasing her hours over the following three to four months. She agreed she was “thrilled” to be working once again and was looking forward to commencing work with Pristine Limousines. She agreed that the plan went ahead as described, but unfortunately the Pandemic interfered with the plan for the present time;[118]
[118]TT80-81
(ccc) she agreed that the following matters were all true about her present presentation: she is back at work, she is in a place where Robert lives also, she lives with her son, she takes no medication such as antidepressants, she just takes Panadol when she needs it for headaches, she does physiotherapy exercises to help maintain her back and reduce the pain she feels in that area and as best as she can assess it, if there was no pandemic, she would be moving forward with driving a limousine and organising that business;[119]
[119]T81, L8-28
(ddd) a note entitled “Marital history” made by Deidre Voss, psychologist, was put to the plaintiff. She agreed that this note accurately set out her three marriages. A part of the note stated: “Currently with another partner – Robert” and under the heading “Marital history”, “Robert, currently relationship anger issues” were put to her. In response to these entries, the plaintiff replied:
“Well it shouldn’t be there. It shouldn’t be there. She’s put it there. It shouldn’t be there. He does have some anger issues but they’re sort of ironed out now.”
(eee) it was suggested to the plaintiff that if Deidre Voss had put that information under a heading “Marital history”, then the psychologist had got that very wrong. In response to this, the plaintiff replied: “Yes, she’s got it wrong …;”[120]
[120]TT82-83
(fff) the content of a note dated 13 August 2019 made by Counselling Appraisal Consultants (“CAC”) was put to the plaintiff. In a section headed “Current Psychological status”, the following was noted under the heading “Symptoms”:
“No reported symptoms. Helen advised that her stress and anxiety has reduced since commencing employment. Helen confirmed that her sleep quality and quantity has also improved in recent weeks and she reported no concerns with concentration or motivation.”[121]
[121]T83; Ex D1, p36
(ggg) in response to this matter, the plaintiff replied:
“I told him what happened to me. I told him the whole story so whether, why he didn’t put it down, I don’t know … I didn’t tell him anything about my symptoms. I told him my story, what happened to me … we didn’t have time to go into all the details about my history;”[122]
[122]TT83-84
(hhh) when pressed on this issue, and specifically in relation to whether or not she said those words to the assessor, the plaintiff replied:
“I can’t remember if I did or not. I might have said it. Maybe I did say it because … then I could start work. I may have kept some things from him, I can’t remember … I just wanted to sound positive, that’s all.”[123]
The medical evidence
[123]T84, L22-29
41 There were numerous medical reports contained in the tendered material. Both sides provided reports from medico-legal experts. A précis of the medical materials is set out below.
The Plaintiff’s medical evidence
42 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Chris Grant, clinical psychiatrist, on 2 May 2019. In a report of the same date, Dr Grant stated that when asked to describe her injury, the plaintiff said:
“… ‘I couldn’t sustain the loans I had … $39,000 business loan, $14,000 on the credit card, $14,000 on a personal card… A lack of customers, lack of repeat customers… My marriage brokedown the same year, 6 ½ years together, 2 ½ is married… He left in May 2018, I couldn’t take his behaviour he has Asperger’s … .’
She said they have a court hearing next week, but have not reached a financial settlement and she said that her ex-husband took out an intervention order against her, which means she cannot contact him.
She said there was also ‘a sexual harassment case’ regarding one particular client ‘James’ in Seaford …
She said she last visited that worksite in December 2017.
She went to Frankston police statement (sic) and made a statement about the sexual harassment which was referred to the equal opportunity commission (sic). She said ‘I wanted compensation, he wouldn’t pay… I continued to see other clients after that but had trouble working because of my right elbow, my right knee and low back pain’.
… .”[124]
[124]Ex P1, pp33-34
43 Dr Grant set out the fact the plaintiff described to him several orthopaedic injuries, including pain in her right elbow, pain in her right knee, which was “okay now”, stiffness in the low back, eighteen months of right plantar fasciitis, now resolved, together with some menopausal symptoms. Dr Grant recorded that she had –
“… long-term sleep difficulties with nightmares, vocalising and broken sleep, but is now also waking tearful at times. She said she has one recurrent dream for over 20 years. She’s never had a sleep study. She does not nap in the day.”[125]
[125]Ex P1, pp34-35
44 Dr Grant recorded that the plaintiff said that she –
“… is thinking about her financial situation, the intervention order from her ex-husband which frustrates her, their lack of financial settlement and other legal matters.”[126]
[126]Ex P1, p35
45 Dr Grant also recorded that the plaintiff told him that she –
“… enjoys … [activities] such as a vegetable patch, walking the dog, and caring for two rabbits.”[127]
[127]Ex P1, p35
46 Dr Grant conducted a mental state examination, following which he concluded that the plaintiff’s thinking was –
“… focused on the financial difficulties when running this business, the breakdown of [her] marriage and subsequent difficulties with her ex-husband, and the alleged sexual harassment by her client … at work.”[128]
[128]Ex P1, p37
47 Dr Grant concluded that the plaintiff was suffering from an Adjustment Disorder with Anxious and Depressed Mood. He thought that this was related to various difficulties and processes in the plaintiff’s life over the few years preceding the assessment, such as financial difficulties running her business, the subsequent breakdown of her marital relationship and difficulties with her ex-husband which remain unresolved, and the alleged sexual harassment by a client at the business. Dr Grant concluded that the Adjustment Disorder “appears significantly and materially related to the workplace events and difficulties”.[129]
[129]Ex P1, p37
48 The plaintiff relied on a report dated 5 July 2020 from Ms Deidre Voss, treating psychologist. Ms Voss reported that the plaintiff was referred to her against a history of depression, anxiety and stress related to financial difficulties, her marriage breakdown and alleged sexual harassment and bullying in the workplace. The plaintiff attended nine sessions of counselling, with Ms Voss, the first session being on 28 August 2019.[130]
[130]Ex P1, p39
49 Ms Voss postulated that the plaintiff was suffering from “probable Post-Traumatic Stress Disorder with mood, anxiety and stress symptoms”. She thought that for a frank diagnosis of PTSD to be made, further evaluation would need to be undertaken.[131] Ms Voss stated that “The alleged actions of employees of the company continue to be a contributing factor in … [the plaintiff’s] condition”.[132]
[131]Ex P1, p41
[132]Ex P1, p41
50 As to pre-existing components of the plaintiff’s condition, Ms Voss noted that the plaintiff continues to “experience financial difficulties which impacted on her mental health” previously. She said that the PTSD symptoms relate specifically to the alleged sexual harassment event.[133]
[133]Ex P1, p41
51 Ms Voss concluded that the plaintiff’s capacity to work has not been affected by her experiences and that the plaintiff had reported applying for many positions without success, but was continuing to investigate opportunities. She noted that the plaintiff had recently undertaken work as a chauffeur over the six months prior to the COVID-19 pandemic with limited success.[134]
[134]Ex P1, pp41-42
52 The plaintiff relied upon a report dated 16 July 2020 from her general practitioner, Dr Vijitha Satheesan. Dr Satheesan stated in his report that the plaintiff first consulted him on 14 May 2018 alleging a complaint of sexual harassment at work. Dr Satheesan also noted that the plaintiff, at that time, reported stress related to her marriage breakdown and also financial strain. Dr Satheesan diagnosed the plaintiff as suffering from anxiety and depression. The plaintiff’s prognosis is “expected to be good once her [court] cases are over and [there is an] improvement in her [finances]”.[135] Dr Satheesan concluded that the plaintiff’s stress was related to her work and personal life and has had a significant impact on the plaintiff’s mental health. Dr Satheesan also concluded that the plaintiff had a capacity for her pre-injury duties with a different or new employer.[136]
[135]Ex P1, p43
[136]Ex P1, p44
53 The plaintiff was examined for medico-legal purposes by Dr Lester Walton, consultant psychiatrist, on 14 July 2020 by way of a videoconference. In a report dated 21 July 2020, Dr Walton noted that the plaintiff told him that in 2016, she struggled to meet her work commitments and was under significant financial strain after her husband found alternative work. Dr Walton said that the plaintiff told him that she fell at work in February 2016, but that her “physical injuries fully resolved”. He recorded that the plaintiff became the target of repeated sexual harassment by a particular client after the departure of her husband and that she was subjected to repeated lewd and suggestive comments. He said that the plaintiff told him that she became “increasingly anxious and depressed and thus she finally ceased work in May 2018”.[137] Dr Walton recorded that the plaintiff told him that she “continues to ruminate about the previous bullying and the failure of her business”. The plaintiff also told him that she “was quite intensely angry about what had occurred previously but she has now subsided to rather passive indifference”.[138]
[137]Ex P1, pp47-48
[138]Ex P1, p48
54 Dr Walton recorded that the plaintiff’s sleep is presently interrupted by nightmares two or three times a week and that these include “replays of harassment scenes from work”. He said that the plaintiff had adopted a “pattern of comfort eating and she has gained over 5kg in weight”. He said that the plaintiff had complained of “a limited attention span, for example, she loses track when watching movies and overall she is rather restless”. He noted that the plaintiff continues to suffer from tension headaches approximately weekly.[139] He noted that apart from assisting in part-time work, the plaintiff does get –
“… some enjoyment from outside activities such as gardening and walking her dog. She utilises social media but otherwise there is quite marked social avoidance apart from some telephone calls to long-term friends.”[140]
[139]Ex P1, p48
[140]Ex P1, p49
55 Dr Walton noted that the plaintiff told him that she continues to enjoy reasonable physical health but that she does suffer from pain in the right lower part of her back and also her right elbow. She said that the intensity of the pain from which the plaintiff presently suffers is “fairly proportional to physical activities she attempts”.[141] Dr Walton conducted a mental status evaluation and noted the plaintiff had identified her own mood at the time as “‘I don’t feel too great’”. He thought that this was an understatement, as the plaintiff was “prone to recurring tearfulness [during the interview] and she was obviously distressed”.[142]
[141]Ex P1, p49
[142]Ex P1, p50
56 Dr Walton concluded that the plaintiff:
“… may well have been validly diagnosed with an adjustment disorder with anxiety and depression but her mood disturbance has now persisted for a protracted period in the absence of ongoing work stress such that I believe a diagnosis of a mixed anxiety/depressive disorder is a more precise label currently.”[143]
[143]Ex P1, pp50-51
57 Dr Walton thought that the prognosis for the plaintiff was “mixed”. He said that on the one hand, the plaintiff is not suffering from a very disabling psychiatric condition and there has been some improvement in her condition. He said that it did now appear that the condition had stabilised and that long-term psychiatric symptoms were anticipated. He did not think that the plaintiff required psychotropic medication. He noted that there is a “general loss of enjoyment with activities but she does persist with some exercise and she can obtain enjoyment from gardening”.[144] Dr Walton concluded that there is a continuing impact from the workplace psychological trauma but that “… previous stress continues to make a material contribution to the current condition”.[145]
The Defendant’s medical evidence
[144]Ex P1, p51
[145]Ex P1, p51
58 The defendant relied upon a report compiled by Ms Emily Burton, psychologist, employed by “Back2Work” health specialists dated 12 June 2018. In that report, the plaintiff’s diagnosis was said to be “Unspecified Anxiety Disorder”. It was noted in the report that the plaintiff reported the onset of stress in January 2014, around the time she began managing a franchise. The report noted that the plaintiff experienced “an exacerbation in March 2018, following a relationship breakdown with her ex-husband”.[146] The plaintiff then experienced excessive worry due to a number of stressful life events and across a number of functional domains including finances, interpersonal relationships, health and employment. The report noted that the plaintiff reported:
“… extreme difficulty to control the worry and described panic symptoms, including shortness of breath and heart palpitations. … [The plaintiff] also reported significant difficulty with memory and remembering to do important things. … [The plaintiff] reported she experiences these symptoms 1-2 times weekly.”[147]
[146]Ex D1, p4
[147]Ex D1, p4
59 The report also noted that the plaintiff provided medical evidence indicating that she suffered from back and knee pain at the time. She experienced difficulties navigating the stairs due to her knee pain. She had a referral in place for physiotherapy at that time.[148] The plaintiff’s psychological problems, including with understanding and communication, self-care, getting along with people, life activities and participation in society, were all classified as “mild”.[149]
[148]Ex D1, p5
[149]Ex D1, p5
60 The plaintiff was examined for medico-legal purposes by Mr Peter Scott, senior consultant surgeon, on 19 March 2019. In a report dated 25 March 2019, Mr Scott noted that he had been asked to provide an impairment assessment in relation to the plaintiff’s knee and elbow problems. He noted that the plaintiff stated that she had complained of some mild pain and discomfort in the outer aspect of the right elbow in November 2015 and saw a doctor in relation to this problem. She was diagnosed as suffering from lateral epicondylitis. It was noted that she made a good recovery and that no compensation claim was made as a result of that injury. Mr Scott went on to note that on 3 February 2016 at work, the plaintiff fell onto concrete and injured her right elbow again, and also her right knee, while performing her duties as a car detailer. He noted that the plaintiff continued to work in the business cleaning cars but complained of pain and discomfort over the outer aspect of the right elbow and also in the right knee. She was treated with a steroidal injection and was prescribed Panadeine Forte four to six times per day, together with some physiotherapy. Mr Scott noted that the plaintiff continued to work, with increasing pain and discomfort, until ceasing employment in May 2018. He noted that over the twelve months prior to his referral, the plaintiff had been receiving privately-funded physiotherapy several times per month, but no further steroidal injections.[150]
[150]Ex D1, pp7-8
61 Mr Scott noted no effect on the plaintiff’s activities of daily living and ability to do housework from her reported injuries. He noted that she used to enjoy dancing and that this had been restricted over the previous twelve months. He said that as to her work capacity, she was then looking for “light duties”.[151] Mr Scott noted that the plaintiff had a past history of backache on and off since 2012 and believes that an aggravation of this injury may have occurred as a result of the fall on 3 February 2016.[152] Mr Scott diagnosed the plaintiff as suffering from “a resolved right knee soft tissue injury and minimal ongoing and intermittent symptoms referable to the right elbow, suspicious of a previously existing traumatic epicondylitis”.[153] Mr Scott noted that the plaintiff’s grip strength on her right side was slightly weakened.[154] He thought the plaintiff’s prognosis was favourable. He thought that the plaintiff’s “major disability appears to be related to non-organic or anxious or frustrated reaction” which Mr Scott thought required clarification by a consultant psychiatrist.[155]
[151]Ex D1, p9
[152]Ex D1, p9
[153] Ex D1, p11
[154]Ex D1, p11
[155]Ex D1, pp12-13
62 The defendant relied on a further report of Dr Chris Grant, consultant psychiatrist, dated 16 May 2019. In that report, Dr Grant stated that he did not think the plaintiff could safely perform her pre-injury duties or employment which would involve dealing with the client who had caused her so much anxiety. He also noted that the plaintiff was then suffering from “apparent significant financial burdens and worries attached to running this pre-injury business, which I do not think she could cope with currently”.[156]
[156]Ex D1, p22
63 In addition to the medical reports referred to above, the defendant relied upon numerous entries in the plaintiff’s medical records, a summary of which is set out below:
(a)a note of a surgery consultation with Dr Darshika Herath dated 8 August 2013, in which it was recorded that the plaintiff had attended that clinic seeking notes of her history regarding a previous back injury which had occurred in 2004. A further note dated 18 August 2013 recorded that there had been a file transfer from another general practitioner but “these notes have not been included”;[157]
[157]Ex D2, p99
(b)a note of a surgery consultation with Dr Jian Ping Peng, on 9 April 2014, in which it was recorded that the plaintiff had attended for a mental health care plan concerning “relationship issues”;[158]
[158]Ex D2, p103
(c)a general practitioner mental health care plan dated 9 April 2014, in which the plaintiff’s presenting issues were recorded as being relationship issues and stress. It was noted that there were “lots of conflict about management” in association with the plaintiff’s business, that the plaintiff slept well, her appetite was fine and that her mood was up and down, although she was upset easily;[159]
[159]Ex D2, p193
(d)a note of a surgery consultation with Dr Peter Semaan, general practitioner, on 6 April 2015 in which it was recorded that the plaintiff had complained of hair loss over the past few weeks. The plaintiff reported that she had been “stressed out but not sure of … the cause … Chronic on and off back pain managed conservatively with physio;”[160]
[160]Ex D2, p105-106
(e)a note of a surgery consultation with Dr Vijitha Satheesan on 19 March 2016, in which it was recorded that the plaintiff was suffering from atypical chest pain lasting for a few seconds and which had happened a “few times last week”. It was noted that the plaintiff was “under a lot of stress/workload/2 hours driving every day”. Dr Satheesan noted a query as to whether or not the plaintiff’s symptoms were due to anxiety. An ECG and blood check were scheduled;[161]
[161]Ex D2, p108
(f)a note of a follow-up consultation with Dr Satheesan on 14 April 2016, in which it was recorded that the plaintiff attended to obtain the results from an echocardiogram. It was noted that the plaintiff’s results were “positive for ischaemia … need further cardiac follow up”. A referral to a cardiologist was made;[162]
[162]Ex D2, p109
(g)a note of a surgery consultation note made by Dr Satheesan on 25 April 2016, in which it was recorded that the plaintiff had attended to discuss the procedure for an angiogram which had been scheduled for her;[163]
[163]Ex D2, p110
(h)a note of a surgery consultation with Dr Satheesan on 30 May 2016, in which it was recorded that the plaintiff attended suffering left knee pain after dancing on the weekend. It was further noted that she had had a fall in February of that year and had experienced pain off and on since then;[164]
[164]Ex D2, p110
(i)a note of a surgery consultation with Dr Satheesan on 17 May 2018, in which the plaintiff was recorded as having attended in relation to “sexual harassment when working, separation from her husband” and “struggled with life events”. It was noted that the plaintiff “has [a] new partner”. It was also noted at the time that the plaintiff preferred to see counsellor, Ms Emily Burton. Dr Satheesan made a note that the plaintiff had left work in December 2017 and had been on Centrelink since March 2018. He also noted that the plaintiff presented with right knee pain when bending, which had been present for the past three months;[165]
[165]Ex D2, p116
(j)a note of a surgery consultation with Dr Satheesan on 20 June 2018, in which the plaintiff attended with a “request to write a letter to human rights” concerning “alleged sexual harassment since Dec 2016 & went on until December 2017”. In the note, Dr Satheesan recorded that the plaintiff had continued to work:
“… as she needs the money / under lot of financial pressure and put up with the harassment and continued to work
…
feels stressed out and angry
gets upset when the symptoms of anxiety are triggered by the memories
feel like used and her trust on men gone
feel like unable to work in an environment where men work
feel guarded, if some speak to her friendly feel anxious agitated and in fear they are going to take advantage over [her]
some times wakes up in the night and think about what happened last year.
not feel depressed
events coming back to her mind/ hindering her progress + move on in her life
with anxiety her heart races fast, sweaty hands and nervousness
not able to concentrate when feel that way
sense of danger
seeing the counsellor two weeks ago.”[166]
[166]Ex D2, pp117-118
[sic]
(k)a note of a surgery consultation with Dr Satheesan on 17 August 2018, in which it was recorded that the Human Rights Commission was still working on the plaintiff’s complaint and that she needed to go to Court in relation to an intervention order involving her ex-husband;[167]
[167]Ex D2, p256
(l)a note of a surgery consultation recorded by Dr Satheesan on 30 August 2018, in which the plaintiff was recorded as attending because she was emotionally teary and upset and also in relation to right-knee pain. The note recorded that the plaintiff was soon to move into her partner’s new place at Mount Eliza and that her ex-husband had an intervention order against her, with Family Court involvement. It was noted that the plaintiff’s Human Rights complaint had not been successful and that the plaintiff was suffering from right elbow pain. The reasons for the plaintiff’s visit were noted as follows:
(i) right tennis elbow;
(ii) right knee pain;
(iii) stress;
(iv) feel anxious;[168]
[168]Ex D2, pp118-119
(m)a note of a surgery consultation with Dr Satheesan on 26 September 2018, in which it was recorded that the plaintiff had seen her lawyers, who had “recommended to have [an] MRI of her back … trying to claim work cover claim + also addressing her harassment issues as well”. The note recorded the plaintiff was suffering from right elbow pain, right knee pain, and lower back pain on the right side of the lumbar back which had been intermittent since 2004 when an injury had occurred. It was recorded that the plaintiff’s back pain had flared up in the last year “due to her work in car detailing”. It was recorded that the plaintiff was suffering from right knee pain, and wondered whether this was associated with her back pain;[169]
[169]Ex D2, p119
(n)a note of a surgery consultation with Dr Semaan on 18 October 2018, in which it is recorded that the plaintiff was suffering from symptoms associated with a left middle finger ganglion and had also attended to discuss the results of an MRI scan of her lumbar spine. It was noted that the plaintiff was intending to pursue a WorkCover claim in relation to her lumbar spine “as it is related to work cover injury”;[170]
[170]Ex D2, pp120-121
(o)a note of a surgery consultation with Dr Satheesan on 30 October 2018, in which it is recorded that the plaintiff provided information in relation to the client who had allegedly sexually harassed her between 2017 and 2018. She reported that there had been workplace harassment/bullying since September 2016. She reported that she was suffering from lower back/elbow/knee pain, “all on the right side”;[171]
[171]Ex D2, p121
(p)a note of a consultation with Dr Erica Hu on 18 December 2018, in which it was recorded that the plaintiff had twisted her left ankle while dancing on the previous Saturday night, that she was then slightly limping and had mild swelling to the ankle;[172]
[172]Ex D2, p21
(q)a note of a further consultation with Dr Erica Hu on 8 January 2019, in which it was recorded that the plaintiff had:
“twisted left ankle again 10 days ago
worsening of ankle pain
…
able to [weight bear] but limping
…
likely sprained ankle.”[173]
[173]Ex D2, p21
(r)a note of a surgery consultation with Dr Satheesan on 11 February 2019, in which it was recorded that the plaintiff was suffering from injuries to her right elbow, right knee, and low back pain. It was noted that she was seeing a physiotherapist for her low back pain and right knee pain. It was noted that she was “still seeing … [lawyers] for her work cover claim”;[174]
[174]Ex D2, p123
(s)a note of a surgery consultation recorded by Dr Yun Chen Sun on 18 April 2019, in which it was recorded that the plaintiff was asking for a mental health care plan as recommended by her lawyer “to corroborate the impact of sexual harassment claim … [the plaintiff] is making against her previous employer”.It was also recorded that the plaintiff asked for a WorkSafe certificate of capacity and that as part of the legal case, “her lawyer has advised her to make a worksafe claim also for her physical injuries”. Dr Sun noted that “I have never seen … [the plaintiff] for any of these injuries and cannot complete this capacity assessment/claim form adequately”;[175]
[175]Ex D2, pp125-126
(t)a note of a surgery consultation with Dr Alexandra Naiss on 29 April 2019, in which it was recorded that the plaintiff attended with a history of depression/anxiety and stress. The plaintiff reported having been sexually harassed and bullied while at work. It was noted that her marriage had been affected and she had been separated from her husband. She reported poor sleep, anxiety, relationship problems and financial problems. She was diagnosed as suffering from depression, anxiety and stress;[176]
[176]Ex D2, p126
(u)a note of a surgery consultation with Dr Satheesan on 2 May 2019, in which it was reported that the plaintiff attended for a WorkCover certificate in relation to her sexual harassment case at work. It was noted that the plaintiff then reported feeling anxious and depressed. It was said that her motivation had been low and that her sleep was “up and down … it depends on the day”;[177]
[177]Ex D2, pp126-127
(v)a letter dated 22 July 2019 from Ms Petti Tsoudis, clinical psychologist, to Dr Alexandra Naiss, in which Ms Tsoudis recorded that the plaintiff had presented to her with:
“Major Generalised Anxiety Disorder (current themes pertaining to workplace bullying and sexual harassment at own business last year and subsequent legal challenges, relationship and divorce) and Major Depressive Disorder.”[178]
[178]Ex D2, p309
Ms Tsoudis also recorded that there was no prior history of mental illness and that the plaintiff had reported that:
“… her symptoms commenced when she was allegedly sexually harassed and bullied at her workplace … that she found these behaviours by her clients particularly stressful and anxiety provoking. … [The plaintiff] reported the stress evoked from her clients’ behaviours had impacted on her marriage. Her third husband had a current Intervention Order against … [the plaintiff]. This third husband also apparently had his own psychiatric difficulties. Other stressors included current relationship issues, settlement challenges with former husband (up until recently) and nil employment since the alleged abuse last year … .”[179]
[179]Ex D2, p309
(w)a session note by Deidre Voss dated 13 September 2019, in which Ms Voss recorded that the plaintiff was –
“Currently with another partner - Robert - works at RACV cleaning … currently relationship anger issues … I have done so much for these men and I give and give and I just get abused by them.”[180]
[180]Ex D2, p45
(x)a further session note by Deirdre Voss dated 4 October 2019, in which Ms Voss recorded that the session:
“… centered on partner (no sex as he is a Christian and does not believe in sex before marriage). No plans on marrying as … [divorce] is not finalised.
Upset at partners assumptions that his friends can just come and stay and that she must cook, clean and entertain them as he works 3 jobs …
Suggested couples counselling - clients partner seeing another Psych at BBC next week Client has sent an email to psych outlining her concerns.”[181]
(y)a note of a surgery consultation recorded by Dr Amanda Tan on 7 October 2019, in which it was recorded that the plaintiff attended for a persistent cough which she had had for three months. It was noted that her “boyfriend” was “unwell with similar”.[182]
[181]Ex D2, p43
[182]Ex D2, p129
Other relevant documentation
64 The defendant also relied upon a “Placement Report” and a “Worksite Assessment” from CAC.
65 In the Placement Report dated 8 August 2019, it was noted that the plaintiff had advised of a professional contact she had regarding a limousine hire business and requested that CAC place a “reverse marketing contact call to the Director, to enquire as to any positions that may be available”. It was noted that subsequent to this contact, the plaintiff had been offered employment with Pristine Limousine Hire, working as a sales and marketing officer commencing employment for a minimum of fifteen hours weekly on 8 August 2019, “with a view to ramping her hours within the next 3-4 months”. The report noted that the plaintiff advised “she is thrilled to be working once again and is looking forward to commencing work with Pristine Limousines”.[183]
[183]Ex D1, p34
66 In the Worksite Assessment dated 13 August 2019, it was noted that the plaintiff had reported the following matters:
“Symptoms:
· no reported symptoms.
· … her stress and anxiety has reduced since commencing employment.
· … her sleep quality and quantity has also improved in recent weeks and she reported no concerns with concentration or motivation.
Cognitive Function:
· Memory: reported as not affected.
· Concentration/Attention: reported as not affected.
· Judgment: reported as not affected.
Current Treatment:
· … No current treatment … she [attends] an Optometrist to review her eye health as required.
Current Medication:
· No reported medication.” [184]
[184]Ex D1, p36
The issues
The Plaintiff’s credit
67 As has been set out above, the plaintiff was extensively cross-examined about all aspects of her evidence, including her medical history, the consequences which are said to have been caused by the workplace incident and the details and consequences of numerous other stressful incidents which the plaintiff acknowledged had been part of her personal history.
68 In written submissions, counsel for the plaintiff urged the Court to find that the plaintiff was a witness of credit, and to conclude that during cross-examination, she attempted to answer all matters truthfully, “notwithstanding some evasion under cross examination, mostly with regard to the issue of her re-partnering. She was otherwise forthright and co-operative …”.
69 In a written submission, counsel for the defendant submitted that the plaintiff should not be accepted as a reliable witness. It was submitted that –
“… [the] flow on effect from a finding [the] the plaintiff is unreliable is that the consequences the plaintiff deposes to in her Affidavits must be scrutinised and supported with corroborating objective evidence. Further, the medical opinions based on the histories given by the plaintiff should be given reduced weight in light of her unreliability as a witness.”
70 For the reasons set out below, and having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an unreliable witness who gave unsatisfactory and inconsistent evidence, carefully designed to advance her case. It became clear during the course of the hearing, that the plaintiff was only prepared to make concessions about factual matters adverse to her case if confronted with documents which recorded what she had said previously about those matters. On some occasions, even when confronted with these documents, she was not prepared to make a concession. The authors of these documents were not required to attend for cross examination.
Analysis of the evidence and findings
71 An analysis of key parts of the evidence appears below, together with the findings I have made in relation to these issues Where the plaintiff’s version of events differs from that recorded in the various medical and other records, I prefer the evidence contained in those documents, viz:
(a) as a result of the cross examination, it became clear, and I find, that at the time of the workplace incident, the plaintiff had for many years been suffering from stress and anxiety which required medical treatment;
(b) for instance in a report dated 2 May 2019, Dr Chris Grant, clinical psychiatrist, noted that the plaintiff has suffered from “long term sleep difficulties with nightmares, vocalising and broken sleep … she said she has one recurrent dream for over 20 years … ”.[185] Similarly, on 9 April 2014, a mental health care plan was prepared for the plaintiff. In the medical records, the need for this intervention was recorded to be in relation to “relationship issues”. The diagnosis at this time was “… relationship issues. Stress.”[186] Under cross-examination, the plaintiff said that this “… was to do with the franchise, that’s where all my stress was coming from …”.[187] She agreed under cross-examination that in April 2015, she was so “stressed out” that she was suffering from hair loss. The relevant note recorded that the plaintiff was then suffering from “chronic on and off back pain …”.[188] She explained that this too, was due to problems with the franchise;[189]
[185]Ex P1, p34-35
[186]Ex D2, p103
[187]T52
[188]Ex D2, pp105-106
[189]T54
(c) in addition, the plaintiff agreed that in March 2016, she was suspected by her doctors to be suffering from ischemic heart disease. The note recorded “atypical chest pain …; few times last week … under lot of stress/workload/2 hours driving every day …”. Her presentation was recorded as being “? due to anxiety”.[190] She was required to undergo an angiogram to investigate this condition, and this also caused her great stress. She agreed that at the time, she was suffering from chest pain and breathing problems;[191]
[190]Ex D2, p108
[191]TT57-58; Ex D2, p108
(d) under cross-examination, the plaintiff agreed, and I find, that none of the issues set out above were related to the workplace incident;[192]
[192]TT55 and 57-58
(e) the plaintiff was cross-examined about other stressful events which she had experienced between 2017 and 2019. These included:
(i) financial pressure associated with the fact that the franchise was not doing well;[193]
[193]See for example T24-26
(ii) the departure from the franchise of her employee Lyn, which left her trying to manage the business on her own;[194]
[194]T27
(iii) the breakdown of her marriage to her third husband;[195]
[195]TT33-34
(iv) the fact that her former husband had left her with significant debt;[196]
[196]T34; see also history obtained by Dr Chris Grant: ex P1, pp33-34
(v) the fact that her former husband took out an intervention order against her;[197]
[197]T66
(vi) concerns over arguments in her relationship with Robert,[198] together with his “anger issues”;[199]
[198]T33. Note that the plaintiff denied that she had these concerns; however, the medical records noted and the plaintiff agreed that it had been suggested to her that she and Robert undertake “couples counselling” – TT49-50
[199]T83; see also Ex D2, p45
(vii) emotional distress concerning the termination of her complaint to the Human Rights Commission;[200] and
[200]TT64-65
(viii) emotional upset concerning pre-existing orthopaedic injuries to her right knee, right elbow and lower back;[201]
[201]T68; see also a note made by Dr Satheesan which recorded that the plaintiff had experienced back pain intermittently since 2004: Ex D1, p119
(f) the overwhelming weight of the medical evidence is, and I find, that between 2017 and 2019, the plaintiff consistently complained to various health practitioners of one or all of the following matters:
(i) concerns about financial difficulties related to the franchise and the debts she was carrying;
(ii) difficulties with her interpersonal relationships including the breakdown of her relationship with her former husband;
(iii) concerns about her health;
(iv) concerns about the failure of her franchise business;
(v) concerns about the orthopaedic injuries to her elbow, knee and lower back; and
(vi) concerns over the harassment and bullying which are the subject of the incident;
(g) I find that on some occasions when she was consulting a health practitioner, the plaintiff did not mention anything about the harassment and bullying arising out of the workplace incident.[202] I find that on other occasions, the circumstances of the workplace incident was one of a constellation of issues that was raised by her with those treating her;[203]
[202]See for example report of Mr Peter Scott dated 25 March 2019: Ex D1, pp7-8; see also note of surgery consultation with Dr Semaan dated 18 October 2018: Ex D2, pp120-121
[203]See for example notes of medical consultations with Dr Satheesan dated 30 August 2018: Ex D2, pp118-119 and 26 September 2018: Ex D2, p119; see also report of Dr Grant dated 2 May 2019: Ex P1, p37; report of Ms Deidre Voss dated 5 July 2020: Ex P1, p39, and report of Ms Emily Burton dated 12 June 2018: Ex D1, p4
(h) an examination of the medical records reveals, and I find, that on at least two occasions, the plaintiff told health practitioners that the circumstances of the workplace incident led to the breakdown of her marriage and caused her financial problems.[204] In her affidavit material, she deposed that she had no ongoing psychological health problems prior to the incident.[205] She also reported this fact to Ms Petti Tsoudis, clinical psychologist.[206] In her affidavit material, she deposed that the orthopaedic injuries she was suffering in her elbow, knee and back arose as a result of being hit with a Stop/Slow sign by Frank at work,[207] and that she was no longer able to participate in ballroom dancing because of her psychological injuries.[208] It is evident from the evidence as it emerged under cross-examination, and I find, that each of these statements was incorrect;
[204]See note of a surgery consultation with Dr Alexandra Naiss dated 29 April 2019: Ex D2, p126; see also letter from Ms Petti Tsoudis to Dr Naiss dated 22 July 2019: Ex D2, p309
[205]Ex P1, p13
[206]Ex2, p309
[207]Ex P1, pp16-17
[208]Ex P1, pp18, 20 and 22
(i) in addition to the matters set out above, the plaintiff was extensively cross-examined about the fact that up until 2019, she was investigating making a WorkCover claim in relation to injuries to her back, neck and elbow. A note of a surgery consultation with Dr Yun Chen Sun dated 18 April 2019 recorded that on that date, the plaintiff requested a mental health care plan “as recommended by her lawyer to corroborate the impact of sexual harassment claim … [the plaintiff] is making against her previous employer …”.[209] At that stage, it is recorded that on the recommendation of her lawyer, the plaintiff also intended to make a claim in relation to her “physical injuries”;[210]
[209]Ex D2, pp125-126
[210]Ex D2, pp125-126
(j) in pursuit of the claim in relation to her physical injuries, the plaintiff was examined for medico-legal purposes by Mr Peter Scott, senior consultant surgeon, in respect of orthopaedic issues said to be work related, which were then adversely impacting the plaintiff’s right elbow, right knee and her back. The resulting report is dated 25 March 2019. As set out above, in that report, Dr Scott noted that as a result of her orthopaedic injuries, the plaintiff was restricted in her ability to dance, which she used to enjoy. I interpolate here that the plaintiff does not seem to have reported to Dr Scott, though it is evident from the medical records, and I find, that she had been ballroom dancing until at least December 2018, when she suffered a twisted ankle, for which she sought treatment in December 2018 and again in January 2019.[211] Dr Scott noted that the plaintiff had ceased all employment in May 2018, which he related to the discomfort she was then suffering in her elbow and knee.[212] There is no history within the report from Dr Scott of any work-related psychological issues, though he did note that the plaintiff’s major disability “appears to be related to non-organic … anxious or frustrated reaction”;[213]
[211]Ex D2, p21
[212]Ex D1, pp7-9
[213]Ex D1, pp12-13
(k) by contrast with what she told Dr Scott in March 2019, in her affidavit sworn 26 August 2019, the plaintiff swore that she then had no major ongoing physical health problems.[214] In addition, she swore that her inability to pursue her dancing hobby, was due to psychological factors. By the time this matter came on for hearing, the plaintiff no longer complained about any issues with her neck or elbow, which she said were “in remission”;[215]
(l) the plaintiff was also cross-examined extensively in relation to her present relationship with a man by the name of Robert. The plaintiff vehemently denied being in any intimate or sexual relationship with Robert, saying that he was just her “business partner” and that she was presently working for him as a chauffeur/limousine driver. However, an examination of the medical records demonstrates that on numerous occasions to numerous health providers, the plaintiff had described Robert as being her “boyfriend”[216] and “partner”.[217] In addition, at times the notes record that she had discussed the issues she had with the sexual relationship (or lack thereof) between herself and Robert.[218] When pressed in relation to these matters, the plaintiff insisted that her relationship with Robert was purely a business one, but at times gave answers which were clearly inconsistent with this position. For instance when asked about her difficulties with having a sexual relationship with Robert, she replied: “We’re not even up to that stage anyway ... .”[219]
[214]Ex P1, p13
[215]T81, L16-18
[216]See for example Ex D2, p129
[217]See for example D2, pp43, 45, 116, 118-119
[218]Ex D2, p43
[219]T47
Consequences
72 It in her affidavit material, the plaintiff asserted that the following were consequences of the workplace incident:
(a) a loss of enjoyment of day-to-day activities, including ballroom dancing and gardening;
(b) a loss of pleasure in running her business and an inability to sustain alternative work;
(c) difficulty socialising, a loss of self-esteem and confidence in herself and a loss of trust in people;
(d) difficulties with concentration and motivation;
(e) rumination on the circumstances of the incident;
(f) interrupted sleep, nightmares and panic attacks;
(g) the need to take pain-relieving medication for ongoing issues with her elbow, knee and back as a result of being hit by Frank with the Stop/Slow sign at work; and
(h) suffering from anxiety and depression.
73 By comparison, under cross-examination, the plaintiff agreed that she is now back at work, and if the pandemic had not intervened, would be moving forward with driving a limousine and organising that business. She agreed that she lives with her friend Robert and her son and said that she takes no medication for her psychological difficulties
74 Further, as set out above, the plaintiff agreed that in August 2019, “maybe” she had reported “no symptoms” to the assessor at CAC and that she had told that organisation that:
(a) her stress and anxiety had reduced since commencing employment as a limousine driver;
(b) that her sleep quality and quantity had improved; and
(c) that she reported no concerns with concentration or motivation.[220]
[220]T83
75 The plaintiff said that she “might have said” those things because she wanted approval to begin work as a limousine driver.[221]
[221]T84
76 I reject the plaintiff’s evidence in relation to this matter. I find that the assessor at CAC faithfully recorded what the plaintiff reported at that time. I find that the plaintiff reported those matters to the assessor at CAC, because they were true. This finding is consistent with the evidence given by the plaintiff in cross-examination that she was “thrilled” to be working again and feels “much better” now she is working.[222]
[222]TT 79-80
77 I note that in May 2019, the plaintiff told Dr Chris Grant that gardening was one of the activities that she enjoys.[223] She made a similar statement to Dr Walton in July 2020.[224] I make a finding consistent with this evidence. I have already made findings as to the fact that the plaintiff was still ballroom dancing up until at least December 2018, and ceased this activity in the context of a twisted ankle. I have already found that prior to the workplace incident, the plaintiff suffered from years of interrupted sleep and nightmares. I have set out above the evidence that underpins my finding that the plaintiff’s sleep quantity and quality have now improved. I have set out above the evidence that underpins my finding that the plaintiff no longer has difficulties with concentration and motivation. I have referred extensively to the evidence which underpins my finding that the plaintiff’s orthopaedic injuries were pre-existing at the time that Frank hit her with a Stop/Slow sign at work. Given her admitted ability to travel with strangers for long distances in a very small vehicle, I find that any difficulties which the plaintiff has with socialising or interacting with strangers has somewhat abated.
[223]Ex P1, p35
[224]Ex P1, p48
Did the Plaintiff suffer a compensable injury?
78 As a result of this analysis, disregarding the consequences of the pre-existing stress, anxiety and orthopaedic injuries from which the plaintiff suffered, I am satisfied on balance, that the plaintiff is presently suffering from an aggravation of her pre-existing stress and anxiety, in the form of a condition described by Dr Walton as Mixed Anxiety and Depression. I find that this condition, described by Dr Walton as “not … very disabling” has resulted in some social inhibition, rumination about the workplace incident, and possibly some panic attacks. It is evident from the records which I have analysed above, and I find, that these conditions arose as a result of a constellation of issues, only one of which was the harassment and bullying which the plaintiff had experienced during the workplace incident.
79 As such, apart from the rumination about the workplace incident, on the basis of the evidence before me I am unable to be satisfied to the requisite standard, that the workplace incident caused any of the consequences I have referred to above.
Is the compensable injury permanent for the purposes of the Act?
80 Having regard to the totality of the evidence in this matter (including the plaintiff’s viva voce evidence, the disclosures which she made to the assessor at CAC as to her recent improvement, and the opinions of Ms Voss[225] and Dr Satheesan as to the prognosis for the plaintiff),[226] I am unable to be satisfied to the requisite standard that the Mixed Anxiety and Depression which the plaintiff suffered as a result of the workplace incident (if any), is permanent for the purposes of the Act.
[225]Ex P1, p41
[226]Ex P1, p43
Are the consequences of the Plaintiff’s workplace injury “severe”?
81 Given the finding I have made as to whether the compensable injury is permanent for the purposes of the Act, I am not required to go further and analyse whether the consequences suffered by the plaintiff as a result of the workplace incident are “severe”; however, for the sake of completeness, I make the following observations.
82 In Haden Engineering Pty Ltd v McKinnon,[227] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[228] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[229]
[227](2010) 31 VR 1
[228](Supra) at paragraph [9]
[229](Supra) at paragraph [12]
83 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was not a reliable witness. I have made extensive findings as to the extent of the consequences from which the plaintiff presently suffers.
84 As set out above, I am satisfied, on balance, that the plaintiff is presently suffering from Mixed Anxiety and Depression, resulting in some social inhibition, rumination about the workplace incident, and possibly some panic attacks. Notably, there has been no relevant hospitalisation, significant psychiatric treatment or medication, any evidence of the more serious psychiatric symptoms, such as suicidal ideation or attempts, or other psychotic symptoms.
85 Having regard to the principles set out above, together with the observations made by the Court of Appeal in Papamanos,[230] had I been required to decide that matter, I would have been unable to be satisfied that consequences of the mental or behavioural disturbance or disorder from which the plaintiff presently suffers as a result of the workplace incident are “severe,” even if I was satisfied that each and every one of those consequences was related to the workplace incident. Therefore, I am not persuaded that the plaintiff has satisfied the relevant test for “serious injury” as set out in the Act.
[230](ibid) at paragraph [44]
Conclusion
86 For the reasons set out above, the application is dismissed.
87 I will hear the parties on the question of costs.
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