Gibbons v State of Victoria
[2024] VCC 1980
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00490
| KATE EMMA GIBBONS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 19 and 20 November 2024 | |
DATE OF JUDGMENT: | 11 December 2024 | |
CASE MAY BE CITED AS: | Gibbons v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1980 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychiatric impairment – “severe” – loss of career- pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas (2017) 262 CLR 550; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | GRIT Legal |
| For the Defendant | Mr R Stanley SC with Ms M Cameron | LG Legal + Technology |
HER HONOUR:
1By Originating Motion, leave was sought to bring proceedings for damages for pain and suffering pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for psychiatric injury suffered by the plaintiff in the course of her employment with Victoria Police (“the employer”) in the Pro-Active Policing Unit (“the Unit”) from August 2015 to July 2019 (“the period of employment”).
2The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” for a psychiatric impairment.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue for the foreseeable future.
5Under the Act, the impairment must have consequences in relation to pain and suffering which are “when judged by comparison with other cases, in the range of possible impairments ... fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[1]
[1]Section 325(2)(c) of the Act
6I 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.
7The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”. Brooking JA held that the change in language from “serious” or “severe” betokens a change in meaning.[3] 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”.
[2] [1998] 3 VR 833 (“Mobilio”)
[3] Mobilio at 846; Winneke P agreed at 833
8The plaintiff bears an overall burden of proof upon the balance of probabilities. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak,[4] Haden Engineering Pty Ltd v McKinnon,[5] and the High Court in Transport Accident Commission v Katanas[6] in reaching my conclusions.
[4](2005) 14 VR 622
[5](2010) 31 VR 1 (“Haden Engineering”)
[6](2017) 262 CLR 550 (“Katanas”)
9The plaintiff swore three affidavits and was cross-examined. She also relied on an affidavit sworn by her husband, Daniel, on 25 August 2023 and her former co-worker, Vanessa Bates, sworn on 2 May 2023. In addition, the parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
10The issues from the defendant’s perspective were range, stability and permanence. Ultimately, there was no attack on the plaintiff’s credit nor was it suggested her current psychiatric condition is an aggravation of any preexisting psychiatric condition.[7]
[7] Transcript (“T”) 49
11The plaintiff’s case was that the consequences are determinative of a severe psychiatric impairment.[8]
[8] T67
Plaintiff’s evidence
12The plaintiff was born in Bendigo in October 1980 and is currently aged forty-four.
13She completed Year 12 in Bendigo before going on to Ballarat University to study a Bachelor of Applied Science (Human Movement). She transferred her study to part time and obtained employment at the La Trobe University Student Association at Bendigo in event management. She enjoyed that work and continued similar employment with Tennis Australia at the Australian Open.
14She was then employed by “Lead On” doing youth and community work at Bendigo. Her job was upskilling young people aged between twelve to twenty five through projects in a variety of different fields. She remained in that job for three years. In that position, she met a police officer working in the Unit and realised that was a career she wished to pursue. She had previously done work experience with the Victoria Police in Bendigo when aged about sixteen.
15She commenced police training at Glen Waverley in 2007 and graduated in 2008. She worked for nearly three years doing general duties at Melbourne West Police Station and then transferred to Bendigo doing general duties with the goal of getting into the Unit, which she achieved in 2015.
Pre-injury health
Lifestyle prior to work injury
16In her first affidavit, sworn 14 March 2023, she deposed that before suffering psychiatric injury at work, she led an active and enjoyable life and was very optimistic about the future, and happy in her family, social and work life. This was the situation “the majority of the time”.[9]
[9]T30
17Before her work injury, she was living in Epsom in a house which she owned with her husband. They have two children, born in 2012 and 2014. She worked part time, and on her days at work, the children attended childcare. She was involved in playgroups, swimming lessons, and Mums Groups. A lot of her time away from work was spent with family and friends. She also did the regular family shopping.
18She also had a concurrent online business promoting health and wellbeing products for “Arbonne”. This work provided a lot of social opportunities as there were regular national and international conferences. In addition, she socialised online with many of the local participants, particularly on Monday nights when they had group development sessions.
19During her career with the employer, she had been exposed to other traumas on occasion. These included being involved with the arrest of Arthur Freeman who had killed his daughter on the West Gate Bridge. This and some other exposures were difficult at the time, but she did not suffer any impairment in her work capacity or her day-to-day activities from these matters or require any psychological or psychiatric treatment.
20While there were entries in her GP’s notes in late November 2009 of chronic back pain for the last twelve years, she would not say her back pain was chronic; it was “on and off”.[10] She had injured her back having fallen down some stairs. ”Absolutely” there were periods when she was pain free and sometimes she would have a flare-up.[11] When her back pain was bad, it could be up to 8/10. She honestly could not remember being referred to a pain management program.[12]
[10]T30
[11]T44
[12] T32
21Her back does not give her any trouble now and that has been the case for three or four years, since she stopped policing and was no longer wearing a belt.[13]
[13]T45
22While her GP noted Chronic Fatigue Syndrome in April 2010, it was discussed, but the plaintiff never knew she was given an actual diagnosis. She agreed she was having sleep issues at that time.[14]
[14]T32
23On 8 June 2010, her GP, Dr Rosa Colvin, noted depressive mood for the last twelve months. The plaintiff was then exhausted and tired from driving backwards and forwards to work in Melbourne, and it was really getting to her. Her sleep was poor because she was working shifts. She agreed her energy levels were low with all the driving every day, and she felt exhausted.[15]
[15]T34
24She did not recall being referred by her GP to Ellen Brown, a psychologist, in 2010, but she did remember seeing someone. She was depressed because of the shiftwork and the driving.[16]
[16]T34
25She could not recall telling Dr Prytula in a medico-legal examination in 2017 that she had no significant past history or psychiatric history. She accepted she did not tell him about any depressive symptoms.[17]
[17]T37
Work injury – the bullying and harassment
26When she commenced in the Unit at Bendigo, the Unit was made up of Senior Constable Margaret Fitzpatrick (“Fitzpatrick”), Senior Constable Vanessa Bate (“Bate”), the plaintiff, and their sergeant, Margaret Singe (“Singe”). They were all located in the same general space.
27From the moment the plaintiff commenced, she was subject to bullying, belittling, and manipulative behaviour by Fitzpatrick, who constantly undermined her role and position at work and tried to make her life hell. Fitzpatrick’s behaviour was bizarre and controlling. She would raise her voice and act in a defensive and aggressive manner. You could just tell she was angry. She would regularly storm out of the office in anger over the smallest incident.
28Bate and the plaintiff were tasked with both youth work and crime prevention, which included working with schools and young offenders to prevent re-offending. When Fitzpatrick came to a school or community meeting, she would behave negatively toward the plaintiff and be rude to her in front of others. She was denigrated by Fitzpatrick whenever she raised an idea about how their work could be made better or more efficient, including in front of others.
29Their attendances outside the station at community locations and schools required regular transportation. Fitzpatrick developed a habit of undermining that by taking the allocated car herself, even though either Bate or the plaintiff had booked the car to attend a work event. They then had to find alternative vehicles at short notice and were often late for the consequent event. This type of behaviour grew to occur on a daily basis. Due to Fitzpatrick’s inability to share the vehicle, the vehicle was taken from their Unit, which resulted in difficulties attending appointments.
30Prior to Singe going on extended sick leave with cancer, she was attempting to manage Fitzpatrick’s behaviour. However, after Singe went off work, Fitzpatrick took advantage of the situation and behaved in an unchecked manner.
31There were many meetings held, either by the plaintiff or with Bate complaining to Inspector Talbot in his office about the work problems. He constantly replied that he was “trying to manage it”. At times, their complaints were occurring on a weekly basis. Inspector Talbot took notes of Fitzpatrick’s errant behaviour, but nothing changed, and her behaviour continued unabated.
32Eventually Bate went off on WorkCover, and the plaintiff was left to work with Fitzpatrick on her own from about March 2016. She started to get stomach pain and was prescribed Nexium. She also had difficulty getting to sleep and was waking up during the night.
33She became extremely anxious about attending work on a daily basis. Where they parked at work was above a creek with a safety fence. There was a steep drop-off with the creek about three metres below. On one occasion, she was so anxious she accelerated rather than breaking, went through the fence and nearly ended up in the creek.
34She lost her appetite and lost weight, had constant pain in her abdomen, and irritable bowel.
35In February 2017, the plaintiff commenced psychological treatment, initially through the EAP. After lodging her claim, WorkCover funded treatment. After a period on weekly payments, the WorkCover claims agent insisted the plaintiff return to work. She was cleared by her GP to return on the basis that she was not to work anywhere near Fitzpatrick; however, she was put back working directly with her. The plaintiff only lasted a few months and during that period, life had become hell for her. During this time, she continued to receive active treatment and began to look for work away from the employer.
36She realised that she could not continue with the employer with her ongoing symptoms, and resigned in July 2019.
Work after the Police Force
37She commenced a new job at La Trobe University, Bendigo Campus, on 12 August 2019 in the La Trobe Safer Community Unit, supporting students who were experiencing issues. She worked three days per week, and remained in that part-time position until she was made redundant in December 2021. She did not think she required significant time off work in that job.[18]
[18]T21
38She was in a team of four, educating university students on appropriate behaviour by giving presentations or just doing small groups if a student had experienced unacceptable behaviour. The maximum number of students in a larger group was 150.[19]
[19]T20
Gym instructor
39In March 2022, she obtained a casual position at Human Mechanics (a gym in Epsom) as a gym instructor, working a total of about ten hours’ work per week in sessions of one to two hours. The work was very basic but nevertheless she struggled with concentration. By later in the week, she felt exhausted.
40She agreed to be a good trainer was to appreciate, as best she could, the personality and goals of each participant.[20] Her role in the gym as a personal trainer was really just encouraging each of the people in the group.[21]
[20]T21
[21]T43
Care Hub
41She commenced full-time work for the Department of Family, Fairness and Housing as the senior project officer of the Loddon Care Hub (“the Hub”) in February 2023.
42Her job involved consultation with stakeholders and managing the relationships, mainly with Anglicare and child protection. She was expected to attend some panel meetings, but she tried to avoid going to one regarding high-risk youth as she thought her old boss from Victoria Police may attend, which made her feel extremely anxious. It was internal people only, so she got worked up over nothing, but even the mention of the Unit caused her to feel anxious.
43The Department was flexible in terms of allowing her to work from home two to three days a week and with flexible hours and she was really grateful to be eased into the role. She felt that financially she just had to go back to work even though she knew it would be incredibly difficult. She was exhausted and had great difficulty concentrating, needing to get up and work away from her desk for regular brain breaks. She worried that she would not be able to sustain working.
44By August 2023, she found that she was unable to persist with full-time employment. Fortunately, the Department agreed to allow her to reduce to a nine-day fortnight. In reality, that was still too much for her, but she was new to the organisation and so tried to persist. The duties were not stressful, and the workload was manageable, therefore despite feeling overwhelmed and anxious, she continued to try and turn up to work each day. She worked from home on average three days a week as she found it difficult to go into the office.[22]
[22]Second affidavit sworn 25 August 2023
45The job at the Hub was to work with children and families, to reunite them to the parents’ care with “wraparound” services. She did not work directly with families or clients. Her job was just making sure they were working well together with Anglicare, sharing information, making sure Anglicare had all the orders and goals of what family reunification looked like, and just passing that information backwards and forwards. She was not doing hands-on work; she was “high up”.[23]
[23]T8
46Her role was to go through a list of all new entries into care from child protection. She had a weekly meeting with five or six people to consider whether the children were eligible to come into the Hub; that was one of her main roles, making sure no children slipped through the gaps, and to see whether Anglicare would be able to work with the child and fit its criteria.[24]
[24]T10
47She was not required to check the children were suitable; she would just see whether they met the criteria and then it would be discussed whether they would fit in or not.[25]
[25]T11
48As at August 2023, she was really enjoying that role, as her husband deposed.[26]
[26]T11 – Daniel Gibbons’ affidavit sworn on 25 August 2023
Current job
49In April 2024, she switched to a new role as Health and Education Assessment Coordinator.[27]
[27]T6
50Her role is to liaise with both the Department of Education and Child Protection to make sure all young people in residential care are having their health checks and engaging in some form of education. She can cope with this job because it is not a demanding role, it is self-paced. Nothing she does is urgent. Yet even in her current position, she has to rely on to-do lists because she will forget what she needs to do.
51Although she does not work with any children directly, the paperwork refers to the kids’ family names which were known to the Unit, which triggers her thinking about her injury and the loss she has suffered.
52Currently, she is working from home three days and two days at the office. She is supposed to be three days at the office, but her manager is flexible. She finds it easier at home because she does not want to talk to people. It is not so bad when she has Teams meetings from home, as she only has to switch on for a short time online, whereas she finds in-person harder.
53She struggles to work in her current position even though it is very low stress. She also suffers a lot of stress and anxiety each time she is reaching the end of her contract. She sees positions that she knows she should be capable of, but she worries about her ability to cope in new roles. She therefore lets opportunities go by because she goes into shutdown mode where she cannot get her thoughts together to apply.
54Her current job is not an on “the ground role, it’s more of just stakeholder engagement/relationships”. She does not have too many face-to-face contacts; most of her meetings are online and she is basically working with Lookout, which is part of the Department of Education and they work with young people in out of homecare to make sure they are engaged in education. Her role involves liaising with them and child protection, making sure children have an “educational means analysis”, which is done by a psychologist. She keeps a report on the young people who are entering into care and once they reach the three-month mark, making sure they are on the list to get those educational needs analysis completed in conjunction with Lookout or a private provider.[28]
[28]T12
55She also does brokerage. Her team has a small amount of money to help pay for assessments.[29] The brokerage role is really an organisational job rather than a decision-making one. She uses her Outlook calendar to remind her of things. Her memory is not great these days; it has been like that for years now.[30]
[29]T13
[30]T42
56She and a colleague in Melbourne currently have forty seven young children on their books.[31]
[31]T13
57Her feeling of not being listened to still really affects her daily. She is super sensitive to it. Almost all her police-related dreams have her trying to do something and no one is listening to her. She used to bring ideas to the table and speak up in meetings, whereas now she listens more than she contributes. In meetings if she is shut down once, that is it; she is unable to make another contribution to the meeting. She feels like if she speaks and is then ignored, she closes down to protect herself, as she knows what continually speaking out and being ignored can end up looking like.
58Her contract in this job expires on 13 December 2024. At this stage, she does not know whether it will be extended.[32]
[32]T41
59She has had no additional training for her recent roles subsequent to working for the employer, but she thought she had some skills from her police work that helped.[33]
[33]T14
Work and career
60The injury has taken from her a career which she dreamed of. She greatly misses the Police Force. She loved the work, in particular working with youth, and helping people get on the right path. Being a police officer was a big part of her identity and she now feels a lack of purpose, helpless, and at times hopeless.
61Her workplace injury has led to financial pressures that she would never have had before, and now she is in a position where she feels pressure to work because any time she takes off will be without pay, and they have a young family to raise.
Arbonne
62In 2015, she joined Arbonne, a network marketing company selling nature-based nutrition, skincare and makeup.[34] She enjoyed it so much because it was her outlet. It got her out of her world into a more positive one because it was a very friendly, positive environment. She attended conferences and put on a brave face, but it became harder and harder and more draining. She was also attracted to the promise that maybe she could use the side business to get out of her situation at the time. She managed to get to being an area manager quite quickly but as she started to increasingly withdraw, she could not keep engaging with her team or growing her team as she did not have the energy. She had not actually worked in the business for the two to three years and slowly the sales have reduced to the point where she now just stays registered to purchase her own products.
[34]T25
63At Arbonne, she did not host parties like Tupperware, it was more just sitting down and having coffee one to one with a person and telling them about the products, and suggesting they use them.[35] She was involved with Arbonne while she was working at La Trobe University and also while doing gym work and working for the Department. She has let it go because she does not have the energy.[36]
[35]T26
[36] T27
64She basically just buys products for herself now, and maybe one or two friends or clients.[37] Her work has dwindled over the last two to three years, but it was “never a massive feature before”.[38]
[37]T27
[38]T28
65When asked whether she had been to Nepal, the plaintiff answered “Yes”, she had been there in November 2019 with the Tree of Life group made up of people from Arbonne.[39] The trip involved some spirituality and charitable sessions, visiting villages and a hospital. The trip was a nice relief from what she had just come from.[40]
[39]T22
[40]T24
66She did not mention the Nepal trip in her affidavit because she had not thought about it. She did not mention Bali or Queensland either.[41] She denied she deliberately chose not to mention it.[42]
[41]T24
[42]T25
67“Absolutely” there was therapeutic benefit from the Nepal trip.[43]
[43]T44
Consequences
68As at March 2023,[44] the plaintiff’s psychiatric injury had had a terrible impact upon her life. She had altered her life as much as she could. She was worried about the future.
[44] First affidavit sworn 14 March 2023
69She continued to experience a flare-up of symptoms with triggers. This included any time she saw police or sirens, which caused her to become anxious with shaking, sweating and heart palpitations.
70She continues to suffer feelings of anxiety and panic with any reminders of the employer. On 18 September 2024, she had a session with her psychologist. She walked out feeling okay, but then, through the reception area, she saw one of her old police colleagues through the window getting out of his car. She went straight into this terrible feeling of panic. She feels like she is frozen when this occurs. Her heart goes crazy, and she loses her ability to function properly, struggling to speak and find the right words to use. He was not even in uniform, and he was someone she liked, yet she could not bring herself to walk out the front door. She asked to leave by the back door. She felt desperate to leave and get home as quickly as possible.
71She often feels flat coming out of a session with her psychologist and for days afterwards, because it brings up so much for her. Sometimes, she thinks she should try someone else because she is not improving, but then having to tell her story to someone else is too overwhelming. She knows she needs to continue to see her psychologist regularly because she does not talk to anyone else other than her husband about how she is feeling. She does not want to be a burden on others.
72She feels ashamed about her inability to cope and how this one period of her life continues to affect her. She has become very good at hiding it, even to her husband. Her way of coping is just to internalise it and shut it down. She knows intellectually it is the wrong thing to do but it feels like that is what she needs to do to survive. She is scared that if she lets it all out, she would end up fully breaking down and being hospitalised.
73Recently, for the first time, she had a plan to commit suicide, but could not go through with it as she could not leave her husband and kids. In the past, she had thought about suicide, but this was the first time she had made a plan, and it really scared her.
74The trigger was that she had to re-apply for her current position, and work requested copies of her certificates. She had to get her folder out with her Police Diploma and all the courses she had completed, and she just felt overwhelming loss and despair that she had lost that career and now had to keep applying for these contract positions with very little stability.
75She feels like it is hard to be happy. At a recent psychology session when asked about the last time that she felt real joy, she struggled to answer because she could not remember feeling joy recently. The only thing she finally thought of was a family trip to Bali in October last year.
Concentration
76She finds generally she is more forgetful. She used to have a good memory for appointments, dates and phone numbers, whereas now she has to have everything written down and rely on calendars.
77She also has trouble concentrating, which she had never had before suffering injury. Now she needs to take regular breaks to walk around the office/home, get a drink, go to the toilet, and will even take her dog for a walk when working at home. When working for the employer, she would concentrate for long periods of time, often not even stopping for lunchbreaks.
78Whenever she experiences a trigger, her concentration is even worse. For example she recently took her dog for a walk at lunchtime and saw a police car. Usually, she walks back the same way, but she had to take a different way home to avoid seeing it again. Then, for the afternoon, she was all over the shop.
Family and social life
79Prior to her injury, she enjoyed and was comfortable being around people and would often be the one organising social lunches with work colleagues and bringing in cakes for birthdays. Now, she tries to force herself to go out socially, but the effort takes a lot out of her. She feels now like she has lost her personality.
80She did “click and collect” shopping instead of attending the supermarket. The social life she had with friends, including going for coffee and walks, had now changed greatly, and she regularly cancelled at short notice. There were many days when she remained at home.[45]
[45] First affidavit sworn 14 March 2023
Relationship with family
81She now has less tolerance for her children, because when they do not listen to her she has that feeling of being ignored, so she either overacts or says to her husband “you deal with that,” and she will take herself off to the bedroom.
82However, she does continue to be involved her children’s sporting activities.[46]
[46]T15
83When her nine-year-old son broke his sacrum in late 2023, this period was hard for her to cope with as she felt like she lacked the stamina to deal with any trauma. She was concerned about the lack of follow up he was receiving and when she tried to voice her concerns, she was not listened to. She was so upset by that. A feeling of “it’s happening again, no one ever listens to me!” Now, her son has to go back for further investigations regarding his growth, which was one of the issues she was worried about and tried to raise. It just brought up all that pain that no one cares, no one listens to her.
84She tries to avoid conflict as much as she can. She is more likely to shut down than risk an argument, even with her husband.
85Her marital relationship has been affected, and she feels guilty about that. Their intimacy is drastically reduced, as she has no desire for sex as she once did. Her libido has got worse over time. They still kiss and cuddle, although sometimes she does not want to be touched at all. She feels awful but she must be in the right frame of mind even for a cuddle. Sometimes she will need a cuddle when she is feeling down and other times, she cannot stand her husband trying to make her feel better with a hug. She feels like he must want his “old wife” back, the pre-injury her.
86Her friendship group has shrunk because of her workplace injury. She would always be the organiser of social functions, whereas now she shies away. People have stopped asking her to things, probably because she has said no so often to them. She made excuses not to go out socially, as she does not want to have to pretend to be okay.
87There are only three people who she catches up with semi-regularly, but only one of them is aware of her injury. She sees them “not very often”, just with birthday parties or things like that, or catching up for lunch.[47] Everyone knows that she had a terrible experience at the police, but no one knows about her ongoing injury except for her husband and her coworker, Vanessa, so she only goes out with friends when she can pretend she is okay.
[47]T18
Holidays
88She was asked whether she had been away on any trips since the injury, and said she had been to Bali, Queensland and Sydney. When asked whether she had been anywhere else, she not could recall any other trips.[48]
[48]T18- the plaintiff was later asked directly whether she had been to Nepal
89She went to Bali in October last year for eight nights with her family. She went to Queensland in October this year with them and “did” the theme parks. She is planning to go to the United States next year with her family and a close friend, Jackie. She is looking forward to it, hopefully.[49] The barriers to going might be finance. She did not know if she would have a job and if she would feel up to it. At the moment, they are only just talking about the trip. In the past, she would get out there and go straight to the travel agent, but had not done that.[50]
[49]T43
[50]T44
Basketball
90She had to force herself to get out of the house and do something, so she decided to play basketball. She played two seasons of twelve games;[51] however, last season she could not just bring herself to go back and play again. Getting out of the house and socialising sometimes is really difficult.[52]
[51]T16
[52]T42
91Her foot injury has not kept her out of basketball.[53]
[53]T17
Running
92She knows for her mental and physical health she needs to exercise, so she had returned to running. She managed to complete a half marathon. Having done so, usually she would feel elated, yet she felt nothing. She even did a good time and yet she felt numb. She looks at the photographs of her smiling with her medal and thinks that is fake, she did not feel joy that day. That is how she feels a lot of the time; that she is going through life trying to hide how she is really feeling. It is exhausting.
93She stopped running after a minor left foot injury in the half marathon. Although that injury has resolved, she cannot find the motivation to start running again or to do any other exercise, as she is exhausted from coping with work and family life. She did the half marathon with two work colleagues, but did not “exercise” with them beforehand.[54]
[54]T17
94She has not worked out in the gym for a long time. She has not done anything in a little while, but she does try to keep fit.[55]
[55]T17
95She enjoyed exercising and it usually made her feel better, but actually doing exercise can be really difficult. She has to set herself a bit of a challenge or otherwise she would not do anything. Exercising helps with her mental health, but not as much as it used to.[56]
[56]T43
Treatment and medication
96She continues to receive psychological treatment.
97Her GP has prescribed antidepressants for a good few years now for her work injury.[57]
[57]T42
98Earlier, she was prescribed agomelatine, with the dosage being doubled in 2022. By August 2023, her medication had changed, as the medication she was on was costing $100 a month. Even though the WorkCover agent was reimbursing her, they would take many weeks, and she did not have the funds to pay upfront for the medication.
99She went off all medication for a couple of months, but found her symptoms worsened. She tried a different medication, but it caused her severe nausea and acne. In August 2023, she commenced Amitriptyline, 5mg at night.[58]
[58]Second affidavit sworn 25 August 2023
100She is currently taking citalopram, 3mg; however, her GP has recently referred her to Melbourne Psychiatry Centre so that she can have her medication reviewed as she does not feel any better. Taking different medications worries her, as in the past antidepressive medications made her feel terrible and nauseous. She knows it is difficult to adjust to different medications, and symptoms can be worse while changing medications.
101She also took Temazepam for a week in March 2024 to try and break her poor sleep cycle, and since then, she takes one to two when super stressed and cannot get her mind to quiet down. She does try to avoid taking these tablet as they have a drowsy effect on her the next day, and her doctor warned her that they are addictive.
102Since leaving the employer, she has paid for all her medication, as she finds it too stressful dealing with Gallagher Bassett
103She has not yet seen the psychiatrist her GP has organised, but she has seen a mental health clinician. She was told she would be put on the waitlist because the clinician believed she should see the psychiatrist sooner than January. It had been mentioned that psychiatrist would look at her medication regime.[59]
[59]T47
104She intended to attend the psychiatrist. Her GP told her that she would await advice from that psychiatrist to then develop a new treatment plan. So far, the plaintiff has not had psychiatric treatment or been an inpatient since the injury.[60]
[60]T40
Premenstrual Dysphoric Disorder (PMDD) diagnosis
105Recently, she has been diagnosed with PMDD. When she is in that window before her period, she has a low mood and is irritable. The worst symptoms are headaches, migraines and fatigue. She saw a gynaecologist, who started her on 25mg of lamotrigine which was increased in September 2024 to 50mg, as the only thing the medication had assisted with so far was reducing headaches. She is also taking a contraceptive pill to try and assist with the PMDD symptoms.
106She has noticed that if she is seven to ten days premenstrual, she will not have the same level of control with the children, and during that period, she is more likely to argue with her husband over insignificant things or end up yelling at the children, rather than her usual coping mechanism of asking him to step in.
107The PMDD symptoms are quite different to her work-related injury symptoms. The low mood with PMDD is more about unreasonable irritability where she knows she is overreacting, but she cannot stop herself from saying something. If she was not in that stage of her menstrual cycle, she would just be able to let it go.
108The depressed mood relating to her work injury is thoughts about herself, like that she is no good. It is all about her thinking about how hard life is, what she has lost, and it is so hard sometimes it does not feel worth living. Everything is a battle, and she wants to curl up in bed for a week. With PMDD, there might be times she curls up in bed for a couple of hours due to headache and tiredness, but that is different to that feeling of wanting to go to bed and avoid the world.
109During the PMDD period of her cycle, her symptoms, emotional reactions, and low mood are more severe.
110The headaches that she has ten days before her period that flow from PMDD can get pretty bad. Now and again she has a migraine. In that ten-day period, she is also susceptible to being struck down with fatigue. She has only been feeling like this in the last few years.[61]
[61]T39
Lay affidavit – Vanessa Bate
111The plaintiff’s former work colleague, Vanessa Bate, swore an affidavit on 2 May 2023.
112She first met the plaintiff through work with the employer in Bendigo. She commenced at the Bendigo Police Station in July 2015 and the plaintiff started about four to eight weeks later. Before arriving at her new position, Ms Bate had been warned about a particular officer there (Fitzpatrick) who had a reputation for difficult behaviours, including bullying and combativeness.
113Ms Bate confirmed the circumstances of Fitzpatrick’s bullying of the plaintiff and the change in the plaintiff’s demeanour thereafter in the “terrible work environment”.
114Ms Bate’s evidence was not challenged nor was the occurrence of the bullying in issue.
Lay affidavit – Daniel Gibbons
115The plaintiff’s husband, Daniel Gibbons, swore an affidavit on 24 August 2023. He has known the plaintiff since February 2001, and they were married in March 2008.
116Mr Gibbons confirmed the plaintiff’s evidence of her change in her demeanour after the bullying. She is no longer the same bubbly, confident person she was when he first met her. She is not as social; she has no desire to see friends like she did before suffering injury in at work.
117The Unit policing role was the plaintiff’s dream job as it involved being active in the community, doing projects, and helping community organisations. She saw the work was making a difference and the sergeant for the Unit was amazing and supportive. The plaintiff worked three days a week and did not have to work any nightshifts. This was fantastic as it provided her with the opportunity to maintain professional employment but also be present as a mum. It would have been more difficult juggling their children had she remained on general duties doing shiftwork.
118The first thing he noticed was the plaintiff calling in to work sick and having headaches. Sick days seemed to become more frequent, which was not like her at all. It was evident to him that she was working in a toxic environment. She went from being in a position that she loved and adored to being uncomfortable going to work when she knew Fitzpatrick would be there. It got to the stage that she loved her work but despised her colleague.
119The plaintiff felt she had no choice but to take some sick leave, and not return, and retired from the employer.
120It has taken her a long time to rebuild to a functional level. This has taken a lot of therapy with a psychologist, along with taking antidepressant medication.
121The plaintiff needed to take more time off after leaving the employer, but they had financial pressures and a small family which made that difficult. Fortunately, she found a role at La Trobe, which was a supportive environment, so very different from the environment she had been working in.
122The plaintiff has lacked motivation to do anything at times since suffering injury. She just sits and does not do a great deal. She was present but not present. She would be on her phone trying to ignore the world around her which was hard having small kids who wanted her attention.
123He was doing everything around the house. He still had a much greater role in the house even though he was working full time. She still had times when she lacked motivation and lapsed into a state of depression. She distracted herself with games on her phone. She still suffered headaches and nausea at times.
124The plaintiff still gets exceptionally tired; by 8.00pm she was done for the day. The injury seemed to have taken its toll on her energy levels.
125He confirmed the plaintiff’s evidence about the impact of her psychiatric injury on their sex life.
126It had been really hard to watch the plaintiff go through this. There were days he felt powerless to do anything to help her. He tried to just listen and be there and take up the slack and continue to ask her if there was anything he could do.
127His evidence was not challenged.
Plaintiff’s medical evidence
Treaters
Dr Banerji, GP
128The plaintiff attends Dr Charu Banerji at Marong Medical Practice.
129In her November 2024 report, Dr Banerji noted that the plaintiff had a workplace injury in 2016 at Bendigo Police Station. There was workplace bullying and inaction. She was initially managed by Dr Gupta at Bendigo Medical in Epsom.
130The plaintiff was on WorkCover for several months before being forced back to work. She left the Force in August 2019 due to ongoing stress and declined to pursue further WorkCover entitlements to avoid additional stress.
131The diagnosis was depression and anxiety, with PMDD diagnosed later. The psychologist had noted anxiety, depression, PTSD and a possible Dissociative Disorder.
132The plaintiff had ongoing psychological symptoms since 2016.
133There were unpredictable triggers leading to time off work. The plaintiff preferred working from home to avoid social contact. PMDD exacerbated her symptoms ten days before her period.
134Treatment involved counselling, medication trials, time off work when needed and frequent rest breaks.
135The prognosis was an evolving condition and Dr Banerji was unable to provide a definitive prognosis. Future treatment was to be determined by a psychiatrist, with a referral having been made to Dr Bharat Saluja, with an appointment in February 2025.
136In terms of adverse consequences, there was a long-term impact on employment and recreational pursuits, unpredictable triggers affecting work attendance and social interaction, and PMDD amplified psychological symptoms in the ten-day premenstrual period.
137Dr Banerji thought this was a complex case with ongoing psychological sequelae. A more comprehensive assessment and treatment plan will be established following the psychiatric review.
Alice Saver, psychologist
138The plaintiff has had psychological treatment from Ms Saver since 27 February 2017. She last reported in April 2022, describing treatment and consultations until February that year.
139She noted when the plaintiff was first seen, she stated she had been a police officer for the last nine years and her boss had made her life a living hell. She also described how, in the previous six months, she had been replaying scenarios in her head related to work, which had resulted in bad stomach cramps and diarrhoea. When she thought about work, she felt upset with her stomach churning.
140At that stage, the plaintiff was off work and reported that her “boss has made [her] life a living hell”.
141In addition to the bullying behaviour, the plaintiff also reported recalling traumatic incidents while in the Force, like the West Gate Bridge murder of a child and having to break into a car of a young intern who had committed suicide.
142Ms Saver diagnosed PTSD with depressed and anxious mood. The PTSD symptoms were of a moderate level.
143At that stage, she thought the plaintiff required ongoing psychological treatment, in total at least twenty five counselling sessions on a weekly basis, and then a review.
144She thought the prognosis was good, as the plaintiff appeared to be more psychologically willing and able to focus on intensive treatment, which aimed to alleviate her current traumatic symptoms and depressed anxious mood.
Medico-legal
Dr Albert Kaplan, psychiatrist
145The plaintiff was examined by Dr Kaplan in August 2023.
146The plaintiff advised that in her role with the Unit, she and her colleague, Vanessa, shared an office with Margaret Fitzpatrick (“Fitzpatrick”), a colleague who was a crime prevention officer. The cause of the work stressors involved the plaintiff’s dealings with Fitzpatrick, who bullied and harassed her.
147The plaintiff advised, as time went on, she became increasingly anxious as a result of these work stressors and dreaded going to work. Vanessa left work and lodged a WorkCover claim as a result of the work stressors and then the plaintiff was on her own with Fitzpatrick.
148As a result of these stressors, the plaintiff ceased work in about late 2017 and lodged a WorkCover claim. She was off work for a few months when advised a return to work plan was suggested, even though no one had consulted her. She subsequently returned to work, with her GP specifying to not work with Fitzpatrick. Despite that, this restriction was contravened. The plaintiff complained on a number of occasions about this to no avail and lasted only five months or so before ceasing work in early 2019.
149The plaintiff advised she discontinued her WorkCover claim because she could not put herself through all the medical appointments.
150In about August 2019, the plaintiff obtained employment at La Trobe University, working as a residential educational co-ordinator four days a week. She was not coping and after a couple of months obtained a position with the Safer Community Unit working three days a week educating students on safety and wellbeing. She worked at home during the pandemic in 2020, which was good for her because she was not really coping. Her position was made redundant at the end of 2021.
151The plaintiff decided to take a year off to try and recover and in February 2023, she obtained a full-time position as a senior project officer of the Hub. She struggled and reduced her hours to nine days a fortnight, working two days a week from home and three in the office, and in reality was working more from home, which she found easier. She said she was just coping and struggling.
152She had been referred to a psychologist in February 2017, who she was seeing every three or four weeks, and had found helpful.
153The plaintiff was prescribed the antidepressant, Valdoxan, but discontinued taking it in January 2023 as she could not afford it. She was about to start a new antidepressant, amitriptyline.
154Depression was noted in a mental health care plan in August 2010. The plaintiff told Dr Kaplan she had experienced a number of traumatic incidents while in the Police Force before commencing in the Unit, including the West Gate Bridge. She stated she coped well with these traumatic events and although those reminders would trigger those memories, they did not include anxiety, and she had no other residual psychological symptoms in relation to those events.
155In terms of her psychiatric condition, the plaintiff stated any reminder, such as seeing a police car or hearing a siren, would trigger memories of her stressful experiences. Seeing a police officer induced intense anxiety. She had nightmares, mainly about Fitzpatrick. She found she was easily startled. She stated she would never be able to work with the police again.
156The plaintiff advised she felt anxious and on edge and found it very difficult to relax. She was irritable, mainly with her family, and found she was sensitive to noise. She went out and did things, but nowhere as much as she used to.
157The plaintiff stated she still felt depressed, but tried not to show her emotions. Over time, she became tearful and her confidence was shattered, although she was gradually regaining confidence with her psychologist’s help.
158She reported she suffered from insomnia, with her mind just racing. Her libido was non-existent, and her social life had been affected after previously being out all the time. She ended her activities selling health and wellbeing products, which was part of her social life. She tended to cancel social engagements at short notice and maintained contact with only a couple of friends.
159She advised she tended to lack patience with her children and felt guilty about her behaviour.
160She thought her condition was slowly improving, but any stress seemed to set her back. There were days she struggled to get out of bed in the morning and took sick leave.
161Before her work stressors, she had started to go on regular runs, but lost motivation and discontinued that activity. She had trained in a gym on and off, and in the previous year began training on a casual basis to get her out of the home. She had a personal trainer and occasionally engaged in that activity.
162On examination, the plaintiff maintained good eye contact and no difficulty was encountered in establishing rapport. Her thinking was characterised by pre-occupation with the work stressors, and she described intrusive thoughts of those experiences, but otherwise there were no abnormalities of speech, thinking or perception. She appeared, on gross clinical assessment, to be of above average intelligence and her insight appeared unimpaired.
163The plaintiff’s condition was best characterised as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and associated traumatisation features, with a differential diagnosis of a complex PTSD. There had been limited improvement, and her symptoms were of at least moderate severity.
164Although the plaintiff’s condition had improved, this improvement had been limited and she continued to suffer from symptoms of at least moderate severity, describing sleep and appetite disturbance, loss of libido, loss of motivation and a greatly reduced capacity to cope with stress, uncharacteristic social withdrawal, concentration difficulties and a loss of self-esteem.
165At one stage prior to ceasing work, the plaintiff experienced fleeting thoughts of suicide. She had become uncharacteristically irritable and felt guilty about her behaviour towards her family. She described a range of traumatisation features and had developed a heightened sense of vulnerability.
166It was difficult to predict the long-term prognosis of the plaintiff’s psychiatric condition. Hopefully that would continue to slowly improve; however, it was likely to persist for a long period of time and any future stressors were likely to aggravate her condition.
167The plaintiff was likely to require psychological treatment for at least the next eighteen to twenty-four months and then be assessed.
168While the plaintiff had taken on alternative employment reflecting her determination and motivation, she was nevertheless struggling with her work as a result of her psychiatric condition. She was then working from home for a substantial period and was unlikely to be capable of either increasing her hours of work or office-based work.
169The plaintiff’s psychiatric condition had had a major impact on her relationships with her family, her recreational pursuits and social life.
Defendant’s medical evidence
Treaters
170The plaintiff was cross-examined on her clinical notes from the Eaglehawk Medical Centre, Marong Medical Practice, and Bendigo Medical Centre.
171However, counsel for the defendant indicated in his closing address that the defendant did not place any significance on either the plaintiff’s back or psychiatric conditions pre-injury.[62]
[62]T49
Dr Saji Damodaran, consultant psychiatrist
172Dr Damodaran examined the plaintiff on behalf of the defendant in January 2024. The plaintiff was then working as a project officer and her contract was expiring soon.
173The plaintiff was continuing to experience ongoing anxiety, a loss of resilience, and was easily distractable. She found it difficult to organise herself and generally avoided crowded places. Her sleep was improving. She did not have the same level of motivation or social engagement, but her self-care was generally well maintained.
174On examination using NEXUS Telehealth, the plaintiff was co-operative. Her affect was mostly euthymic, and her mood was of anxiety. There were no formal thought disorders. The content was dominated by pre-occupation in relation to the alleged behaviour of the senior constable and a sense of helplessness, lack of motivation and of the uncertainty that she was experiencing. She denied any suicidal thoughts, although she talked about anhedonia, lack of motivation, a general lack of enjoyment, and a reduction in her social connectedness.
175She denied nightmares and there were no flashbacks or marked intrusive memories other than an understandable recollection of some of the incidents. There were no delusions, perceptual anomalies, or cognitive impairments, and insight to the condition was present.
176Based on the available information, he thought the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
177The condition had impacted her confidence, wellbeing, socialisation, general relationships, and also impacted her overall engagement in the activities she used to enjoy. She had a capacity for alternative employment.
178The exposure to significant traumatic events at work caused an understandable response in the plaintiff, although she did not have any significant symptoms suggestive of PTSD. She also had certain personal trauma; however, exposure to personal traumatic experiences, as well as other personal events, did not lead to any classical symptoms of PTSD, rather she was quite affected by the alleged behaviour of her colleague, which was deeply affecting her and dominating her thinking and emotional state.
179The plaintiff would benefit from seeing a psychiatrist for the management of her persistent anxiety and depression, as well as continuing with the psychologist for the next year. The plaintiff had a relatively good prognosis, as she was no longer exposed to the stressful situation and was engaged in other employment, and was able to manage various psychosocial activities.
180In his opinion, the plaintiff had a guarded short-term prognosis, although it was favourable in the long term, as she was no longer exposed to the policing role and the condition would gradually improve, as she was removed from stressful situations.
181The alleged bullying led to the development of the Chronic Adjustment Disorder.
182The plaintiff’s current condition, especially the Adjustment Disorder with Mixed Anxiety and Depressed Mood, did not impact her activities of daily living. It impacted her pre-injury employment, as she had no capacity for that, but she did have capacity for the alternative employment she was doing currently.
183The plaintiff had limitations in relation to domestic activities due to avoidance, her tiredness, and a lack of general confidence and concentration. She was socially disengaged compared to her pre-existing functioning. She was still able to play some social basketball and attend children’s parties, although she was not actively socially engaging. She was still having significant avoidance symptoms. She was not meeting with friends and not going out a great deal. She remained hypervigilant in relation to certain situations and could be triggered easily.
Findings
184There was no dispute the plaintiff suffered psychiatric injury as a result of bullying by Fitzpatrick at Bendigo.
185Her psychiatric diagnosis is one of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
186While the plaintiff was cross-examined about depressive symptoms noted in her GP’s records in 2012, the defendant did not argue this was an aggravation case and there was no suggestion of any relevant preexisting psychiatric condition.
187Further, it was not in issue that the work injury caused by the bullying continues to contribute to the plaintiff’s ongoing psychiatric condition.
Severe?
188The word “severe” indicates that a more significant injury is required to meet the test under paragraph (c) compared to paragraph (a).[63]
[63]Per Mobilio
189The word “severe” was intended by Parliament to have a stronger force than “serious”.[64]
[64]Per Mobilio, affirmed recently by the Court of Appeal in Katanas v Transport Accident Commission [2016] VSCA 140 (“Katanas”). See also the Second Reading Speech, where it was noted the government accepted the correctness of that approach.
190In making a determination of the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, the Court must identify and take into account all of the factors which emerge on the evidence as relevant to the assessment.[65]
[65]Katanas (ibid) at paragraph [25]
191As the Court held in Katanas, while the extent of treatment may cast light on whether a disorder should be accounted as severe, it was only one amongst a number of other ways in which the question of severity should be approached.[66]
[66]At paragraph [19]
192Under the narrative test, there is a two staged process which involves assessing severity subjectively, and also objectively when compared with the range or spectrum of comparable cases.[67]
[67] Katanas at paragraph [25]
193In Papamanos v Commonwealth Bank of Australia,[68] the Court mentioned a judge at first instance correctly identified there were no symptoms or consequences in that case that were ordinarily seen in psychological disorders at the more severe end of the spectrum. Specifically, the Court of Appeal noted there was no relevant hospitalisation, significant psychiatric treatment and medication or evidence of the more serious symptoms of suicidal ideation or attempts, or other psychiatric symptoms.[69]
[68] [2014] VSCA 167 (“Papamanos”)
[69]At paragraph [44]
194While not providing a checklist, Papamanos is good authority when considering the sort of indicia the Court of Appeal looked for when determining whether the consequences are at the severe end of the spectrum.[70]
[70] T52
Credit
195No attack was ultimately made on the plaintiff’s credit. I found her to be a truthful witness who presented very well in the witness box, giving her evidence clearly and concisely.
196As the defendant submitted, all the mental examinations speak just as the plaintiff presented in the witness box; conscientious, not speaking of a severe behavioural disturbance, giving evidence in a very capable manner, understanding things, a good recall of events, and a clear, precise and impressive mind.[71]
[71] T62
197On mental state examinations by two medico-legal psychiatrists, the plaintiff was not found to have psychotic symptoms or delusions, or any other major psychiatric symptoms.[72]
[72] T61
Complaints/symptoms
198The plaintiff deposed in significant detail to ongoing issues with anxiety and panic, in context of work triggers, problems with memory and concentration, fatigue,[73] a feeling of not being listened to home and at work, lack of enjoyment of life, finding it hard to be happy, reduced socialising and family and intimacy issues.
[73]Noted by Dr Kaplan
199Recently, for the first time, the plaintiff had a plan to commit suicide but could not go through with it because of her family. In the past, she had thought about suicide, but this was the first time she had made a plan and it really scared her.
200Before then, when seen by Dr Damodaran in January this year, the plaintiff denied any suicidal thoughts or any psychotic symptoms.[74] The plaintiff had told Dr Kaplan that at one stage prior to ceasing work, she had experienced fleeting thoughts of suicide.
[74] T60
201The plaintiff’s lack of recall of her trip to Nepal was cited as an example of her forgetfulness, as was her reliance on calendars.[75]
[75] T64
Treatment
202As the High Court said in Katanas, the extent of psychiatric treatment is one of the relevant factors when assessing severity.[76]
[76]Katanas at paragraph [18]
203The plaintiff has received only psychological treatment and there has been no psychiatric referral until very recently – over seven years after the work injury.
204The plaintiff is currently taking citalopram, 30 milligrams, having been prescribed other anti-depressive medications in the past; initially sertraline, then agomelatine in 2022 and amitriptyline in August last year.
205The plaintiff was initially seen by Dr Gupta at Bendigo Medical for the work injury in February 2017 and was treated in relation thereto until July 2019. Her current GP is Dr Banerji, who has recently referred the plaintiff to psychiatrist, Dr Saluja, with an appointment in January 2025.
206The plaintiff has been seeing psychologist, Alice Saver, since February 2017. Ms Saver’s most recent report is somewhat is outdated, being from April 2022. Her report detailed attendances while the plaintiff was still working with Fitzpatrick until her resignation in August 2019 and thereafter until February 2022.
207This report was not particularly helpful to the plaintiff’s case as Ms Saver’s comments focussed more on the consequences flowing from general trauma from policing duties and a diagnosis of PTSD, rather than on the plaintiff’s bullying allegations. There is little mention in that report of the plaintiff complaining of the matters she has deposed. Further, it predates the plaintiff’s return to full-time, responsible work in the Department. [77]
[77] T63
Work
208I accept that as a result of her psychiatric injury, the plaintiff has lost her career as a policewoman. This is a relevant factor when assessing pain and suffering.[78]
[78]Haden Engineering at paragraph [15]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [38]; and Peak Engineering & Anor v McKenzie [2014] VSCA 67 (“Peak”) at paragraph [38]
209Counsel for the plaintiff submitted loss of her career in the police force was a “very serious consequence” for the plaintiff. It was a career in which she had done work experience at the age of sixteen and then spent eleven years, even driving five hours a day to and from work. The plaintiff had deposed to her dreams of working as a police officer and how it was part of her identity, as her husband confirmed.[79] Pro-Active policing was the plaintiff’s dream job, and she saw herself as making a difference.[80]
[79] T67
[80] T68
210While I accept loss of career is a serious consequence, it is not a “severe” consequence in this case where the plaintiff has been able to return to a responsible job requiring organisational skills and interaction with a range of people and organisations in matters involving the welfare and education of children.
211As counsel for the defendant conceded, the situation might be different if the plaintiff had returned to a mundane job, as opposed to a meaningful one, as she is now doing. She may:
“… by virtue of her injury … have lost that dream job of being a police officer. But the second best line, which she is in at the moment, is … whilst reduction, it not be demonstrative of a severe consequence.”[81]
[81]T56
212Further, there is no evidence of any difficulty the plaintiff will have obtaining similar work when her contract expires in December.[82]
[82] T56
213I accept the plaintiff’s initial return to work post injury was somewhat “unsettled” as her counsel described. However, only one month after her resignation, she started work three days a week at La Trobe University dealing with students issues, which she continued for two years until being made redundant at end of 2021.[83]She then worked part time in a gym during 2022.
[83]Her husband’s affidavit describes her working only three days a week at the Unit
214However, from February 2023 she has engaged in more substantial responsible work with the Department, working with young people initially at the Hub as a senior project officer – a job she really enjoyed – and from early this year as the Health and Education Assessment Coordinator, working five days a week using the skills she obtained while working for the employer, focussing on children’s education and care.[84]
[84]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 (“Stijepic”) at paragraph [44]
215While a return to work does not prevent a finding of serious injury, it is one matter to consider, and the Court must make its determination on the basis of all the evidence.[85]
[85] See Stijepic
216As the Court said in Stijepic:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”[86]
[86]At paragraph [44]. See also Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
217As counsel for the defendant submitted, a return to work is a very important feature in a person’s life and particularly so in a psychiatric context:
“It requires a person to regularly get out of bed, attend to their matters, attend to work, interact with others, carry the responsibility, keeping the home life going while at work…those matters point to a fortitude and capacity of the mind which do make it very difficult then to assess that that person has a severe mental disorder.”[87]
[87]T53
218I accept that the plaintiff is more than just working, she is working well and seemingly having very little difficulty doing so and not needing time off because of any psychiatric issues. Any reduction to 0.9 hours is not evidence of a true psychiatric effect on her work capacity.[88]
[88]T55
219She may need to use aide memoires but so do a lot of workers. Even if largely organisational, her work requires regular attendance and the ability to plan and interact with stakeholders. Her desire to work from home is shared by many in the community post COVID.
Arbonne
220In addition to her work, the plaintiff also maintained, at least until 2021, an interest in the marketing business of Arbonne. In that capacity, she attended conferences and engaged with friends while working in her other jobs. While she no longer is actively involved in this activity, “it was never a major feature” in her life. [89]
[89] T59
Home life
221The plaintiff’s evidence of some disturbance to her marital relationship was not challenged but there is no evidence that her marriage is not on a good footing, with Dr Kaplan noting she enjoyed a close bond with her husband who is supportive, as is clear from his affidavit.
222While the plaintiff may have some issues with her children – being less tolerant of them, a feeling of being ignored by them, overreacting in certain circumstances, et cetera – she otherwise engages well with them. One may consider these issues are not unusual in any family.
223The plaintiff attends her children’s sport. She gets them up and ready for school every day. The family are able to go on holidays and are planning a US holiday next year, “subject to finances”.[90]
[90] T57
Sport
224The plaintiff had the motivation and energy post injury to run a half marathon and play competition basketball, although not an ongoing basis.
225She played two twelve-game seasons of basketball, which involved not only playing but interacting with others; however, she has not continued because she had to force herself to play.
226Significantly, she successfully completed a half marathon in July this year and was able to train beforehand.[91] However, she did not feel elation at her achievement, instead feeling nothing, with the photograph of her smiling being a fake. She had not found the motivation to start running again, although her foot injury had resolved.[92]
[91] T58
[92] T65
227While the plaintiff no longer has the motivation to run or play basketball, these are activities she would not have been able to attempt if she was suffering a severe mental disorder.
228I accept that the plaintiff’s social life has been affected by her mental condition. She is no longer the organiser and initiator of activities as she was before her work injury; however, she still catches up with three friends for lunch on a semi-regular basis.[93] Clearly, there would be interaction with coworkers and stakeholders on her days in the office. Although having difficulties socialising, the plaintiff is far from housebound.
[93] T58
229The plaintiff is able to do the shopping, although using click and collect, which is a convenient way of shopping for many people.
PMDD
230In Peak, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
231In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[94]
[94] Peak at paragraph [1]
232Maxwell P found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b) when the consequences properly referable to the compensable injury were identified, identify them as “serious”.[95]
[95] Peak at paragraph [2]
233As the plaintiff described, the consequences that flow from the non-compensable PMDD are significant; headaches, migraines and fatigue.[96]
[96] T63
234While a number of PMDD symptoms (migraines, headaches, et cetera) were very clearly differentiated from those relating to her psychiatric condition, there is still some overlap, such as the irritability and overreacting she described with her family and the fatigue she experienced.[97]
[97] T63
Permanence
235It was in issue whether the plaintiff’s mental state had stabilised in light of the planned psychiatric examination in January next year.
236While that treatment is planned, as counsel for the plaintiff submitted, the likelihood is the plaintiff’s current situation is permanent. It is now seven years since she started psychological treatment and five years since she stopped work. There was no need to await the outcome of psychiatric in a further twelve months.
237The purpose of seeing the psychiatrist was to monitor the plaintiff’s medication and her progress, and it is not suggested by anyone it is going to be a massive opportunity to cure her condition.[98]
[98] T66
238Further, it is now some time since the plaintiff was exposed to the stressful situation at work and there is no psychiatric evidence of any worsening of her condition.
239Taking all the evidence into account, I am not satisfied the consequences of any psychiatric impairment meet the high threshold of “severe”. For the reasons set out earlier – the ability to reliably attend a responsible job involving children’s welfare five days a week; the lack of any psychiatric treatment with the first suggestion of a psychiatric referral seven years after injury and treatment throughout only by a psychologist; the ability to maintain a home life with her husband and children and go on family holidays and also being able to engage in sporting activities and some ongoing social contact – the consequences of the plaintiff’s current mental state do not speak of a severe psychiatric impairment when compared to the range of possible impairments.
240As counsel the defendant submitted, either on the subjective or, importantly, the objective, “one cannot just measure this case at the upper end of the spectrum”. Across the range, this case does not get to “severe” when judged by the comparison with the range of possible impairments.[99]
[99] T52
241There are no symptoms or consequences in this case that were ordinarily seen in psychological disorders at the more severe end of the spectrum. Specifically, no relevant hospitalisation, significant psychiatric treatment and medication, evidence of the more serious symptoms of suicidal ideation or attempts, or other psychiatric symptoms.[100]
[100]Katanas at paragraph [44]
242Accordingly, the application is dismissed.
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