Coates v State of Victoria
[2018] VMC 10
•24 OCTOBER 2018
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. G11341230
| JANICE COATES | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 23 - 25 MAY & 8 - 9 OCTOBER 2018 |
DATE OF DECISION: | 24 OCTOBER 2018 |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | COATES v STATE OF VICTORIA [2018] VMC010 |
REASONS FOR DECISION
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Catchwords: Rejection of claim: Psychiatric Injury – Plaintiff employed as a teacher at Sale College from 2008 to 2015 – assertion that she was subjected to stress, pressure, abuse, criticism, harassment, bullying and a lack of appropriate consultation regarding class allocations. Defence: injury did not arise out of or in the course of her employment at Sale College – employment between 2008-2015 was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury – if an injury was sustained it was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner: S 40 Workplace Injury Rehabilitation & Compensation Act 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | John McCristal Injury Lawyers |
| For the Defendant | Ms Myers (23-25 May) | Minter Ellison |
Mr Richards (8 - 9 October)
HIS HONOUR:
1 Ms Coates is 64 years of age and was employed as a teacher by the defendant from 2 February 1976 and for the purposes of this proceeding at Sale College between 7 April 2008 and November 2015.
2 Ms Coates alleges that throughout the course of her employment at Sale College she was subject to stress, pressure, abuse, criticism, harassment, bullying and lack of appropriate consultation regarding class allocations which resulted in her sustaining injury in the form of anxiety and depression.
3 Ms Coates lodged 3 claims for compensation, being on 1 December 2015, 28 July 2016 and 21 October 2016 all of which were rejected by the defendant on the grounds that she did not sustain an injury within the meaning of the Act, or if she did, her mental injury was of a type that does not create an entitlement to compensation.
4 In particular, by way of a Claim Form dated 30 November 2015, Ms Coates alleged that: “periodically since commencing at Sale College, have suffered degrading and humiliating treatment. After due process was followed and finalised, 2016 class allotments were changed to my detriment, allowing harassment and bullying of myself to the point of my mental breakdown”. She nominated the date of injury as being 17 November 2015. In her Claim Form dated 28 July 2016, Ms Coates alleged that: “ongoing harassment and bullying over the course of employment”. She nominated the date of injury as being 17 November 2015 and over course of employment. In a Claim Form dated 21 October 2016, she alleged that: “pressures, stresses, abuse, criticism and lack of consultation” as a cause of her injury with the date of injury being 17 November 2015 and over course of employment.
5 By way of a Further Further Amended Notice of Defence dated 30 January 2017, the defendant specifically denies liability on the basis that;
(i) Ms Coates did not suffer an injury which arose out of or in the course of her employment between April 2008 and November 2015;
(ii) Ms Coates employment with the defendant between April 2008 and November 2015 was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease; and
(iii) If she suffered an injury arising out of, or in the course of her employment, or to which her employment was a significant contributing factor (which is denied), any such injury was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner on behalf of the defendant.
6 At the outset, it should be noted that Ms Coates lodged a previous WorkCover claim on 13 September 2000 for anxiety/depression whilst employed as a teacher at Bairnsdale Secondary School. The court was informed that she ceased work on 6 September 2000 because of her condition and was able to return to work on 8 December 2000. Her claim was rejected on 18 October 2000, but she ultimately received compensation in accordance with the Act because of a Conciliation Recommendation on 7 February 2001.
7 Ms Coates gave evidence that she began her teaching career in 1976 at Doveton Technical School teaching Maths and Science classes from Junior school to Physics and Chemistry at the Senior level. She told the court that she then took maternity leave for a total of 8 years until 1994 before commencing work at Bairnsdale Secondary School. She said the Principal at that time was John Butler who was replaced by Jim Rowley in 1998-9.
8 Ms Coates told the court about several incidents that occurred whilst she was teaching at the school. Firstly, she said that in September 2000 she lodged a WorkCover Claim as a consequence of intervening in an assault of a student by an intruder and having property stolen from her car. She said that when she returned to work in December 2000 the issue had not been resolved by the Principal, Mr Rowley. She told the court that he in fact raised an issue with her that a complaint had been lodged by a parent about the way she was treating a student. She told the court that Mr Rowley put her on “misconduct” even though a full and proper investigation had not taken place. The second incident involved her son who had commenced his schooling at Bairnsdale Secondary School in 2001. She said that he was a victim of bullying and despite her complaints to the Vice Principal, Mr Blackley, she did not consider there was a satisfactory outcome. The third incident occurred in August or September 2004 when she said that she was “hip and shouldered” into a wall by the son of the Principal. She told the court that the student was not forced to apologise to her nor was any disciplinary action taken against him.
8 Ms Coates gave evidence that during Term 1 2008 she had decided to leave Bairnsdale Secondary because of these incidents and the way in which she was being dealt with by the Principal. She said that even though she only lived 5 minutes away from the Bairnsdale Secondary School she decided to apply for a position at Sale College which was 45 minutes away with a resultant drop in salary of approximately $10,000 because of going from a Leading Teachers salary to an Experienced Teachers salary. Ms Coates told the court that she commenced work at Sale College in Term 2 after applying for a position as Professional Development and Staff Co-Ordinator which was a Leading Teacher role. However, she said that once she began she was only paid at the rate applicable as an Experienced Teacher rather than that of a Leading Teacher.
9 Ms Coates told the court that Sale College is split into two campuses, 3 km apart, with the Junior campus, years 7-9, having approximately 400 students and 35 staff and the Senior campus, years 10-12, having approximately 350 students with 35 staff. Ms Coates gave evidence that when she commenced Mr Felstead was the Director who was responsible for both campuses. She told the court that Mr Staple was Principal of the Senior Campus. She said that she taught Maths and Science to years 8 and 9 and Physics at the Senior level.
10 Ms Coates said that during term 2 in 2009 she was spoken to by Mr Felstead about a complaint that had been made concerning her teaching methods in the year 11 Physics class. Apparently, the criticism of her focussed on class control and her attempts to teach a student who was having difficulty understanding fractions. Ms Coates told the court that Mr Felstead told her that the student would be ‘dux’ of the school in 2010 and as she was not helpful to her she would be relieved of her teaching duties in Physics for the remainder of the year.
11 Ms Coates also recounted an incident that occurred in 2012 when she attempted to tell Mr Felstead and Mr Staple of the problems she had experienced at Bairnsdale Secondary School as she believed what had occurred at Bairnsdale was being “carried over” at Sale College. When asked to elaborate, she told the court that there were incidents of sexual harassment at Bairnsdale and staff being treated badly by other staff and the Principal. She said that when she attempted to tell Mr Felstead and Mr Staple about this, Mr Felstead said; “I do not need to hear about that” and he “turned his back on me” and Mr Staple just said; “it must have been a toxic workplace at Bairnsdale”.
12 Ms Coates also recalled an incident in 2015 where she complained to Mr Felstead about how much school work she had to do at home and he replied; “everyone cries time poor-just get over it”.
13 Ms Coates told the court that although work performance reviews are conducted twice a year at Sale College by either Mr Felstead or Mr Staple, she never received a poor review and her results were always satisfactory.
14 Ms Coates gave evidence that in October or November 2014 she was in poor health in that she was experiencing “high stress levels” and on a date whilst at school, “felt her heart racing” and had “difficulty breathing” which resulted in her undergoing tests at the Bairnsdale Hospital. She also recalled an incident in late 2014 where she fell in the canteen and injured her back.
15 Ms Coates told the court that by 2014 she had been at the school for 6 years and had enjoyed teaching with her colleagues but did not have a satisfying relationship with the Principal. She said that she applied for approximately 10 other teaching jobs and had an interview for one of them (other evidence indicates that she applied for these positions in 2011). She said that Mr Felstead knew of her applications and said to her; “ever since you have been at this school you have been having a holiday”. Ms Coates said that she was “gobsmacked” by his statement.
16 Ms Coates also recalled an incident in 2014 where Mr Felstead asked her to be a mentor for a new teacher which she agreed to do but he then gave the mentoring role to another teacher, Mr Telford, who was the son-in-law of Mr Blackley who was the Principal of Bairnsdale Secondary School and whose son had assaulted her at that school. She told the court that this was insulting as she was more experienced than Mr Telford and he was only given the role to be “fast tracked”.
17 Ms Coates gave evidence that in 2015 her teaching allocation was Physics, Year 12 Maths Methods and Year 10 Science. She said that Mr Felstead’s daughter was a pupil in the Year 10 class and that there were three girls that she had difficulty controlling of which his daughter was one. She said that as part of the teacher review process four students were interviewed including Mr Felstead’s daughter and students were also interviewed in her Year 12 Maths Methods class, which she said was unusual as the normal process only involved a review by one class. She said that she was told that she received a poor review by the Year 10 class but a favourable review by the Year 12 class. Ms Coates told the court that Mr Felstead said that she “did not have the background to teach Year 10 Science and that she was not interested in teaching it”. Ms Coates said that Mr Felstead had told her during a Folio meeting at the end of the first semester that she needed to improve her teaching methods in the Year 10 Science class. She said that she felt “insulted” by his comments and that a decision was made to allocate the Year 10 Science class to another teacher for the remainder of the year. She told the court that despite Mr Felstead suggesting that she improve her teaching methods, there was no plan devised as to how she was to achieve it. In cross examination, she also indicated that she found it difficult dealing with another teacher’s child and particularly so when the parent of the child is the Principal.
18 Ms Coates told the court that at the end of Term 1 2015, she consulted Dr Lindstedt because she was unsure whether she would be able to return to work because of her mental state. He recommended that she take anti-depressant medication and that she discuss her issues with Mr Felstead. She said that she did not consider either of these suggestions “would fix the problem”.
19 Ms Coates said that although apprehensive, she returned to work in Term 2 and spoke to Mr Felstead about work pressures including her workload, but he responded by saying; “everyone complains about workload”. She said that she did not speak to Mr Staple about the issues because “no one would listen”. She told the court that she saw Dr Lindsdet again at the end of Term 2 and told him the issues remained unresolved and once again he recommended that she take anti-depressant medication which she was not prepared to do.
20 Ms Coates told the court that she returned to work in Term 3 and learnt that the Maths Co-Ordinator who had been absent due to illness in Term 2 was not well enough to return to work in Term 3. She said that she was “unofficially” allocated her Maths Method class but also volunteered to teach a Year 11 Physics class at the same time as they were without a teacher. During cross examination, she agreed that the Physics teacher had prepared tasks for the class for each period but stated that because the teacher was inexperienced he had used her notes which included a lesson by lesson layout and she was unofficially mentoring him. She stated that they taught the class “collectively” and “collaboratively”. Ms Coates agreed that her Maths class only had 10 students as did the Physics class and the classrooms were situated diagonally across from each other.
21 Ms Coates said that during 2015 she did preparatory work to teach Year 12 in 2016 which included professional development for a change in the study design for the subject Maths Methods. She told the court that she was the only teacher at the school to attend the seminars on that subject although other teachers attended seminars on other subjects. During cross examination, she agreed that it was not appropriate for all teachers to attend the professional development seminars on the study design changes having regards to the costs and time involved and agreed that she was responsible for reporting to the other Maths teachers as to the nature of the changes. She said she also attended professional development in relation to Years 11 & 12 Maths and Physics. She said her attendance at the seminars was approved by Mr Felstead and she also did professional development sessions online.
22 Ms Coates gave evidence that as the Maths Co-Ordinator was absent on sick leave, Mr Felstead approached the relevant staff to work out the appropriate teaching allocations for the 2016 year which had to be finalised by October to align with the introduction of the new Headstart Program which was due to commence on 23 November. Ms Coates said that two of the other staff asked her to work out the teaching allocations on behalf of all because she would do it, “fairly and equitably”. Ms Coates told the court that she spent hours on the task on behalf of all the Maths & Science teachers, so it would be a “right fit” for both teachers and students. She said that she displayed her suggested allocations on a table in the staff room and distributed her suggestions to all teachers by email and requested they comment and respond to her proposals. Ms Coates said that no objections were raised. She said that she did not favour her own preference when allocating classes and subjects. She told the court that she did not receive any feedback from Mr Felstead for approximately 10 days. She said that over this period she also learnt how to operate the new ED Rollo program that was being introduced which is a program to allow students to self-test in all subjects. She said that according to the ED Rollo program she was scheduled to teach Maths Methods in 2016, which she believed had been entered by Mr Staple. In cross examination, she disputed that the 2016 timetable had not been finalised at that stage notwithstanding that the program had her allocated to teach Year 12 Maths Methods in 2016. She told the court that her belief was that she would be teaching Year 12 Maths Methods as that was her allocation on the ED Rollo program.
23 Ms Coates told the court that Mr Felstead eventually approached her and told her that her suggested allocations would have to be altered including relieving her of her allocated Maths class which he said was to be allocated to Mr Ryan Telford. She said that this surprised her as Mr Telford had not requested that class and she would not have allocated it to him in any event as he had not attended the professional development seminars on the subject and had not done the ED Rollo training on the subject. Ms Coates said that Mr Felstead said to her that she was “standing in the way of Ryan’s progress”. She also said that Mr Felstead informed her that she was to be allocated Year 10 Science. She said that this also surprised her as he had previously told her that she “did not have the background to teach Year 10 Science and that she was not interested in teaching it”.
24 Ms Coates gave evidence that the actions of Mr Felstead were “insulting” and occurred at the “eleventh hour”. She said that she had worked so hard to ensure a fair allocation and that he unilaterally changed her allocations without any discussion with her. She told the court that she said to him; “you are in charge and there are consequences” and then walked out in tears. In cross examination, she agreed that ultimately it was Mr Felstead’s decision to set class allocations for the following year after he considered the feedback forms and the suggested allocations prepared by her. She also agreed that she had not been given the task of teacher allocations for 2016 and that not all her colleagues had asked her to undertake that task. Ms Coates also agreed that teacher/subject/class allocations is a major task as it involves 70 staff and 700 students. She also agreed that there was no guarantee given or expected as to what the final allocations would be. Ms Coates agreed that Mr Felstead only made 3 changes to her suggested allocations and that he spoke to her about those changes and the reasons for them as well as offering her a choice of classes. When asked if her response to the changes was one of ‘anger’, she stated; “I can’t keep doing this anymore, I was physically and mentally exhausted, I thought I may do something I would regret” and that included being “violent”. She ultimately agreed that her emotion was one of ‘anger’ and said that she had “reached the end of my tether”.
25 Ms Coates said that she could not arrange a quick appointment with Dr Lindsdet, so she attended the Bairnsdale Hospital for treatment as she felt suicidal. Ms Coates told the court that she was referred to Dr Uebergang, Psychologist as she was experiencing sleep disturbance, a lack of concentration, blankness and tearfulness. She said that because of her proximity to Bairnsdale Secondary School whenever she saw students it was a constant reminder of the problems she had experienced there.
26 Ms Coates told the court that in November or December 2016, she had a meeting at the Bairnsdale RSL Club with Mr Staple and a teacher from Sale College and she invited Ms Lembridge a former Bairnsdale Secondary School colleague. Ms Coates said that she told Mr Staple and Ms Daff about what had occurred at both Bairnsdale Secondary School and Sale College. She said that Mr Staple asked Ms Lembridge “is all of this true?” Ms Coates said that her reaction to his statement was; “I felt that they still do not believe me”. When Ms Lembridge said that it was true, Mr Staple responded by stating that; “I cannot believe it could happen in a school”. Ms Coates said that she has had no further contact with Sale College since that meeting. She said that she has not continued to receive treatment from Dr Uebergang as the counselling sessions upset her too much.
27 In relation to outside activities, Ms Coates informed the court the she and her husband own a 1000-acre cattle property at Buchan with 150 breeding cows and 4 horses for which they have a significant debt. She said she attends the property on weekends and does minimal work on it apart from driving the vehicle and taking telephone messages. She told the court that her income as a teacher supplemented the income they earn’t from the property. Ms Coates said that since ceasing work her symptoms have improved but there are many triggers that still upset her. She said that she suffers from a lack of energy, poor concentration, is forgetful and suffers from sleep disturbance and occasional nightmares relating to personalities at Bairnsdale Secondary School. Ms Coates told the court that she is unable to return to work as a teacher at her previous schools or elsewhere including a private school because of her symptoms and the likely triggers that will cause her condition to deteriorate.
28 During cross-examination, Ms Coates told the court that she had consulted doctors at the Bairnsdale Medical Clinic and Paynesville Medical Clinic for her anxiety/depressive condition. She agreed that when she started work at Sale College in 2008 it felt as though “a weight had been lifted from her shoulders”. When questioned as to the lack of medical notes concerning any complaint about stress at work between 2008 and 2015 she said that it was “difficult to make appointments” to see her doctor. She disputed that Mr Felstead did in fact listen to her complaints about what occurred at Bairnsdale Secondary School and that he told her “it was a fresh start” and that those problems will not occur at Sale. Ms Coates agreed that she had several problem students in her Year 11 Physics class in 2009 and that she dealt with them by sending them to the co-ordinator. She also agreed that several complaints had been made against her by parents of the class but disputed that she had been counselled by Mr Staple regarding methods to engage the students in that class. Although she disputed that there was no improvement in the students’ behaviour, she agreed that another teacher was allocated to take the class.
29 Ms Coates agreed that she was one of several teachers who was approached to mentor a trainee teacher but disputed the suggestion that it was never confirmed that she would be given that task when it was subsequently allocated to someone else. She also agreed that she had applied for other teaching jobs in 2011 after only being at Sale College for 3 years which included; Leading Teaching roles at Maffra and Orbost; Principal positions at Primary Schools; and, a Senior Advisors position with the Education Department. She agreed that one of her referees for these positions was Mr Felstead and told the court she believed he may not have given her a favourable reference because he had previously said that; “ever since you have been at this school you have been having a holiday”. She agreed that Mr Felstead had previously told her that her chances of obtaining some of the positions was remote because she did not have recent leadership experience.
30 Ms Coates agreed that Sale College had a Staff Performance Management System in place which was comprehensive and covered areas including: peer observation and feedback, professional learning, ‘Principal Walks’, data analysis and self-reflection. She also agreed that all this information was provided in Folio form and given to teachers at the end of each semester and would be discussed between the teacher and either Mr Staple or Mr Felstead. She told the court that in 2015 she chose to have her meeting with Mr Staple and not Mr Felstead as suggested to her as she wished to discuss what she considered to be her excessive workload. She did agree that her workload out of a maximum 20x75 minute teaching periods was 16 which meant she had 4x75 minute free periods during the week which is the regulated maximum loading. She also agreed that the ‘Principal Walks’ involved the Principal in attending a particular class and selecting 4 of the students to go on a ‘walk’ and answer questions about their learning experience in that class, the quality of it and whether their goals were being met. She agreed that this feedback was also included in the Folio for discussion with the Principal. Ms Coates told the court that Mr Felstead undertook the ‘Principal walk’ with two of her classes, those being her Year 10 class and her Year 12 Maths Methods class. She agreed that he did the ‘walk’ with both classes in “fairness” to her because she had received negative feedback from the Year 10 students but positive feedback from the Year 12 students. She agreed that she told Dr Grant, Psychiatrist, who assessed her for the defendant on 16 December 2015, that she was “fuming” about Mr Felstead taking four of her Year 12 students out of class because it “interrupted their study”.
31 Ms Coates agreed that she volunteered to do additional work at the school which included being on various committees and undertaking the teaching allocation for 2016. She said that she was “devastated” on 17 November 2015 when Mr Felstead told her that he had relieved her of teaching the Maths Methods class for 2016. She agreed that he also had to discuss other changes he had made with other teachers at that time. Ms Coates agreed that she felt that she had been “back stabbed and undermined” by Ryan Telford and Ms Crisp and agreed that she told Dr Grant that she was “just cross with work and people giving her crap and that she was angry”.
32 Ms Coates gave evidence that she saw Dr Uebergang on 5 occasions between 10 December 2015 and 4 February 2016 and then on one occasion in 2017. She told the court that she did not find the sessions helpful as she was forced to “re-live the Bairnsdale experience”. Ms Coates gave evidence that since ceasing work she has completed some ‘online’ courses to maintain her teacher registration and has also studied the Year 12 Physics course to “keep her mind from shutting down”.
33 Ms Coates agreed that when she was reviewed by Dr Grant on 16 November 2016, she told him that she was “angry” that Mr Felstead had been promoted to the position of a Senior Advisor with the Department and that Mr Staple had been promoted to Senior Principal. She also agreed that when she underwent a further review by Dr Grant in February 2018, that she was really “angry” with the Department.
34 Mr Felstead gave evidence on behalf of the defendant and a statement he made on 16 December 2015 to an investigator was tendered. He told the court that he was employed as the Director of Sale College when Ms Coates commenced employment in 2008 as a classroom teacher. He said that he was aware that Ms Coates had some issues when she was employed at Bairnsdale Secondary College as he had spoken to Mr Rowley, the Principal at Bairnsdale about them and Mr Rowley had indicated to him that “a fresh start may help her”. In cross examination, he agreed that Mr Rowley had told him that they were not going to renew her Leading teacher role at Bairnsdale because she was not fulfilling the school’s expectations. Whilst agreeing that it was important for him to know this, he told the court that it did not colour his judgement of her as her role at Sale was that of a classroom teacher and not as a Leading teacher. He also agreed that he had been told that Ms Coates had issues with the Principal at Bairnsdale but that he did not ask for specifics and was told that she was a solid classroom teacher. He said that he was not told that she had been placed on a misconduct charge, he had not read her personnel file, was not aware of how her complaints had been dealt with at Bairnsdale and was unaware that she had difficulties with Mr Blackley’s son whilst teaching at Bairnsdale. Mr Felstead recalled that Ms Coates had spoken to him on several occasions whilst employed at Sale College about the problems she had experienced at Bairnsdale Secondary College. He said that whilst he was sympathetic to what had occurred his response to her was that it had occurred in the past and that she needed to “move on”. He told the court that Ms Coates had classroom management issues in the Junior campus and she was moved to the Senior campus. During cross examination, Mr Felstead told the court that he could not recall the circumstances surrounding Ms Coates being relieved of teaching her physics class in 2009 but indicated that it would have only occurred if there had been several complaints made by students and parents.
35 Mr Felstead said that both he and Mr Staple conducted ‘Principal Walks’ for all staff to obtain feedback from students. He told the court that in March 2015, four students from Ms Coates year 10 science class volunteered to participate in the ‘Principal Walk’ with him, one of which was his daughter. He told the court that their feedback was quite negative, so he and Mr Staple decided it would be appropriate to conduct a ‘Principal Walk’ with her year 12 Physics or Further Maths class for which they received positive feedback. He said that he discussed the feedback with Ms Coates which was a non-judgemental discussion which enabled her to reflect on the feedback from the students. During cross examination, he told the court that he did not have an issue with his daughter being one of the four students who participated in the year 10 ‘Principal Walk’. However, he did concede that because two of the four students who volunteered were part of the disruptive group in that class it may have cast doubt on the validity of the process. He told the court that he did not have an issue with the process as Ms Coates was ultimately given the opportunity to reflect on the feedback from both the year 10 and year 12 classes. He agreed that the feedback reflected the teacher’s competence but said that it was a “balanced scorecard” as all students are surveyed online each semester with the teachers given the results to reflect on.
36 Mr Felstead gave evidence that he was a Referee for Ms Coates when she made applications for external leadership positions. He told the court that he indicated to her that she may not be successful because she had not acted in any leadership roles over the past five or six years. He said that he was never contacted and assumed she never made it to the interview stage for any of the positions that she applied for.
37 Mr Felstead disputed that he had directly approached Ms Coates to mentor a student-teacher because of her engineering background and then placed that student-teacher with another teacher because of his engineering background. He said that it was the practice of the school to send an email to five or six teachers to see if they were willing to mentor a student-teacher and they would place the student-teacher with the teacher they considered to be the ‘best fit’.
38 Mr Felstead gave evidence that Ms Coates was relieved from teaching her year 11 Physics class. He said that Mr Staple had spoken to him about the difficulties she was having with that class which was a class she had previously taught in the junior campus. He said that the issues that had occurred whilst she was teaching them previously had not resolved and a decision was made by Mr Staple, with his approval, to take the class off her.
39 In cross examination, Mr Felstead gave evidence that he could not recall Ms Coates complaining to him at the end of term two in 2015 about workload issues but agreed that if she did he may have responded as she alleged by stating; “everybody’s time poor”. He agreed that in his statement to the investigator he had said; ‘I think parts of her practice have been deteriorating in the last three years or so which means we started to notice more issues and complaints from kids and parents’.
40 Mr Felstead told the court that in approximately October 2015, he approached the Science/Maths teachers to prepare their proposed teaching roster for 2016. He said that although the roster would be prepared by the teachers there were several variables to consider and the roster they proposed was not ‘set in stone’. He said that he understood that Ms Coates prepared the roster on behalf of the other teachers in that department which was then discussed by him with Mr Staple. He told the court that they made changes to it as it did not consider the fact that a teacher from the Junior campus was to move to the Senior campus and that Mr Telford, who had taught the year 11 Maths Methods class was not allocated to teach the same class in year 12. Mr Felstead said that the changes they made were not seen to be critical of Ms Coates although they were aware that any changes they made would disappoint some of the teachers.
41 During cross examination, Mr Felstead agreed that he had Ms Coates proposed 2016 allocations for approximately 10 days during which he had discussions with Mr Staple. He told the court that both he and Mr Staple did not believe Ms Coates would accept the changes “very well” and they decided to arrange a meeting with her to explain the reasons why the roster had to be changed. He said that because her allotments had changed they gave her two options to consider in relation to her class allocations for 2016. He said that she was going to think about it overnight and let them know which option she preferred. He said that Ms Coates responded by saying; “You’re the boss, you make the decisions” and then left the meeting. In cross examination, he could not recall if the changes made included Ms Coates being allocated a year 10 Science class for 2016 but agreed that he had previously indicated to her that science was not her strength. Mr Felstead told the court that Ms Coates has not returned to work since that meeting occurred. He said that he was very surprised with her reaction and although he thought she would be disappointed he did not believe that she would react the way she did.
42 Mr Staple gave evidence on behalf of the defendant and a statement made by him to an investigator on 16 December 2015 was tendered. Mr Staple told the court that he is currently employed as the Director of Sale College and was previously the Principal of the Senior campus during the period of Ms Coates employment. He said that Ms Coates was initially employed on the Junior campus as a classroom teacher. He said that she was not employed as a Leading teacher. He also said that when she commenced employment he was not aware of any background issues at Bairnsdale Secondary College but over time she mentioned those issues to him which included the issues that she had with Mr Rowley, the Principal at Bairnsdale. Mr Staple told the court that the specific details of the alleged incidents said to have occurred at Bairnsdale were only bought to his attention when he had a meeting with Ms Coates at the end of 2016. In cross examination, he denied saying to her, “I do not care”, when she attempted to speak to him about her problems at Bairnsdale and denied that he told her that he had never spoken to the Bairnsdale teaching staff about her.
43 Mr Staple said that Ms Coates was moved to the Senior campus from the Junior campus as she was having issues with students in the Junior school. He also told the court that in 2009 she was having student management issues with her year 11 Physics class whereby several students were refusing to attend her class resulting in complaints being made by parents. He said that the school worked with her over a six-month period to try and address these issues and because he was concerned that the class could not continue into year 12 he decided to make a change in teacher allocation. He said that this did not have any performance consequences for her and he did not perceive that she had any concerns over the way the matter was dealt with. Mr Staple also told the court that he was a Referee for Ms Coates, at her request, in her applications for external positions, but he was never contacted to provide a reference.
44 Mr Staple also recalled an incident in Ms Coates year 10 science class where both he and Mr Felstead witnessed her slamming a student’s books down on the student’s desk for which she required counselling.
45 Mr Staple confirmed that he and Mr Felstead conducted “Principal Walks’ and that in 2015 Ms Coates received negative feedback from her year 10 science class so he and Mr Felstead decided, to be ‘fair’ to Ms Coates, that they would also seek feedback from her year 12 class. He told the court that their feedback was much more positive. Mr Staple said that ‘online surveys’ are also completed by all students about their teachers and the survey results in conjunction with the ‘Principal Walks’ allow teachers to reflect on the feedback they receive from students which is balanced against other reviews that take place throughout the year. He told the court that all this information is discussed at Folio meetings with teachers. He agreed that it would be difficult not to take negative feedback personally.
46 Mr Staple gave evidence that the proposed 2016 teacher allocations as prepared by staff are never “set in stone”. He said that both he and Mr Felstead considered the proposed allocations and decided that alterations needed to be made which was then conveyed to Ms Coates by Mr Felstead. Mr Staple said that he was surprised by Ms Coates reaction to the changes. In cross examination, he agreed that there was a delay in the administration responding to the suggested 2016 allocations and he understood that Ms Coates was ‘surprised’ that the changes resulted in her being relieved of teaching VCE Maths Methods in 2016 and the class being allocated to Mr Telford, who had close connections to Mr Blackley and Bairnsdale Secondary College. Mr Staple told the court that he met with Ms Coates in 2016 about a possible return to work but said it was obvious to him that she did not intend to do so. He said that it was at this meeting that she informed him of the specific allegations concerning matters that had occurred at Bairnsdale Secondary College prior to her commencing at Sale College. In cross examination, when questioned about his statement to the investigator where he said; “knowing her fragility”, he said this was based on the ‘book slamming incident’ and his general observations of her over a period.
Medical Evidence
47 Ms Coates tendered medical reports/records from Mr Senn, Psychologist, who assessed her on 12 October 2000, Ms Mottram, Psychologist, who provided a report to her former lawyers dated 25 January 2001, Dr Lindstedt, General Practitioner, Latrobe Regional Hospital records, Eastwood Family Clinic records (Bairnsdale), reports from Dr Uebergang, Psychologist, dated 7 March 2016 and 7 May 2016 and a medico-legal report from Dr Kaplan, Psychiatrist, dated 25 November 2016. The defendant tendered medical reports from Dr Grant, Psychiatrist, dated 16 December 2015, 16 November 2016 and 15 February 2018.
48 The report from Mr Senn relates to incidents said to have occurred whilst Ms Coates worked at Bairnsdale Secondary School. Mr Senn recorded that the source of irritation was that Ms Coates had $850 stolen from her car and was frustrated that the culprit was not caught, and she did not recover the money. He also reported that there had been several “conflict incidents” between Ms Coates, parents and the Principal which caused her to be more susceptible to feelings of depression and resentment and she was particularly concerned about the lack of support she received from the Principal whilst she was “under attack” from one family. Mr Senn noted that Ms Coates motivation to continue teaching at the school was severely diminished. He also reported that Ms Coates walked out of the school on 6 September 2000 and apparently the Principal alleged that her teaching “was not up to scratch” and was not prepared to support her claim.
49 Ms Mottram reported that she first saw Ms Coates on 5 October 2000. She obtained a history from Ms Coates concerning the circumstances of the theft of money from her car, her son’s interaction with the suspected culprit and Mr Blackley’s and Mr Rowley’s handling of the situation. Ms Mottram diagnosed that Ms Coates was suffering from an adjustment disorder with mixed anxiety and depressive reaction. Ms Mottram noted that it was likely that Ms Coates may experience a recurrence of symptoms if situations that bear similarity to the events leading up to her illness occur during her work in the future.
50 The relevant entries in the medical records of the Paynesville Medical Centre indicate that Ms Coates attended on 2 April 2015 and told Dr Lindstedt that she was not coping with problems at work as she was having difficulties with disciplining a few girls, one of which was the Principal’s daughter and she felt unsupported and being made to feel a poor teacher. Ms Coates told Dr Lindstedt that she was tearful and lacked concentration and felt that she was incapable of returning to work unless changes were made. Dr Lindstedt also obtained a history from her that she had previously experienced problems with a Principal at her former school (Bairnsdale) and his treatment of staff.
51 At a subsequent attendance on 29 June no mention was recorded of any ongoing stress related issues but on 9 July a notation was made that she was in tears again at the prospect of the new term commencing. The medical records from the Eastwood Family Clinic (Bairnsdale) indicate that Ms Coates attended at 11.52 a.m. on Wednesday 18 November 2015 and saw Dr Kaushik. Dr Kaushik recorded the following history: Patient has a long history of workplace bullying. She walked out of her job yesterday and did not return today. Today she has come in the consultation room with a letter describing all the events and is breaking down (crying) constantly during the history taking. She is having suicidal thoughts but is not taking any action. She had the same thoughts in 2000 but did not reveal them. No attempts in past. Has not slept all day and night since yesterday. Also feels like harming people from her workplace (has specifically mentioned names – Jim Rowley, Ian Hall and Doug Vickers). Dr Kaushik recorded that he called Latrobe Psychiatric triage and was subsequently told to refer her to the Emergency Department at the Hospital.
52 The records from the Latrobe Regional Hospital indicated that Ms Coates presented on 18 November 2015 at 1.05 p.m. and appeared distressed and depressed with suicidal thoughts and had thoughts about “hitting the Principal” after an argument. The records indicate that she provided a history of workplace bullying over 15 years, felt worthless and felt there was nothing she could do. A detailed history was obtained from Ms Coates which stated: Janice has been employed as a teacher since 1977. Moved to Bairnsdale in 1978 and was employed at Bairnsdale Secondary College. Janice stated that she was constantly bullied, prevented from being promoted, placed on misconduct and often questioned people of authority with concerns over financial discrepancies she had noticed with the school accounts of which she still has record of. In the year 2000 Janice had a breakdown, was diagnosed with PTSD and off on workcover. On her return to work Janice was promoted to Head of Mathematics. Janice reports the bullying continued in the form of being sworn and yelled at, inappropriate sexual advances and continuing harassment of not only herself but other teachers. Janice left that school in 2008 and commenced working at Sale College but lost her position as the Head Maths teacher six years ago. Janice feels that the bullying is still continuing. After an altercation with the principal today over an incident and feeling that she had been backstabbed by other staff members. Janice left the principal’s office very upset and angry. Janice reported that she was so angry “she could of punched him”. Ms Coates was referred to her local doctor to consider a mental health plan.
53 On 27 November 2015, Ms Coates attended the Paynesville Clinic and told Dr Lindstedt that she was having more problems at school, was depressed, agitated and was anxious. She told him that things had come to a head by a recent event where she had organised class allocations for her department in lieu of the absence of the Head Teacher and the Principal changed the allocations whereby she felt undermined, insulted, belittled and felt she was accused of discriminating against some of the teachers. On 4 January 2016, Ms Coates told Dr Lindstedt that she could not resume work and that her claim had not been accepted.
54 In a report to the Accident Compensation Conciliation Service dated 5 March 2016, Dr Lindstedt stated that Ms Coates suffers from reactive anxiety/depression due to longstanding feelings of injustice, being belittled, undermined and undervalued at her workplace. He reported that these feelings had been increasing over the past 12 months but were exacerbated by the events in November 2015. He noted that she had felt similar distress at her previous school when she was diagnosed with post-traumatic stress disorder. Dr Lindstedt also noted that Ms Coates problems at that time improved with a change of school and she felt that she was reasonably well until her present problems begun approximately 12 months ago.
55 In a report to Ms Coates lawyers dated 20 March 2016, Dr Lindstedt noted that with the time away from school Ms Coates problems have slowly settled and she had begun re-engaging in her normal family recreational activities. By February 2017, Dr Lindstedt reported that Ms Coates condition had not changed although her symptoms of anxiety and emotional distress reappear if confronted by work related events such as accidental meetings with old workmates, legal or official paperwork or being in the vicinity of her workplace. In a further report to her lawyers on 8 July 2017, Dr Lindstedt stated that Ms Coates condition had not changed in that she continued to become tearful, distressed and anxious when reminded of adverse work events by flashbacks, unexpected contact with past colleagues or proximity to past workplaces.
56 Ms Coates tendered medical reports from Dr Uebergang, Psychologist dated 7 March 2016 and 17 May 2016. Dr Uebergang reported that she saw Ms Coates on referral from her general practitioner on 24 November 2015. She stated that Ms Coates attended 5 counselling sessions between that date and 4 February 2016 and diagnosed that she suffered from an adjustment disorder with mixed anxiety and depression.
57 Dr Uebergang obtained a comprehensive history from Ms Coates in relation to incidents said to have occurred at both Bairnsdale Secondary School and Sale College. Although not directly relevant to the current claim, the incidents said to have occurred at Bairnsdale Secondary School included; the money stolen from her car in 2000; alleged sexual misconduct towards her by the Principal and another teacher whilst she was on an interview panel in 2003; being inappropriately kissed on the lips by the Principal in 2005; and, being called a ‘little bitch’ and ‘little slut’ by the Principal in 2007.
58 The incidents said to have occurred at Sale College include; the Director not being interested in her explanation as to why her medical history recorded that she had experienced depression; the Director not being interested in her aspiration to be involved in the leadership programs and then being demoted resulting in a pay decrease of $10,000 per annum; and, many incidents that occurred in the classroom involving poor student behaviours which were interpreted by the management as a reflection of her inability to manage her classes appropriately.
59 In a subsequent but almost identical report to Ms Coates lawyers dated 17 May 2016, Dr Uebergang also noted that she was told by Ms Coates that prior to leaving Bairnsdale Secondary School she had advised the District Liaison Principal and the Regional Director of Education of her experiences at the school, but neither were prepared to deal with those issues.
60 Ms Coates tendered a medico-legal report from Dr Kaplan, Consultant Psychiatrist, dated 25 November 2016 following his assessment of her on 23 November 2016. He obtained a detailed and comprehensive history from Ms Coates of the numerous issues she alleged had contributed to her mental condition at both Bairnsdale Secondary School and Sale College.
61 The history of issues arising at Bairnsdale Secondary School included: the new Principal, Mr Rowley rejecting an application for a pay increase by the teachers; the failure of Mr Rowley to support her in her dispute with a disruptive girl in class who was the daughter of Mr Blackley, who at that time was a School Council member and who later became the Vice-Principal of the school; a belief that she was ‘targeted’ because she was an older member of staff and assertive; the undermining of her and other teachers by Mr Blackley by giving them troublesome students and then using their inability to deal with those students as a performance issue; the failure of Mr Blackley to adhere to the Code of Conduct which Ms Coates and others had established; the ‘rigging’ of school Council elections by Mr Blackley; the department’s failure to act on an alleged theft of school funds by Mr Rowley and Mr Blackley; and, the inappropriate sexual behaviour and derogatory comments directed to her by Mr Rowley.
62 The history given to Dr Kaplan of issues that arose at Sale College were:
a. Mr Rowley had in some way undermined her with Mr Felstead, the Director at Sale College. She alleged that Mr Felstead was giving her “strange looks”;
b. Mr Felstead was critical of her in failing to deal with a troublesome student in her Year 11 Physics class;
c. In 2009, Mr Felstead removed her as the teacher of the year 11 Physics class without being prepared to discuss the reasons with her;
d. later, in 2015 Mr Felstead allocated that class to her despite previously believing she was incompetent to teach it;
e. despite applying for leadership positions within the school, she was not granted any interviews;
f. Mr Felstead was not prepared to discuss the issues she had experienced whilst teaching at Bairnsdale Secondary School;
g. in 2015, she was harassed by the Principal after having difficulties with his daughter in her year 10 science class;
h. the Principal conducted “Principal walks” with two of her classes;
i. the Principal criticised her teaching of the year 10 science class inferring that she was ‘useless’;
j. Mr Felstead was unsympathetic regarding her concerns about excessive workload;
k. in 2013, she was overlooked for the position of Head of Mathematics and a less experienced teacher was given the role;
l. she was assigned to teach a year 11 Physics class and a year 12 Maths class simultaneously;
m. she was required to approach the Principal, Mr Staple when discovering that the Head of the Maths Department had falsified the results of her own son; and
n. after arranging the teaching allotments for 2016, Mr Felstead took the Maths Methods class from her and allocated it to Mr Blakley’s son-in-law who happened to be the husband of the student who had been disruptive in her class at Bairnsdale Secondary School.
63 Ms Coates also told Dr Kaplan that Mr Rowley, the former Principal of Bairnsdale Secondary School had retired but is now employed as a Maths teacher at the school and that a former physical education teacher, Mr Hall is now Principal of Bairnsdale Secondary College and Mr Staple is Principal of Sale College. Ms Coates told Dr Kaplan that the Principals in the area support each other and therefore nothing can be done to resolve the issues. She said that although her condition has improved, any reminder of her school experiences brings back stressful memories. She said that she has lost trust with the Education Department and any media reports about workplace bullying causes intense fears of anxiety. She said that she experiences sleep disturbance, that her memory and concentration have been affected and she occasionally experiences nightmares.
64 Dr Kaplan opined that Ms Coates became increasingly anxious and depressed because of the alleged victimisation and bullying to which she was subjected over a prolonged period where she felt humiliated and undermined. He diagnosed her as suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Kaplan expressed the opinion that she does not have a capacity to return to work with the Department of Education but may be capable of a graduated return to work in a private school with a supportive work environment and where she is not subjected to any significant pressure, harassment, bullying or victimisation.
65 Dr Grant initially assessed Ms Coates on behalf of the defendant on 16 December 2015, approximately four weeks after she ceased work. Dr Grant obtained a history from Ms Coates that included; she had experienced ‘15 years of crap with the Department’; she had a stress injury claim after a misconduct/performance notice was issued to her in 2000 and missed a term of work in that process and ‘was never the same again’, which was compounded by theft of $950 from her car at work; she was subject to sexual comments from the Principal at Bairnsdale and believed that he was ‘hitting on me’; she regarded the Principal at Bairnsdale as a ‘workplace sociopath’; that when she started at Sale the Principal there was ‘not interested in hearing about the problems at Bairnsdale’, which upset her; she thought that at Sale, ‘the benefit of the doubt was given to students, and I cop it’; that in 2009 she was taken off a year 11 Physics class because of alleged underperformance and poor student results and considered that action to be ‘a slap in the face for me’; she believed that ‘other teachers were given preferential treatment’; she felt better about 18 months ago when the Principal ‘listened to me about what happened at Bairnsdale’ and regarded herself as being in good health because ‘for the first time I was getting somewhere’; at the end of term one 2015 she had an incident with the Principal’s daughter in class; she thought that she was being singled out regarding the ‘Principals Walk’ and was ‘fuming’; she received positive feedback from the Principal regarding her maths methods class but was criticised in relation to her year 10 Physics class and regarded the Principal’s comments as ‘a total insult to me’; the Principal made a comment to her at the end of term two about ‘improving my teaching’, which angered her; she thought she was being asked to ‘pick up the pieces’ with taking on classes when other teachers left; she felt ‘devastated’ on 17 November when the Principal informed her that he was taking the maths methods class off her; she said she was surprised, protested and said; ‘that’s it’.
66 Ms Coates told Dr Grant that she did not believe that she could go back to work at Sale College because she felt ‘backstabbed and undermined’ by the Principal’s decision to take the maths methods class off her. She also told Dr Grant that she was ‘just cross with work and people giving me crap; I’m angry’. Ms Coates told Dr Grant that she did not believe that she really recovered from the incident at Bairnsdale in 2000 and from also being given a misconduct charge by the Principal at Bairnsdale that year.
67 Dr Grant opined that Ms Coates developed an emotional reaction to various management decisions and interactions at schools over the past 15 years and specifically the decision by the Principal at Sale to withdraw her from her preferred teaching allotment for the 2016 year. He believed that she was angry and upset by that decision but was not psychiatrically diagnosable or mentally ill. Dr Grant considered that Ms Coates would be fit for full-time work as a teacher at a different school.
68 Dr Grant reviewed Ms Coates on 16 November 2016 and was provided with various medical records and reports to assist in his assessment of her. He obtained a further history from her that she had not returned to work but had done an online course in disability for her professional development for the Victorian Institute of Teaching and ‘went through the year 12 Physics curriculum’ as a private exercise. She also told him that she had forgotten to tell him at her previous assessment with him that she had felt suicidal at that time. Ms Coates also told Dr Grant that she considered the statement by the Principal contained lies and she had not left Bairnsdale Secondary College because she had lost a leadership position but because she had been called offensive names such as ‘bitch’ and ‘slut’ by the Principal. Ms Coates also told Dr Grant that she had tried to talk to the Principal about these matters but believes she was subject to “crap and crap and crap and crap and I couldn’t take it anymore”. She told Dr Grant that she believed the people at Sale College had been “lying and dishonest about me”. Ms Coates also told Dr Grant that she was required to pick up the slack for another teacher and was taking two classes in one timeslot. She told Dr Grant that the Principal asserted that she had ‘picked on’ a teacher when doing the staff allocations for 2016 which she regarded as ‘bullshit, I’d done it fairly’. Ms Coates told Dr Grant that she is angry that the Principal at Sale had been promoted and that although the new Principal was trying to talk with her, ‘I can’t do it, there’s a couple of people there I want to punch’. Ms Coates also said that she was angry that her former Principal at Bairnsdale was now a maths teacher at Sale College.
69 Dr Grant remained of the view that Ms Coates is not psychiatrically diagnosable or mentally ill, but angry and upset about her alleged experiences over many years with the Department of Education. He stated that because of her anger, upset and loss of confidence and trust in the Department that she is not fit to return to employment at Sale College notwithstanding the absence of Mr Felstead. He considered her fit to engage in occupational rehabilitation with a view to new employment elsewhere having regards to her education, training and experience.
70 At his final review of Ms Coates on 15 February 2018, she told him that in 2017, ‘when I left Sale, I wanted to hit people… I’m a bit more accepting over time… poking along with bits and pieces’. She also said, ‘I can’t get my act together, I guess I’m really angry with the Department, the Department let me down’; ‘I was propping the whole show up at Sale in the last 12 months, with no support. The Principal didn’t have a clue… I knew of misappropriation of funds at Bairnsdale and tried to talk about that with the Principal at Sale, he didn’t want to know’. Ms Coates also told Dr Grant that she still thinks that there has been ‘corruption’ and misappropriation of funds which caused her to grow disillusioned and leave that employment and still feels ‘cranky about the department and the whole setup at Sale’, more so than the Bairnsdale problems. Dr Grant noted that Ms Coates still conveyed a sense of disappointment when discussing her experiences with the Department and he remained of the view that she is not psychiatrically diagnosable or mentally ill, but angry and upset about her alleged experiences over many years with the Department. He does not consider that she requires psychological or psychiatric treatment but considered she would be fit to perform equivalent duties with a different employer.
Conclusion
71 In order to succeed in her claim for compensation, Ms Coates must establish, on the balance of probabilities that she has sustained an injury which arose out of or in the course of her employment with the defendant whilst employed at Sale College between 2008 and 2015. Based on the evidence presented, her claim can also succeed if the evidence supports a finding that her pre-existing psychiatric condition and symptoms has been exacerbated by work related stressors between 2008 and 2015.
72 Even if Ms Coates is successful in establishing the above, she must also answer the assertion of her employer (who bears the onus) that her entitlement to compensation is defeated as her mental injury was caused wholly or predominantly by ‘management action’ taken by them on ‘reasonable grounds’ and in a ‘reasonable manner’.
73 The meaning and application of ‘wholly or predominantly’ was recently considered by Bell J in the matter of Pulling v Yarra Ranges Shire Council [1] where he said;
Under s 40(1)(a), the entitlement to compensation is defeated if the injury is a mental injury caused ‘wholly or predominantly’ by the management action. These words specify a test of causation in terms of whether the management action is the whole cause or the predominant cause of the injury. ‘Wholly’ means ‘entirely; total; altogether ...’, ‘to the whole amount, extent etc’ and ‘so as to comprise or involve all’. Therefore management action can only be wholly the cause where it is the only cause of the injury. The adverb ‘predominantly’ comes from the adjective ‘predominant’, which means ‘having ascendancy, power, or influence over others; ascendant’ and ‘prevailing’. Therefore management action can be the predominant cause where other causes contribute to the injury but that cause is still the predominant cause. As there can only by one predominant cause of management action, a cause that is equally important to another cause or other causes is not a predominant cause. To be the predominant cause, that cause must exceed the other or all other causes combined in power and influence
Whether management action is the predominant cause of the injury where multiple causes are in issue depends upon an evaluation of the proportionate contribution made to the injury by management action on the one hand and the other cause or causes on the other. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case. It has been held that ‘value judgments and policy have a part to play in causation analysis’, and the same is true in a proportionate cause analysis.
[1] [2018] VSC 248 para 79 – 80.
74The evidence given by Ms Coates, if accepted as truthful, indicates that she was subject to numerous stressors over the period of her employment at Sale College.
75 As Bell J said in Pulling [2], it is necessary to consider what Ms Coates ‘perceived’ about her co-workers including Mr Felstead and Mr Staple because, “having regard to the no-fault nature of the workers’ compensation system, that causal connection can be established by a subjective perception that has a real connection with the workplace whether or not it is objectively correct”.[3] At paragraph 65 he also said; ‘An injury may be so caused by reason of a worker’s subjective reaction to events and circumstances actually occurring in the workplace, provided that the reaction ‘has a real connection [with those events] – as distinct from an event [that the worker] simply imagined was connected with [the] employment’.
[2] Para 40.
[3] With reference to cases including St Mary’s School v Askwith [2011] VSCA 90.
76 In relation to the issue of aggravation of a pre-existing psychiatric condition, because of the worsening of symptoms, which of itself can be compensable, Justice Bell noted that, ‘it is necessary to consider the potential overlap between injury, symptoms and consequences because, in the case of psychiatric injuries, as distinct from physical injuries, there may not be a bright line between them’. [4] For Ms Coates to succeed on the aggravation issue, it is necessary for her to establish that her pre-existing psychiatric condition was exacerbated by the work-related stress where her symptoms, also pre-existing, were exacerbated.
[4] With reference to cases including Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626.
77 In general terms, I found Ms Coates tried to give an accurate account of the events that took place at Sale College although at times I found that she deliberately exaggerated the effect that certain incidents had on her then and now and she also gave misleading evidence about other events. In particular, I do not accept as truthful the evidence she gave to the court and the history she provided to doctors;
a. that she applied for and commenced employment at Sale College in 2008 in a Leading Teacher role;
b. regarding the basis for her being removed as the Year 11 Physics teacher in 2009;
c. that Mr Felstead said to her that, “ever since you have been at this school you have been having a holiday”;
d. that she was told that she would be the Mentor of the trainee-teacher;
e. that Mr Staple had said to her, “I do not care”, when she attempted to speak to him about the problems she had experienced at Bairnsdale Secondary School;
f. that she was demoted at Sale College resulting in a pay decrease of $10,000 (history given to Dr Uebergang);
g. that the reason she was removed from teaching the Year 11 Physics class was never discussed with her (history given to Dr Kaplan);
h. that she was ‘assigned’ to teach a Year 11 Physics class and a Year 12 Maths class simultaneously (history given to Dr Kaplan).
i. that she was “fuming” when four of her Year 12 class participated in the Principal Walk because “it interrupted their study”; and
although feeling stressed between 2008 and 2015 she did not attend her doctors because it was “difficult to make appointments”.
78 Ms Coates was quite emotional when giving evidence about the events at Bairnsdale Secondary School and Sale College and when listening to the evidence given by Mr Felstead and Mr Staple. The evidence indicates that at the time she commenced employment at Sale College she was particularly vulnerable based on her asserted experiences at Bairnsdale Secondary School. Her ‘fragile’ state was acknowledged by both Mr Felstead and Mr Staple. Ms Coates was diagnosed as having an adjustment disorder with mixed anxiety and depression by Ms Mottram in October 2000 (as also diagnosed by Dr Uebergang in 2015 and Dr Kaplan in 2016) and importantly, for the purposes of this proceeding, Ms Mottram noted that; “she may experience a recurrence of symptoms if situations that bear similarity to the events leading up to her illness occur during her work in the future”. The situations she was referring to included Ms Coates perception that the Principal and Vice Principal at her previous school had not handled ‘issues’ that arose, appropriately. This is what also occurred at Sale College.
79 The evidence given by Ms Coates and the history given by her to the various doctors identified several issues that occurred at Sale College that she ‘perceived’ were not handled appropriately by either Mr Felstead and/or Mr Staple. These included:
i. their unwillingness to listen to her complaints about what had happened at Bairnsdale Secondary School;
ii. that Mr Felstead had given her “strange looks”;
iii. their lack of compassion regarding her workload;
iv. their undermining of her in her attempts to obtain senior positions;
v. the preferred treatment given by them to other teachers;
vi. the changes they made to the 2016 teacher allocations on the basis that her suggested allocations discriminated against another teacher.
80 In addition, Ms Coates ‘perceived’ that she was being “backstabbed and undermined” by Mr Telford and Ms Crisp and that there was some ‘conspiracy’ between the Principals of Bairnsdale Secondary School and Sale College to her detriment.
81 The evidence given by Ms Coates indicates that she remained deeply troubled by her experiences at Bairnsdale Secondary School throughout the period of her employment at Sale College and at the time she eventually ceased work on 17 November 2015. This is evident by the history she gave to Dr Lindstedt in April 2015, prior to ceasing work and to Dr Kaushik on 18 November 2015, the Latrobe Regional Hospital Emergency Department on the same date and Dr Uebergang on 24 November. However, she was also affected by stressors, both actual and those ‘perceived’ by her during her employment at Sale College. The actual stressors included; the poor review of her teaching given by her Year 10 class; her workload; her failure to obtain promotion; and, her removal from teaching the Year 12 Math Methods class in 2016.
82 I accept and prefer the medical opinions expressed by Dr Lindstedt, Dr Uebergang and Dr Kaplan to that of Dr Grant. Whilst I find that Ms Coates was ‘upset and angry’ about what occurred on 17 November 2015, that event cannot be looked at in isolation. She commenced employment at Sale College in a fragile state and carried that fragility and ‘baggage’ with her during that employment. The stressors at Sale College, ‘real and perceived’ aggravated and exacerbated her pre-existing condition to which her employment was a significant contributing factor. Her condition deteriorated over time with those stressors having a cumulative effect on her mental state. The symptoms she complained of as having occurred in October/November 2014 and her need to attend Dr Lindstedt in April 2015 and July 2015 together with his recommendation that she take anti-depressant medication is indicative of a deterioration in her mental condition.
83 There is no issue that the changes made to her suggested teacher allocations in 2016 by Mr Felstead and Mr Staple constitutes ‘management action’ pursuant to S 40(7) of the Act. I find that her mental injury did not occur ‘wholly or predominantly’ as a result of the ‘management action’ taken by her employer. Her symptoms were manifest in April 2015 and July 2015, hence the need for her to attend Dr Lindstedt. The notification to her on 17 November 2015 of the changes to her suggested 2016 teaching allocations aggravated and exacerbated her condition and ‘tipped her over the edge’ but it was not the sole cause or predominant cause of her mental injury. The employer has failed to establish that her mental condition did arise wholly or predominantly from the management action undertaken by them. Accordingly, I am not required to conduct an analysis of the ‘management action’ as was required in Krygsman-Yeates v State of Victoria.[5]
[5] 4 November 2011.
84 I am therefore satisfied that Ms Coates sustained an injury which arose out of or in the course of her employment at Sale College. She is entitled to compensation in accordance with the Act.
85 On the basis of the work restrictions placed on her by Dr Kaplan and the symptoms she continues to experience, I find that Ms Coates has been incapacitated for all employment since 17 November 2015. She has no current work capacity which is likely to last indefinitely.
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