Ferrara v State of Victoria (Department of Education)

[2010] VCC 1636

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-05097

DIANNE FERRARA	Plaintiff
v
THE STATE OF VICTORIA	Defendant
(DEPARTMENT OF EDUCATION)

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 October 2010
DATE OF JUDGMENT:	11 November 2010
CASE MAY BE CITED AS:	Ferrara v State of Victoria (Department of Education)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1636

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the psychiatric injury suffered by the plaintiff had pain and suffering consequences for her which were “severe” – section 134AB (37) (c) and (38)(d).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC	Felipe Tellez
with Mr B McCullough
For the Defendant	Ms M Tsikaris	Minter Ellison
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 27 November 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering.

3          Mr J Richards SC appeared with Mr B McCullough of Counsel for the plaintiff and Ms M Tsikaris of Counsel appeared for the defendant.

4          The plaintiff submitted that she had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.

5          The following evidence was adduced during the hearing:

•  The plaintiff gave evidence and was cross-examined.

•  Dr Piperoglou, psychiatrist, gave evidence and was cross-examined.

•  The plaintiff tendered the following evidence:

ƒ	The plaintiff’s Court Book (“PCB”), pages 13-44; 76-107A; and
ƒ	from the Defendant’s Court Book (“DCB”), pages 13-20: Exhibit A.

• The defendant tendered the Defendant’s Court Book, pages 1-7; 21-27; 68-74; 203-219 and 265-273: Exhibit 1.

The Statutory Scheme

6          The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.

7          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)	Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(f)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “severe” test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

8          I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background

9          The plaintiff was born on 18 September 1959. She is now fifty-one years of age. She lives with her domestic partner.

10        After completing her secondary schooling, the plaintiff obtained an arts degree from La Trobe University. Subsequently, she commenced working as a teacher in 1982.

11        In 2001, she commenced working as a full-time teacher at Galvin Park Secondary College in Werribee. She was given the responsibility for teaching English and Italian to students from Years 7 through to 10 as a LOTE teacher.[3]

[3]             LOTE stands for “Languages Other Than English”

The Incident

12        One of the classes which the plaintiff was required to teach was a Year 10 class which involved a double session. One session required her to teach English and the other LOTE.

13        One of the classes which the plaintiff taught included a student named Matthew Lister. He was a student known to the plaintiff, and a student who was very troublesome. The plaintiff had complained about him in writing to the school authorities. She considered him to be physically threatening.

14        On 12 October 2004, the plaintiff was teaching a class of students which included Lister. At the commencement of the class Lister was lying on his back on the ground beside his desk with his head on a pillow. After attempting to have Lister behave, she confiscated his pillow and watch and put them on a filing cabinet in the staff room. In response, Lister grabbed the plaintiff’s drink bottle and pen and threw them at her. The plaintiff put her hands in front of her face to prevent the drink bottle and the pen from striking her.

15        The plaintiff then left the classroom. She attempted to contact the school’s administration, but was unsuccessful. A female colleague saw her in a hallway in a distressed state. The female colleague went into the plaintiff’s classroom with her. The plaintiff re-commenced teaching the class. She drank from her drink bottle. A female student intervened and took the drink bottle from the plaintiff and emptied its contents into a sink. The female student then told the plaintiff that Lister had spat into the water bottle.

16        The plaintiff subsequently walked out of the classroom and asked another teacher to take over her class. She then spoke to the principal and told him what had occurred. After leaving the principal, she went to a bathroom where she vomited over a five to ten minute period.

17        The plaintiff became tense and stressed. She noticed a red, lumpy and itchy rash over her left shoulder. She was eight weeks’ pregnant at that time. She experienced a cramping sensation, which I assume was associated with her pregnancy.

18        The plaintiff returned to the school the following day. During her lunch break she experienced cramping and began haemorrhaging. She was rushed to the Werribee Mercy Hospital. She underwent an ultrasound which disclosed that she had miscarried.

19        Apart from five days when the plaintiff was able to return to the school, she has otherwise been unable to return to work as a teacher with face-to-face contact with students in a conventional classroom setting.

20        The plaintiff was absent from her work until about March 2005, when she obtained a thirty-week placement in a clerical position in a regional education office in Parkville. The work she was required to undertake involved curriculum development. She worked reduced hours. At the end of the placement she was unsuccessful in obtaining other work with the defendant.

21        However, in 2006, she successfully undertook retraining in Certificate IV in Assessment and Training. She then worked as a community educator for the Road Trauma Support Team, which is an organisation connected with the Transport Accident Commission. The plaintiff was something of a facilitator between the perpetrators of road accidents and the victims. She found that work traumatic, to the point where she engaged as a facilitator on only four occasions in 2010, and perhaps on a total of fifteen or so occasions since she first undertook that work.

22        The plaintiff also took up teaching Italian one night a week at an establishment in Albert Park. She undertook that work over 2007 and 2008.

23        The plaintiff obtained work with the defendant in its Distance Education Centre as an online educator. The plaintiff has no face-to-face contact with students. Her contact with students is limited to telephone contact and contact by email. The students she teaches all have learning or behavioural difficulties which render it difficult for them to be educated in a formal and conventional classroom setting. At present the plaintiff is working 80 per cent of full time hours.

24        Prior to the incident, the plaintiff had engaged in the purchase of a number of properties. She purchased six in total. The purpose of the purchases was to create an investment portfolio to secure her future financially.

25        The plaintiff also commenced a business known as “Cheeky Possum” prior to the incident. It involved the purchase of clothing for resale. Prior to the incident, the business was conducted through a shop premises, but because of its failure to generate sufficient business, the plaintiff attempted to sell the clothing via the Internet. The plaintiff was and is the sole proprietor of the business. Her sister was and is involved in the day-to-day running of the business.

26        The plaintiff still has a number of properties which are rented. Although none of the plaintiff’s taxation returns and other financial documents were tendered in evidence, I gained the strong impression that all of the properties were purchased with finance, and that she does not presently have any significant equity in any of the properties.

27        I also gained the strong impression that the business known as “Cheeky Possum” has never returned a significant profit. Indeed, the cross examination of the plaintiff revealed that it suffered significant losses for many years. It was only in the financial year ending 30 June 2005 that it made a profit of $454, and in the financial year ending 30 June 2006, it made a profit of $284. Otherwise it would appear that it suffered significant losses.[4]

[4]             Transcript 49-50

28        I also gained the strong impression that since the incident occurred, it is the plaintiff’s sister who has been the dominant operator of the business.[5]

[5]             Transcript 67-69

The Plaintiff’s Medical Treatment

29        The plaintiff attempted to return to the school and to her teaching duties. She lasted about five days before she stopped working. She was unable to cope with the duties she was assigned.

30        The plaintiff saw Dr Goldberg, general practitioner. He was of the opinion that the incident with Lister and the miscarriage led to the plaintiff suffering severe anxiety, depression and a Post-Traumatic Stress Disorder.[6]

[6]             PCB 76-77

31        Dr Goldberg referred the plaintiff to Ms Maria Ruberto, psychologist, who provided the plaintiff with counselling. Subsequently, the plaintiff saw Ms Rotch, psychologist, for treatment. Ms Rotch continues to treat the plaintiff.

32        In addition to the psychiatric injury which the plaintiff developed she also experienced severe headaches, tension in her jaw, neck and back. She began grinding her teeth at night.

33        It would appear that the plaintiff then saw Dr Clifopoulos, general practitioner. He referred the plaintiff to Dr Piperoglou, psychiatrist, who first treated the plaintiff on 29 May 2006. Dr Piperoglou treated the plaintiff on five occasions in 2007, five occasions in 2008, six occasions in 2009 and on four occasions in 2010, with the last being in August 2010, according to his report dated 20 August 2010.[7]

[7]             PCB 104A

34        Dr Piperoglou diagnosed that the plaintiff is suffering from a Mixed Anxiety/Depressive Disorder with residual features of Post-Traumatic Stress Disorder. He recorded that she complained of difficulty sleeping; clenching her jaw muscles at night; cramping in her calf muscles; experiencing dreams of her work and of Lister; loss of direction in her life, including her career, relationships and her dream of becoming a mother; feeling worse at night, at which time she would be thinking and churning things over; impairment of her short-term memory; variable appetite; migraines and neck and shoulder pains.[8]

[8]             PCB 94

35        The plaintiff said that she has suffered from panic attacks of significance. She suffered a particularly bad panic attack on 31 July 2010. She was taken to the Western Hospital in Footscray where she was treated in the Emergency Department. The plaintiff thought she was having a heart attack. She said she had symptoms of being unable to breath, barely being able to walk and feeling terrified. She said that a diagnosis was made at the hospital that her symptoms were caused by anxiety.[9]

[9]             Transcript 58-59

36        Dr Piperoglou was of the opinion that if the plaintiff talked about the incident to anyone, that it would be enough to precipitate a panic attack. He also said that once panic attacks start they can continue for no particular reason, or once established, can be precipitated by less stimuli than talking to anyone about the incident. He considered that she would continue to suffer from panic attacks into the future.[10]

[10]           Transcript 91-93

37        Dr Piperoglou prescribed the plaintiff anti-depressant medication known as Lexapro, and Rivotril, which is an anxiolytic and muscle relaxant medication, to treat her jaw spasm and to help her sleep. He also prescribed an anti- anxiety medication known as Paxam.

38        The plaintiff continues to see Dr Piperoglou at three-monthly intervals. She continues to take Lexapro and Paxam. She continues to attend counselling sessions with Ms Rotch.

The Medical Evidence

39        In his second report dated 20 August 2010, Dr Piperoglou diagnosed[11] the plaintiff’s injury as comprising a Mixed Anxiety/Depressive Disorder which he considered had followed on from her initial Post-Traumatic Stress Disorder, with the latter manifesting itself intermittently when she is reminded of the incident either directly or subconsciously in some way.

[11]           PCB 106A

40        Ms Tsikaris, counsel for the defendant, cross-examined the plaintiff and Dr Piperoglou in an attempt to demonstrate that the plaintiff’s capacity to work at the present rate, control her property investments, engage in her clothing business, and travel overseas and interstate militated against a conclusion that the injury was permanent, and is permanent, did not have consequences for her which could meet the statutory test of being severe.

41        However, Dr Piperoglou did not agree that the plaintiff’s capacity to function at that level was indicative of a psychiatric injury of lesser magnitude than being chronic and severe. In that regard, he said:

[12]           Transcript 94-95

“Q:

What is the substrata of your opinion, which sees you using those qualitative and quantitative words to describe the degree of her injury, given what has been put to you and what I have just put to you, that she has emerged out of it and is able to return to some aspects of her former life. That is what I have got to reconcile and I am asking you to reconcile the basis of your opinion, given what you know and what she is able to do now?---

A:

Well, I would say the - if you look at the post-traumatic symptoms which would include memories, recollections of the traumatic incident and panic attacks, these are by their nature, intermittent symptoms, so you don't have to have them every day and they fluctuate. So in between that you can function to a degree, you know, there's no reason why you can't go on holiday to see your family but it doesn't mean that internally you are not brooding about them and also as I was mentioning earlier, I think, you know, these people do realise they have got to keep active, otherwise if they remain inactive they just – you know, they're torturing themselves even more. And again, even with the depressive symptoms, you know, you do get fluctuations, you know. But my impression is that this lady's level of functioning has come down, it's like, you know, someone of a high IQ and you know, you see them after a head injury - this is an analogy I'd like to give you, and you know, they're not in the - they're still okay and they're functioning reasonably well to the average person but there's been a significant shift in their capacity. I think she's in this category. You know, if you just look at her and say, look, she's got back to work but she hasn't got back to the work that she wanted to do. She has managed to, you know, re-train herself but she certainly broods about not having this child of hers.”[12]

42        Ms Rotch has treated the plaintiff over a very considerable period of time. Her opinion is consistent with that of Dr Piperoglou.[13]

[13]           PCB 99-101A

43        Dr Weissman, psychiatrist, examined the plaintiff for the defendant on 2 February 2006. He was of the opinion that initially the plaintiff had developed moderate mixed depressive and anxiety symptoms which had improved by the time he saw her. At that stage he considered that she was suffering from mild residual anxiety and depressive symptoms, but more anxiety rather than depression.[14]

[14]           PCB 90

44        Dr Adlard, psychiatrist, examined the plaintiff for the defendant on 7 February 2007. He was of the opinion that the plaintiff suffered a Major Depressive Disorder which he considered was in remission at the time he saw her. However, he was of the opinion that she still had periods of low mood, reduced interest, difficulty sleeping, periods of tiredness and reduced concentration. He did not consider that the injury was having a significant impact upon her capacity to work, although he observed that it was important to note that she could not work as a teacher as she had been previously able to.[15]

[15]           DCB 17-18

45        Dr Entwisle, psychiatrist, examined the plaintiff for the defendant on 9 February 2010. He was of the opinion that she had suffered from an Adjustment Disorder with Depressed and Anxious Mood. He was of the opinion that the plaintiff had improved since the incident occurred, and symptoms would continue to improve.[16]

[16]           DCB 25-26

Serious Injury

46        Ms Tsikaris submitted that the defendant conceded that the plaintiff had suffered an injury as a consequence of the incident, with symptoms which warranted the diagnosis given to it by Dr Entwisle.

47        Ms Tsikaris also submitted that the defendant did not accept that the injury was permanent, based upon the opinion of Dr Entwisle that the plaintiff had experienced improvement since the incident, and would be likely to experience continued improvement.

48        The diagnosis made by Dr Entwisle, of improvement and likely continued improvement, was based upon a number of factors, among them, the plaintiff’s return to work; her return to a number of activities which I have summarised above; the fact that she entered into a domestic relationship, and the overall conclusion that he reached, that she is generally satisfied with her lot.

49        The opinions of Dr Weissman and Dr Adlard, whilst expressed some time ago, bear a significant resemblance to the opinion expressed by Dr Entwisle. All of those opinions are in contrast to the opinion of Dr Piperoglou.

50        Whether I accept the opinion of Dr Entwisle or Dr Piperoglou, much depends upon the findings I make in relation to the plaintiff’s evidence of what she says are the consequences of suffering the psychiatric injury.

51        I was very impressed with the plaintiff. It was very clear to me that she was a well qualified and dedicated teacher who enjoyed her work as a teacher, teaching students face-to-face in a conventional classroom setting. I do not accept that because she applied for a reduction in hours prior to the incident, is, in some way, a minus. It was merely a desire by the plaintiff to work less hours rather than indicative of any lack of motivation or vulnerability to the harm that came her way.

52        The fact that the plaintiff purchased six investment properties prior to the incident and commenced a business now called “Cheeky Possum” is a very clear demonstration of how well motivated she was to work in her primary occupation as a teacher, and to exploit what talents she had to invest in properties and enter into commercial activity in the clothing trade.

53        I do not accept the submission made by Ms Tsikaris, that merely having investment properties which the plaintiff might visit and which involve her in receipt of income from tenants can in any way suggest that the plaintiff is involved in sophisticated financial activity.

54        Similarly, the fact that the plaintiff commenced the business and put money into it in order to run it through a shop and then via the internet before the incident occurred does not demonstrate any great sophistication. The strong impression I have from the plaintiff’s evidence is that her sister is, and has been, the dominant party in the business.

55        The fact that the plaintiff travelled to Bali on a holiday with her sister is not inconsistent with suffering consequences of the psychiatric injury consistent with the statutory test. The fact that the plaintiff and her sister visited the manufacturer of clothing in Bali is also not inconsistent with such a finding.

56        It occurs to me, after considering the case put by the plaintiff and the defendant, that there is really very little between both cases.

57        The plaintiff was a well motivated woman before the incident occurred. She had sufficient business nous to make property investments and to commence a clothing business, while pursuing her primary occupation as a teacher.

58        However, the property investments stopped, and the clothing business was rather more of failure than a success, as evidenced by the profits that were generated for the financial years ending 30 June 2005 and 2006.

59        What is also very clear to me is that the plaintiff has suffered from the consequences of a psychiatric injury from a short time after the incident occurred, which is still symptomatic.

60        I accept the evidence of the plaintiff that the symptoms she described to Dr Piperoglou, summarised in paragraph 34 above, are the symptoms which have plagued her since the incident occurred. I accept that she considered herself to be a high achiever and a well motivated person who has fallen a considerable way down from that position as a result of the consequences of the psychiatric injury.

61        I also accept the evidence of the plaintiff that she suffered a dreadful panic attack on 31 July 2010, of such magnitude she sought treatment at a hospital because the symptoms were mimicking a heart attack, but were later diagnosed as caused by anxiety. According to Dr Piperoglou, the plaintiff has been, and will continue to be, exposed to the very real risk of recurrence of panic attacks as part of the symptom complex of the psychiatric injury.

62        The plaintiff is presently treated by Dr Piperoglou who prescribes her Lexapro for her depression and Paxam for anxiety. It is clear from the evidence of Dr Piperoglou that the plaintiff requires that medication, and has improved since he first prescribed it for her use. Dr Piperoglou considers that the plaintiff should increase the dosage because it might assist her in controlling her depression and anxiety.[17] It is also clear from the evidence of Dr Piperoglou that the plaintiff requires that medication and is likely to require it for the foreseeable future.

[17]           Transcript 83-84

63        I accept that the plaintiff no longer finds social and recreational activities as satisfying as they once were. I also accept her evidence that she cannot drive past the school where the incident occurred, nor can she interact with any of her former students because of the vivid recall that she has of the incident when such occasions occur.

64        I accept the plaintiff’s evidence that the work she presently undertakes is a far cry from face-to-face classroom teaching of a conventional type. It does not take much imagination to understand how markedly different sitting on a telephone talking to a student and communicating by e-mail is from face-to- face classroom teaching. The two are barely comparable. The only common denominator is that there is a teacher involved in both situations.

65        Against the foregoing, however, must be balanced the fact that the plaintiff has returned to work and general activities of daily living which she is able to undertake despite the consequences of the psychiatric injury.

66        All serious injury applications are determined by the trial judge looking to see whether there are characteristics present which are indicative of consequences consistent with the statutory test.

67        In Dwyer v Calco Timbers Pty Ltd (No 2)[18] Ashley JA made the following important observation:

“… I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[19]

[18] [2008] VSCA 260

[19]           at paragraph 27

68        In the plaintiff’s case, Mr Richards submitted, that the plaintiff has gone from the highly motivated individual she once was to a much lower level of functioning. She has lost her capacity to teach face-to-face in a classroom setting. She no longer engages in property development or like activity. The business is modest, and is in reality conducted by her sister. She requires the medical treatment provided by Dr Piperoglou and Ms Rotch. She requires medication to maintain her present level of functioning. According to Dr Piperoglou, she will suffer the same level of symptoms for the foreseeable future, and the same vulnerability to panic attacks.

69        The strong impression I obtained from the evidence of Dr Piperoglou is that the plaintiff’s future will be consistent with her past. Therefore, she can expect to function at no better level than she is now; she will require ongoing medical treatment and counselling with the necessity to resort to stabilising medication without which, I infer, she will suffer a deterioration in her symptoms, and therefore, her level of functioning.

70        The word “severe” used in the definition relevant to this application is a stronger word than “serious”, however, in making that observation in Mobilio v Balliotis,[20] neither Winneke P nor Brooking JA adopted a particular adjective to mark the distinction.

[20] [1998] 3 VR 833 per Winneke P at 834-835 and Brooking JA at 846

71        The consequences to the plaintiff in terms of the work that she is now capable of undertaking, marred by symptoms which she describes, and the treatment which she must have in order to maintain herself at her present level of functioning, have had an undoubtable major impact on the plaintiff’s life, and will continue to do so unremittingly.

72        I think the plaintiff has struggled to achieve her present level of functioning, and I think the observations made by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) equally apply to this plaintiff. His Honour said:

“Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[21]

[21]           at paragraph 3

73        I accept that the plaintiff is something of a stoic who has battled against the consequences of her psychiatric injury. However, as Dr Piperoglou observed, the plaintiff has to be active because inactivity for her would amount to the symptoms of the psychiatric injury torturing her. My overall impression and my value judgment is that the consequences to the plaintiff deserve the description “severe”, and I have reached that conclusion by making the relevant comparison as I am called upon to make.

Conclusion

74 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering out of her employment with the defendant.

75        After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

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