Halik v Wathaurong Aboriginal Co-Operative Ltd
[2020] VCC 1438
•22 September 2020
| THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01395
| KIRSTY ANNE HALIK | Plaintiff |
| v | |
| WATHAURONG ABORIGINAL CO-OPERATIVE LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27, 28 and 30 April 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 22 September 2020 | |
CASE MAY BE CITED AS: | Halik v Wathaurong Aboriginal Co-Operative Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1438 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – permanent severe mental or permanent severe behavioural disturbance or disorder – psychiatric condition – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Ansett Australia Ltd v Taylor [2006] VSCA 171; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted to the plaintiff to commence proceedings for damages at common law for pecuniary loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Morrow with Ms F Crock | Slater & Gordon Ltd |
| For the Defendant | Mr S Smith QC with Ms K M Manning | Wisewould Mahony |
HER HONOUR:
1 The plaintiff, Ms Kirsty Halik, began working with the defendant in or about March 2011. The plaintiff alleges that in the course of her employment with the defendant she was subjected to bullying and harassment by several people. The plaintiff outlined a number of examples of bullying and harassment. The plaintiff deposed that she found it increasingly difficult to cope and ceased work on 27 February 2014. The plaintiff has had ongoing treatment with her general practitioner, psychologist and psychiatrist. The plaintiff has been on long-term medication for a psychiatric condition. In January 2020, the plaintiff was hospitalised at the Geelong Private Hospital and was an inpatient for two weeks under the care of a psychiatrist.
2 The plaintiff lodged a worker’s compensation claim which was accepted for weekly payments and reasonable medical and like expenses and has been in receipt of these payments. Further, a claim for impairment benefit, as a consequence of that injury, was accepted.
The application
3 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) to commence proceedings for common law damages for injury suffered by her throughout the course of her employment with the defendant.
4 The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
5 There, “serious injury” is defined as meaning:
“(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
6 The mental or behavioural disturbance or disorder relied upon is a psychiatric condition.
7 The plaintiff bears the onus of demonstrating that the psychiatric condition is permanent, and the consequences are severe.
8 The plaintiff relied upon six affidavits: three sworn by the plaintiff on 1 October 2018, 4 September 2019 and 14 April 2020. In addition, the plaintiff relied upon two affidavits of Tracy Dillon sworn 31 March and 20 April 2020 and an affidavit of the plaintiff’s daughter, Bindi Jayne McNiven, sworn 7 October 2019. I have not summarised the plaintiff’s and Ms Dillon’s affidavits or evidence nor Ms McNiven’s affidavit, however, I will refer to their relevant evidence in my reasoning.
9 The defendant relied upon five affidavits: two sworn by Mr Craig Edwards on 20 October 2019 and 21 April 2020; two sworn by Mr Antony Meagher on 17 October 2019 and 20 April 2020, and an affidavit sworn by Ms Justine McCarthy on 18 October 2019. I have not summarised Mr Edwards’ affidavit or evidence or the affidavits of Mr Meagher and Ms McCarthy, however, I will refer to the relevant evidence in my reasoning.
10 In addition, both parties relied on medical and other material which was tendered in evidence. I have read all the tendered material.
The issues
11 Counsel for the defendant accepted that the plaintiff’s psychiatric/ condition was severe. He said that he would not be submitting that the plaintiff’s overall presentation is not serious. Accordingly, the severity of the plaintiff’s psychiatric condition is not in issue.
12 Counsel for the defendant submitted that the following issues were in dispute:
(a) the medical opinions rely upon an inaccurate history of what occurred at the workplace;
(b) there is an issue of pre-existing and concurrent stressors affecting the plaintiff. The question is whether, and to what extent, the plaintiff’s current presentation is referrable to those other stressors; and
(c) whether there was any “bullying and harassment” as alleged by the plaintiff. If so, the nature and extent of the “bulling and harassment” sustained in the course of her employment.
Credit of the witnesses
13 I shall now consider the credit of each witness.
The Plaintiff
14 Initially, the plaintiff answered questions asked, was polite and co-operative. As cross-examination of the plaintiff proceeded, she became guarded in her answers and at times argumentative.[1] On occasions, she did not answer questions asked, but made statements, not addressing the question asked. On some occasions, the plaintiff made concessions, for example the words used in some of the texted messages were words she used. I concluded that her understanding of the process was limited. I accept that the plaintiff has a long-standing psychiatric condition and the experience of being cross examined would be a difficult process
[1]Transcript (“T”) 36, Line (“L”) 26-28; T29, L13-31
15 The plaintiff was cross-examined in relation to the content of texted messages Mr Edwards exhibited to his first affidavit. Mr Edwards stated that the text messages were forwarded to him by Ms Thompson, a former co-worker and team leader of the plaintiff, who stated she received the messages from the plaintiff. The evidence was that Ms Thompson departed for Papua New Guinea some time ago and her whereabouts are not known. In cross-examination, the text messages were put to the plaintiff. Initially the plaintiff answered the questions relating to the text messages, accepting they were her messages.[2] She then said that some of the messages contained language that she used and would come out of her mouth, but some messages used terms she did not use. She then said several messages were not hers. When asked which messages were not hers, she said she did not know.[3] Subsequently, she denied that she had sent the messages[4] and stated the mobile number of the sender of the texted messages did not belong to her.[5] The plaintiff suggested that the texted messages were fabricated by Ms Thompson.[6]
[2]T23, L2-25; T26, L2 – T27, L21
[3]T33, L25-30
[4]T35, L30 – T36, L1
[5]T32, L4-8
[6]T35, L22-29
16 There was no evidence that the text messages were fabricated by Ms Thompson. There was no evidence that the mobile phone number associated with the text messages was not the plaintiff’s mobile number. I do not accept the plaintiff’s evidence in relation to the text messages, namely that she was not the author of the texted messages. By accepting that the plaintiff was the author of the texted messages, I accept that she had a friendship with Ms Thompson, for a period in time which is consistent with the evidence of all the witnesses, including her own evidence. I do not accept the plaintiff’s evidence that Ms Thompson fabricated the messages.
17 There were issues that the plaintiff agreed with. For example:
(a) she agreed that for a short period of time she had a good relationship with Ms Thompson.[7] She agreed that her relationship with Ms Thompson became more distant when Ms Thompson became her team leader, which was a source of upset and concern;[8]
[7]T60, L12-16
[8]T65, L25-8
(b) she agreed that when she attended medical examinations with Dr Krapivensky, she used the following terms: vicarious trauma, manipulative behaviours, deficits as a person, she was triggered, ostracised. She said these terms were used to explain her conditions and her symptoms;[9]
(c) she agreed that some of the words used in the texted messages were words she used; other words were not words she used.[10]
[9]T71, L16 – T72, L6
[10]T34; T71
18 Regard should be had to analysing and giving appropriate weight to all the evidence, including objective evidence.[11]
[11]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
19 In Cakir v Arnott’s Biscuits Pty Ltd,[12] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application.
[12][2007] VSCA 104 at paragraphs [49]-[58]
20 I accept that the plaintiff has a long standing psychiatric condition and the experience of being cross examined would be a difficult process for the plaintiff.
21 Overall, I concluded that on occasions, the plaintiff was an unreliable witness. Accordingly, I will more readily accept her evidence when it is supported by independent evidence.
Ms Tracey Dillon
22 Ms Dillon, the CEO of the defendant from 2011 until February 2015,[13] filed two affidavits. The first was sworn on 31 March 2020, to which she exhibited a statement she made to a WorkSafe investigator dated 16 June 2014, and an affidavit dated the 24 April 2020. Ms Dillon was cross-examined.
[13]T78, L30-31
23 Ms Dillon said that when she was employed with the defendant, she was briefed to address bullying and harassment of staff.[14] In her first address to staff, she made it clear that she would not tolerate such behaviour. The plaintiff alleged that throughout the course of her employment with the defendant, she was subject to bulling and harassment in the workplace. Ms Dillon was supportive of the plaintiff’s allegations. She recalled the plaintiff making complaints to her about Mr Edwards’ conduct towards her in the workplace. The plaintiff made complaints to her about being ostracised, victimised, harassed and bullied by her colleagues in the workplace.
[14]T80, L13-14
24 Ms Dillon said employees talked about the plaintiff behind her back in a nasty, critical and belittling way, including making comments related to the plaintiff’s dress sense, character and involvement with Mr Edwards. Further, she observed the plaintiff being socially ostracised within the workplace and some staff members ganging up against her and picking on her. Ms Dillon said this conduct was not uncommon in the workplace. The plaintiff reported the conduct, particularly relating to her team leader, Ms Sue Lovatt.
25 Ms Dillon gave evidence of other complaints by other staff members about Mr Edwards’ conduct. Ms Dillon gave evidence of a management meeting attended by the plaintiff’s team leader, Ms Lovatt, and the HR manager, Mr Tony Meagher. Despite the meeting, she received complaints from other staff members about the workplace culture and requested the HR manager conduct a survey to try and rectify the culture.
26 Ms Dillon said she had discussions with Mr Edwards about his personal relationship with the plaintiff which was creating negative and destructive issues within the workplace.
27 In February 2014, she conducted a performance management meeting with Mr Edwards relating to complaints she received regarding his conduct. A record of that meeting was before the Court.
28 Ms Dillon gave evidence that the plaintiff and Ms Thompson were friends and that Ms Thompson had supported the plaintiff. Ms Thompson had been promoted to team leader, which affected the relationship the plaintiff enjoyed with Ms Thompson.
29 Ms Dillon was cross-examined and gave evidence in a reasonable and thoughtful manner. She was in a position of responsibility, being the CEO. I accept, as the CEO, she had an overall view of the workplace. In giving evidence, she made concessions and conceded that the plaintiff’s conduct within the workplace was not above reproach. That on occasions she thought the plaintiff took offence inappropriately and told her so. She had spoken to the plaintiff about her inappropriate dress. She conceded that in giving a statement to an investigator about a worker’s compensation claim, she would be careful to express herself accurately, which was the approach she took in June 2014. She accepted that her memory would have been better in 2014 than in 2020.[15]
[15]T82, L17 – T83, L5
30 Much of the cross-examination of Ms Dillon was directed to the fact that much of what she said in her affidavits was not contained in the report she provided to the WorkSafe investigator. I accept her explanation that since the WorkSafe investigator’s report, she has had more time to reflect on the workplace. Much of her evidence in her affidavits was unchallenged.
Mr Craig Edwards
31 Mr Edwards swore two affidavits in October 2019 and 21 April 2020. He was a long-standing employee of the defendant for approximately twenty-four years. Currently he is the Chair of the Board of Wathaurong Aboriginal Co-Operative Ltd.
32 Mr Edwards had an intimate relationship with the plaintiff. The plaintiff alleged that he was involved in the culture of workplace bullying and harassment towards her.[16]
[16]T98, L16-20
33 In his first affidavit, he said he did not witness any behaviour which amounted to bullying and harassment by Nicole Thompson or Kerrie Black of the plaintiff. He denied the allegations made by the plaintiff that he engaged in the conduct alleged against him.
34 In his second affidavit, he addressed the allegations made by Ms Dillon in her affidavit of 31 March 2020. He exhibited to his second affidavit an email he received from Ms Thompson dated 4 October 2014, together with texted messages purportedly sent to Ms Thompson by the plaintiff.
35 In cross-examination, he denied any negative behaviour in the workplace. He denied any knowledge of complaints regarding staff behaviour and complaints of racially vilifying comments and any negative work interactions. He said:
“I don’t believe any incidents occurred. Never heard of them, didn’t see ’em. We were all one tight-knit community down there.”[17]
[17]T154, L18-24
36 Furthermore, Mr Edwards denied knowledge of complaints regarding his own conduct, his management style and differences between staff. This was despite the contemporaneous record of a performance management meeting in which he was a participant which notes these matters being raised with him.[18]
[18]T148, L9-11; T147, L21-24
37 Mr Edwards’ evidence in court was in direct conflict with his own statement in his affidavit of April 2020 in which he stated that a management consultant was engaged to work with him on developing his skills. In cross-examination, details of this meeting and the complaints of which he was advised were put to him. Mr Edwards repeatedly denied any knowledge.
38 In cross-examination, Mr Edwards described Mr Meagher as “a very happy go lucky bloke” who was professional at work, and was a person whose company Mr Edwards enjoyed, outside of work.[19]
[19]T163, L14-21
39 I reject Mr Edwards’ evidence of a workplace which was a big happy extended family, where all got along very well, with no staffing issues. I prefer the evidence of Ms Dillon on that aspect. She was independent, dispassionate, and as CEO, was best placed to understand the workplace. Furthermore, she no longer works with the defendant and was not personally involved.
40 I accept that Mr Edwards was an unreliable witness. I will be more inclined to accept Mr Edwards’ evidence when it is supported by independent evidence.
Mr Antony Meagher
41 Mr Antony Meagher, operations manager/HR for the defendant, swore two affidavits on 10 October 2019 and 20 April 2020. Mr Meagher denied problems in the workplace. He deposed that he had never witnessed Mr Edwards acting inappropriately or unprofessionally towards the plaintiff or any other staff member. He maintained the complaints register and said he did not receive a complaint nor hear of a complaint against Mr Edwards. His evidence was that he and Mr Edwards had a close working relationship. Mr Meagher was not cross-examined. Mr Meagher’s evidence was supportive of Mr Edwards’ evidence.
42 Ms Dillon said that she received feedback from two staff members who complained of bulling and harassment by Ms Thompson. Ms Dillon told them to adopt the protocols of putting in a grievance. They responded that they were not confident that complaints would be given a fair hearing as Mr Edwards and Mr Meagher were too close. I place greater reliance upon Ms Dillon’s evidence on this point.
Ms Justine McCarthy
43 Ms McCarthy, the current partner of Mr Edwards and employee of the defendant, filed an affidavit. She recommenced employment with the defendant in 2011. She formed a personal relationship with Mr Edwards in 2012, which continues to the current time. Ms McCarthy said she did not witness Ms Kerrie Black, Mr Edwards or Ms Thompson bullying or harassing the plaintiff. She did not witness anyone bullying or harassing the plaintiff.
44 It was not in dispute that Mr Edwards and Ms McCarthy are in a long-term relationship. I formed the view that Ms McCarthy was not an independent witness.
45 In considering the evidence Mr Meagher and Ms McCarthy, I take into account their close relationship with Mr Edwards. In considering their evidence, I rely more heavily on the evidence of Ms Dillon and the ongoing acceptance of the plaintiff’s claim.
Ms Bindi Jayne McNiven
46 Ms McNiven, the plaintiff’s daughter, swore an affidavit dated 7 October 2020. Ms McNiven was not cross-examined. She deposed that she was aware of the plaintiff having suffered a psychological injury at work and has observed the plaintiff to be depressed, anxious and tearful. She said that the plaintiff has poor concentration and memory and finds it difficult to leave her house.
The medical evidence
47 The plaintiff relied upon medical evidence of the following practitioners:
· Mr Paul Thornton, psychologist
· Dr Nicholas Brayshaw, general practitioner
· Mr Glenn Little, therapist
· Dr Stephen McConnell, psychiatrist
· Dr Nathan Serry, psychiatrist; and
· Dr Steven Stern, consultant psychiatrist.
Mr Paul Thornton
48 In June 2014, Mr Thornton, psychologist, diagnosed the plaintiff with an Adjustment Disorder with Depressed Mood due to work-related stress. He stated that the plaintiff’s condition was directly related to stressors at the time of referral and stressors encountered in her workplace leading up to this time.
Dr Nicholas Brayshaw
49 Dr Brayshaw, general practitioner, provided medical reports between April 2014 and August 2017. The plaintiff reported to him that she had experienced a number of events and circumstances throughout her life; however, she had developed good coping skills and a resilient exterior. These were stripped away by the work experience. She had lived an active and engaged life until the work-related incidents.
50 Dr Brayshaw said the plaintiff had a fragility as a consequence of past trauma for which, over time, she has developed strategies and defence mechanisms and had developed an ability to appear “strong and self-confident” at least on the exterior. He said this had unravelled in her current role with the defendant, particularly insidious, ongoing exclusion/snide remarks from colleagues.
51 In August 2018, Dr Brayshaw said the effect of workplace psychological trauma had rendered her with no capacity to return to work.
Mr Glenn Little
52 Mr Little, psychologist, reported that the plaintiff had endured a number of distressing and traumatic experiences over the course of her life. The plaintiff had remained engaged in therapy to work towards adjusting to the alleged workplace injury in February 2014.
53 In September 2019, he said he did not believe the workplace bullying and harassment incidents were the sole contributing factor towards her current psychological condition.
Dr Stephen McConnell
54 Dr McConnell, psychiatrist, treated the plaintiff between June 2016 and September 2019. He was aware that the plaintiff had past trauma which he considered was not the major contributor to her presentation. In October 2016, he said that the work-related stress had also caused activation of post-traumatic symptoms from previous trauma experiences for the plaintiff, but which had not been causing any psychiatric symptoms prior to the work-related stress.
55 In 2019, Dr McConnell said the plaintiff’s psychiatric condition had been directly caused by the work-related stress at her employment with the defendant. Further, the work-related triggers had caused activation of post-traumatic symptoms from previous childhood trauma experiences for the plaintiff. These current issues had not been causing any psychiatric symptoms previous to the work-related stress. He said the plaintiff’s Major Depressive Disorder has become chronic in nature.
56 Dr McConnell said the plaintiff requires ongoing medication of Duloxetine, 120 milligrams daily, Agomelatine, 50 milligrams nocte, with Temazepam, 10 milligrams prn and Quetiapine, 25 milligrams prn, and regular psychiatric and psychologist appointments. She is incapacitated to perform suitable employment, taking account her incapacity, age, education, place of residence and work experience. He considered the plaintiff’s employment with the defendant is a significant contributing factor to her current psychiatric injury. He noted that she was functioning in various roles personally, socially and in employment prior to her workplace injury. Furthermore, she had no prior psychiatric history of diagnosed mental illness or psychiatric treatment prior to injury.
Dr Nathan Serry
57 Dr Serry, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor in 2015 and 2019. In 2015, Dr Serry said the plaintiff had developed Major Depression with anxious features and with pictures of traumatisation, a condition which appears to be directly related to her employment with the defendant in the period leading up to and including 27 February 2014. The plaintiff reported that prior to the work injury, she was not requiring specific treatment for her mental health. He noted the plaintiff’s ongoing symptoms and highly prejudicial background and adverse development experiences, and commented that she coped well throughout her life and was functioning well in the period prior to the difficulties encountered in her work.
58 Dr Serry diagnosed the plaintiff with Chronic Major Depression with anxious features and with features of traumatisation, a condition directly related to her employment with the defendant. He said the plaintiff, as a consequence of her psychiatric injury, does not have the capacity to perform pre-injury duties on either a part-time or full-time basis, which is likely to be permanent. Further, as a consequence of her psychiatric condition, taking into her account her incapacity, age, education, place of residence, skill and work experience, she does not have a capacity to perform suitable employment either on a part-time or full-time basis, an incapacity which is likely to be permanent. He said her current treatment is entirely appropriate but given the severity of her psychiatric condition, consideration may well need to be given for inpatient psychiatric treatment. He described her condition as guarded.
Dr Steven Stern
59 Dr Stern, psychiatrist, examined the plaintiff at the request of the defendant’s insurer, CGU, in 2017 for the purposes of assessing a permanent impairment. Mr Stern examined the plaintiff and provided a report dated 3 March 2017.
60 Mr Stern took a detailed history from the plaintiff. He diagnosed the plaintiff with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said her psychiatric state is related to the work stress with the defendant
61 The defendant relied upon the following medical evidence of:
· Dr Martin van der Linden, psychiatrist
· Dr Patrick Daniels, psychiatrist
· The Medical Panel; and
· Dr Natalie Krapivensky, psychiatrist.
Dr Martin van der Linden
62 Dr van der Linden, psychiatrist, examined the plaintiff at the request of the defendant’s insurer in April and August 2014. It was his opinion that the plaintiff was suffering a major depressive illness caused by work-related stress, bullying and harassment. He accepted her employment continued to be a cause.
Dr Patrick Daniels
63 Dr Daniels, psychiatrist, examined the plaintiff at the request of the defendant’s insurer in April and October 2015. Dr Daniels diagnosed an Adjustment Disorder with Mixed Anxious and Depressed Mood. It was his opinion the plaintiff’s current condition is still materially contributed to by the claimed injury.
64 Dr Daniels said the plaintiff’s traumatic developmental history has predisposed her to developing the current condition. The plaintiff reported that despite her difficult early life experiences, she had never previously had pervasive symptoms of anxiety and/or depression nor had she undergone psychological treatment or had anti-depressant or anti-anxiety medication. Dr Daniels said the plaintiff could not return to employment with the defendant. He expected that she could return to suitable employment within the next six to nine months.
The Medical Panel
65 In June 2017, the Medical Panel believed the plaintiff’s psychiatric condition had not stabilised. In June 2018, a further Medical Panel concluded that the plaintiff is suffering from a complex Post-Traumatic Stress Disorder with dissociative symptoms and a Major Depressive Disorder with panic attacks and agoraphobia relevant to the accepted psychiatric condition. The Panel considered that due to the nature of the worker’s psychiatric injury and the length of the history, the worker’s current psychiatric condition is static or well stabilised and is not likely to remit despite future medical treatment. The Panel concluded that the worker’s condition is stable and permanent. Further, the Panel stated in its opinion there is no psychiatric impairment from an unrelated injury or cause which is playing a part in the plaintiff’s current psychiatric impairment. The Panel was aware of the plaintiff’s damaging childhood including childhood abuse.
Dr Natalie Krapivensky
66 In March 2016, Dr Krapivensky, psychiatrist, examined the plaintiff at the request of the defendant’s insurer and diagnosed an Adjustment Disorder with mixed emotional features in response to bullying at work. She said the plaintiff’s condition occurred on a background of significant personality factors and a traumatic abusive childhood, and development and multiple incidents of trauma in early life. She thought it would be an aggravation of a pre-existing condition. It was her view that her condition had been present, albeit undiagnosed, for many years. She said the plaintiff had no capacity for work in pre-injury duties and hours at her current or alternative workplace. Further, she needed psychiatric treatment and medication. She considered the plaintiff’s incapacity for suitable employment was not indefinite.
67 In October 2016, Dr Krapivensky re-examined the plaintiff and diagnosed Chronic Post-Traumatic Stress Disorder. She said the plaintiff’s current condition is the chronic underlying condition and the work-related aggravation has now ceased. She said there were multiple non-work related factors which continue to contribute to the plaintiff’s condition and it was her view they have overtaken employment as the major contributor to her ongoing psychiatric ill health and incapacity.
68 Dr Krapivensky said that the plaintiff was unable to return to work with the defendant and should commence in appropriate modified or alternative duties on a part-time basis, initially 10 hours or so per week.[20] Further, she said the plaintiff has no capacity to return to pre-injury duties and hours with the defendant or an alternative employer. She considered the plaintiff’s current treatment regime was in line with best practice and was efficacious.
[20]Defendant’s Court Book 47
69 In February 2019, Dr Krapivensky said the plaintiff initially developed a rather Mild Adjustment Disorder with mixed emotional features which was attributed to stress and perceived bullying in the workplace. When examined, the plaintiff was preoccupied with alleged illegal and unfair practices by the employer but could not provide examples. Dr Krapivensky said that the plaintiff used learned language but could not provide examples or describe her feelings. Dr Krapivensky diagnosed chronic dysthymia on a background of functional characteristics. Dr Krapivensky said it was impossible for her to relate her current psychiatric state to anything that may have happened in the workplace almost three years ago. She accepted the plaintiff had a complex life, both in the past and present. She said the plaintiff was invested in the compensation process and had a full current psychiatric work capacity for work.
70 In 2020, Dr Krapivensky concluded that the plaintiff has a lifelong personality dysfunction and associated Mood Disorder secondary to early childhood trauma, resulting in lifelong interpersonal difficulties characterised by need for validation and insecurity associated with mood instability.
Analysis of the evidence
71 Counsel for the defendant submitted that the medical opinions rely upon an inaccurate history of what occurred in the workplace.
72 The majority of the medical opinion was that the plaintiff’s current condition was work related. Dr Krapivensky was the only medical opinion not to support that view. I accept the majority view.
73 The plaintiff reported to all medical witnesses the issues she was experiencing at work. Overall, her reporting of bullying and harassment at work was supported by the evidence of Ms Dillon. I am more reliant on the evidence of Ms Dillon as she was in a position of responsibility as CEO whilst employed by the defendant, was independent and no longer worked for the defendant. I am less reliant on the evidence of Mr Edwards, Mr Meagher and Ms McCarty in relation to any evidence about the history of what occurred in the workplace as I formed the view that they were not independent[21].
[21]Outlined in Credit
74 Counsel for the defendant submitted that there is an issue of pre-existing and concurrent stressors affecting the plaintiff. Counsel submitted that the question is whether, and to what extent, the plaintiff’s current presentation is referrable to those other stressors.
75 Several of the current medical witnesses addressed the plaintiff’s previous background which included trauma in childhood. Dr Serry referred to “a highly prejudicial background and adverse development experiences” and said the plaintiff was coping well throughout her life and was functioning in the period prior to the difficulties encountered at work.[22]
[22]Plaintiff’s Court Book 162.2
76 Dr McConnell said the work-related triggers had caused activation of post-traumatic symptoms from previous childhood trauma experiences of the plaintiff which had not been causing any psychiatric symptoms prior to work- related stress.
77 Mr Little, psychologist, obtained a history of very distressing and traumatic experiences over the course of her life. He said the workplace bullying and harassment were not the sole contributing factor to her current psychological condition.
78 Dr Brayshaw obtained a history of a number of events and circumstances throughout her life; however, she developed good coping skills and a resilient exterior which were stripped away by her work experience. She had lived an active and engaged life until the work-related incidents.
79 The plaintiff deposes to the difficulties she experienced in her childhood and life prior to working with the defendant. I accept that the plaintiff had developed coping skills in relation to past trauma and at the time of commencing her employment with the defendant had a capacity for work. There was no evidence to suggest that the plaintiff’s past history affected her capacity to work. There was no evidence to suggest that the plaintiff was having ongoing psychiatric or psychological treatment or was taking medication for a psychiatric condition when she commenced employment with the defendant. Further, following her ceasing employment with the defendant, the plaintiff made complaints to her treating medical practitioners about the conduct she experienced at work and not past trauma.
80 In relation to causation, the plaintiff must establish that an act or omission of the employer was a cause of the injury and not the sole or dominant cause of her injury. The plaintiff will have established a sufficient connection to her employment to characterise the injury as “arising out of” her employment. It is not necessary for the plaintiff to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any ‘special risk’ or ‘special exposure’ to injury.[23]
[23]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at paragraphs [8]-[9]
81 In determining whether the act or omission of the employer was a cause of the injury, the employer must take the plaintiff as it finds him/her. Any special susceptibility or vulnerability on the part of the plaintiff may explain why the particular act or omission is of causal significance. The fact that the act or omission would not have caused injury to another plaintiff does not change the course of character of the act or omission.[24]
[24](ibid) at paragraph [11]
82 In cross-examination, it was not put to the plaintiff that nothing in the workplace caused or contributed to her injury.
83 Based on the majority of the medical evidence, I accept that, on the balance of probabilities, the act or omission of the employer was a cause of the injury, and the plaintiff has established sufficient connection to her employment with the defendant to characterise the injury as “arising out of or in the course of” her employment.
84 Counsel for the defendant submitted that the plaintiff’s failure to cross-examine either Mr Meagher or Ms McCarthy is significant, given their evidence related to the issues in dispute, and the fact that the plaintiff required the witnesses to be available for cross-examinations. In those circumstances, I should accept their evidence in its entirety. I do not accept that submission.
85 This is a serious injury application and the Serious Injury Practice Note PNCLD-3 of 2020 states that ordinarily the only witness who the defendant will be permitted to cross-examine will be the plaintiff. No party should operate on the basis that the giving of notice to cross-examine will routinely result in leave being granted to have a witness produced for cross-examination.[25] I permitted Ms Dillon and Mr Edwards to be cross-examined. In accordance with the Practice Note, I would not have permitted the cross-examination of Mr Meagher or Ms McCartney, had leave been sought. Given that Mr Edwards, Mr Meagher and Ms McCartney are currently associated with the defendant, have reputations to maintain and have personal relationships, I formed the view that they were not independent.
[25]Paragraph 10.4
86 Counsel for the defendant submitted that there was an issue as to whether there was any “bullying and harassment” as alleged by the plaintiff. If so, the nature and extent of the “bullying and harassment” sustained in the course of her employment.
87 The defendant submitted that there was a factual dispute as to the nature and extent of the bullying and harassment alleged to have occurred in the workplace. This submission is made in the context of the defendant’s insurer having accepted the plaintiff’s claim for compensation, including the payment of weekly payments, reasonable medical and like expenses and accepting the plaintiff’s claim for an impairment benefit. The plaintiff remains on payments of weekly compensation and reasonable medical and like expenses for psychological injury arising out of her employment. In Sednaoui v Amac Corrosion Protection Pty Ltd,[26] the Court explained:
“… while an employer/respondent may, in a particular case, be able to explain the circumstances of a particular admission so as to reduce the weight that might be given to it, the mere failure by such a party to call such evidence, without more, does not mandate a conclusion favourable to the claimant/worker. As with most questions of admissibility and weight, each case is dependent upon its own facts and circumstances.”[27]
[26][2017] VSCA 66
[27](ibid) at paragraph [68]
88 In this case, the defendant did not call any witnesses, such as a claims officer, to explain away the admission. Furthermore, Counsel did not address this matter in submissions.
89 The plaintiff’s evidence was that she commenced employment on a permanent part-time basis working thirty hours per week with the defendant. Her role was described as an “innovations worker”, essentially a case worker working with families and providing them with material aid and support.
90 The plaintiff’s evidence was that throughout the course of her employment she was subject to bullying and harassment, by several people, particularly Craig Edwards, Nicole Thompson and, to a lesser extent, Kerrie Black.
91 The plaintiff alleged that she was harassed generally. For example, things were thrown at her and on more than one occasion. In cross-examination, the plaintiff identified that Sue Lovett had thrown paper at her. Miss Dillon, the CEO of the defendant at the time, confirmed that in 2012, she mediated the situation and Ms Lovett left her position soon after as it was unfunded. Ms Dillon confirmed that Ms Lovett isolated the plaintiff and another employee, was a bully and would swear at the plaintiff and others.[28]
[28]T84, L12-19
92 The plaintiff said she felt intimidated and humiliated. For example, jokes were made about her in the presence of others. Also, co-workers would huddle together and snigger and then stop when she entered the room. Ms Dillon’s evidence supported this. Ms Dillon said she was present when employees were talking about the plaintiff, she had to pull them up.[29] She said that the plaintiff sat in an open area and another employee who sat nearby refused to work with the plaintiff, complained about the plaintiff, for example about the plaintiff’s dress sense. Further, staff were concerned as to where the plaintiff was, what she was doing, rather than doing their own work.[30]
[29]T127
[30]T129, L19 – T130, L1
93 The plaintiff said her privacy was breached. She said this happened more than on one occasion and included times when she was reprimanded in front of other staff. Another example was when Nicole Thompson told her to disclose very personal details to her, so the plaintiff could be better at her job. Ms Dillon said that Ms Thompson obtained information from the plaintiff and made her doubt herself.[31]
[31]T108 and 133
94 The plaintiff alleged that foul language was directed towards her. The plaintiff gave evidence that she was called a “fucking cunt” and a “fucking dog”.
95 The plaintiff alleged that she was exposed to racial vilification. She said that Nicole Thompson would regularly make racist comments, which she found offensive. Ms Dillon confirmed that Ms Thompson racially vilified staff including the plaintiff and Mr Edwards.[32] Ms Dillon said these comments were made behind Mr Edwards’ back about how he got his job because he was aboriginal and how he was not competent enough, and how the organisation gave jobs to indigenous people who were not competent. Ms Dillon said she raised these matters with Craig Edwards and asked him to speak with Ms Thompson about racist comments made by Ms Thompson to the plaintiff.
[32]T102, L20 – T103, L1
96 The plaintiff said she felt unsupported. She struggled with aspects of her role which she reported, however, no action was taken to assist her. The plaintiff said she was required to undertake an excessive workload, she received constant phone calls, clients were given her address and she was expected to work outside of work hours regularly. These allegations were denied by Mr Edwards.
97 The plaintiff said she heard nasty rumours about herself which had been spread about. She said she felt provoked. For example, Nicole brought a client around to her house, unannounced, to do her hair. She deposed that Nicole told her stories which she knew would shake the her, such as that the client had masturbated in the plaintiff’s shower.
98 The plaintiff alleged that Craig Edwards falsified his qualifications and informed the plaintiff he was a counsellor. The plaintiff believed he did this to encourage her to confide in him. She said that during conversations she had with Mr Edwards, he would regularly make lewd sexual comments to the plaintiff. This was denied by Mr Edwards.
99 The plaintiff said she felt victimised and was given extra work after advising her employer she was having trouble coping.
100 It was not in issue that the plaintiff had a brief personal relationship with Mr Edwards prior to her employment with the defendant. The plaintiff felt that this was used to manipulate and exploit her in her employment with the defendant.
101 The plaintiff said she found it increasingly difficult to cope with her work and ceased work on 27 February 2014. The plaintiff has not returned to any work.
102 Ms Dillon gave evidence that Ms Thompson exhibited manipulative behaviour.
103 Ms Dillon accepted that Ms Thompson mentored the plaintiff and that the plaintiff looked up to Ms Thompson and that they were friends. She said the relationship changed when Ms Thompson became the team leader. She did not believe it was a blow up between friends. She accepted that the plaintiff might have been paranoid on occasions in her interpretation of events and was hurt by the relationship between Mr Edwards and Ms McCartney.[33] She told the plaintiff that her responses on occasions were irrational, which the plaintiff accepted.[34]
[33]PCB 17.11 paragraph [17]
[34]T63-64
104 Taking into account all of the evidence, I accept the plaintiff’s employment with the defendant is a cause of the plaintiff’s psychiatric injury. I rely on the majority of the medical evidence, and the evidence of Ms Dillon, who in large part supported the plaintiff’s evidence.
105 This is a serious injury application where the defendant has accepted the claim for compensation. The plaintiff has been in receipt of weekly payments and medical and like expenses. A claim for impairment benefit because of the injury, has been accepted.
106 There is no evidence that this claim was wrongly accepted.[35]
[35]In Sednaoui v Amac Corrosion Protection Pty Ltd (ibid), the Court of Appeal considered the decision in Ansett Australia Ltd v Taylor [2006] VSCA 171 that an admission (of acceptance of a claim) “should ordinarily be regarded as very significant” and said this, with respect, was undoubtedly true (at paragraph [67]). The failure to call a witness, for example a claims officer to “explain away the admission”, creates a Jones v Dunkel (1959) 101 CLR 298 argument but does not mandate a conclusion (at paragraph [64])
107 Counsel for the defendant accepted that the plaintiff’s condition was severe, and he did not submit that the plaintiff’s overall presentation is not serious.
108 Accordingly, I grant the plaintiff leave to commence proceedings for damages at common law for pecuniary loss and pain and suffering damages.
109 I will hear the parties on costs.
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