Damianopoulos, Dimitra v Tsoulakis, Pericles

[2009] VCC 1619

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-02858

Dimitra Damianopoulos	Plaintiff
v
Pericles Tsoulakis (T/A Pericles Cleaning	Defendant
Services)

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	5,6 & 12 November 2009
DATE OF JUDGMENT:	21 December 2009
CASE MAY BE CITED AS:	Damianopoulos, Dimitra v Tsoulakis, Pericles
MEDIUM NEUTRAL CITATION:	[2009] VCC 1619

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – s5 and s8 – whether plaintiff a “worker” - s134AB(16)(b) - pain and suffering – psychological injury sustained during assault while plaintiff working as a cleaner

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.W. McGarvie	Nowicki Carbone
with Mr M.J. Ruddle
For the Defendant	Mr J. Batten	Wisewould Mahony
HER HONOUR:

1 At the commencement of the hearing, counsel for the plaintiff indicated that the plaintiff’s application was for leave pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) to commence proceedings to recover damages for pain and suffering only pursuant to the definition of “serious injury” contained in paragraph (c) of sub-section 134AB(37) of the Act. The claim relates to an assault sustained by the Plaintiff while working as a cleaner at the Kilsyth Primary School on 7 August 2006. She was attacked by an assailant in the cleaner’s room at the school, and was pushed to the ground, pinned down and punched in the face before the attacker ran away. An ambulance was called and she was taken to hospital. She has not worked since.

2 Pursuant to s.59B of the Accident Compensation (WorkCover Insurance) Act 1993, the Victorian WorkCover Authority took over the conduct and proceedings of this trial on behalf of the defendant and conducted the defence of the proceedings in the name of the defendant and on the defendant’s behalf.

3          Counsel for the defendant said it would make no submission contrary to the plaintiff’s contention that she has established that she has suffered “a permanent severe mental or permanent severe behavioural disturbance or disorder” [1] arising out of or in the course of her employment. In addition, counsel for the defendant said it would make no submission contrary to the relief sought by the plaintiff in her application.

[1] See pagagraph (c) of the definition of serious injury in s. 134AB(37) of the Act

4          It was not disputed that Pericles Cleaning Services receives work from Academy Cleaning Services Pty Ltd (“ACS”) and that Pericles Tsoulakis contracts that work out to others on a subcontract basis. Similarly, it was not disputed that this work included the contract for cleaning the Kilsyth Primary School on 7 August 2006.

5 The only matter in dispute before me was whether or not the plaintiff, at the time of the assault at the Kilsyth Primary School on 7 August 2006, was a “worker” pursuant to section 5 and/or section 8 of the Act who was employed by (or contracted to) the Defendant as employer/principal. In the factual matrix before me, the question is whether the plaintiff was performing work at the school pursuant to a contract with the defendant, or pursuant to a contract with her own daughter, Nicoleta Damianopoulos. The parties agreed that the evidence led by the plaintiff was totally inconsistent with that called by the defendant. The issue as to who were the parties to the relevant contract depend largely on which version of events is accepted by the Court.

6          The defendant contends that his mother, Samantha Tsoulakis, made sub- contracting arrangements on his behalf with Nicoleta Damianopoulos, pursuant to which the plaintiff performed work at the school on 7 August 2006. The plaintiff submits that the better view of the evidence is that the contract was made between the plaintiff and the defendant through the agency of the defendant’s mother, Samantha Tsoulakis.

7          Pericles Tsoulakis said at the hearing that his mother set up the registered business, Pericles Cleaning Services, on his behalf while he was still at school. During 2005 and 2006, his mother would make all the arrangements on his behalf and would help him out.[2] He said that he went along with arrangements made by his mother[3] and that he gave his mother authority to do whatever was needed to help him out[4]. He accepted that he had given his mother authority to make arrangements for other people to do the work and to pay them[5]. When asked what Pericles Cleaning Services did when they needed additional labour, he said:

We pretty much do it ourselves. We contract it out. If we do need labour, we’ll contract it out.

[2]             See Transcript pp. 76, 87 and 96

[3]             See Transcript p. 96

[4]             See Transcript p. 80

[5]             See Transcript p. 96

8          Pericles Tsoulakis gave evidence that in 2006 he did not ever speak to or, through Pericles Cleaning Services, enter into a sub-contract relationship with Nicoleta Damianopoulos[6]. However, he said that his mother, Samantha Tsoulakis “organised and made the arrangements with Nicoleta” and that he had given his mother the authority to make such arrangements on behalf of Pericles Cleaning Services. He said he was not present when any such arrangements were made. Nicoleta Damianopoulos confirmed in her evidence that she had never spoken to Pericles Tsoulakis. His evidence that his mother made the arrangements with Nicoleta Damianopoulos is therefore based on hearsay from his mother.

[6]             See Transcript p. 79

9          On the issue of authority, Samantha Tsoulakis gave evidence to the same effect as her son, namely that she had authority to engage labour or sub- contractors for her son Pericles, under the name of Pericles Cleaning Services[7].

[7]             See Transcript p. 111

10        The issue as to whether or not the defendant, through the agency of his mother, entered into contractual relations with the plaintiff on the one hand or Nicoleta Damianopoulos on the other depends upon whether the Court prefers the evidence of Samantha Tsoulakis to that of the plaintiff, her husband and their daughter.

11        The plaintiff’s evidence was to the following effect. She has known Samantha and Pericles Tsoulakis for a number of years. She and her husband had done work for them on a number of occasions, filling in for them when they were away. For example, they did some work for them at the Sandhurst Golf Club for a few weeks in late 2005, and some work for a few days cleaning offices in Clayton. The plaintiff was in Greece from February to mid-April 2006. In July 2006 Samantha Tsoulakis contacted her and told her she had contracts for the cleaning of a school in Kilsyth and offices in Croydon. The plaintiff and her husband met Samantha and Pericles Tsoulakis at the offices and helped them finish that job. The Kilsyth School job was offered to the plaintiff and her husband but the plaintiff was not happy with the number of hours involved and other people did the job until late June 2006. Samantha Tsoulakis rang the plaintiff and told her the other cleaners had left and more hours were available. They agreed that the plaintiff and her husband would clean the school and offices for about 20 hours per week at a rate of $12 per hour plus $50 for petrol. On Friday 26 July 2006, the plaintiff and her husband went to the school with Samantha and Pericles Tsoulakis, and were shown the jobs to be done. At that time, they were given keys to the school and badges bearing the title Academy Cleaning Services with the names “Dimitra Damianop” and “Vasilios Damianop”. They were also given plain aprons.

12        After the assault Samantha Tsoulakis came to the hospital and asked the plaintiff’s husband to return the badges and keys, which they did. On 10 August, the day after the plaintiff went home from hospital, Samantha Tsoulakis visited her and stayed for some hours. As she was leaving, the plaintiff asked her for payment for the school cleaning job, and Samantha Tsoulakis said she would put the money in Nicoleta’s account. The following day, the plaintiff told Samantha Tsoulakis in a telephone call not to put the money in Nicoleta’s account as she was overseas and Samantha Tsoulakis replied that she had already done so. The plaintiff said that Samantha Tsoulakis had the plaintiff’s account details from late 2005.

13        At the hearing, the plaintiff insisted that the badges shown to her in court were not those given to her and her husband on 31 July 2006 and returned to Samantha Tsoulakis after the assault. She insisted that her daughter never went to the school to clean during early August and said Nicoleta was overseas at that time. She insisted that it was in her presence in January 2006, outside the garage of her home, that Nicoleta Damianopoulos and Samantha Tsoulakis had a conversation. Nicoleta inquired whether Samantha Tsoulakis had any work to give Nicoleta and Samantha Tsoulakis asked Nicoleta for her Australian Business Number (“ABN”) and bank account details. Nicoleta asked her mother, the plaintiff, to give Samantha Tsoulakis the bank details. When shown the undated handwritten note which included the ABN at the hearing[8], the plaintiff identified her own hand writing as having written her daughter’s name and bank account details only. She insisted that at the time of her discussion with Samantha Tsoulakis about cleaning at Kilsyth Primary School, Nicoleta was in Asia and never went to the school. The plaintiff insisted that Pericles Tsoulakis went to Kilsyth Primary School with her and her husband and Samantha Tsoulakis on Friday 28 July 2006 to show them the cleaning work to be done. She said that they were paid commencing the following Monday. She denied that the name tags and keys to the school were delivered to her house in an envelope addressed to her daughter. She insisted that she had a very good memory of events that preceded the assault.

[8]             Exhibit 1, tendered by the Defendant

14        Nicoleta Damianopoulos gave evidence that she has never been employed by Pericles Cleaning Services. In her affidavit she stated that on one occasion in January 2006 while at the plaintiff’s home she asked Samantha Tsoulakis about whether she had any part-time cleaning work. At that time, Nicoleta was working full time at Telstra but was also cleaning at night at a child care centre owned by her uncle. For that purpose, she obtained an ABN. At the hearing, she emphatically denied meeting Samantha Tsoulakis at local shops in Clayton around July 2006 and asking her about extra cleaning work. She also denied ever giving Samantha Tsoulakis name tags with “Bill Demos” and “Dimitra Demos” on them. She denied ever contracting with Samantha Tsoulakis or Pericles Cleaning Services to clean the Kilsyth Primary School or any offices. She said that in July 2006 she was in Thailand for about three week, and left about two weeks prior to the assault. She denied ever going to the school or ever discussing a job at that school when talking to Samantha Tsoulakis about the possibility of work. She insisted that the discussion with Samantha Tsoulakis took place at her parent’s home before the plaintiff went to Greece. She said she planned her trip a few months before leaving and would never have accepted a job for a period when she would not be here to do the work. She said she had never seen the name tags (Exhibit 2). She denied that name tags or keys to the Kilsyth Primary School were ever delivered to her.

15        Mr Vasilios Damianopoulos gave evidence to the effect that he went to the Kilsyth Primary School with the plaintiff, Samantha Tsoulakis, Pericles Tsoulakis and another worker, Lefki (a relative of the Tsoulakis family) in Late July 2006 to be shown the job, but did not take it at that time. He said the plaintiff made all the arrangements with Samantha Tsoulakis. He said they received badges from Samantha Tsoulakis at the school when they began cleaning, and his name tag said “Bill Damianop”. He insisted that at the hospital after the assault Samantha Tsoulakis asked him for the name badges and keys and he returned them to her. He denied that the name tag in Exhibit 1 bearing the name “Bill Demos” was the tag given to him by Samantha Tsoulakis.

16        Mr Pericles Tsoulakis gave evidence to the effect that he had a contract with Academy Cleaning Services (“ACS”) which allowed him or his business to engage employees, but these would not be employees of ACS. He agreed that ACS had the contract to clean the Kilsyth Primary School, and that Pericles Cleaning Services had been sub-contracted that work. He insisted that although Lefki worked at the school she was never paid. He agreed that he gave his mother authority to engage people and pay them from the business’s bank account, and that he knew in July 2006 his mother was arranging for others to work at the Kilsyth Primary School, but was never there when the arrangements were made. He denied ever being at the Kilsyth Primary School to show Mr and Mrs Damianopoulos the work to be done, but he agreed that a number of entries in the school’s communication book on 7 June and 15 June and 4 July 2006 were in his mother’s handwriting. He said that back then, he “wasn’t in there every day”, but that his mother looked at the book every day. He denied ever employing the plaintiff or her husband.

17         Samantha Tsoulakis stated in her affidavit that she was approached by Nicoleta Damianopoulos at a local shopping centre in Clayton in July 2006 and asked whether she had any cleaning work. When told by Nicoleta Damianopoulos that she had an ABN, they agreed that the work at the Kilsyth Primary School would be contracted to her, and that she would be paid $600 per month for cleaning the school Monday to Friday after 4 p.m. and that the “money would be paid into Nicoleta’s bank account on receipt of invoices”. She stated that she “asked Nicoleta if she would be undertaking the cleaning work herself and she advised that she had two people who could do the work”. She stated that Nicoleta gave her the names Bill Demos and Dimitra Demos to put on the name tags from Academy. She denied showing the plaintiff and her husband around the Kilsyth Primary School. She stated that on about 11 August 2006 she transferred $545.00 into Nicoleta Damianopoulos’ bank account “as payment for the two weeks she had undertaken the cleaning before the contract was cancelled”.

18        At the hearing, Samantha Tsoulakis said that when she discussed the job at Kilsyth with Nicoleta Damianopoulos she was doing so on behalf of Pericles Cleaning Services. She said she got the names to put on the name tags from Nicoleta and then she contacted ACS to give them the names. At the hearing she insisted that she went to Kilsyth Primary School with Nicoleta Damianopoulos and the plaintiff, but also insisted she had no idea that the plaintiff would be doing the job. She denied knowing that the plaintiff and her husband were called Bill and Dimitra, but agreed that she had know them for years and “maybe” had invited them to a family wedding and to supper after it in late 2005. She also agreed that Mr and Mrs Damianopoulos had done some work at Linfox cleaning, although she insisted they were paid by a Stavros, and not by her[9]. She agreed that Pericles Cleaning Services had a contract to clean the Sandhurst Golf Club and agreed that she had the authority to arrange for replacement cleaners when she and Pericles were away but denied employing the plaintiff and her husband to clean there when she went on holidays to Queensland in late 2005.

[9]             See Transcript p. 106

19        She said the name tags[10] were the ones she obtained from ACS and that she put them in an envelope with the school’s keys and left them with the plaintiff to give to her daughter. She said that when she left the envelope with the plaintiff she received the document containing Nicoleta’s bank account details and ABN[11]. She agreed that the words “ABN” and the ABN number were written in her own handwriting. She said the account number was in her writing[12]. She denied getting this document from Nicoleta Damianopoulos in January 2006 when she saw her at the plaintiff’s home. She denied that the reason she was contending that the note came to her in late July 2006 was in order to make it relevant to her alleged agreement to appoint Nicoleta to clean the Kilsyth Primary School. When it was put to her that Nicoleta Damianopoulos was overseas in late July 2006, Samantha Tsoulakis insisted that she gave the envelope to the plaintiff at her home. Samantha Tsoulakis agreed that none of the entries made in the Kilsyth Primary School communication book which related to the cleaning done after 31 July 2006 and up to the date of the assault were made by Nicoleta Damianopouls but were made by herself or the plaintiff. She agreed that Lefki, a relative of one her former husbands, who was also cleaning at the school at the relevant time, would be available to give evidence.

[10]           Exhibit 2, tendered by the Defendant

[11]           Exhibit 1, tendered by the Defendant

[12]           See Transcript p. 115

20        I consider that the evidence of Pericles Tsoulakis is of little assistance in the sense that he was not a party to any of the discussions between his mother and the plaintiff or Nicoleta Damianopoulos. However, I also found his blanket denials in relation to attending the Kilsyth Primary School prior to the plaintiff and her husband cleaning there most unpersuasive, and I prefer the evidence of the plaintiff and her husband on this point.

21        I consider that Samantha Tsoulakis was a most unimpressive witness whose evidence was full of inconsistencies. A number of matters appeared in her evidence for the first time which had not been put to the plaintiff or her witnesses in spite of the fact that the case had been stood down to enable counsel for the defendant, Mr Batten, to obtain full instructions at the conclusion of the examination in chief of the plaintiff.

22        For example, in paragraph 8 of her Affidavit sworn 29 April 2009 Samantha Tsoulakis denied showing the plaintiff around the Kilsyth Primary School. Counsel for the defendant did not put in cross-examination of the plaintiff that the group who conducted the school inspection consisted of Samantha Tsoulakis, the plaintiff and her daughter. Yet in her evidence in chief Samantha Tsoulakis said she went to the school “with Nicoleta and her mother”.

23        Another example relates to the evidence concerning the handwritten note recording details of Nicoleta Damianopoulos’ bank account number and ABN[13]. Samantha Tsoulakis alleged in her evidence that that note had been seen by her on the occasion in around July 2006 when she allegedly delivered the keys and badges to the plaintiff. This was not put to the plaintiff in cross- examination, when the plaintiff said that before going to Greece in January 2006 she gave the handwritten note to Samantha Tsoulakis at her daughter’s request.

[13]           Exhibit 1, tendered by the Defendant

24        I found Samantha Tsoulakis’ assertion that she had “no idea” of the people who, on her version, were to do the cleaning at the Kilsyth Primary School is not credible having regard to her evidence that she had arranged, or at the very least had knowledge of, the plaintiff performing work at the golf club and at the Linfox premises. That assertion is extraordinary in the light of her evidence at the hearing that the plaintiff was present at the school inspection visit.

25        I consider in all the circumstances that Samantha Tsoulakis’ decision to pay the money for work performed at Kilsyth Primary School into the account of the plaintiff’s daughter on around 11 August 2006, some days after the assault, at a time when the plaintiff’s daughter was in Asia, is explicable by the fact that Samantha Tsoulakis wished to put her son in a position where it could be denied that the plaintiff was contracted to him. I consider that this motivation also explains the insistence by Samantha Tsoulakis that Nicoleta Damianopoulos met her in Clayton in July 2006 (when on the evidence she was in fact overseas) and asked her for work. This also in my view explains her insistence that Nicoleta’s banking details and ABN were provided to her in July 2006 when she allegedly delivered keys and badges to the plaintiff’s home. It is clear on the evidence[14] that Samantha Tsoulakis knew that her son’s business had no WorkCover insurance for any employees or subcontractors.

[14]           See Transcript p.177

26        I found Nicoleta Damianopoulos to be a credible witness and I accept her evidence wherever it conflicts with that of Samantha Tsoulakis. I found the plaintiff and her husband to be straightforward witnesses and I accept their evidence where it conflicts with that of Pericles Tsoulakis and Samantha Tsoulakis.

27        In circumstances where no explanation was given for the failure to call them in spite of their availability to give evidence if required, it can also be inferred that the evidence of Lefki and Anna Cvetovic from Academy Services would not have assisted the defendant.

28 It follows from the above that I conclude on the evidence before me that the plaintiff was contracted (whether as an employee and therefore “worker” under section 5 of the Act or as a contractor and therefore deemed worker under section 8 of the Act) by Samantha Tsoulakis as authorised agent for Pericles Tsoulakis trading as Pericles Cleaning Services and that therefore she is a worker for the purposes of the Act.

Pain and suffering- Legal Principles

29 I turn briefly to the legal principles applicable in this case. The combined effect of sections 134AB(16), (38)(d),(h) and (i) of the Act is that in order to make out a serious injury within paragraph (c) of the definition in s.134AB(37) of the Act, the plaintiff must establish on the balance of probabilities that she has suffered a work-related permanent severe mental or permanent severe behavioural disturbance or disorder. The consequences of her mental illness or disturbance in terms of pain and suffering and loss of earning capacity must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly be described as being more than serious to the extent of being severe. The psychological consequences of a physical injury as well as the physical consequences of a mental disorder may be taken into account in determining whether she has suffered a serious injury within the terms of sub-paragraph (c) of the definition of “serious injury” in section 134AB(37) of the Act.

30        The court must consider the psychological injury suffered by the particular applicant, but the test also requires an objective comparison between her mental disturbance and the range of possible permanent mental disturbances impairments[15].

[15]           Vladimir Sabo v George Weston Foods [2009] VSCA 242 at [66]; Maro Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [42]

31        Decisions as to whether an injury is serious involve elements of fact, degree and value judgment[16]. Each case needs to be determined in light of its own facts[17]. A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries[18]. The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the required level in terms of pain and suffering[19].

[16]           Fleming v Hutchinson (1991) 66 ALJR 211

[17]           Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181

[18]           See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58]

[19]           See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [80]

32        I am entitled to take into account that the plaintiff is 56 years old and that, compared with other persons with permanent mental disorders, she will experience these pain and suffering consequences for a shorter period of time[20].

Pain and suffering – Evidence

[20]           Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [44]

33        It was common ground that as a result of the assault on 7 August 2006 the plaintiff suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the form of chronic post-traumatic stress disorder and chronic adjustment disorder (according to the reports of her treating doctor, Dr Pragastis, treating psychologists, Elizabeth Giamrelos and Dr Ozgis). The medico-legal opinion of Dr Weissman, psychiatrist, in October 2008 and April 2009, was that she suffered a severe chronic post-traumatic stress disorder and a major depressive disorder due to the assault. He noted that she was distressed, obsessed with feeling dirty and engaged in obsessional washing and cleaning, that she was anxious, hypervigilant and had become withdrawn. Due to the severity and extent of her psychological disorder, she was permanently incapable of all employment. She takes anti- depressant medication and medication to help her sleep.

34        Dr Holwill, psychiatrist, provided a medico-legal report dated 7 May 2009 which was in similar terms to that of Dr Weissman. Dr Holwill diagnosed chronic moderately severe post-traumatic stress disorder with associated agoraphobia and moderately severe depression. He felt it was unlikely there would be any significant improvement in her condition, and that her quality of life “has been most severely adversely affected”, which was likely to remain indefinitely.

35        The defendant obtained medico-legal opinions from psychiatrists Dr Paul Kornan, Dr John Douglas and Dr Nigel Strauss, in 2008 and 2009. Dr Kornan and Dr Strauss diagnosed a post-traumatic stress disorder and an adjustment disorder with depression. Dr Douglas diagnosed post-traumatic stress disorder. All the doctors agreed that her life had changed dramatically since the assault, that she would suffer symptoms permanently and require antidepressant medication indefinitely.

36        The plaintiff’s evidence as to the pain and suffering consequences of her psychiatric injury is set out in paragraphs 19 to 29 of her affidavit sworn on 19 February 2008. That evidence is unchallenged and I accept it. She feels generally unsafe, avoids going out on her own, and has lost interest in socialising with friends or going to the movies. She has regular flashbacks of the incident, and her sleep is disturbed by nightmares. She has not worked since the incident.

Pain and suffering - Conclusion

37        I consider on the material before me that the pain and suffering consequences of the plaintiff’s permanent mental disorder are severe when compared with other cases in the range of permanent mental disorders.

Conclusion

38        It follows that leave is granted to the plaintiff to issue proceedings for pain and suffering only in respect of the permanent mental disorder suffered by her as a result of the injury sustained on 7 August 2006 during the course of her employment with the defendant. I reserve the question of costs.