Dudderidge v Wodonga Regional Health Service and Mansell

[2011] VCC 961

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI- 10-05775

LINDA IRIS DUDDERIDGE	Plaintiff
v
WODONGA REGIONAL HEALTH SERVICE	First Defendant
and
CORAL MANSELL	Second Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Wodonga
DATE OF HEARING:	4 and 5 May 2011
DATE OF JUDGMENT:	13 May 2011
CASE MAY BE CITED AS:	Dudderidge v Wodonga Regional Health Service & Mansell
MEDIUM NEUTRAL CITATION:	[2011] VCC 961

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Section

134AB– psychiatric impairment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Pierorazio	Gibney & Gunson
For the Defendants	Mr W R Middleton SC with	Wisewoulds
Ms J Forbes
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 134AB of the Accident Compensation Act (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of an incident which occurred at work on 19 July 2004 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3          The relevant body function in this case is a permanent severe mental or permanent severe behavioural disorder pursuant to subsection (c).

4          The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined.

Outline of Section 134AB

(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;

(ii)        The impairment of the body function must be permanent;

(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities.

(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering when judged by comparison with other cases in the range of possible impairments, which may be fairly described at the date of the hearing as being “at least very considerable” and “more than significant” or “marked”;

(v)      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;

(vi)       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”;

(vii)      Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

(viii)     I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

The Plaintiff’s Evidence

Background and Work History

5          The plaintiff is aged forty five, having been born on 13 May 1965. She grew up living on a five acre block in Lavington. She completed Year 10 in 1981.

6          After the plaintiff left school, she obtained a job working in a pizza shop and did mostly waitressing work for about four to five years. At that stage she had an interest in showing and breeding Palomino horses.

7          During her twenties, the plaintiff frequently travelled to Perth, and worked there waitressing and as a kitchen hand.

8          In 1987, the plaintiff undertook a TAFE course in advanced secretarial studies but gave up looking for work, having obtained that qualification, and returned to kitchen work, which was what she was good at and certainly seemed to have a talent for.

9          Chef work was the plaintiff’s interest and although an apprenticeship was poorly paid, she had a long term goal so she decided to pursue that career at the age of twenty nine.

10        At about the time the plaintiff commenced her apprenticeship, she was very involved in riding and showing horses. She bought another Palomino which she started showing and travelled around the show circuit extensively, including Canberra, Bendigo, The Royal Melbourne Show and all local shows. Together with Paul, her boyfriend at the time, they started a breeding business and established a stud which they called “Nostalgia Park”. The plaintiff also trained the horses but did not break or educate them. She took training very seriously and undertook lessons on training techniques.

11        The plaintiff completed her apprenticeship during the period 1994 to 1999. Initially she worked for a year at the Star Hotel in Albury whilst she attended trade school.

12        The plaintiff then suddenly fell ill with meningitis and had to take the rest of the year off her studies and resigned from the Star Hotel.

13        The plaintiff then obtained a job at P&O Food Supplies in Albury and worked as a cook for a year but that job did not count towards her apprenticeship. During that year she recovered from her illness and had useful work experience, being ultimately promoted to assistant manager.

14        To get back on track with her apprenticeship, the plaintiff obtained a job at the Commercial Club in Albury as a second year apprentice chef. She was very unhappy there and lasted only a couple of months before getting another job at the Birralee Tavern in Wodonga, which was a great place to work.

15        After a year there the plaintiff obtained a job at the Green Tree Hotel, which was part of the Rydges’ chain. She spent two years there and qualified as a chef in that time. She loved her work and there was a great team, with strong leadership from management. During that time she returned to trade school and completed all studies necessary to graduate, which she did in 1999.

16        The plaintiff was then offered the position of head chef but the salary was low and there were some management changes that concerned the plaintiff, so she left that job.

17        The plaintiff obtained a part time job at the Albury Golf Club as she thought that job had a good potential for the future. She worked there for about ten months. As there were changes in management and a number of women left, the plaintiff decided to find a new position.

18        In February 2001, the plaintiff obtained a job as a casual chef at the Astor Hotel, where she worked until June 2003, ultimately full time.

19        A friend of the plaintiff had obtained work with the first defendant and told her that the conditions were good. The plaintiff was offered a part time position at Meals on Wheels as a co-ordinator working three days a week and was then offered a Saturday cook job, thus initially she was working four days a week. The hours were very good and there were no nightshifts and the money was good. After years of study and hard work with split shifts, the plaintiff had landed what she regarded as the perfect job at the age of thirty eight.

20        The plaintiff deposed at length as to the culture in the kitchen at the first defendant’s premises. Within a couple of weeks she resolved that it was the worst kitchen she had ever worked in but she was determined to steer clear of the problems. There were problems with the relationship between kiosk and kitchen staff, in particular the chefs and managers were becoming quite acrimonious.

21        After the departure of the head chef in early 2004, an extra shift became available and the plaintiff volunteered to take on extra hours. At that time it was the best income she had earned throughout her career. To secure further shifts, the plaintiff had to forego penalty payments, but the result for her was very good working hours and better time to enjoy her horses and pursue her breeding business.

22        The plaintiff deposed that by this time she had started to experience hostility directed at her personally from some staff and she became aware of gossip about her relationship status, particularly from about January 2004 onwards.

23        On the said date, with no warning, the second defendant pulled the plaintiff’s pants down whilst she was standing at a trolley in the kitchen bent over handling meals (“the incident”). The plaintiff was wearing a g-string and her buttocks were exposed in full view of everyone in the kitchen.

24        The plaintiff had no idea who had pulled down her pants and was frantic not to drop the meals. She put the meals down and immediately pulled up her pants and realised it was the second defendant who was responsible.

25        The plaintiff was very shocked and all she could say to the second defendant was “you got more than you bargained for”. The second defendant laughed at her and walked off, saying nothing.

26        The plaintiff was highly embarrassed and totally shocked and overwhelmed by what had happened and did not know what to do so simply kept working. The staff in the kitchen laughed at her. There were approximately thirty five staff in or about the kitchen area at that time.

27        As it was not feasible to stop her duties because of work pressure, the plaintiff finished the meals and at 12.30 pm took a lunch break. She then saw the catering manager, Scott Murray, who was then with another manager, John Roelofs. She reported the incident to Mr Murray but he did not say anything.

28        The plaintiff went back to work after lunch, finishing her shift at 3.30 pm. When she clocked out of work near John Roelof’s office, he asked her if she was okay and she said she was too embarrassed to talk about it. She felt totally shattered by the incident.

29        In cross-examination, the plaintiff confirmed her affidavit as to the culture in the kitchen and that she was very shocked by the incident.

30        The plaintiff could recall the incident being witnessed by three ladies whom she named in a meeting held soon thereafter. There was also mixed gender at the entrance of the kitchen for people to pick up Meals on Wheels. The plaintiff then confirmed it was correct the incident was witnessed by a kitchen full of men, naming John Roelofs and Scott Murray.

31        The plaintiff denied that she reported the incident in an offhand manner when she spoke to Mr Murray at lunchtime.

32        The plaintiff explained she did not complain immediately of the incident and waited till 12.30 because she was in the middle of doing the meals for lunch and could not drop what she was doing.

33        The second defendant never apologised verbally to the plaintiff. The letter of apology was not written by her.

34        The two days after the incident were rostered days off. During that time the plaintiff experienced high levels of anxiety, together with a racing heart, sweating and feeling extremely upset. She was so distressed by what had happened that she made an appointment to see her doctor the following Friday.

35        On the Thursday, the plaintiff went to work to see Mr Murray to hand him a letter of complaint and told him of the appointment with the doctor. He informed her that the second defendant would be absent on the plaintiff’s next rostered day, which was 24 July 2004.

36        The plaintiff attended her doctor on 23 July 2004 and was given a certificate certifying her as unfit for work that day and fit for modified duties from 24 July 2004, with the restriction that she not be required to work with the second defendant.

37        When the plaintiff returned to work that morning, the second defendant suddenly appeared in the kitchen. The plaintiff felt an immediate sense of anxiety. She went to the chef on duty and said she needed to go because she did not feel well. She made an appointment to see her doctor and did not go to work for the next three days.

38        On 27 July 2004, Dr Kruytbosch certified the plaintiff unfit for work between 24 and 28 July 2004, with the continuing restriction as to no contact with the second defendant.

39        The plaintiff then worked until 1 August 2004 but was not able to work the following day because of a conflict with the second defendant’s roster. The plaintiff continued to provide medical certificates.

40        At that time the plaintiff developed nose bleeds which she had previously not suffered from. She experienced feelings of high anxiety and had panic attacks, headaches, and felt an inexplicable sense of fear, such that she was overwhelmed by a desire to run away and keep safe.

41        The plaintiff continued to complain to Mr Murray about the lack of supervision when her shift conflicted with that of the second defendant. The number of days that the plaintiff worked started to dwindle to the point where she seemed to be barely working. She simply worked on the days when her roster did not conflict with the second defendant’s – a situation the plaintiff considered was unfair.

42        On 20 August 2004, the plaintiff received a letter from Mr Murray informing her that a complaint had been made against her by one of the second defendant’s friends relating to an apparent incident on 19 July 2004. The plaintiff was only given three days to reply and was told a meeting would be held in relation thereto on 24 August 2004.

43        On 20 August 2004, the plaintiff received a letter from Mr Pearl, director of business services, advising her that until the complaint was investigated she was stood down and not to go to work. The plaintiff never heard anything further about this matter and she felt victimised by the complaint.

44        On 5 October 2004, the plaintiff received a letter from Mr Elder informing her of further allegations and complaints made by other kitchen staff against her. The plaintiff was very shocked. Until she received the complaint letter in August 2004, the plaintiff had not been informed that any complaints had been made against her by staff. She now found herself confronted by a whole range of complaints and felt deliberately targeted.

45        Following this, the plaintiff was required to attend further meetings with management. A return to work plan was proposed, which the plaintiff pressed for as she wanted to get back to work. Despite assurances, she never received a plan.

46        In the new year, the plaintiff was contacted by Recovré Rehabilitation Specialists and met with its representative, Ms O’Connell and Mr Murray and Mr Elder. It was agreed the plaintiff would recommence work on 24 January 2005 and that all her shifts would carry full supervision by managers.

47        By that stage the plaintiff was fearful of retribution by the staff, her confidence having been greatly undermined by the earlier complaints.

48        Over the following six months, the plaintiff attended various meetings with management and Recovré in an effort to agree to and implement a return to work plan. Problems with supervision continued and when the plaintiff’s roster conflicted with the second defendant’s, the plaintiff was required not to work and her hours continued to dwindle.

49        The plaintiff regularly experienced being totally ignored by the kitchen and kiosk staff when she worked and that further intimidated her.

50        Formal complaints by staff continued to be made against the plaintiff and she felt she had become a target. Such complaints were never resolved. For example, on 10 March 2005, the plaintiff received a letter from Mr Elder setting out a complaint about her behaviour on 24 February 2005 and she was given one day to respond. She was told there would be a meeting. She delivered her reply but heard nothing further.

51        The plaintiff was certified unfit for any work at all over March/April 2005, at which time she felt her distress and anxiety were deepening to the point where she could not work at all.

52        The plaintiff returned to work on 14 April 2005 and again there was no supervisor. During the course of the day, yet another complaint was made by staff to a member of management about the plaintiff’s behaviour and the plaintiff felt devastated by this continuing hostility towards her. Again she was required to justify her behaviour to management and again no outcome eventuated.

53        On 11 May 2005, the plaintiff had a meeting with Recovré in which she was advised by Ms O’Connell that the first defendant could not offer full time hours due to the situation not improving. She also advised the plaintiff there were discussions about her finding alternative work. That left the plaintiff feeling that she was being pushed out of her job completely and she felt outraged at what was happening to her, thus aggravating her anxiety and distress.

54        Yet another letter was received by the plaintiff on 23 May 2005 from Mr Elder, again setting out a complaint by the second defendant’s friend. The plaintiff was given two days to prepare for a meeting. The plaintiff felt completely crushed. She had no chance of avoiding the continuous victimisation of her by staff in the kitchen. She replied to the letter, stating she felt constantly bullied, harassed and victimised, and lodged a Staff Injury Event form in relation to the incident.

55        The plaintiff attended her doctor, who certified her unfit for a further month and she lodged a further claim and has not returned to work with the first defendant since.

56        In cross-examination, the plaintiff explained that despite the incident and her upset, she stayed at the workplace because she was assaulted at work. She did not understand why she should feel she had to leave. She liked the job; she was happy working there before the incident and could not recall what her feelings were after it.

57        The plaintiff denied engaging in any inappropriate behaviour or pranks while working for the first defendant. The plaintiff was aware of suggestions and allegations that were made against her in relation to her behaviour before the incident and she had seen them in written form from numerous people. She denied them all and said it was a conspiracy.

58        The plaintiff denied allegations that she had exposed her breasts to workmates, shown the staff members she had had a Brazilian wax and that she had made suggestive stances with her pelvis.

59        The plaintiff denied she discussed with staff the purchase of expensive underwear and denied that she would sharpen her knife and stare and intimidate staff members with a knife.

60        The plaintiff agreed she had told her colleagues she had a filing cabinet in which she kept names of people that upset her and upon whom she would seek revenge. The plaintiff agreed that she used four letter words in the kitchen but stopped doing so after a complaint was made.

61        The plaintiff denied Mr Murray had ever pulled her up for any misconduct prior to the incident. She denied she had been disruptive at work. She could not remember him saying to her not to react to the situation that was evolving after the incident with a number of complaints having been made against her.

62        Over this period the plaintiff attended a psychiatrist, Dr Kenny, organised by the first defendant. On 25 May 2005, the plaintiff was advised Dr Kenny thought it was not in her interest to return to work with the first defendant.

63        The plaintiff also made a complaint to WorkCover regarding the first defendant’s failure to provide and implement a return to work plan.

64        By that stage the plaintiff was really struggling and she estimated that from May 2005 until at least that time, she hit “rock bottom”. She was extremely distressed and her anxiety heightened. She was not managing at all and had no motivation. She had all but abandoned work with her horses. She had no ongoing support from Recovré and heard nothing from the first defendant.

65        In October 2005, the claims officer encouraged the plaintiff to put her resume together so she could start looking for other work.

66        The plaintiff was referred to a psychologist, Robyn Slade, who, like the plaintiff’s doctor, diagnosed her as suffering from a major depressive illness. The plaintiff was placed on Lexapro, which she started on 20 July 2005 and has continued to take since.

67        The plaintiff had constant angry and aggressive feelings towards the second defendant and other women in the kitchen whom she felt had effectively destroyed her job and she was overwhelmed by the intensity of these feelings.

68        From that time, the plaintiff was certified as unfit for any work until 26 November 2005. As the months wore on, the plaintiff was suffering financially and felt she had to get back to work. Chef work seemed impossible given the constant complaints about her behaviour at work. She felt she had lost her career which she had worked so hard to achieve for many years, and getting motivated to find other work was a huge obstacle.

69        In November 2005, the plaintiff obtained a job working at Kennedy’s Wholesalers (“Kennedy’s”) in Wodonga, packing meat. The plaintiff started at twenty five hours a week from 14 November 2005. The hardest part was getting motivated to get up and go to work.

70        On 26 November 2005, the plaintiff had a horse riding accident and was certified unfit for work at all for a lengthy period. Whilst Kennedy’s said they would hold her job open, when the plaintiff returned to work in February, she was told that due to a downturn in business there was no work. During that time the plaintiff saw Dr Kenny for further review.

71        The plaintiff started work at Moore Paragon on 3 April 2006 as a casual packer but was put off in late May 2006 as the business was restructuring.

72        The plaintiff obtained casual employment at Kennedy’s and whilst working there, obtained an interview for a position at Campbell’s Cash and Carry, a job she started in July 2006. However, the hours were too irregular and not sufficient enough to keep her going and the plaintiff obtained work again with Moore Paragon as a casual but with more or less full time hours.

73        The plaintiff continued to seek more secure work. She continued to be reviewed by her doctor and Dr Kenny, and also attended Ms Slade when possible, but these sessions ceased in early 2007.

74        The plaintiff decided to try chef work again, though she felt very under confident about it. Financially she needed the security so she resolved to try. The plaintiff obtained a position as a second chef at the Birralee Tavern, working split shifts and weekends, commencing on 6 June 2007.

75        The plaintiff had previously enjoyed working there for ten weeks during her apprenticeship.

76        However, the plaintiff found this work demanding and stressful because of anxiety, panic attacks and the fear of people coming up behind her. She knew she could not continue working there so she kept looking for other work.

77        Being a chef was a career for the plaintiff as she had been working those sorts of jobs since she left school and decided to take up an apprenticeship. She thoroughly enjoyed her job being creative and also she immensely enjoyed being in charge of kitchen brigades, other chefs, waitressing, writing rosters, food ordering and all that sort of thing.

78        On 16 July 2007, the plaintiff was offered a position with Tenex, now known as BAE, and commenced work a couple of days later on a full time basis in stores. She did a one-year traineeship and continues in that job to date. It was a great effort for the plaintiff to settle into her current job and she worried about completing the twelve-month trainee course. She obtained a forklift licence in that employ.

79        On average in addition to working thirty eight hours a week, the plaintiff does four hours of overtime now and then.

80        The plaintiff deposed that she enjoyed her current job and was comfortable in it. She could do the work and keep to herself, although she was always fearful and wary of conflict with co-workers.

81        In cross-examination, the plaintiff said whilst it is an easy job compared to working in a kitchen, she gets no enjoyment from it and her life at the moment “is not very good”.

82        The plaintiff currently earns $750 gross per week and if still working with the first defendant would be earning a higher rate.

83        Since starting work with BAE, the plaintiff has continued under Dr Kruytbosch’s care. She last saw Dr Kenny in December 2007. He recommended the plaintiff continue to see Ms Slade, which the plaintiff was keen to do.

84        From September 2008 to January 2009, the plaintiff saw Ms Slade five times. The plaintiff felt she would benefit from more regular and continuing sessions as they helped to manage her ongoing feelings of anger and aggression.

85        In cross-examination, the plaintiff thought she had seen Ms Slade a dozen or so times when it was put to her there were in excess of forty attendances. The plaintiff last saw Ms Slade in November 2010 and was going to see her again in the future. The plaintiff did not know what the funding arrangements were in this regard.

86        The plaintiff denied there was a time that she got better compared to how she felt after the incident and said there had been a continuing deterioration of her symptoms since.

87        During 2009, the plaintiff attended some counselling sessions with Mr Gullifer organised by BAE because of the plaintiff’s psychological disturbances which had occurred at work with mood disturbance and depression. The plaintiff found these sessions very helpful in managing constant feelings of anger and frustration

88        The plaintiff presently has access to three sessions per year, paid for by her employer, and she attends on a needs basis. She suffers from anger outbursts in the extreme and quite violent outbursts, expressing homicidal intentions at work. This has occurred when she sees people doing the wrong thing and not being disciplined and it causes flashbacks to the incident.

89        In cross-examination, the plaintiff said the treatment with Mr Gullifer was suggested by her team leader after a violent outburst at work. She has seen him four times.

90        The plaintiff has not had any time off work for her illness that she could recall. She denied having personality problems at work.

91        The plaintiff was cross-examined about a number of entries in Dr Kruytbosch’s notes relating to incidents in her current employment.

92        Possibly she might have complained to Dr Kruytbosch in July 2009 that her boss was setting her up, but then said she did not know whether he was. She then agreed she complained to Dr Kruytbosch that her boss was going to discipline her and give her three days off.

93        The plaintiff agreed that she complained to Dr Kruytbosch on 10 September 2009 that she wanted to stab the warehouse manager. On 25 February 2010, the plaintiff told Dr Kruytbosch that she yelled at her boss and went ballistic.

94        It was suggested to the plaintiff she behaved in that manner because it was just normal for her but she denied this was the case, blaming her behaviour on the incident injury.

95        Prior to the incident the plaintiff had never had any issues at any other places of employment or conflict with other staff members that she could recall. She denied she was seeing Mr Gullifer because of conflict with her boss. She was seeing him because of violent outbursts she had been having at work and because of her depressive mood swings.

96        The plaintiff agreed that on 13 June 2009 she told Dr Kruytbosch that she had lodged a safety concern against a supervisor about a forklift issue and that she told the doctor that she was very upset about car expenses and her sick partner and that she had some stress.

Headaches

97        In her first affidavit sworn on 12 July 2010, the plaintiff deposed that in 2007 to 2008, she started to develop headaches which became increasingly intense, and her doctor referred her for an MRI scan in August 2008.

98        The headaches steadily worsened over the year and by January 2009 had become so intense and disabling that the plaintiff required time off work and was prescribed preventative medication.

99        The plaintiff was then taking one tablet of Topamax morning and night for prevention of migraine each day. She also took one to two tablets of Naramig to treat migraines in the first 24 hours of onset. In addition, she took one Cymbalta tablet each morning for depression.

100       In her second affidavit sworn 14 March 2011, the plaintiff deposed that she suffers the migraine headaches more frequently than ever. They are severe and intense and began soon after the incident occurred. Recently, for example, she had a severe migraine and took four of the prescribed medication tablets in a day and required another prescription.

101       In cross-examination, the plaintiff agreed she had had headaches before the incident.

102       The plaintiff confirmed that since the incident she suffered migraines in the terms described by Dr Brooder with photophobia, generalised headache, usually more severe through the frontal and temporal region. Sometimes she suffered significantly more severe headaches associated with nausea and uncontrolled vomiting associated with photophobia where she was confined to the darkness of a room.

103       The plaintiff agreed with the history given to Dr Brooder that she had developed increasing headaches from the week after the incident. She had had headaches in the past but had not had any of the qualities that she described at present as she could recall. In the past she had taken Panadol for headaches but could not remember taking anything stronger.

104       The plaintiff had been through Dr Kruytbosch’s notes, but not in detail, the morning of the hearing. It was brought to her attention that there was a reference to headaches. The plaintiff had taken Maxalt, having woken up with a migraine that morning.

105       The plaintiff was extensively cross-examined about Dr Kruytbosch’s notes. On 23 May 1990, there was a report of “sudden onset right-sided headaches pulsating, constant pain, photophobia, blurred vision, vomit, sleep, light flashing”.

106       The plaintiff said it was possible these were the same characteristics of her present headache but she would not describe the headaches back then as migraines. It was possible on 7 December 1994 she presented with a headache and neck pain. She used to go to the doctor when she got headaches of a significant degree.

107       It was possible but the plaintiff could not remember having frontal temporal headaches, using heavy duty cleaner and also complaining of severe mood swings on 10 August 1995.

108       On 24 July 1997, she could not recall attending her doctor who noted “headaches to the scalp, photophobia, a lateral pumping pulsating, vomit, took Panadeine Forte. Getting every two to three weeks”.

109       The plaintiff could recall getting headaches like that with that frequency but could not remember taking Panadeine Forte. She also agreed she had had a problem with her jaw and had been sent to a dental surgeon at that time.

110       On 2 February 2001, an entry set out “constant headache, feels there is no more room in her head”. The plaintiff could not recall that attendance and denied that she was having pretty significant headaches as the entry described.

111       The plaintiff could recall an attendance on 25 January 2003 when she presented “unwell, feeling rather dizzy, vomiting, shaking, was no good standing and headaches and on Stemetil”. She could not recall complaining of an aching headache on 21 August 2003.

112       In cross-examination, the plaintiff confirmed she did not suffer migraines before the incident. She had headaches in the past and now had migraines as a result of the assault and what happened to her at the hospital. She did not remember those migrainous type headaches before the incident. She had headaches as a result of meningitis.

113       In re-examination, the plaintiff said there has not been a day in the last year when she has not taken anti depressant medication or medication for headaches. She has been having the headaches she described since the said date. A severe headache can last up to four to five days. She has taken medication for these problems since the incident. The headaches prior to the incident were nothing like the migraines she now gets “where she could commit suicide because the pain is so severe”.

Psychiatric

114       In cross-examination, the plaintiff said that prior to the incident, she had perhaps taken antidepressants, maybe Cipramil when her horse died and when her relationship broke up. She agreed with her counsel’s opening that she was not suffering any psychological injury in the past and was never depressed prior to the incident.

115       The plaintiff denied that in the past she had had relationship difficulties and in respect to her perception of men. She denied having difficulty with interaction with strangers as Dr Kruytbosch reported on 27 April 2001.

116       The plaintiff confirmed her affidavit evidence that before the incident she was outgoing, fun loving and the like and that the incident had changed her into a loner.

117       The plaintiff agreed it was possible, as Dr Kruytbosch noted on 17 August 1992, that she avoided the bar scene but she denied shying away from going out at night at that stage. The plaintiff denied being intimidated with men as the entry of 26 February 1993 described.

118       The plaintiff confirmed she had put on weight because of the incident and at the current time weighed ninety kilograms. She agreed in the past she had had problems with her weight and it had fluctuated. She thought around the time of the incident she weighed seventy five to seventy seven kilograms.

119       The plaintiff explained that on 9 October 1995, the reference to “still gets depressed” referred to problems she was experiencing with her boyfriend’s daughter who was then aged twenty and did not like the plaintiff being in a relationship with her father.

120       An entry of 23 April 1996 referred to the plaintiff working at the Commercial Club. She agreed she left that job in acrimonious circumstances and it was not a very good place to work in the three months she was there.

121       On 3 April 1996, the plaintiff described “Stress ++”. She had changed jobs and she was still having problems with her boyfriend’s children whom she described as “mongrel kids”.

122       The plaintiff denied she left the Commercial Club because she was sacked for indecent behaviour and bad language. She denied she had ever in the past exposed herself to any kitchen staff in a work environment.

123       The plaintiff agreed she left the Commercial Club in circumstances that were unpleasant. She was getting on with staff members and there was no friction at all. She could not recall the stress that caused her to go to the doctor in 1996 relating to that job.

124       In March 1997, the plaintiff had stress from an assignment related to her chef course. She was not working at that stage and was still having trouble with her boyfriend’s children.

125       An entry in May 1997 described the plaintiff having an acute stress reaction from seeing a deceased driver at an accident scene at the front of her boyfriend’s house.

126       The plaintiff could not recall an attendance on 4 December 1997 where it was noted she was back on pills to settle mood swings. She could not recall any medication being prescribed at that time.

127       On 10 July 1999, Dr Kruytbosch reported “no good news. Unhappy with job offered at Greentree Inn. Been tensed up. Been depressed. ++ money. Want to buy land together”. The plaintiff agreed her wages at that time were not enough and that was an unhappy work experience.

128       On 20 November 2000, a lower back problem was noted which the plaintiff agreed she had had on and off for years. She disagreed the problem resulted from horse riding. The plaintiff injured her back lifting some pumpkins while working at the Albury Golf Club.

129       On 3 January 2001, the plaintiff was still having back pain. She was being prescribed Celebrex. She was having difficulty with management over a period of time at the Golf Club. They accused her of being a troublemaker.

130       In January 2001, the plaintiff complained to her doctor that the chef was unhygienic and served bad food.

131       The plaintiff had problems being paid by GIO, the WorkCover insurer. As at February 2001, she was not keen to go back to work because she was being victimised by the Golf Club directors for lodging a claim.

132       On 22 February 2001, the plaintiff reported not working and feeling alienated. Also at that time she was getting letters from the Golf Club threatening to sack her. The plaintiff could not remember why the Golf Club was taking this action, denying that she had done anything wrong.

133       That attendance note also set out the plaintiff was taking Cipramil. She did not recall being on the drug or why it was being prescribed.

134       In May 2001, the plaintiff’s horse died. She could not recall not taking her Cipramil at that time as the notes recorded.

135       On 4 June 2003, it was noted the plaintiff felt destroyed by relationship issues.

136       On 7 June 2004, the plaintiff’s weight was recorded at seventy three kilograms.

137 In re-examination, the plaintiff could not honestly recall taking anti- depressants prior to the incident. She had been doing an apprenticeship and doing studies and working from 1994 to 1997, that was all she could remember. She had not taken medication to the extent she now does.

Consequences

138       In cross-examination, the plaintiff confirmed that before the incident she was leading a happy and normal life. Her quality of life now is extremely poor.

139       Since the incident, she had been bullied, harassed and victimised and suffered migraines. She had become secluded and was basically a prisoner in her own home.

140       At the time of the incident, the plaintiff lived with her mother because she chose to do so and they got along well.

141       Following the incident, the plaintiff was fearful of being on her own and could not contemplate moving out because she needed to have someone close. The plaintiff met her current husband, Domenic, in 2005 at home through friends.

142       After a time, Dominic moved in with the plaintiff and her mother. The plaintiff and Domenic then rented her brother’s house for a while until they purchased land in 2006, then built a house on a hobby farm about half an hour from Albury. They married in May 2009.

143       Domenic has been very supportive of the plaintiff following the incident. He has diabetes and has a lot of health issues so he understands the difficulties of having a chronic illness. Although they recently married, the plaintiff’s libido is low and they no longer have sex as a result of her mental illness.

144       For a long time after the incident the plaintiff was unable to do her own cooking and her mother looked after her in that regard. The plaintiff frequently missed meals and she now relies on Domenic to motivate her and remind her.

145       For a long time after the incident the plaintiff struggled with motivation to get out of bed in the morning, feeling as if she had no purpose and there was no point. Despite her marriage, these feelings persist.

146       On those sorts of days, the plaintiff stays in her pyjamas all day and does not have the motivation to shower and dress. She can still have days like this even though her work and personal life is now more settled. She feels no day is guaranteed to be calm for her and she is always wary.

147       In re-examination, the plaintiff said that there has not been a day since the said date that she had not thought about the incident. It made her feel sick. She has anxiety and panic attacks. She goes to the toilet and feels sick and vomits

148       Since the incident, the plaintiff has become very distrustful of people and feels incredibly nervous and fearful around them. Before the incident she had no difficulty with shopping or being in crowds. She now goes shopping with Domenic because she is fearful of being attacked and she does not feel safe.

149       When she is shopping, the plaintiff is constantly looking at faces around her and she is constantly alert and on guard. If she sees anyone from the hospital she abandons the shopping and leaves the area immediately and cannot finish what she is doing

150       In cross-examination, the plaintiff denied that she did the shopping by herself now. She confirmed that she does not go out.

151       The plaintiff has no motivation to go anywhere and rarely goes to social events. She had an incident on 5 November 2004 at the local hotel when she saw one of the staff from the hospital who stared and laughed at her and re- enacted the incident.

152       When asked in cross-examination about her contact with fellow workers since the incident, the plaintiff seemed to say this had occurred on only two occasions but then said it would have happened more frequently. The plaintiff is constantly fearful of seeing anyone from the hospital, particularly the second defendant.

153       The plaintiff often feels she is in a pit and cannot get out of it. She has changed from being an active and outdoor person to being withdrawn and lacking motivation. She is very intolerant of noise. She feels a sadness she just cannot shake off.

154       The plaintiff experienced panic attacks associated with her visits to Dr Kenny in Melbourne. The plaintiff is still anxious about travelling, particularly on her own.

155       The plaintiff has become very self-conscious and hypervigilant. She fears for her safety in large crowds and has become extremely withdrawn. Her relationship with Domenic gave her confidence but she is still very reluctant to socialise.

156       Prior to the incident, the plaintiff enjoyed going to the pictures and the pub once a week. She has not been to either place in the last year because she is fearful of going out. She has no interaction with her friends. She has been to a restaurant perhaps twice in the last six months.

157       The plaintiff no longer has coffee with her friends, an activity she would still be doing if it were not for her injury. That makes her feel secluded. The plaintiff’s relationship with her workmates is good but she does not socialise with them.

158       The plaintiff played netball in a mixed competition once a week prior to the incident. Since then she tried playing on one occasion but she had to stop as she was too angry and aggressive toward other players.

159       Since the incident, the plaintiff has no level of fitness compared to being reasonably fit, walking and exercising before the incident. That situation makes her feel depressed and the fact her clothes no longer fit her makes her feel disgusting. The plaintiff overeats because she is upset. She has gained over twenty kilograms since the incident. She eats particularly when depressed.

160       The plaintiff continues to feel sad and down and sometimes has suicidal thoughts. She deposed that she suffers from ideations of revenge against those who did this to her. She also has thoughts of smashing their heads into the ground. She feels like she is stuck in 2004 and cannot move on.

161       In cross-examination, the plaintiff agreed she had a lot of anger but denied she wanted revenge and said she wanted justice. She denied she wanted to kill anyone. She could not recall mentioning revenge to Dr Brooder. She could not remember telling Dr Kruytbosch in July 2008, “It’s all coming together, we’ll earn zillions”.

162       In cross-examination, the plaintiff was asked about the hallucinations described by Professor Dennerstein. The plaintiff was seeing things, like visions in front of her, things that may happen that are not happening but they are going to happen. She agreed she had hallucinations relating to voices. She did not tell Dr Kruytbosch about them and the only person who knew about them was Professor Dennerstein.

163       The hallucinations involve the plaintiff hearing laughing in the kitchen and she sees it everyday. The plaintiff hears voices all the time saying, “Why did you let it happen, why didn’t you stop it?”

164       The plaintiff did not tell Dr Kruytbosch about the voices because she was scared at being laughed at. The voices worried her. The plaintiff has recently been prescribed Seroquel for this condition, medication funded by WorkCover.

165       Prior to the incident, the plaintiff had not had sleep problems and did not require sleeping medication. Since the incident, she has continued to suffer from violent dreams of the incident and a sleep disorder. She wakes up disturbed and drained. She has disturbed sleep patterns when she is woken up with heart palpitations, sweats and thumping headaches. She has disturbed sleep every night and she gets up and watches television for two or three hours.

166       The plaintiff finds it difficult to read anything without losing concentration. She feels incredibly useless and is unable to follow simple instructions. She loses concentration during conversation. Her memory and concentration faculties remain extremely poor.

167       The plaintiff’s depression continues. She feels low, withdrawn, anti social and does not want to do anything.

Horses

168       Before the incident, the plaintiff had bought a block of land with her then partner Paul at Table Top where they kept and managed horses. Around the time the plaintiff started work with the first defendant they had separated and the plaintiff took over the loan for the land and was managing the horses largely herself and she was attending shows frequently.

169       At the time of the incident, the land was on the market. The plaintiff had stopped breeding horses and owned maybe five or six horses with Paul. Three were up for sale. She and Paul were going to divide up the equipment. The plaintiff kept two horses called “Bert” and “Fatty” which she still owns.

170       By mid 2005, the plaintiff was still managing to be fairly active with the horses. The land was still on the market. The plaintiff managed the end of the year show circuit but by the following year found it harder to get motivated.

171       The land was sold in September 2005 and the plaintiff received $65,000 with which she paid off her debts. At the end of 2005, she had got to such a low point with her life generally that she really did not care anymore about the horses.

172       In cross-examination, the plaintiff denied her attendance at events decreased after she split up with Paul. She denied she lost interest in riding and eventing because of the split up.

173       After the breakup before the incident, the plaintiff went to shows on a regular basis, probably ten, fifteen, twenty times during the show season which ran from September to March.

174       In cross-examination, the plaintiff initially said she did not go riding soon after the incident but then said she could not remember.

175       The plaintiff agreed she went to Canberra for a show at the end of 2005 where she had a fall. The plaintiff could not remember falling from a horse in October/November 2004 as described in her general practitioner’s notes.

176       The plaintiff did not know how many shows she had been to between the incident and now; it could be a couple maybe, she did not know. The last one was in February at Werribee where she stayed overnight for two nights with friends in a horse float.

177       Her present riding regime is to just ride up and down the road at home. She denied she rode at Racecourse Road, Thurgoona but then said she had ridden there many years ago.

178       The plaintiff did not ride with any frequency at home during the week. She could not remember when she last got on a horse but then said it was this year.

179       The plaintiff initially said she did not know where the Frank Hood Pavilion was and that she had not ridden there. She later said she was familiar with the venue and confirmed she was shown riding there in a surveillance photograph taken in September last year. “Spider”, the horse she was riding at that time was on a permanent loan to her from her best friend, Janine, to look after.

180       The plaintiff explained that since the incident, she does not regularly go to the shows or regularly ride. The incident impacted hugely on everything she does.

181       The plaintiff used to show her horses on a regular basis and ride two horses daily and showed quite regularly. It was a fulfilment that she cannot do now. She denied she rode as regularly now. She agreed she had a great rapport with the horses.

182       When the plaintiff and Domenic built their current house, the plaintiff moved the remaining two horses to that property. She continued riding but not doing the breeding work. Even riding is minimal. Lack of money and motivation are the major problems.

183       The plaintiff has never felt like that before in all her life. Prior to the incident, she was always highly motivated and whilst she had her ups and downs such as her serious illness and the separation with Paul, the plaintiff had always been able to get back on top of things.

184       In her most recent affidavit, the plaintiff deposed that the only pleasure she derives out of life is the relationship with her three horses, particularly “Bert”. It has taken the plaintiff a long time to return to the show ring and she is nowhere near as active as she previously was with the horse and does not attend anywhere near as many shows.

185       The plaintiff has ceased riding classes due to her lack of confidence and she moved to competing in led classes only. Sometimes she arranges for a friend to ride Bert so she can enter him in a riding class. The plaintiff does not have anywhere near the confidence of riding in shows she previously had and overall is much less active and much less involved in showing horses.

186       Looking after her cats takes the plaintiff’s mind off her depression. Without her cats and her horse activity, the plaintiff has very little to live for. The pleasure she derives from the horses relieves her stress. The competing now is not about winning but an outlet to get her mind off her stresses.

187       In re-examination, the plaintiff said that before the incident, she rode for at least two hours a day, enjoying it immensely. She attended at least ten to fifteen shows in the twelve months before the incident leading and exhibiting the horse or riding it as well.

188       The plaintiff probably attended five shows in the last twelve months and she had not done any riding because it is too stressful. She just leads the horse and gets someone else to ride it. She rides “Spider” once a fortnight for forty minutes; otherwise she has no motivation to ride at all.

189       Not being able to have her pre-accident level of involvement in horses makes the plaintiff feel disgusted in herself because she wishes she could be out there doing what other people are doing and she feels left out. If she had not had her injury she would be riding more.

190       In examination-in-chief, the plaintiff said she had contracted shingles in the last couple of weeks and seen Dr Kruytbosch in relation thereto.

191       The plaintiff does not believe her symptoms are improving; it is now seven years since she suffered injury and she is still suffering from severe psychological distress. Not having worked for the first defendant for over five years, she still feels this way because she was bullied and harassed at work for making an honest complaint of what happened when she was assaulted.

The Plaintiff’s Medical Evidence

Treaters

192       The plaintiff’s general practitioner, Dr Kruytbosch, referred the plaintiff to psychologist, Ms Slade, on 8 June 2005. He advised her that the plaintiff had been a patient since 1980. She was then on WorkCover and going through a graded return to work plan, working two days a week as a chef with the first defendant.

193       Dr Kruytbosch told Ms Slade of the circumstances of the assault and the plaintiff’s attempts to return to work thereafter. He noted the plaintiff was not prepared to accept a token apology and no genuine attempt had been made at resolving the work-based conflict. Further, the plaintiff had been targeted and vilified by the food services attendants. The plaintiff then felt in a catch 22 situation where she found fellow workers called the tune.

194       Dr Kruytbosch advised that he had often asked the plaintiff, “Why don’t you just leave such a difficult and unrewarding workplace?” The plaintiff seemed committed to justify herself and her ability to do a good job as a chef in what he described as “a most inhospitable” work environment.

195       Dr Kruytbosch advised Cambridge Integrated Services on 16 August 2005 that he agreed with the recommendations of the recent vocational assessment. He noted the plaintiff had developed a major depressive illness and was currently being stabilised on Lexapro. In his view, that suppressive illness was directly related to acute stress syndrome and Post-Traumatic Stress Disorder (“PTSD”) which had followed the assault. He thought the plaintiff was currently not well enough to commence a job search and he was awaiting a report from Ms Slade to know when she would be able to do so.

196       Dr Kruytbosch most recently reported on 21 April 2011. He noted that the plaintiff’s career as a chef was the highlight of her personal achievements and she left behind her earlier job as a waitress and gained a qualification. The plaintiff took pride in her work with the aim of maintaining high quality results.

197       Dr Kruytbosch noted in 2003, when the plaintiff’s long term relationship deteriorated, she went through a very traumatic time adjusting to her ex-partner’s infidelity, experiencing a very strong overwhelming level of anger, alternating with gloom and despair. He noted she presented as being extremely sensitive to betrayal and loss of face and severe mood fluctuations made it difficult for her to effectively function at work.

198       However, the plaintiff was not put on anti-depressants and was treated with counselling and adjusting to the situation as best she could.

199       Dr Kruytbosch described the incident as devastating, with the plaintiff’s response being furious anger and the need to get even with those who were plotting to shame her.

200       According to Dr Kruytbosch, the plaintiff’s major problems remained a Trauma Spectrum Disorder with the diagnosis given by Professor Dennerstein of Major Depressive Disorder with mixed psychotic phenomena as secondary to the Trauma Disorder. He noted the severity of the plaintiff’s symptoms bordered on the symptoms found in PTSD and that the plaintiff’s current behavioural problems certainly flow on directly from the Trauma Spectrum Disorder, due mainly to the incident.

201       Dr Kruytbosch was not aware of any life circumstances that had predisposed the plaintiff to be more vulnerable to psychological injury. He noted the plaintiff was not put on anti-depressant medication until she left work on 19 July 2005 when she was suffering severe mood swings and her feelings were swinging between anger and pits of depression.

202       The plaintiff starting on Lexapro coincided with the sale of the farm and that brought to a close both traumas from the plaintiff’s personal life and her professional life.

203       Dr Kruytbosch noticed the plaintiff had recently been seen by another psychologist, Chris Gullifer, whose treatment she found more helpful.

204       The plaintiff is now taking 60 milligrams of Cymbalta and has recently been started on low dose Seroquel on Professor Dennerstein’s advice. Dr Kruytbosch considered the plaintiff had responded well to her current medication.

205       Dr Kruytbosch noted the plaintiff remained employed full time with overtime and she was comfortable with her job; however, she remained very fixated and angry with the second defendant.

206       The plaintiff continued to vent a lot of anger with the occasional threat to harm others. He noted the plaintiff was a very, very angry person underneath the calm exterior.

207       Dr Kruytbosch thought his role with the plaintiff was more to allow her to vent her feelings. He advised he would do his best to have her seen by a psychiatrist but noted in Albury there may be a long wait before that was possible. He thought currently the plaintiff was relatively mood stable and he hoped the legal proceedings and flashbacks would not destabilise her. In his view, she had major difficulties coping with personal loss and could become severely mood fluctuant if subjected to intangible loss by the discriminatory behaviour of others. He did not think the plaintiff had a personality disorder.

208       In Dr Kruytbosch’s view, there was a small possibility the plaintiff could suffer from Pervasive Development Disorder, not otherwise specified, and that could be explored by the experts.

209       On a discharge referral, Dr Bender, Medical Officer of Greater Southern Area Health Service, reported in March 2011 that the plaintiff had presented with a migraine which it was noted was not unusual for her. He noted the symptoms were similar to normal migraine symptoms. He advised that unfortunately, if anything, the plaintiff’s nausea was worse than normal and in addition, she had run out of Maxalt wafers and could not manage her migraine with simple analgesics.

210       Given that the plaintiff was being followed up in the future, Dr Bender did not investigate her migraine. He managed her symptoms with the 10 milligrams of i.m. Metoclopramide and a prescription for Maxalt wafers by four.

Medico-Legal Examinations

211       The plaintiff has been examined on numerous occasions by Dr Kenny, psychiatrist, between September 2004 and December 2007.

212       On the first examination, the plaintiff told him she was taking Panadeine Forte for headaches and Ducene for panic attacks. She told him of the incident and the fact that nobody seemed in the least concerned when she complained. The plaintiff described how she froze when the second defendant walked into the kitchen some days later.

213       On the initial examination, Dr Kenny noted that the plaintiff was tall and fairly slim. She was extremely indignant at the incident and she thought that the second defendant should have been sacked.

214       In Dr Kenny’s view, the plaintiff was not hallucinated, deluded or thought disordered. There was no obvious impairment of memory, concentration or cognition and he saw her as somewhat depressed in mood, anxious and resentful.

215       At that early stage, Dr Kenny had no reason to consider that the plaintiff had significant underlying or emotional problems. He thought she may have had difficulties in her relationship with her father and she was not in an intimate relationship, but he noted she insisted that she was happy that way, had a reasonable social life, had an interest in horses and lived with her mother.

216       Dr Kenny commented that incidents like this “sometimes grow like topsy”, and that was clearly what had happened here.

217       The plaintiff was having symptoms justifying her going off work, including sleep impairment, constant headaches, anxiety attacks, some impairment of memory and concentration, feeling tension, hostility and lowering of mood. In his view, that had to be described as a significant degree of Adjustment Disorder.

218       Dr Kenny agreed with the plaintiff that she could not possibly go back to the workplace with the problem unresolved.

219       Dr Kenny thought counselling was a waste of time and that the matter needed resolution urgently.

220       Dr Kenny considered the plaintiff clearly fit to work in any other environment; however, noted she was not motivated to do so at that stage and he understood she remained attached to the first defendant.

221       He diagnosed a significant Adjustment Disorder with Depressed Mood, Anxiety and psychosomatic symptoms. He did not think anything other than the plaintiff’s current medication would make a significant difference.

222       On review on 10 May 2005, the plaintiff had returned to work in the same environment two days a week, working right down the other end of the kitchen because other workers would not have much to do with her. She remained determined to stay at work. After all, she had done nothing wrong. She still suffered anxiety and panic when she got up in the morning. She slept and ate well and otherwise life was going reasonably well except that she felt anxious at work and sometimes got physical symptoms of anxiety, and sometimes she experienced headaches.

223       The plaintiff presented in a similar manner to previously and was still obviously indignant. She was not prepared to consider working somewhere else unless someone could find her an exactly comparable job with comparable benefits.

224       At that stage, Dr Kenny thought the plaintiff was deeply entrenched in a victim status within which she had some mild continuing symptoms of an Adjustment Disorder with Anxiety. He thought, of course, her symptoms would continue while she was employed in that same environment. Whilst he thought she was capable of work two days a week, as long as the second defendant was not there, he did not think it was sensible to try and rehabilitate the plaintiff to that environment, noting her deep entrenchment in the victim role. At that stage, he thought the plaintiff did not have a permanent impairment.

225       Dr Kenny saw the plaintiff a third time in June 2005 after she had submitted a new claim. She had gone off work two and a half weeks earlier and told him of complaints that had been made against her by a woman on a mission against her.

226       On examination, the plaintiff presented as more obviously indignant, sullen and resentful, and he thought she was depressed.

227       Dr Kenny had to say he still saw the plaintiff as suffering from what should probably best be described as an Adjustment Disorder with Depressed Mood, Anxiety and psychosomatic head symptoms (headaches). He also noted a recent flaring-up of her symptoms and commented there certainly seemed there was continuing harassment in the workplace. He noted the plaintiff was adamant she wanted to continue working there but believed she could not work with the same people, a view which Dr Kenny shared. The plaintiff insisted someone needed to be punished and those involved dismissed.

228       The plaintiff felt it was unfair that she should consider working elsewhere, because she felt she had been subjected to quite unfair and unreasonable harassment which Dr Kenny thought had aggravated her condition.

229       In his view, the plaintiff was then incapacitated for her current employment and would be fit to return to her pre-injury employment if the situation could be satisfactorily resolved, which he thought was unlikely. He considered the plaintiff certainly had a capacity to return to suitable alternative employment in any other environment. He confirmed the impairment would not be permanent and that there were no specific non work related factors.

230       On 3 August 2005, Dr Kenny advised Cambridge Integrated Services that the job of chef/catering manager would be appropriate for the plaintiff, at least from a psychiatric position, but not in her pre-injury workplace.

231       Dr Kenny re-examined the plaintiff on 13 February 2006, at which time she had last worked in May the previous year. The plaintiff told him that since that time she had gone into a major depression, had no motivation to get out of bed and became aggressive on the netball court. She was also not sleeping and was overeating. The plaintiff told Dr Kenny that she obtained work at Kennedy’s in November, which she did not particularly like but nevertheless she managed.

232       A couple of weeks later she went to a major horse riding show where she had quite a serious accident. When she started at Kennedy’s she felt very anxious about going there to work but she planned to return there after her riding accident injuries settled.

233       On examination, the plaintiff complained of a preoccupation with the incident. She said she was up and down in mood, she was more anxious than she used to be and she still had some less severe panic attacks, and still felt resentful. She certainly was less miserable than she was previously.

234       Dr Kenny noted the plaintiff was seeing her friends, had a partner and attended an adult riding club in Albury. She said she had lost her ‘get up and go’ but was regaining it now; nevertheless, she often thought about the incident.

235       Dr Kenny noted that the plaintiff presented in a vastly different way from the other occasions he had seen her. She looked fit and healthy, albeit somewhat overweight. She presented in a vastly different way from the other times Dr Kenny had seen her. Whilst she smiled frequently in interview, the plaintiff also frequently expressed her frustration about what had happened and the fact that there had not been a satisfactory resolution and she had not been appropriately treated.

236       However, the plaintiff talked positively about the horses and other interests and her activities. She remained somewhat preoccupied about what had happened, although she presented in a much more normal and matter of fact way.

237       Dr Kenny noted that the plaintiff had been described as having a major depressive illness and he did not have any great objection to that term; however, at that stage, he thought it was more appropriate to view her condition in terms of a continuing and Chronic Adjustment Disorder with Depressed Mood and Anxiety, being her response to workplace issues. Dr Kenny did not agree with Dr Kruytbosch’s view that the plaintiff was suffering PTSD.

238       Dr Kenny still thought, at that stage, the plaintiff was perfectly capable of a return to work in any other environment and the sooner the matter could be finalised the better for her. However, he supported continuing psychological treatment, at least until the plaintiff was well settled, and he thought that she should continue to take anti-depressant medication for the same period of time. At that stage, Dr Kenny thought the plaintiff had continuing, albeit relatively mild symptoms of an Adjustment Disorder related to her employment and that there were no non work-related factors affecting her claim. He thought the depressive disorder was progressively improving.

239       There was a further examination on 9 October 2006, at which stage the plaintiff was working as a cashier at Campbell’s Cash and Carry, a job she obtained five months earlier. She was not looking for other work and could not cope with pressure but was quite depressed and had no motivation to do anything much or different. She seemed reasonably happy with her current job although she wanted more hours and would not be prepared to go back to working as a chef in restaurants because of the hours. She retained her interest in horses and had friends and had moved into living with her brother.

240       The plaintiff told Dr Kenny she had some bizarre dreams, sometimes specifically about work. Her concentration and memory were not very good. She had gained a little bit of weight. She was not as active in horse riding as she used to be because she did not have much money.

241       On examination, the plaintiff was pleasant and quite animated, much the same as the last examination. She was not overtly distressed, depressed or anxious; however, she became obviously angry when talking about the incident. There were no cognitive impairments.

242       Dr Kenny thought the plaintiff had mild residual symptoms of her Adjustment Disorder with Depressed and Anxious Mood. He thought she had obviously taken up the reigns of her life again and he thought she had minor residual symptoms of her Adjustment Disorder. He considered it reasonable for her to continue to have anti-depressant medication and thought the visits with Ms Slade could probably be stretched out to six weekly with eight sessions available to the plaintiff over the following twelve months.

243       He thought the plaintiff’s condition had not completely resolved, although it was markedly improved. The residual symptoms of an Adjustment Disorder with Depressed and Anxious Mood caused her some distress and deterioration in her quality of life, controlled to a considerable extent by the treatment she was having.

244       Dr Kenny last saw the plaintiff on 10 December 2007.

245       The plaintiff told Dr Kenny she had had six jobs in the last eighteen months. She went back to chefing in May the previous year to a tavern in Wodonga. She found that was disastrous, lasting only two and a half months, and she would have anxiety and panic attacks. It was a small kitchen with staff moving around and she became so panic stricken she could not concentrate so she left.

246       At the time of that examination, the plaintiff had obtained a job at Tenex, where she was managing reasonably well but sometimes had anxiety and panic for no reason she could identify and she just withdrew a little from the front line until she had settled down. The plaintiff vividly resented that as a result of the incident she had lost her career as a chef.

247       The plaintiff told Dr Kenny she had a boyfriend but because of her mood swings and her anger, she had no real sexual interest. The plaintiff had put on weight and then weighed about eighty three kilograms.

248       Dr Kenny had to say that he still saw the plaintiff as markedly symptomatic as a result of the incident. He stated that for her to have reacted that way implied a marked vulnerability, but nevertheless that was the reality. He thought it was clear that the plaintiff’s anger was having a marked affect on her life and he still said that for her to react with that degree of anger represented a marked overreaction on her part; nevertheless, he thought the reality was that she still had significant continuing symptoms of an Adjustment Disorder with Anxiety and panic. He criticised the abrupt cessation of psychological treatment and supported the plaintiff having another twelve sessions over a year.

249       Dr Kenny thought the plaintiff’s ability to retain her current job in the long term remained uncertain, probably because of her anxiety with panic. He concluded that while he had very serious reservations about the plaintiff reacting the way she had, he had no alternative but to regard her as having a significant psychiatric disturbance.

250       The Medical Panel, on 11 March 2008, found that there was a 25 per cent psychiatric impairment resulting from the accepted psychological/psychiatric condition (Adjustment Disorder with Mixed Anxiety and Depression), injury, when the plaintiff was assessed in accordance with s.91(2). The Panel found the degree of psychiatric impairment was permanent within the meaning of the Act.

251       The plaintiff was examined by Dr Stern, psychiatrist, on behalf of Cambridge Integrated Services on 23 August 2004.

252       The plaintiff told him about the incident and that she was apprehensive about seeing the second defendant and being attacked again. The plaintiff suffered headaches and nosebleeds. She cried easily, she was not short tempered and she felt panicky every day. She had nightmares about various things. She had lost her appetite and weight. Her memory and concentration were reduced and she had difficulty driving because of that.

253       The plaintiff complained to him of anxiety and panic, strong feelings of injustice, lack of energy, reduced memory and concentration, frequent headaches and nosebleeds.

254       On mental state examination, the plaintiff’s affect was depressed. She was tearful and low in confidence. When asked about work, the plaintiff said she would work every day of the week as long as the second defendant was not there and she would like to go back to work with the first defendant.

255       Dr Stern found no evidence of psychosis. Orientation and memory were intact and intelligence was normal.

256       Dr Stern though the plaintiff was suffering from an Adjustment Disorder related to the incident. He noted there was also a separate allegation of harassment against the plaintiff. Dr Stern thought the plaintiff was psychiatrically fit for her work but not working with the second defendant.

257       Dr Stern considered that the plaintiff did not need psychiatric treatment and could be adequately managed by her general practitioner. He thought the plaintiff’s psychiatric prognosis depended largely on resolution of issues at work.

258       The plaintiff was examined by Dr Strauss, psychiatrist, on 30 October 2007. The plaintiff told him that she was doing a different job and that she managed but she was not the person that she used to be. She remained a self- conscious person and was easily panicked. She believed people were laughing at her. She was depressed and tearful at times and was angry at times. She was not particularly interested in sexual relations. She was then taking 10 milligrams of Lexapro a day but she told Dr Strauss she was not motivated and she suffered from headaches. She had a strong sense of injustice because the matter was not handled properly at work.

259       On mental status examination, the plaintiff was mildly to moderately anxious and depressed and her thinking was negative, but there was no evidence of any psychosis or delusions or thought disorder. Insight was a little limited but her perception was normal. Memory and concentration were reasonable and the plaintiff was oriented in time, place and person. There were no cognitive abnormalities. He noted that the plaintiff was angry and upset about her circumstances.

260       Dr Strauss thought the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a consequence of the incident. He thought her psychiatric problems limited her daily activities, her social functioning and her occupation. He thought she should continue with anti- depressant medication and considered her condition had stabilised.

261       The plaintiff saw Dr Brooder, neurologist, on 4 April 2011.

262       On examination, the plaintiff did not demonstrate any apparent functional disability. Her presentation was appropriate to the clinical situation; however, on several occasions when she was relating her clinical history and persistent symptoms, she became intermittently tearful and appeared to be obviously distressed and depressed. There was no apparent focal cognitive abnormality at present and short term memory functioning was subjectively normal.

263       There was no relevant abnormality shown in the brain scan taken on 9 September 2008. Mr Brooder concluded the plaintiff did not have any intracranial abnormality as the cause for her constant headaches. In such circumstances, he thought the headaches were of a secondary vascular origin, consistent with migraines induced by the plaintiff’s persistent psychological and psychiatric problems diagnosed as being related to an Adjustment Disorder with Mixed Anxiety and Depression. He thought it would be unlikely there was any underlying organic cause for her constant headaches.

264       Dr Brooder commented that the plaintiff’s further treatment concerning the management of her constant headaches depended on her continuing with anti-migrainous medication combined with intermittent additional anti- migrainous medication during episodes of more severe headaches. Noting her current medication, and the fact she remained subject to constant headaches, he thought the plaintiff may benefit from the addition of additional anti-migrainous medication and she would benefit from continuing with regular psychological or psychiatric counselling combined with anti-depressant medication. He noted the plaintiff was subject to constant severe generalised headaches which had become more severe through her right frontal and temporal regions, extending into the right retro orbital region. On several occasions each week they became significantly more severe and were then associated with additional symptoms of nausea, vomiting and photophobia.

265       Dr Brooder considered the plaintiff’s headaches adversely impacted upon her capacity to perform her work as a store person and during more severe episodes, it was likely she would be unable to perform her full and unrestricted work as a store person. He agreed that on occasion her headaches were of significant severity to require her to take time off work.

266       Dr Brooder considered it likely that the plaintiff was going to remain subject to persistent headaches and an associated disability to some degree indefinitely.

267       Professor Dennerstein, psychiatrist, examined the plaintiff on 16 March 2011.

268       The plaintiff told Professor Dennerstein she had been having auditory hallucinations for a year or so. She heard voices outside her head asking her questions, “Why didn’t you smack them”, as well as command hallucinations such as, “Go get even with them”. The plaintiff found herself having to debate the voices all the time. She had thoughts of wanting to end her life most days and thought that maybe she would be better off dead.

269       In Professor Dennerstein’s view, the plaintiff was traumatised by the incident and developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She became persistently depressed and anxious and this disorder had proceeded into Major Depressive Disorder, the features of which included persistently lowered mood and being easily tearful.

270       Professor Dennerstein thought the plaintiff had psychic and somatic anxiety and anxiety attacks. She also had traumatisation experiences, including flashbacks. She had violent dreams about harming those people. She had comfort eaten and gained weight. Her concentration was affected by flashbacks and intrusive thoughts. She had lost interest in sex. She had suicidal ideation, which she was resisting.

271       Professor Dennerstein agreed with the Medical Panel’s view that the plaintiff did have an Adjustment Disorder with Mixed Anxiety and Depressed Mood but she thought that the plaintiff seemed to have progressed into a Major Depressive Disorder which was severe and had psychotic phenomena associated therewith (auditory hallucinations). She noted the plaintiff did not have any problems with her mental health before the incident, nor had she had migraines at that time.

272       Professor Dennerstein was concerned about the plaintiff’s mental health, that she was at risk of harming herself and possibly others. With permission, she spoke to the plaintiff’s doctor and told him of the plaintiff’s auditory hallucinations. Professor Dennerstein suggested an addition of an anti- psychotic, such a Seroquel, at night. She thought the plaintiff’s anti- depressant medication needed review and suggested referral to the Mental Health Team. She thought that Cymbalta needed to be increased or changed to another medication.

273       Professor Dennerstein considered that the plaintiff’s current symptoms were severe and she would be best managed at present by a psychiatrist. She considered if the plaintiff’s mental state was brought under control and symptoms reduced in intensity, she would be able to benefit from psychological treatment. Such treatment should be for a further twelve months with fortnightly hour long visits and then a further twelve months of monthly visits, reducing to three monthly in the following six months – two and a half years in total – to provide the plaintiff with adequate support and help her learn techniques to deal with anxiety and depression, and to interact with colleagues at work.

274       Professor Dennerstein thought that it was unlikely the plaintiff would ever be able to return to work as a chef in the future as it would likely trigger traumatic memory. She considered the plaintiff’s current employment was at risk because of continuing depression, anger and anxiety. However, if those were brought under control with medication, then she thought the plaintiff may be able to continue in her current work.

275       Professor Dennerstein thought the plaintiff’s condition was chronic. She noted Major Depressive Disorder was more resistant to treatment if there had been no remission of symptoms in the first year of treatment, thus the plaintiff’s prognosis was poor.

Chemist and Psychologist’s Details

276       Robyn Slade provided a document dated 28 January 2011 setting out the dates of forty seven attendances with the plaintiff from June 2005 to November 2010.

277       A Patient Script History report was provided by Central Pharmacy Wodonga setting out details of the plaintiff’s anti depressant and migraine medication from July 2007 to the present.

Investigations

278       The plaintiff underwent an MRI scan of her brain on 9 September 2008 organised by Dr Kruytbosch. No significant intracranial abnormality was seen.

Claim Documentation

279       The first Claim Form dated 4 August 2004 set out the plaintiff suffered injury on 19 July 2004 which she described as Post-Traumatic Stress Disorder. She denied any previous condition.

280       The plaintiff was then working 40 hours a week, earning $17 an hour.

281       The second claim form dated 27 May 2005 referred to an injury on 23 May 2005, after which the plaintiff ceased work three days later. It was noted there was an aggravation of an existing condition, unsatisfactory handling of the return to work plan and a smear campaign from management and some staff.

282       Cambridge Integrated Services advised the by letters dated 22 August 2004 and 1 July 2005 that the plaintiff’s claims had been accepted.

Surveillance

283       The defendants admitted there was surveillance of the plaintiff on 2 September 2009 when she was not sighted. The following day her utility was sighted entering her workplace. There was eight minutes of surveillance film taken on 11 September 2010 when the plaintiff was shown riding a horse at the Frank Hood Pavilion. Photographs of this surveillance film were tendered by the defendants.

The Defendants’ Lay Evidence

284       Don Elder, Human Resources Director with the first defendant, swore an affidavit in November 2010.

285       Mr Elder deposed the plaintiff commenced permanent part-time work with the first defendant in the kitchen on 26 June 2003 as a qualified chef, with duties including food preparation for Meals on Wheels as well as hospital patients.

286       There were no documented incidents relating to the plaintiff prior to the said date.

287       Mr Elder described that the plaintiff had her pants lowered by the second defendant in the kitchen at about 11.00 am. There were approximately fifteen to twenty maximum other staff in attendance.

288       Mr Elder stated that during lunch, the plaintiff advised Mr Murray and Mr Roelof of the incident in a manner than was not suggestive of a complaint, more a manner of stating something unanticipated or unexpected had just occurred.

289       Mr Elder understood the plaintiff made no further complaint regarding the incident that day and was rostered off for the next three days. On return, she submitted a formal complaint to management in relation to the incident.

290       Mr Elder deposed that following the reporting of the incident, it came to light that there was obviously an accepted level of behaviour in the kitchen, which had been going on for a long time, including swearing and questionable behaviour. Around the time of the incident the friction began to appear between kitchen staff and particularly the plaintiff. He was not aware of any perception of a certain culture among the kitchen staff prior to that time or of any rifts between the chefs and other groups in the kitchen. He thought the respective teams worked well together.

291       The plaintiff had not raised any concerns in this regard prior to the said date.

292       During investigations of these matters, it was found the plaintiff also exhibited some of this behaviour and conversation and a number of written complaints were made against her by other staff members.

293       The second defendant offered the plaintiff an apology shortly after the incident, which the plaintiff did not accept. It was further confirmed by way of a written apology dated 24 August 2004.

294       Arrangements were made by the first defendant to accommodate the plaintiff’s medical certificates that she not work with the second defendant; however, on 24 June 2004, the plaintiff came into work and later that day the second defendant also attended work. The plaintiff then advised that she could not remain at work and went home.

295       A meeting was held on 27 July 2004 to investigate the matter. It was attended by Mr Murray, Mr Roelofs, the plaintiff and her support person.

296       The second defendant did not deny the allegation and explained it was a spur of the moment thing and it was a practical joke gone wrong and she had not meant to pull her pants down that far. The second defendant was issued with a formal warning and offered to apologise to the plaintiff of her own volition.

297       The plaintiff returned to work from 30 July 2004 and was not required to attend when the second defendant was rostered on. As the second defendant had been disciplined, there was no requirement to modify her working hours, as the second defendant was a long serving employee with an unblemished record leading up to the incident. It was therefore expected that the plaintiff’s hours would change.

298       During July 2004, Wendy Jacob, food services assistant, lodged a complaint against the plaintiff in relation to an incident in the kitchen. As a result, the plaintiff was asked to reply as part of the grievance procedure. The plaintiff and the second defendant were both stood down on 20 August 2004 pending an investigation.

299       The plaintiff’s claim for worker’s compensation was approved and she was paid her normal wage in lieu of worker’s compensation as she was stood down prior to her claim being lodged.

300       The plaintiff lodged a complaint with WorkSafe over harassment and bullying by kitchen staff. An officer from WorkSafe attended the workplace and reviewed the statements and the first defendant’s grievance procedure on 20 September 2004. The first defendant was given a provisional improvement notice as WorkSafe found it did not have a formal harassment and bullying prevention policy. Significantly, it was deemed the incident did not constitute workplace bullying harassment or violence.

301       After the second defendant was stood down, pending investigation, a number of kitchen staff submitted handwritten letters to management in relation to the plaintiff’s past behaviour. The plaintiff was still off work then and correspondence was forwarded to her solicitors.

302       A return to work program had not been formulated as management was going through the investigation of other matters. As a result of a discussion with the plaintiff’s solicitors, the plaintiff was to be issued with a formal warning.

303       WorkSafe completed their report in August 2004.

304       Recovré, rehabilitation service, was ultimately engaged to assist managing a return to work program for the plaintiff who was advised she would be supported if she was able to commit to the return to work.

305       The plaintiff remained off work until 27 January 2005 on two shifts a week when she returned in line with medical certificates that she not work with the second defendant. The plaintiff also requested that a supervisor be present on each shift. That was not possible and it was agreed that her supervisor would be available to be contacted.

306       On 28 February 2005, a further complaint was made against the plaintiff and put to her in accordance with the first defendant’s grievance procedure. A reply was requested from her.

307       The plaintiff again went off work from 12 March to 21 April 2005 and she provided a reply to the latest complaint.

308       On return to work on 14 April 2005, the plaintiff was working two shifts a week. Mr Elder discussed with her the latest matter and advised that he would allow her to settle in before anything further would be done regarding the complaint. The plaintiff was not happy but did acknowledge this.

309       Before he had a chance to discuss the first complaint with the plaintiff, Mr Elder received a further complaint from Wendy Jacobs about the plaintiff’s behaviour towards her in the kitchen, in a letter dated 16 May 2005. This letter was sent to the plaintiff in relation to this complaint on 20 May 2005.

310       At 1.30 pm that day, the plaintiff attended his office, querying the reduction of her pay. It was explained to her that makeup pay had ceased. The plaintiff advised him that she was going through financial problems. He did not give her the letter on that date because of her state of mind and they talked for fifteen minutes and he tried to calm her down.

311       The plaintiff was then sent the letter. She attended work on 26 May 2005 and advised she would be putting in a further claim.

312       The plaintiff had indicated to Mr Murray and Mr Roelofs a number of times that she would increase her hours if the first defendant got rid of the second defendant. He felt if the plaintiff had accepted the apology early on, this issue would not have gone on for so long. He believed the incident and subsequent reporting of it brought to the surface a lot of underlying conflict.

313       Ongoing tension between the plaintiff and the remainder of the staff continued following her return to work and it was increasingly evident that a successful return to work in the kitchen was not likely to be achieved.

314       The plaintiff complained to WorkCover that the first defendant failed to prepare and implement a return to work plan. The first defendant was cautioned in this regard.

315       The second defendant no longer works with the first defendant, having retired approximately eighteen months ago.

316       Mr Elder then addressed allegations of negligence set out in a Statement of Claim.

317       Mr Murray, former General Services Manager of the first defendant, swore an affidavit on 26 November 2010. He began working with the first defendant on 15 February 1999 and left on 26 October 2005.

318       On the said date, he was performing duties as a general services manager running the catering services for the hospital.

319       In a general sense he recalled the kitchen as a challenging environment to work in with a number of staff being very cliquey and on occasion he witnessed heated discussions among the employees. Whilst overseeing the kitchen, he made attempts to ensure that staff were cooperative with each other and he tried to develop the rosters to encourage positive interaction.

320       In his view, prior to the incident, the plaintiff was a rather full on person. She was a good chef; however, there were several times he had to pull her up in an informal matter. These related to episodes where she exposed herself to her colleagues and undertook similar improper behaviour. While there were no official warnings and complaints made by colleagues, he could not accept this behaviour in the kitchen.

321       Whilst she was very good at her chef work, the plaintiff did not have a great ability to manage the staff. Her reluctance to manage staff and the similar reluctance of other chefs in that regard, made it difficult to maintain a high level of discipline within the kitchen. However, if improper behaviour was witnessed the offending staff member was pulled into line.

322       On 19 July 2005, he was sitting in the lunchroom with Mr Roelofs when the plaintiff came in and told them of the incident in what they perceived to be an offhand manner. Mr Murray was unaware she was upset about it. A diary note of that day acknowledged “comment from Linda Dudderidge at lunchtime in the back room that she had been dacked by Coral Mansell: flippant remark. No follow up by Linda”. As a consequence, he did not approach the plaintiff about the incident that day.

323       Following her return to work after the incident, the defendant became aware restrictions were to be placed on her work that she not work with the second defendant. That restriction was supported and the first defendant worked around it to try and provide an environment where the plaintiff felt she could work.

324       Following the complaints made against the plaintiff by a number of kitchen assistants, he encouraged her not to react and to maintain her integrity. He had sympathy for the plaintiff however at times she did not appear to help herself. She would engage in behaviour such as singing at the top of her voice and clapping her hands loudly, and other disruptive actions. He understood the plaintiff would not accept the second defendant’s attempt to apologise and management’s attempts to assist in facilitating a meeting between the two of them.

The Defendants’ Medical Evidence

325       Dr Jager, psychiatrist, examined the plaintiff in September 2010. The plaintiff described herself to Dr Jager as happy, outgoing and friendly and she enjoyed horses and showed them in competition.

326       The plaintiff told Dr Jager she last felt completely well on the said date until the incident occurred.

327       The plaintiff told him her mood fluctuated and she was depressed most of the time and anxious and angry all the time. She had panic attacks which had largely settled. She slept okay but suffered nightmares almost nightly about violent scenes.

328       On mental state examination, the plaintiff was weepy at the start of the interview and was dejected. Her speech and thoughts during examination were fluent and coherent and she described no bizarre beliefs or abnormal sensory perceptions.

329       Dr Jager noted the plaintiff described an uneventful childhood and no history of psychiatric illness or substance abuse. She described previously having a happy, outgoing and friendly personality and an active interest in horses until the incident.

330       Despite treatment she felt anxious, depressed and angry with panic attacks, reduced enjoyment, energy, libido and concentration.

331       Dr Jager noted the initial diagnosis with Adjustment Disorder with Anxiety. He was uncertain why the condition had persisted for more than a year. In his view, that diagnosis could not be sustained. He suspected underlying personality vulnerability and considered the current diagnosis to constitute Chronic Major Depressive Disorder with Anxiety.

332       Given the longevity of the plaintiff’s symptoms, he considered her condition was most likely permanent. Although in his view the plaintiff was subjected to a humiliating experience, the persistence and severity of her symptoms several years later was not readily explainable by the incident alone. He strongly suspected personality dysfunction was the ongoing cause of her distress.

333       Accepting her symptoms to be genuine, Dr Jager thought there was an incapacity for the plaintiff’s pre-injury job which would involve working with the alleged harassers.

334       Dr Jager noted the plaintiff worked fulltime and was fit to do so and, in his view, she could undertake pre-injury employment with another employer. He thought her medication was appropriate.

335       He noted the plaintiff was still active in showing horses and he did not consider her condition interfered with her usual domestic and social activities.

336       Dr Jager concluded, given the circumstances surrounding the incident, that information should be sought as to the plaintiff’s interpersonal relationships, style and psychological functioning prior to the incident, together with reports from earlier treaters, to confirm her declaration she had no past psychiatric history.

Findings

337       Counsel for the defendants conceded the plaintiff suffered a compensable psychiatric injury in the incident. It was submitted this was a “range” case, the issue being whether the plaintiff’s impairment was severe.

338       I accept that the plaintiff continues to suffer from a Chronic Major Depressive Disorder – a diagnosis supported by medico-legal examiners who have recently seen the plaintiff, Dr Jager and Professor Dennerstein.

339       Dr Kenny, who last saw the plaintiff in December 2007, did not disagree with this diagnosis but preferred to describe the plaintiff’s condition as an Adjustment Disorder. Whilst finding an improvement in her condition when he saw the plaintiff at that time, he thought she had significant continuing symptoms of an Adjustment Disorder with Anxiety and panic and regarded her as having a significant psychiatric disturbance.

340       All medical practitioners agree that the injury in the incident contributes to the plaintiff’s present condition, although Dr Jager suspected underlying personality vulnerability and that the persistence of the plaintiff’s condition was not readily explicable by the incident alone.

341       Dr Kruytbosch, who has seen the plaintiff for many years, did not think the plaintiff had a Personality Disorder.

342       In such circumstances, counsel for the defendants submitted that there was a psychiatric condition pre-dating the incident. However, I am not satisfied that this is the case and that the situation is rather one of a vulnerable personality.

343       Prior to the incident, save for the prescription of “pills to settle mood swings” in 1997 which the plaintiff could not recall, and the prescription of Cipramil in 2001 when her horse died, the plaintiff had no psychiatric treatment.

344       The plaintiff did however suffer migraines before the incident of a similar nature to those of which she has complained since.

345       In this case, where it is alleged there is a pre-existing condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is severe and permanent.

346       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

347       In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2004 materially contributes to her impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.

348       Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the incident is permanent at the time of the hearing in its effects on her psychiatric condition and the effects of the aggravation must be severe: Barwon Spinners Pty Ltd v Podolak (supra).

349       Obviously when considering the extent of any pre-existing condition, the plaintiff’s evidence is particularly relevant. In this case, a considerable attack was made on the plaintiff’s credit by counsel for the defendants.

350       The plaintiff’s credit was primarily attacked on the basis of her failure to acknowledge previous migraines, mood swings and anger and her failure to mention, and at times specifically deny, these matters to doctors examining her for the purposes of the present claim.

351       It is clear from Dr Kruytbosch’s notes that the plaintiff suffered migraine type headaches prior to the incident. These however were not of the frequency of which the plaintiff has complained since the incident nor have they required the level of medication the plaintiff now takes – with prior to the incident the plaintiff requiring only Panadeine Forte.

352       Whilst there was extensive cross-examination of the plaintiff as to her psychiatric condition prior to the incident, I accept that at the time of the incident, she was functioning reasonably well psychiatrically.

353       The plaintiff was working full time in her chosen career as chef and she enjoyed normal social interactions and had a keen interest in horses and riding.

354       The issue for determination is therefore whether the plaintiff’s psychiatric impairment, including her migraines which Dr Brooder found were induced by her persistent psychiatric problems, meets the test of “severe”.

355       As counsel for the plaintiff submitted, whilst a claim is not made for economic loss, the plaintiff’s loss of her chosen career is a severe consequence.

356       The plaintiff started her apprenticeship at the late age of twenty nine, having years of experience in the hospitality industry, waitressing and cooking. Her apprenticeship was interrupted by a serious illness but she had the dedication and level of enjoyment in it to return to the course when she recovered and successfully completed her apprenticeship in 1999.

357       Whilst in her subsequent jobs there may have been some stresses that she deposed to and mentioned to Dr Kruytbosch, the plaintiff enjoyed the creative work in the kitchen. By the said date, she had the best job she had ever had in terms of hours and pay.

358       The consensus of medical opinion is that following the incident, the plaintiff was no longer fit to work with the first defendant in her pre injury duties.

359       Whilst the same doctors thought the plaintiff was fit to work in a kitchen with another employer, it is clear from the plaintiff’s one attempt in this regard that this is not in fact the case.

360       The plaintiff obtained work at the Birralee Tavern, a place where she had enjoyed working during her apprenticeship. However, she was unable to cope with her duties after a short time because of anxiety and panic attacks and fear of people in the kitchen coming up behind her. The plaintiff has not felt able to apply for chef work since that time.

361       It was submitted by counsel for the defendants that loss of career is not enough to satisfy the statutory test. In particular, counsel for the defendants relied upon the remarks of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, that where a plaintiff was capable of returning to alternative employment, then unless there was some other evidence that he experienced significant pain or that he otherwise significantly suffered physically from the injury, then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.

362       Whilst the plaintiff is working full time at BAE, she does not obtain the same enjoyment and satisfaction working there as a store person as she did working in her chosen career. Her work is mindless and is not in any way creative, as were her chefing duties.

363       Further, I accept that the plaintiff is fragile psychologically at work with BAE. Her anger outbursts at the workplace led to her team leader having to arrange counselling for her which she continues to undergo.

364       The plaintiff’s strong feelings of anger since the incident have manifested in different forms of hallucinations, both auditory and visual, which continue to the present time, requiring the prescription of Seroquel on Professor Dennerstein’s recent advice.

365       Further, the plaintiff’s anger management problems resulted in her having to stop playing the weekly mixed netball she enjoyed before the incident.

366       Counsel for the defendants submitted that the impairment is not severe as the plaintiff has had little in the way of treatment, having not seen a psychiatrist.

367       However, following the incident, the plaintiff has undergone extensive counselling from Ms Slade from which the plaintiff has benefitted. Arrangements have been made for a further visit funded by WorkCover.

368       Further, since the incident, the plaintiff has been prescribed an enormous amount of antidepressant medication (detailed in the Wodonga Central Pharmacy printout) and now Seroquel has been added to her regime, funded by the WorkCover. Dr Jager and other doctors consider this medication regime is appropriate.

369       Although there is no report from Ms Slade, Dr Kruytbosch’s notes record in graphic detail the plaintiff’s lifestyle both before and after the incident.

370       The plaintiff’s anxiety and panic symptoms are aggravated when shopping and being out generally, with a fear of seeing people who used to work at the hospital who knew of the incident.

371       Because of this fear and her lack of motivation, the plaintiff does not go out much and when she does, she is accompanied by Dominic. Her social life and contact with friends is extremely limited as a result of her psychiatric condition.

372       The plaintiff has suffered disturbed sleep and loss of libido since the incident. Her memory and concentration have been affected and she has difficulty reading for any time, preferring to look at pictures of horses on the internet rather than reading the articles she used to enjoy.

373       The main leisure activity affected by the plaintiff’s psychiatric condition is her involvement with horses. Although the plaintiff’s evidence in this regard at times was somewhat unclear, I accept there has been a major interference with this activity because of the plaintiff’s mood and lack of motivation. Her level of riding has dramatically reduced and her involvement in eventing is much more limited both in terms of activities and also the number of shows attended.

374       I accept that the plaintiff’s general fitness level has deteriorated since the incident due to her lack of motivation. Her weight has increased from seventy three kilograms just before the incident to ninety kilograms at the present time.

375       As a consequence of her continuing Major Depressive Disorder, the plaintiff has been unable to pursue her chosen career, she requires significant amounts of medication both for her psychiatric condition and the resultant migraines and her enjoyment of all daily activities has been significantly compromised – consequences which I find to be severe.

376       As it is now over six years since the incident, the plaintiff cannot expect any real improvement in her psychiatric condition and she is vulnerable to further exacerbations. In such circumstances, I accept that the plaintiff’s psychiatric condition is chronic and permanent, as found by Dr Jager and Professor Dennerstein.

377       Accordingly, I find the plaintiff has a serious injury in relation her psychiatric condition, and leave is granted to bring proceedings in relation to pain and suffering.

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