Hamed v State of Victoria & Anor
[2023] VCC 2214
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-02529
| MAYADA HAMED | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 June 2023 | |
DATE OF JUDGMENT: | 1 December 2023 | |
CASE MAY BE CITED AS: | Hamed v State of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2214 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent severe mental or permanent severe behavioural disturbance or disorder – leave sought for pain and suffering – loss of earnings – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Accident Compensation Act 1985
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Mobilio v Balliotis [1998] 3 VR 833; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Acir v Frosster Pty Ltd [2009] VSCA 454; Richter v Driscoll (2016) 51 VR 91; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Johns v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms A Tate | Slater & Gordon |
| For the Defendants | Ms S Gold | Thomson Geer |
HIS HONOUR:
1The plaintiff, Mayada Hamed, now 34 years of age, was employed by the first defendant at Waratah Special Development School (“the school”) as a teacher’s assistant between May 2014 and November 2015.
2Ms Hamed suffered a psychiatric injury arising out of or in the course of her employment with the first defendant, and has not worked since her resignation in November 2015.
3Ms Hamed seeks leave to bring proceedings to recover common law damages under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), for both pain and suffering and loss of earning capacity damages in respect of a psychiatric injury under paragraph (c) of the relevant definition of “serious injury”.
4Causation is not in dispute. It is accepted by the State of Victoria that Ms Hamed suffered a compensable injury at work, and not in dispute that she made a claim for compensation which was accepted. She continues to receive weekly payments on the basis of total incapacity.
5It is also not in dispute on the medical evidence that, having regard to her current symptoms and underpinned diagnosis, Ms Hamed is not able to return to her pre-injury employment as a teacher’s aide.
6Discharged from an inpatient admission at Northpark Psychiatric Hospital for the purposes of giving evidence, Ms Hamed was readmitted at the conclusion of the first day of the hearing. It is agreed that the need for her current admission is not reflective of her permanent psychiatric state.
7The ongoing nature and extent of her incapacity as a consequence of her baseline psychological condition is, however, in issue in this proceeding.
8There are two affidavits of Ms Hamed and an affidavit in support of her husband.
9For the reasons that follow, I am satisfied that Ms Hamed ought be granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages for her psychological injury sustained in the course of her employment.
10It follows that she should also be granted leave to recover damages for non-pecuniary loss.[1]
[1]A plaintiff who satisfies the loss of earning capacity requirements of s325 of the Act is entitled to bring proceedings for the recovery of damages for both pecuniary loss and pain and suffering damages: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]; see also Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494 at 511, at paragraph [50]
Principles
11The relevant legal principles in applications of this type are well known and are not in dispute.
12Ms Hamed bears the onus of demonstrating that her psychological condition is permanent, and that the consequences are severe.
13The severity of a mental or behavioural disturbance or disorder is determined by whether the consequences to the plaintiff, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe, in accordance with the narrative test set out in ss325(b) and (d) of the Act and the principles in Mobilio v Balliotis.[2]
[2] [1998] 3 VR 833
14To satisfy the requisite threshold in relation to pecuniary loss, I must be satisfied that Ms Hamed has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
15The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (‘after injury’ earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[3]
[3] Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
16Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd,[4] that s134AB of the Accident Compensation Act 1985 is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”
[4] [2009] VSCA 454 at paragraph [171]
17I must also consider whether Ms Hamed has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to her age, education and skills, work experience or other matters.[5]
[5] Richter v Driscoll (2016) 51 VR 91
18Whether or not the impairment is “severe” to Ms Hamed within the meaning of the narrative test, falls to be assessed by reference to the consequences of the injury, rather than the injury itself.
19The task is an evaluative one, having regard ot all of the evidence. In Ellis Management Services Pty Ltd v Taylor,[6] the Court of Appeal stated:
“52. ... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
57.The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
58.Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.
59.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range ... .”[7]
[6] [2013] VSCA 326
[7]Citations omitted
20The credibility of the plaintiff is central to the determination of applications of this type, and this is particularly so in cases involving psychiatric injuries where the opinions of medical experts are heavily dependent on the plaintiff's account.[8]
[8]Johns v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243
21In considering Ms Hamed’s evidence, I have had regard to the authorities in dealing with credit on occasions of this type to the effect that the court must analyse and give appropriate weight to all the evidence, including objective evidence.[9]
[9] Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
22It is also of note that Ms Hamed is a young plaintiff. She is currently 34 years old and has been unable to work since she left the school at age 26, so her youth is a factor in this application.
23In Stijepic v One Force Group Aust Pty Ltd,[10] the Court held:
“43.… When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[10] [2009] VSCA 181 at paragraph [43]
Issues
24My reasons which follow will consider the following issues raised at trial:
(a) What is the baseline psychiatric condition of the plaintiff, ignoring the symptoms associated with the court case?
(b) Is the plaintiff’s baseline psychiatric condition permanent?
(c) What is the plaintiff’s current work capacity?
(d) Does the plaintiff have a severe permanent psychiatric condition?
(e) The credit of the plaintiff.
Background
25The following facts are uncontroversial.
26Ms Hamed was born in Melbourne in 1989 and attended Preston Girls’ School where she completed VCE. After completing a Certificate III teacher’s aide/education support officer course at the Australian Catholic University in 2007, Ms Hamed was employed by the first defendant in various education roles at two other special schools prior to commencing at Waratah Special Development School in 2014. She also worked as a pharmacy assistant when she was much younger.
27Prior to her injury, she travelled to Israel and the West Bank for a period in 2011; and after her injury completed a Bachelor of Education (Applied Learning) online through Tasmania University in 2017.
28Ms Hamed claims that when she commenced working at Waratah Special Development School she was placed with an inexperienced teacher, and experienced inappropriate and racist behaviour, including the teacher making frequent racist remarks about Muslim people and black people. Further, apparently unable to cope with her work stressors, the teacher would shout at Ms Hamed and abuse her in a totally inappropriate and unprofessional way.
29From mid-2015, Ms Hamed began suffering sleeping problems and anxiety about attending work, eventually experiencing a panic attack at work on 2 September 2015. Her general practitioner sent her to the Emergency Department. Ms Hamed continues to suffer panic attacks to this day.
30In September 2015, as a result of symptoms associated with her work environment, she came under the care of Carolyne Thompson, psychologist. Ms Thompson thought the plaintiff was suffering from extreme anxiety, depression, and a panic disorder.[11]
[11]Plaintiff’s Court Book (“PCB”) 73
31In November 2015 she ceased work.
32According to Ms Hamed, the primary reason was the lack of support despite various complaints she had submitted to the school. These complaints included being the subject of bullying from the teacher she was assigned to, including inappropriate and racist remarks, and leaving her to deal with students by herself. She also submitted incident reports following a student assault - one of the students would frequently get upset and try and choke her. On her account, the teacher she was assigned to did nothing and nor did the school address her complaints, other than to move her to a new class after her panic attack at work.
33The new class was made up of teenage boys who were constant masturbators. One of Ms Hamed’s tasks was to clean up after them after they had masturbated. She did this work for about one week before she broke down and resigned, and has not worked since.
34After ceasing work, she was treated by Dr Shasikala Prahalapan, a general practitioner, for symptoms consistent with anxiety, and a depressive condition including Bruxism. She was referred to a dentist for teeth grinding.
35Her Worker’s Injury Claim Form dated 19 November 2015 specified her injury as anxiety/depression. Her claim for weekly payments and medical expenses was accepted by the claims agent, CGU, on 28 December 2015.[12]
[12]PCB 43
36On 8 July 2016, she slipped and fell in a supermarket, injuring her right shoulder. In 2018, her ongoing pain and restriction from this injury was assessed as being long term in nature.[13] She received compensation for this injury in 2020.
[13] Report of Dr Peter Blomberry dated 7 June 2018, PCB 123, 127
37In September 2016, Dr Prahalapan referred her for psychiatric treatment for major depression;[14] and on 2 December 2016, Ms Hamed was first assessed by psychiatrist Dr Yogananda Ballekere.[15] Dr Ballekere initially diagnosed her as suffering from an adjustment disorder and was her treating psychiatrist until August 2021, a period of nearly five years.
[14] PCB 80
[15]PCB 69
38A suicide risk, Ms Hamed was admitted to Northpark Psychiatric Hospital for treatment of her psychological condition from 1 June to 28 July 2018 under Dr Ballekere.
39In November 2018, the first defendant terminated the plaintiff’s weekly payments. A Medical Panel subsequently determined that:
(a) Ms Hamed was suffering from a panic disorder with agoraphobia relevant to the claimed psychological injury, and also Bipolar Affective Disorder relevant to the claimed psychological injury;
(b) the panic disorder with agoraphobia results from her injury;
(c) the Bipolar Affective Disorder is materially contributed to by her injury; and
(d) Ms Hamed had no current work capacity resulting from her injury, and was likely to continue indefinitely to have no current work capacity.[16]
[16]Medical Panel Opinion dated 26 February 2019, Exhibit G
40Ms Hamed remains on weekly payments.
41From 4 April to 10 May 2019, Ms Hamed was again an inpatient at Northpark Psychiatric Hospital in the context of suicidal ideation.
42In September 2019, Ms Hamed moved to Ramallah, where she married her husband, Saeed Mousa, a month or so later. By that time, Dr Ballekere was of the opinion that she was suffering from a bipolar disorder with anxiety. While Ms Hamed was living in Ramallah, she saw a local psychiatrist, Dr Mohammed Al-Khawaja.
43On 4 August 2022, Ms Hamed gave birth to her son, following which she reported suffering post-natal depression. This condition has now “improved”.[17]
[17]Plaintiff’s further affidavit sworn 19 May 2023, paragraph 7, PCB 21
44Ms Hamed was heavily reliant on her husband to take care of her in Palestine. He prepared her medications, made sure she showered, did the shopping and most of the cooking. He took her to a hairdresser once a week for treatment of a scalp condition. They had a cleaner who looked after the house.
45On 31 March 2023, Ms Hamed returned to Australia and moved in with her parents. Her husband was expected to fly to Australia shortly after the conclusion of the hearing.
46Now that she has returned to Melbourne, Ms Hamed is again under the care of Dr Ballekere. She still sees Dr Eileen Yap, her general practitioner, who she consulted with via Telehealth when living in Ramallah.
Credit
47The State of Victoria's submission generally is that the plaintiff is not reliable, not simply in court but also to her doctors, and that no doctor has a fulsome history about the nature and extent of her activities. Specially, Ms Gold submitted that Ms Hamed was an unreliable witness for the following reasons:
(a) she gave evasive and unsatisfactory evidence about meeting a boyfriend in Dubai in 2017, and confused evidence about online and WhatsApp dating;
(b) her memory was selective;
(c) save for her husband who she met after her injury, there is no affidavit evidence from the plaintiff's own family to corroborate her evidence;
(d) she has not been straightforward about travelling;
(e) her medical condition was not as elaborate as she is presenting to medico-legal examiners and should not be accepted. The better analysis is on an objective examination of what the plaintiff has actually been able to do since she ceased work in 2015; and
(f) aside from not working, she has led a full and productive life.
48I reject, for the reasons set out below as to the consequences of her psychiatric disorders, the submission that Ms Hamed has led a full and productive life since her injury.
49The plaintiff has travelled. This history has been given to doctors and it is self-apparent as she is living in Palestine. She gave a relatively complete history to Dr Khawaja[18] as to the extent of her travels. I find that the plaintiff’s credit has not been tarnished by any failure to disclose travel to the court.
[18]PCB 100
50I found Ms Hamed to be an honest, although psychiatrically-ill young woman. Her evidence in court was generally delivered in a relatively clear and unequivocal manner without prevarication or attempt to exaggerate her symptoms. There is no medical evidence to suggest the plaintiff has attempted to exaggerate or embellish her symptoms in clinical settings. Every psychiatrist who has examined her accepts the genuineness of her complaints associated with her psychiatric illness.
51I accept her evidence.
52The absence of evidence from other members of Ms Hamed’s family is not significant in light of my findings as to her credit, and the other evidence available to me.
Medical evidence
Treating medical practitioners
Dr Carolyne Thompson, psychologist
53Psychologist, Dr Carolyne Thompson, was Ms Hamed’s treating psychologist from 10 October 2015 for a number of years, and diagnosed a panic disorder in association with chronic moderate depression.[19] As at the date of her report in March 2018, Dr Thompson expressed the view that Ms Hamed was incapacitated from her previous employment. Although she did not consider Ms Hamed’s mental health concerns would render her incapable of future employment indefinitely, she was “unable to offer any clear indication of how long recovery may take.”[20]
[19] Report dated 22 March 2018, PCB 73
[20] PCB 75
Dr Eileen Yap
54Dr Eileen Yap has been Ms Hamed’s general practitioner since in or about 2017, including during the period when she was living in Ramallah. She diagnosed her patient as suffering from an adjustment disorder/panic disorder/anxiety and depression with panic attacks due to bullying at work.[21]
[21] Report dated 24 January 2018, PCB 76
55Unfortunately Dr Yap has not engaged with requests for an up-to-date report, instead deferring to Ms Hamed’s treating psychiatrist(s).[22]
[22] See letters to Ms Hamed’s solicitors dated 10 December 2020 and 9 March 2023, PCB 93 and 97
Dr Yogananda Ballekere, consultant psychiatrist
56Dr Ballekere initially assessed Ms Hamed on 2 December 2016. Ms Hamed remained in Dr Ballekere’s care after she moved to Ramallah in 2019 until 2 August 2021, at which time Ms Hamed transferred to the care of a local psychiatrist in Ramallah.[23]
[23] PCB 90
57Dr Ballekere initially diagnosed a work stressor-related adjustment disorder,[24] with a guarded prognosis. In his view, her condition was not stable, and she was “still suffering from fluctuating severity of anxiety, panic, and depressive features”.[25] In August 2019, Dr Ballekere certified that Ms Hamed’s mental state had reached stability.[26]
[24] PCB 70 and 82
[25] PCB 71
[26] PCB 84
58As at June 2022, Dr Ballekere had revised Ms Hamed’s diagnosis to Bipolar Affective Disorder (triggered by stress at work) and generalised anxiety disorder.[27] These medical conditions were then stable. He noted that with treatment her condition had improved over time, and she was in a stable relationship. In his opinion, Ms Hamed had no current capacity for her pre-injury work or any other work, and would require psychotropics indefinitely. In terms of any capacity to work in the future, Dr Ballekere stated she could “potentially work part-time in a suitable job once her symptoms are fully abated.”[28]
[27] Report dated 14 June 2022, PCB 90
[28] PCB 91
59In his most recent report of 16 June 2023, Dr Ballekere noted Ms Hamed was:
“… currently in hospital due to acute exacerbation of PTSD and panic disorder. She also suffers from bipolar disorder.
We decided to admit her to ensure professional support in a supervised setting as her family could not provide any support. Her current exacerbation is in the context of imminent court proceedings. She is currently anxious, panicky and overwhelmed. It is likely this exacerbation will persist until the court proceedings are over and then hopefully she will settle to her baseline level of mental health and functioning.
…
Her previous psychiatrist in Palestine can comment about her baseline level of mental health and functioning.”[29]
[29] PCB 105
Dr Mohammad Al-Khawaja, psychiatrist
60Sometime after relocating to Ramallah, Ms Hamed consulted psychiatrist, Dr Mohammad Al-Khawaja. Dr Al-Khawaja first treated Ms Hamed on 14 December 2021, and has been seeing her with regular follow ups until her return to Australia for the hearing of this proceeding.[30]
[30] PCB 98
61Dr Al-Khawaja found that Ms Hamed was suffering from Bipolar Affective Disorder, Post-Traumatic Stress Disorder (PTSD), panic disorder, and agoraphobia. He opined:
“… Due to the nature and pain and suffering Ms Mayada Hamed endured related to her work injury, her condition is permanent and stable, I do not see any improvements in her condition in the foreseeable future, but I do believe there maybe long-term deterioration in the future. I do not believe Ms Mayada hamed has any type of work capacity in any field nor now or in the future. I believe that her work related injuries has immensely impacted her social domestic life that she is suffering from major depressive disorder with somatic expressions of anxiety, that she has withdraw from society and requires her brother/husband to manage her finances and manage her self-care.[31]
[sic]
[31] Report dated 6 March 2023, PCB 98, 104
Medico-legal opinion
Dr Brendan Hayman, consultant psychiatrist
62In October 2017, Dr Brendan Hayman diagnosed a panic disorder with agoraphobia and a chronic adjustment disorder with depressed and anxious mood and features of traumatisation consequent to her work-related experience. He noted that her condition had improved since her return from a trip overseas, and was not then considered stable.
63In his opinion, Ms Hamed had no capacity to perform her pre-injury duties or any capacity for alternative employment given her current limitations, which related “to her anxiety and panic symptoms and the degree of agoraphobia (albeit improved). There would need to be further improvement (which appears to be occurring) for her to consider a return to the workforce.”[32]
[32] Report dated 5 October 2017, PCB 112
64While both psychologist Dr Thompson and Dr Hayman were hopeful of some improvement in Ms Hamed’s condition, she was first admitted to a psychiatric hospital in June 2018. Neither re-examined her after those admissions. More recent medico-legal reports record the extent of improvement.
Dr Justin Lewis, psychiatrist
65Consultant psychiatrist Dr Justin Lewis diagnosed a work-related panic disorder with agoraphobic symptoms in January 2019, with a concurrent Bipolar Il Disorder. He noted Ms Hamed would also meet the criteria for a chronic adjustment disorder with anxiety, depressive and traumatisation features.
66In his opinion, her condition had been stable since hospital discharge in July 2018, and she was incapacitated for both pre-injury duties and all alternative duties.[33]
[33] Report dated 15 January 2019, PCB 129
67In terms of her baseline condition four years ago, Dr Lewis recorded:
“The total work incapacitation is consequent to ongoing depressive symptoms, motivational difficulties, sleep disturbance, cognitive difficulties, recurrent panic attacks, and agoraphobic behaviours
Ms Hamed was premorbidly a high functioning individual, who enjoyed a full range of social and recreational interests. By contrast, she presents as an individual who has lost significant confidence and self-efficacy. She has ongoing difficulties with independent living and remains heavily reliant on her parents for support.
…
Ms Hamed will likely require long-term psychiatric and psychological treatment and monitoring.
Ms Hamed's psychiatric prognosis is guarded and unfavourable.
…
Ms Hamed ceased work approximately three years ago and continues to remain significantly symptomatic with ongoing depressed mood, anxiety, agoraphobic behaviours, and traumatisation symptoms. She is heavily reliant on psychiatric and psychological support.
Her current level of functioning is at significant variance to her pre-injury level of functioning in a social, occupational, recreational and interpersonal sense.”[34]
[34] PCB 140-142
Dr Richard Prytula, psychiatrist
68In May 2019, consultant psychiatrist/psychoanalyst, Dr Richard Prytula, also diagnosed work-related major depressive disorder, a generalised anxiety disorder and specific traumatisation sufficient to diagnose PTSD. Ms Hamed was then an inpatient at Northpark Psychiatric Unit having been admitted for suicidal feelings.[35]
[35] Report dated 6 May 2019, PCB 201
69He noted her “treatment has not yet focused on the traumatisation that she has suffered and this is a particular area where improvement may occur”, and recommended she receive specific trauma focused therapy.
70Upon review in June 2021, Dr Prytula confirmed his diagnosis of major depressive disorder with anxiety and symptoms of traumatisation. In his opinion, although her suicidal feelings had lessened and she was no longer at risk, the condition “is at present in a chronic state and is likely to continue so into the indefinite future”. He certified her as having no work capacity due to the condition. His prognosis was a likely continuation of her condition, with only a possibility of improvement with further time and treatment.[36]
[36] Report dated 22 June 2021, PCB 220
Dr Nigel Strauss, psychiatrist
71More recently, in November 2022, consultant psychiatrist, Dr Nigel Strauss, reported as follows:
“Ms Hamed appears to have decompensated to a significant degree from a psychological perspective as a result of her employment at the Waratah Special School.
Unfortunately it appears that she has remained psychologically decompensated since then and she still suffers from significant anxiety associated with panic attacks and agoraphobia.
…I note that she is currently living overseas and has married and she has given birth to a child. I note that she has struggled as a mother but she does her best to cope. I note that she receives a good deal of support from her husband.
…There does not appear to be any indication that she has improved and her situation remains stable. Her prognosis is poor.
She suffers from a panic disorder with agoraphobia and a major depression. There is an histrionic component to her presentation but at this stage there is nothing to suggest that this woman is deliberately over exaggerating her problems.
She is currently totally and permanently incapacitated for employment on psychiatric grounds.
I believe on the balance of probabilities that her employment with the Department of Education and Training remains a material cause of her injuries.
She will need indefinite treatment.”[37]
[37] Report dated 16 November 2022, PCB 143
72Dr Strauss was later provided with a copy of the report of Associate Professor Doherty dated 21 March 2023, and asked to provide his opinion as to how any psychiatric injury or condition arising out of the worker’s employment has affected her employment capacity. In his report dated 6 May 2023, Dr Strauss stated:
“I note that Professor Doherty believes that her condition is still related to her employment and I note that his diagnosis is different to mine. He claims that she has a bipolar condition and it is noted that I diagnosed a major depression.
I can accept that this woman may have a bipolar condition but certainly her most pronounced affective symptoms involves depression as well as panic.
I accept Professor Doherty’s comment that this woman is incapable of her pre-injury duties but I also believe that she is currently unable to work because of significant psychiatric problems. She told me that she still has major psychiatric difficulties although Professor Doherty has concluded that this woman’s symptomatology is mild.
I took a history that she has somatic manifestations involving vomiting and diarrhea, she sleeps poorly despite a good deal of medication, she has bad dreams and nightmares and she remains frequently fixated with the teacher who treated her badly at the school.
I note lack of motivation and a phobia of showers and I note that she struggles to look after herself. I note that she receives a good deal of support from her husband.
I note that she had a difficult pregnancy and she found it difficult to bond with her son and her depression worsened after the birth of her son.
I note that she was seeing a psychiatrist and taking medication.
I noted that she was socially inactive and does very little on a daily basis.
…
I note that she told me that she is easily overwhelmed and cannot take pressure. She told me that she often does not get dressed on a daily basis. She told me that her memory and concentration are poor and she has to re-read things.
I note that she has had suicidal ideation.
Taking all these factors into consideration I am not of the opinion that this woman could currently manage any type of vocational activity at all even working from home. She is disorganized and has poor memory and concentration and little confidence. She lacks motivation.
Taking all these factors into consideration I hold with the opinion that she is totally and permanently incapacitated … .”[38]
[38] PCB 154, 157-158
Associate Professor Peter Doherty, consultant psychiatrist
73Associate Professor Peter Doherty examined Ms Hamed on 27 February 2023 via audio-visual technology whilst she was in Ramallah. He has since produced four reports.
74During his examination in February 2023, Ms Hamed reported that she had attempted suicide twice and she ended up in hospital. She said she wanted to forget the last two years. She recalled an incident where she put all the pills on the bed and was ready to take them. She reported this to her psychiatrist and she was hospitalised at Northpark Private Hospital under the care of Dr Ballekere.[39]
[39] Defendants’ Court Book (“DCB”) 12
75Ms Hamed reported experiencing hypomanic episodes. She described that she experiences times where she goes into a high and feels better. When experiencing this euphoria, she thinks that she can do things and engages in the activity until she becomes exhausted. After this, her mood plummets. Since giving birth to her son, she has had two hypomanic episodes.[40]
[40] DCB 12-13
76Ms Hamed reported experiencing nightmares which have been getting worse. She has dreams where she is being physically or sexually assaulted by students. The nightmares have also extended to dreams of her son being targeted. She wakes from these vomiting and having night sweats.[41] She said the nightmares are constant and being awake is easier. She also has flashbacks of what occurred at work. She expressed fearfulness that this will get worse.
[41] DCB 13
77Ms Hamed finds it difficult to sleep and would often have very little sleep. She reported to Associate Professor Doherty that if she fell asleep at 10.00pm, she would get four hours of sleep. If she does not fall asleep at 10.00pm, it takes her hours to fall asleep and she has a nap during the day.[42]
[42] DCB 13
78Ms Hamed said she does not drive due to having panic attacks whilst driving. She recalled that the last time she attempted to drive, she had a panic attack. She also reported that she spaces out and is unable to focus; had hit a pole, and nearly hit a bus. She reported that the last time she drove was in 2016.[43]
[43] DCB 14
79In terms of recreation and leisure, Ms Hamed reported that she is not really up for it. She tries to stay away from social settings and reported that there have been times that she would need to go to the bathroom and vomit, which would alert her husband that they would now need to go home.[44]
[44] DCB 14
80When asked about her mood, Ms Hamed rated her mood at the time as being a three or four out of ten. When she has anxiety, she experiences physical symptoms in the form of vomiting or “feeling drunk”, heart palpitations, dizziness, and light-headedness. She reported that her blood pressure also drops.[45]
[45] DCB 14
81Ms Hamed reported to Associate Professor Doherty that she has discrete panic episodes maybe two or three times a day. However, they are not big episodes. In terms of a major panic episode, she might experience a couple in any week.[46]
[46] DCB 15
82Ms Hamed reported that her memory has also been affected. She said that her memory is really bad and she requires the assistance of an app to remember things. She reported that although she remembers her childhood and teenage years, she does not remember much after 2015.[47]
[47] DCB 15
83In his report dated 21 March 2023, Associate Professor Doherty agreed with the diagnosis of panic disorder and a later development of bipolar disorder, with the first symptoms appearing in July 2018. However, he opined that the symptoms Ms Hamed reported are very mild and concluded that these conditions have remitted under treatment. Additionally, he found that there is no diagnosable PTSD condition.[48]
[48] DCB 21-22
84In terms of Ms Hamed’s work capacity, Associate Professor Doherty found that she does not have any capacity to return to her pre-injury employment duties:
“Based on her reported symptoms, she does not. She likely could not tolerate what would be considered to be a stressful working environment, as in a SDS school. The likelihood of deterioration of her mental health is high.”[49]
[49] DCB 23
85He further opined that Ms Hamed has retained a current work capacity for suitable employment, based on her mild symptoms and presentation reported during the examination and the consistent nature of her treatment.[50]
[50] DCB 23
86In his report dated 28 April 2023, Associate Professor Doherty concluded that Ms Hamed could undertake roles as a mystery shopper, interviewer/surveys (home based), education access/note taker (disability environment), or as an exam supervisor “at a half-time hours basis” and related this restriction to her parental responsibilities. Further, that her capacity for part-time hours will continue until her son enters school, when “she should then be able to, in the usual course of events, work full-time hours.”[51] In his opinion, “the mild current psychiatric symptoms are not incapacitating and will make a small impact on her current capacity for work.”[52]
[51] DCB 23
[52] Report dated 4 May 2023, DCB 30
87On the basis that Ms Hamed did not have parental responsibilities, in Associate Professor Doherty’s view, Ms Hamed should be able to work full-time in suitable employment within six months.[53] There was no apparent reasoning underpinning this opinion.
[53] Ibid
88Associate Professor Doherty’s supplementary report dated 26 June 2023[54] followed his consideration of Dr Ballekere’s treatment notes, the report from Dr Ballekere dated 16 June 2023 and Ms Hamed’s recent inpatient admission.
[54] DCB 145
89Although his opinions as to diagnosis and prognosis did not change, in terms of work capacity, Associate Professor Doherty expressed the view that:
“If the stress of the legal proceedings were not present, there is a capacity for part-time hours work, and that work in areas suitable for her. The work situation should be one where there is no threat, confrontation, or potential violence present.
…
In my opinion, there will be significant improvement in her mental state on the finalisation of legal proceedings.”[55]
[55] DCB 148
90At his request, Associate Professor Doherty was provided with the medical records of Northpark Private Hospital in relation to the plaintiff’s admission (with suicidal thoughts and a dysphoric affect) from 14 June 2023 to the date of trial. His further report dated 28 June 2023 states:
“The admission to an inpatient facility was to provide her with shelter and support and was not necessitated by the severity of anxiety or other symptoms.”[56]
…
“… The impressions from the clinical notes are that of an anxious person struggling with parenthood, unsure of herself, and needing considerable support.
The diagnoses that I have made that of panic disorder and bipolar disorder are not shaken by reading the admission notes of the Northpark Hospital admission.”[57]
[56] Exhibit 10, page 3
[57] Exhibit 10, page 4
91In his opinion, the inpatient medical records confirmed his previous finding that there is not much objective evidence of a significant ongoing psychiatric condition. He did not express any further view in this report as to Ms Hamed’s work capacity.
Medical Panel Opinions
92Ms Hamed has been reviewed by two separate medical panels who have provided opinions dated 26 February 2019 and 13 December 2021.
93In February 2019, the panel concluded that Ms Hamed’s diagnosis is that of panic disorder with Agoraphobia relevant to the claimed psychological injury. They also diagnosed her with Bipolar Affective disorder which is materially contributed to by the injury.[58] The panel was of the opinion that Ms Hamed had no current work capacity as a result of the injury, which was likely to continue indefinitely.[59]
[58] Exhibit G
[59] Exhibit G
94In its opinion of 13 December 2021, the medical panel determined that:
“… there is a 20% psychiatric impairment resulting from the accepted psychological condition injury when assessed in accordance with Section 54 of the Act. The degree of psychiatric impairment is permanent.”[60]
[60] PCB 50
What she has retained
95The State of Victoria submits that Ms Hamed has done a lot since she ceased work, and has not been isolated at home, a recluse suffering from her psychiatric condition; instead, she was frequently travelling.
96During cross-examination, Ms Hamed agreed that she had various overseas trips after 2015:
(a) In around April 2016, she went on a P&O cruise to the Pacific Islands which lasted about 10 days with her sister and best friend. As part of the cruise, she visited Noumea, New Caledonia, and Vanuatu. She said she liked the confinement of the cruise.[61]
(b) Around November 2016, she travelled to Palestine and probably Jordan.[62]
(c) In 2017, she travelled to Jordan a couple of times because her family was there. She may have been to Dubai on a separate trip but is unsure. She said that it was mostly a blur and that she had manic stages.[63]
(d) In June 2019, she travelled to Palestine to see family. She stayed with her grandmother and was there for six weeks. Following this, she travelled to London as a tourist and was there for less than a week.[64]
(e) In September 2019, she travelled to Palestine where she got engaged and married. She went back to Australia in 2020.[65]
(f) In October 2020, she returned to Palestine for her wedding celebration.[66]
(g) In 2021, she travelled to Spain for a honeymoon with her husband. They were there for around 20 days.[67]
[61] Transcript (“T) 17-18
[62] T17
[63] T21
[64] T35-36
[65] T36
[66] T38
[67] Ibid
97Over time Ms Hamed provided a number of histories to medical practitioners of her overseas travels,[68] and disclosed the extent of her travel without prevarication during her evidence in Court.
[68]See reports of Dr Terence Lim dated 1 June 2017, DCB 72; Dr Yogananda Ballekere dated 22 June 2017, PCB 81; Dr Brendan Hayman dated 5 October 2017, PCB 119; Associate Professor Elif Ekinci dated 26 July 2018, 15 January 2019, 30 May 2019, and 15 July 2021, DCB 81, 119, 186, and 157 respectively; and Dr Mohammad Al-Khawaja dated 6 March 2023, PCB 101
98Ms Hamed reported to her treating psychiatrist in Palestine, Dr Mohammad Al-Khawaja that she travelled to get away from herself:
“… She said she travelled to get away from herself, she said even when she travelled she wasn’t present, she said she would just cry because she couldn’t enjoy anything, and her panic attacks were taking over her everyday life. She said a couple of times she travelled and she was on a high doing behavior [sic] that she has never done, she wouldn’t not [sic] sleep for days and she gave away her money, and spent over $10,000 in less than a month. She said after her high she would get in a major depression, have suicidal thoughts and it can go for months on end. She said her highs vary, she can go in an obsession in cooking nonstop, or cleaning or she starts to throw everything and give everything she has away. She said her brother and Husband now take care of her finances and are in control of her money.”[69]
[69] PCB 100-101
99I reject the submission that the extent of Ms Hamed’s travel is inconsistent with a diagnosis of bipolar disorder or chronic anxiety. No doctor has expressed this view. No doctor has said travelling and living in Palestine away from Australia is seemingly inconsistent with the diagnosis made. It is not a requirement to succeed in an application of this type that a plaintiff live a miserable life devoid of any enjoyment. To the contrary, the evidence in this case suggests improvements in her condition are in part due to her stable supportive relationship with her husband since September 2019; and a great deal of the medical evidence as to her baseline condition as at the date of the hearing post-dates any recreational travel.
100Although she has had a child, the evidence is that she has struggled with this from time to time, and is an anxious mother. This is hardly surprising in the context of her diagnosis.
101This is not a case where the plaintiff has withheld from psychiatrists a level of capacity, which means that her presentation is embellished, and any expression of opinion about the severity of her condition by examining doctors undermined.
Consideration and findings
102Ms Hamed has an anxiety or panic disorder with a Bipolar Affective Disorder. There is no dispute about the diagnosis.
103I am satisfied that Ms Hamed requires the care and assistance currently provided to her by her husband and family. Her husband’s evidence was not challenged, nor the evidence of Dr Ballekere[70] that the recent hospital admission was “to ensure professional support in a supervised setting as her family could not provide any support”.
[70]PCB 105
104Whilst she was attacked because of an apparent reluctance to engage in occupational rehabilitation services when the claims agent offered them to her by email on 7 June 2023, at the time Ms Hamed was certified as totally incapacitated for work by her general practitioner, and within days she was admitted to a psychiatric facility as an inpatient. I find that she was not in a state to engage in occupational rehabilitation services in June 2023.
The baseline
105The case was essentially conducted on the basis that I ought disregard the recent exacerbation in the context of this proceeding, and look to her baseline condition prior to June 2023.
106The State of Victoria urged a finding that until she returned to Melbourne in March 2023, Ms Hamed was in a stable social situation with her husband in Ramallah, removed from the triggers of Melbourne; she was coping with her parental responsibilities with minimal (or completely remitted) symptoms or incapacity; her accepted psychiatric condition was mild, and had she has capacity with appropriate treatment to return to work in the immediate future. She is a young woman, and a new mother, and so improvement including return to employment was indicated.
107Associate Professor Doherty’s evidence includes that Ms Hamed has the ability to work part-time, 20 hours a week, which meets the necessary statutory threshold if that is the baseline.
108Ms Hamed’s case is put on the basis that she is totally and permanently incapacitated.
109The plaintiff’s treating psychiatrist in Melbourne, Dr Ballekere is of the opinion that Ms Hamed suffers from Bipolar Affective Disorder, with no work capacity.[71]
[71]PCB 90
110Dr Ballekere, when he last saw Ms Hamed in 2021, expressed the view:[72]
“Mayada’s medical condition has stabilised. However, she still has days when she is anxious and low, but she has improved significantly.”
[72]PCB 91
111At that time, he certified her as having no current work capacity and said:
“Mayada can potentially work part-time in a suitable job once her symptoms are fully abated.”
112He ceased treating her in August 2021, some two years ago. Since then, her symptoms have not fully abated. At best, he is of the opinion that she could work potentially part-time, not full-time.
113Her psychiatrist in Ramallah since December 2021, Dr Khawaja, is of the opinion Ms Hamed is suffering Bipolar Affective Disorder, PTSD, a panic disorder and agoraphobia.[73] In his opinion, the plaintiff has no work capacity.
[73]PCB 104
114Dr Khawaja treated the plaintiff for two and a half years in Palestine. In his report dated 6 March 2023 he states his opinion that:[74]
“Her condition is permanent and stable. I do not see any improvements in her condition in the foreseeable future, but I do believe there may be long-term deterioration in the future.”
[74]PCB 98, 104
115It might be inferred that deterioration in the future might mean worsening of her symptoms when she is away from her husband, or has the stress of a court case but, nevertheless, at that stage her condition was permanent and stable.
116Dr Prytula examined Ms Hamed in the middle of 2021, and his opinion at that time was that the condition was chronic and likely to continue into the future indefinitely. In his opinion, her condition was moderately severe.[75] He was also of the view that she has no current work capacity.
[75]PCB 229
117Dr Nigel Strauss, who examined the plaintiff prior to coming to Australia in November 2022, was of the opinion that she was totally and permanently incapacitated, and disagreed with Associate Professor Doherty’s conclusions.[76]
[76]PCB 157 and 158
118Similar opinions were expressed by Dr Lewis, psychiatrist in January 2019; and the Medical Panel, in February 2019, found that the plaintiff had no work capacity.
119She currently takes daily medication, including Lamictal, Periciazine, Alprazolam and Oxazepam.
120The plaintiff’s ongoing general practitioner, Dr Yap, has certified her as being totally incapacitated from employment.
121Ms Hamed’s current admission at Northpark Psychiatric Hospital commenced on 14 June 2023 and, as at the date of the hearing, there was no discharge date scheduled, although I accept Ms Hamed’s evidence that she planned to travel back to Ramallah after the hearing to be with her husband, if he did not come to Australia.
122Whilst Associate Professor Doherty accepts that Ms Hamed has a panic disorder and Bipolar Affective Disorder Type 1, in his opinion she has retained capacity for part-time work, and then full-time when her son goes to school.
123The evidence as a whole does not establish that once the immediate stressor of the court case ends there will be an overall improvement in the plaintiff's condition beyond that of her baseline state.
124I find, in relation to Ms Hamed’s current state, that it is a flare-up or exacerbation of her condition which is otherwise reasonably stable and has been so for many years.
125I find that once the court case is finalised, Ms Hamed will return to her base level, as reflected in the medical evidence of the Medical Panel, and Drs Ballekere, Khawaja, Strauss and Prytula. I find that this condition is permanent.
Loss of earning capacity
126I do not accept the submission that Ms Hamed is just an anxious mother who is not working because she is looking after her young child, and who has no motivation to look for work.
127There is no employment for which the plaintiff is suited when regard is had to the definition of suitable employment. She has a relatively narrow vocational history predominantly limited to work as a teacher’s aide. All of the medical evidence is to the effect that she cannot resume this employment.
128The Medical Panel, in February 2019, determined Ms Hamed had no current work capacity, and that this condition was permanent.
129Dr Yap, Ms Hamed’s general practitioner, expressed the opinion her patient was unable to work due to her anxiety in January 2018; and has certified her unemployable continually since 2021.[77] This is significant, as these opinions predate the birth of her son and her hospital admission in June 2023, and include time in Ramallah with her supports in place.
[77] DCB 122
130Associate Professor Doherty’s opinion that Ms Hamed can work 20 hours currently, and in six months full-time, is against the weight of the evidence, lacks any cogent path of reasoning, and fails to explain aspects of that opinion. It is unclear from his reports of June 2023 whether he maintains his opinion since Ms Hamed’s recent exacerbation and hospital admission that she should be able to progress from part-time work to full-time work in suitable employment within six months but, in any event, does not support this opinion with any cogent path of reasoning. He has not explained why he comes to this opinion.
131I find that the prospect of further improvement is inconsistent with the history of her condition over the last four years. I prefer the evidence of her treating psychiatrists, who have seen Ms Hamed regularly over this period, to that of Associate Professor Doherty, who has examined Ms Hamed on one occasion.
132No other doctor says that Ms Hamed is about to improve.
133Psychiatrists Drs Ballekere, Khawaja, Strauss and Prytula are all of the opinion that Ms Hamed has no capacity for employment.
134I reject Associate Professor Doherty’s initial opinion in his report of March 2023, that Ms Hamed could return to full-time employment within six months.
135I accept Ms Hamed’s submission that she is totally and permanently incapacitated for employment. Even if I were to accept the contrary opinion that Ms Hamed has retained a capacity to work part-time, 20 hours a week, I find that Ms Hamed has satisfied the requirements of the Act and established a permanent loss of earning capacity of at least 40 per cent.
Consequences
136The impairment consequences of Ms Hamed’s condition include:
(a) Vomiting, anxiety, disturbed sleep with nightmares and panic attacks, reduced memory and concentration. She also experiences flashbacks.
(b) She has experienced suicidal ideation and attempted suicide.
(c) Her symptoms require the ongoing daily use of prescription medication, including strong anti-psychotic medication, and very significant treatment.
(d) At times she breaks down.
(e) She has difficulty finishing tasks and experiences panic attacks during the day.
(f) She has days when she has difficulty leaving the home.
(g) She is able to leave the home, and usually takes her son and her mother on outings and occasionally shopping.
(h) She no longer drives.
(i) She is heavily reliant on others.
(j) As a consequence of her bipolar disorder she has times where she experiences euphoria, neurotic moods and high anxiety, and overspends; her husband (in Ramallah) or mother (in Australia) have control of her finances.
(k) On a difficult day, she will not get out of bed. She often does not bathe or attend to personal hygiene.
(l) She has been deprived of enjoying her chosen profession as a teacher’s aide, and any other work.
137By reason of her age, she will experience these consequences for many decades to come.
138Should it be necessary to do so, I find that Ms Hamed’s psychological injuries are severe when compared with the range of cases that come before the Court.
Conclusion
139Leave is granted to Ms Hamed to commence common law proceedings for pain and suffering and loss of earnings damages.
140I will hear from the parties as to the form of final orders and costs.
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