Heaton v State of Victoria
[2010] VCC 1634
•10 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05144
| CHRISTABEL HEATON | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
| (DEPARTMENT OF EDUCATION AND TRAINING) |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 July 2010 |
| DATE OF JUDGMENT: | 10 November 2010 |
| CASE MAY BE CITED AS: | Heaton v State of Victoria |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1634 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – application based on sub paragraph “C” of the definition of serious injury – leave granted to commence proceeding for pain and suffering and loss of earning capacity.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Holding Redlich |
| Mr P B Halley | ||
| For the Defendant | Mr B G Anderson | Wisewould Mahony Lawyers |
| HIS HONOUR: |
1 This is an application which relies on part (c) of the definition of “serious injury” in subsection (37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is “permanent severe mental or permanent severe behavioural disturbance or disorder”.
2 The claim by the plaintiff was instituted by Originating Motion dated 29 October 2009 and seeks leave from the Court pursuant to sub-section (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
3 Mr J Mighell SC, with Mr P Halley of Counsel, appeared on behalf of the plaintiff. Mr B Anderson of Counsel appeared on behalf of the defendant.
4 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 3 June 2009.[1] The plaintiff’s second affidavit was sworn on 9 July 2010.[2]
•
The plaintiff filed a further affidavit of her husband, Brian Cecil Heaton, also sworn on 9 July 2010.[3] Mr Brian Heaton did not give sworn evidence and was not required for cross-examination.
• The plaintiff tendered the following evidence: [1] PCB 19-28
[2] PCB 29-30
[3] PCB 31-33
ƒ the plaintiff’s Court Book (“PCB”), pages 14 to 113 inclusive, which I
marked as “Exhibit A” on the application;
• The defendant tendered the following evidence:
ƒ
the defendant’s Court Book (“DCB”), pages 1 to 26 inclusive and pages 39 to 60 inclusive, which I marked as “Exhibit 1” on the application. The defendant’s Court Book included an affidavit of Michael John Muscat, sworn 14 October 2009;[4] an affidavit of Ian Godfrey McKenzie, sworn 13 October 2009;[5] an affidavit of Barbara Ann Douglass, sworn 14 October 2009;[6] an affidavit of Michele Lee Fleming, sworn 14 October 2009;[7] an affidavit of Shirley Bell, sworn 14 October 2009;[8] and an affidavit of Natasha Helen Kylie McKenzie, sworn 16 October 2009.[9]
[4] DCB 1-11
[5] DCB 12-14
[6] DCB 15-17
[7] DCB 18-20
[8] DCB 21-23
[9] DCB 24-26
5 None of the deponents of the affidavits tendered by the defendant was called for cross-examination. The defendant also tendered a DVD depicting movements of the plaintiff on 12 March 2010 which I marked as “Exhibit 2” on the application.
Affidavit Material
6 The plaintiff was born on 4 February 1964 in India. She is thus forty-six- years-of-age. She migrated to Australia from India with her family in 1981 when she was about seventeen years of age. She lives with her husband, Brian, who works as a warehouse co-ordinator. They have two daughters: Desiree, who is aged fourteen, and Ashlynn, who is aged eleven.[10]
[10] The plaintiff’s first affidavit – PCB 19
7 The plaintiff deposes in her affidavit to having left school at the end of Year 12, following which she undertook a TAFE course, studying secretarial work. Following this, she was employed with Darrell Lea as a packing assistant for approximately three months and then with a tea company for one year, undertaking secretarial work, and then with the Police Department for a period of four years, also undertaking secretarial work.[11]
[11] The plaintiff’s first affidavit – PCB 20
8 After completing her secretarial work with the Police Department, the plaintiff deposes that she travelled to the United Kingdom for a year and worked as a distance learning co-ordinator with Adult Migrant Education for a period of four years.[12] The plaintiff then married and had children and she left the workforce for a period of about five years before returning when she performed school administrative relief work. I assume this is when she began employment with the defendant.[13] None of this background is controversial.
[12] The plaintiff’s first affidavit – PCB 20
[13] The plaintiff’s first affidavit – PCB 20
9 The plaintiff was employed as a bursar at the Eumemmerring Primary School for approximately six years, and on 7 July 2006, she commenced work at Kambrya College as an administrative officer. It is in this employment that the plaintiff claims to have been injured at work.[14]
[14] The plaintiff’s first affidavit – PCB 20
10 In her first affidavit, the plaintiff deposes she commenced work at Kambrya College as an administrative officer on 7 July 2006. She deposes that her specified duties included responsibility for the Newsletter, Staff Student Bulletin, Certificates and other whole school desktop publishing or word processing, proformas/labels/name badges, exams, end of month photocopying charges and copier codes, photocopying and binding for the principal, executive and the general office and the stores/office orders. Again, none of this evidence is in dispute.
11 Within a few months there were apparently some complaints about the standard of the plaintiff’s work from the principal of the school, although by September of 2006, she says that she had received positive feedback from various staff members relating to her work performance.[15] I accept that evidence.
[15] The plaintiff’s first affidavit – PCB 21
12 The plaintiff claims to have suffered psychiatric injury during the course of her employment between October 2006 and February 2007. The circumstances were that she was requested by the principal operations officer at the school to lock and unlock the student toilets during class hours so as to reduce graffiti, smoking, loitering and other anti-social activities in the toilets.[16]
[16] The plaintiff’s first affidavit at paragraph 12 – PCB 22
13 The plaintiff deposes that there had previously been an incident at the toilets concerned where a volunteer at the school had been abused by a female student whilst attempting to lock the girls’ toilets. In October 2006, the plaintiff says that she was handed the toilet keys by one Michelle Fleming, and ordered to proceed with the toilet security procedure. The plaintiff refused to carry out this work and says that she conveyed her strong reluctance, concern and discomfort at being appointed to this task.[17]
[17] The plaintiff’s first affidavit at paragraphs 12-16 – PCB 22
14 The plaintiff further deposes that, having conveyed her concern, she was immediately summoned to the business manager’s office and threatened with disciplinary action. She says she was told that she had no choice in the matter and that any unwillingness by her to carry out the task to secure the toilets would result in other issues being raised, and possible dismissal.[18]
[18] The plaintiff’s first affidavit at paragraph 17 – PCB 23
15 The plaintiff deposes that on or around 4 October 2006, she was so stressed that she consulted her general practitioner, Dr Phan. The plaintiff deposes:
“Dr Phan issued me with a letter describing my symptoms of stress. Dr Phan advised against making me perform the tasks of locking and unlocking the toilets. I was prescribed medication at this time for the stress and insomnia.”[19]
[19] The plaintiff’s first affidavit at paragraph 18 – PCB 23
16 The plaintiff says that she provided Dr Phan’s letter to the principal who, she says, ignored the medical advice, and she was soon after issued with what she describes as a “disciplinary letter” in relation to the toilet security issue.[20] Thereafter, there were exchanges threatening discipline against the plaintiff and the plaintiff’s union became involved.[21]
[20] The plaintiff’s first affidavit at paragraph 19 – PCB 23
[21] The plaintiff’s first affidavit at paragraph 21 – PCB 23-4
17 There is a factual issue in the application which I have taken the view I do not have to decide at this time. The plaintiff, in her first affidavit, says:
“I was continually bullied into the task of locking the toilets.”[22]
[22] The plaintiff’s first affidavit at paragraph 22 – PCB 24
18 The purport of the affidavit material filed on behalf of the defendant, in particular the affidavits of Michael Muscat, Ian McKenzie, Barbara Douglas, Michele Fleming, Shirley Bell and Natasha McKenzie, is that the plaintiff did not at any time lock the toilets and nor was she bullied in any way at work. In cross-examination, the plaintiff conceded that she may not have actually ever locked the toilets.
19 I have approached this application on the basis that it is not necessary for me to decide one way or the other whether the plaintiff actually locked the toilets. The plaintiff’s claim to have suffered a serious injury within sub-paragraph (c) of the definition contained in sub-section (37) of s.134AB is based on her reaction, in the psychological sense, to having been requested to carry out the task of locking the toilets. There is no issue in the case that the plaintiff was requested to carry out that task.
20 In her first affidavit, the plaintiff deposes to taking time off on stress leave in November of 2006, but on her return to work she felt under more stress, because of what she describes as “further excessive and unreasonable scrutiny in relation to the student attendance rolls”.[23] The plaintiff took further stress leave and she says that at the commencement of the 2007 academic year, the excessive and unreasonable scrutiny re-commenced and she felt that she was being bullied and victimised.[24] She ceased work in February 2007, because, she says, she could no longer cope, and she has not worked since.[25]
[23] The plaintiff’s first affidavit at paragraph 24 – PCB 24
[24] The plaintiff’s first affidavit at paragraphs 25-26 – PCB 24
[25] The plaintiff’s first affidavit at paragraph 28 – PCB 24
21 Dr Phan referred the plaintiff to Mr Young, a psychologist, and to Associate Professor Vaddadi, a psychiatrist. I will deal with their evidence later.
22 At the time of swearing her first affidavit on 3 June 2009, the plaintiff was taking Effexor, 150 milligrams daily, as prescribed by Dr Phan.[26]
[26] The plaintiff’s first affidavit at paragraph 34 – PCB 25
23 The plaintiff deposes that up until the period between October 2006 and February 2007, she had otherwise been in good health save for a thyroid problem.[27]
[27] The plaintiff’s first affidavit at paragraphs 33-35 – PCB 25
24 The plaintiff describes her symptoms in the following way in her first affidavit. She says that she is in low-mood; feels useless and worthless; feels hopeless and helpless; she sees her future as bleak; she feels a burden on her husband and daughters; she has difficulty sleeping and is often awake with anxiety and having regular nightmares; her sex life is non-existent and she has lost interest in sex; she feels anxious most of the time; she has little or no motivation; she has little energy; and her appetite is poor.[28] The plaintiff’s evidence as to her symptoms was not seriously challenged.
[28] The plaintiff’s first affidavit – PCB 26
25 The plaintiff continues describing herself as irritable and short-tempered; argumentative; often cries; her memory and concentration are poor; she is unable to enjoy things and no longer likes being in the company of others and is fearful of running into people that she knows from the school.[29] This evidence is also not challenged.
[29] The plaintiff’s first affidavit – PCB 27
26 The plaintiff swore her second affidavit on 9 July 2010, shortly before the application was heard before me. At that time, the plaintiff said she was seeing Mr Young every three to four weeks and Dr Phan, her general practitioner, on approximately a monthly basis. She says she has developed increased blood pressure which she says could be related to her stress, and she continues to take Effexor on a daily basis.[30]
[30] The plaintiff’s second affidavit at paragraph 2 – PCB 29
27 In describing the consequences from her psychiatric illness, the plaintiff says, in her second affidavit, as follows:
“I lead a quiet life now. I have good days and bad days. On bad days I struggle to be motivated to do anything. I sit around. I rarely leave the house.
I have difficulties with concentration for any extended period. I have trouble reading or concentrating on watching television.
I mostly drive locally. I have had a couple of accidents when I lose concentration and so now am reluctant to drive much at all.
I do go shopping. I try to go when it is less busy and avoid crowds if I can.
My social life is much less fulfilling. I see my friends irregularly. We used to entertain as a family but this doesn’t happen anymore. I find social interaction stressful. I struggle to talk to people for more than a short period of time.
I have panic attacks regularly. I am becoming increasingly concerned about where my future lies.
I have not worked since stopping work for the Department. I don’t know what, if any work I could do. I have low confidence and can’t really concentrate on more than one thing at a time. I don’t think I am employable.
My psychological injury continues to have severe and ongoing consequences for me. I therefore humbly request the grant of a serious injury certificate for my pain and suffering and loss of earnings capacity.”[31]
[31] The plaintiff’s second affidavit at paragraphs 4-12 inclusive – PCB 30
28 Again, the plaintiff’s evidence as to her symptoms and the consequences to her from the psychiatric injury are not seriously challenged. I accept and act on the plaintiff’s evidence.
29 As I indicated earlier, the plaintiff’s husband, Brian Cecil Heaton, swore an affidavit in support of the plaintiff’s application on 9 July 2010. In that affidavit, in summary form, Mr Heaton corroborates all that has been sworn to by the plaintiff as being the consequences to her of the onset of her psychological or psychiatric illness. Mr Heaton was in Court during the hearing of the application but he was not required for cross-examination by the defendant. I accept his evidence.
The Plaintiff’s Cross-Examination
30 In cross-examination, the plaintiff was asked whether she had in fact ever locked the toilets. Her answer was that every time she was asked she said that she did not want to do it. In response to a specific question, she agreed that she never actually locked the toilets. She was asked this:
“Q: Do you agree that you never did lock or unlock the toilets?--- A: Yes, and they kept harassing me, they’d say ‘you have to do it’
and they would pull me up and I would be without any warning.Q: So we’re clear that you never actually locked or unlocked the
toilets?---A: Yes.”[32] [32] Transcript (“T”) page 9, lines 3-8
31 In the hearing of the application, this line of questioning was used as the basis for an attack on the plaintiff’s credit and the defendant relied upon the body of affidavit material that I have previously referred to. As I indicated earlier in this judgment, I do not have to finally decide whether the plaintiff did or did not lock the toilets. It is clear that her case is that she now suffers from a psychological or psychiatric injury because she was asked to do this task and when she refused she was repeatedly asked to do so and threatened with some sort of punishment. At least that is her perception of the discussions between herself and those that managed this particular school.
32 I watched the plaintiff closely and observed her giving her evidence. I formed the impression that the plaintiff was a reliable witness and that she has not attempted to exaggerate or overstate her case and that she is entirely genuine in her complaints and her description of the consequences for her of the psychological or psychiatric injury that she has sustained. I accept her evidence.
33 The defendant also used the DVD footage of observations of the plaintiff and a friend shopping in Chapel Street, Windsor on 12 March of this year. The video footage simply showed the plaintiff and her friend moving amongst the shops and at one point being seated outside a shop enjoying a cup of coffee alfresco style. The video footage (“Exhibit 1”) has not influenced me at all in forming an adverse view against the plaintiff’s credit. I formed the view that the video was of little assistance in determining any issue in this case. The defendant argued that whilst the plaintiff, in her affidavit material, had deposed that she cannot go shopping and that she does not enjoy the company of others, then the video shows this to be untrue. I do not take that view.
34 For these reasons, I have determined that the plaintiff is a witness of credit and in this application I act on her evidence.
The Medical Evidence
35 The plaintiff’s general practitioner is Dr C K Phan, who has provided a number of medical reports. He first saw the plaintiff on 5 October 2006. He said:
“This patient appeared to me, genuinely depressed and anxious over mis-treatment of her at the work place. She suffers with a reactive adjustment disorder for which she was initially treated with an anxiolytic (Diazepam) and subsequently an antidepressant (Avanza). She was also referred to a psychologist, Dr. Richard Young, for further supportive treatment.
At present her clinical situation is unchanged despite treatment. I think that the likelihood of her returning to the same work place at all is extremely remote given what has transpired. She currently has no capacity for work in any duties with the current employer. However, if she could obtain a job with another employer in the same capacity, I think that she will be able to return to work in her pre-injury capacity without much problem.”[33]
[33] Medical Report of Dr Phan dated 30 April 2007 – PCB 34
36 In February 2008, Dr Phan provided an updated report. He said:
“Since the last report furnished on 30-April-2007, Christabel’s condition of anxiety has remained relatively unchanged. She continues to suffer with nightmares, insomnia, heightened states of anxiety/apprehension, short temper, and dysfunctional social interaction. She was described significantly reduced ability to function on a daily basis due to loss of concentration and self confidence. She described driving only short distances, and sometimes, for fear of getting lost.
She continues to visit Dr. Richard Young, her psychologist, every 3 weeks or so for supportive counselling [sic] and treatment. She also regularly takes EFEXOR, an antidepressant to help her cope with her daily life. She was also referred to Professor Vaddadi, consultant psychiatrist for further opinion and treatment. Professor Vaddadi made the change of her medication from AVANZA to EFEXOR.”[34]
[34] Medical Report of Dr Phan dated 25 February 2008 – PCB 36
37 In an updated report from Dr Phan for the purposes of the application hearing, he said:
“She is currently totally incapacitated for any form of work. I feel that her incapacity will remain unchanged until her case is resolved legally. It is only then that she can move on with her life and return to her pre-injury duties in a new school. I do not think that she will ever be able to return to her old workplace.”[35]
[35] Medical Report of Dr Phan dated 18 April 2010 – PCB 37
38 Dr Phan was not called for cross-examination. I accept his evidence.
39 Associate Professor K Vaddadi, a consultant psychiatrist, saw the plaintiff after referral from Dr Phan in April of 2007. She saw the plaintiff on two occasions on successive days, namely, 27 April 2007 and 28 April 2007, at Delmont Private Hospital in Glen Iris. Her diagnosis was as follows:
“I felt Christabel has adjustment disorder with mixed emotions. She has hypertension and thyroid disorder that needs investigations and monitoring. Her blood pressure was 160/98 mmHg arid weight 74 kgs.
Her psychiatric condition clearly bears a temporal relationship with a work related situation. If this is not resolved she would develop major depressive episodes and stress might impact on her raised blood pressure.”[36]
[36] Medical Report of Associate Professor Vaddadi dated 4 June 2007 – PCB 38 at PCB 40
40 Professor Vaddadi saw the plaintiff on two further occasions about a year later, in March and April of 2008. She prepared a further report on 19 May 2008, at which time she said as follows:
“In summary, Mrs Heaton continues to exhibit Major Depression with Marked Anxiety (moderate levels) without psychotic features. Her condition is temporarily [sic] related to work issues.
In my view Mrs Heaton needs to continue treatment. At present she is unfit to return to her previous employment. The work-related issues must be addressed to her satisfaction and her prognosis is dependent on this. If and when these issues are resolved, she should gradually feel well again and return to work. However, I doubt if she would want to go back to the same school. She might benefit psychologically from going back to her original bursar position in a primary school.”[37]
[37] PCB 43-44
41 Mr Richard Young is a consultant psychologist. He has been seeing the plaintiff on a regular basis since 22 February 2007 and he has provided a number of reports.
42 In his first report dated 16 April 2008,[38] under the ‘Diagnosis’ heading, Mr Young described the plaintiff as suffering with a Mixed Adjustment Disorder with Anxiety and Depression that was a reaction to the experience of workplace bullying, victimisation, lack of support and harassment. At the time of assessment, he assessed the severity of the disorder as being “in the moderate range”.[39] His prognosis, inter alia, was as follows:
“The patient presented to me with moderate mixed reactive anxiety and
depression.
The severity of the disorder is further improved, although still in the mild to moderate range.
I expect that the condition will continue to slowly and gradually improve, as such improvement is evident from observation in this patient. It is also expected from my clinical experience with patients suffering in a similar way.
I expect that the patient will eventually have a full recovery, and do not expect at this time that the condition is at all likely to become permanent.
I note that full recovery remains dependent upon a number of important factors outlined … . “[40]
[38] PCB 45
[39] PCB 51
[40] PCB 52
43 Mr Young provided a further report on 6 May 2010.[41] Under the ‘Diagnosis’ heading, Dr Young says as follows:
“At the time I met with this patient for assessment, it was my firm opinion that she was suffering with a mixed adjustment disorder with anxiety and depression that was a reaction to the experience of workplace bullying, victimisation, lack of support and harassment as outlined elsewhere in this report.
At the time of assessment, the severity of the disorder was in the moderate range.
I noted in a previous report that with treatment from myself and other practitioners, and with the patient leaving the stressful workplace and the passage of time, the severity of the disorder improved into the mild to moderate range.
At present, regrettably the disorder remains mild to moderate.”[42]
[41] PCB 57
[42] PCB 63
44 Mr Young provided a further prognosis in his May 2010 report, as follows:
“The patient presented to me with moderate mixed reactive anxiety and
depression.The severity of the disorder is improved, although still in the mild to moderate range.
To some degree, whilst there has been some modest improvement from the time of the prior report in 2008, the affective upset remains largely mild to moderate, and for the reasons listed above.
I expect that the condition will continue to slowly and gradually improve, as such improvement is evident from observation in this patient. It is also expected from my clinical experience with patients suffering in a similar way.
I expect that the patient will eventually have a full recovery, and do not expect at this time that the condition is at all likely to become permanent.
I argue that it will help the patient if she be granted release from Kambrya school, so she can attempt RTW within a primary school under the Department of Education when she is able.
Resolving the ‘legals’ will help too as this action is understandably stressful fro any patient who proceeds along this path.”[43]
[43] PCB 65
45 Mr Young concluded his 6 May 2010 report with the following paragraph, which he expressed in bold lettering:
“It is my opinion that for this patient to significantly improve from this point in time, the legal action needs to be resolved once and for all, and she needs to be fully released from Kambrya to allow her to then focus upon RTW with a primary school position within the Department of Education, as is her worthy goal.”[44]
[44] PCB 67
46 Mr Young was asked to clarify his views by the solicitors acting on behalf of the plaintiff. He provided a further report dated 25 May 2010.[45] In that report he stressed that he did not mean to say that the resolutions of the “legals” is the one and major factor preventing recovery. He said that he remains of the opinion that the plaintiff is unfit for all work and he feels that this will likely be the case for the foreseeable future, being at least the following twelve months.[46]
[45] PCB 68
[46] PCB 69
47 I accept the evidence of Mr Young that the plaintiff presently suffers from a moderate mixed reactive anxiety and depression and that she is presently unfit for all work and that this will likely be the case for the foreseeable future, being at least for the next twelve months.
48 The plaintiff has also been examined for medico-legal purposes by Dr David Weissman, a consultant psychiatrist, who described the plaintiff as having developed “a moderately severe mixed depressive and anxiety syndrome, with symptoms and features of traumatisation”.[47]
[47] PCB 98
49 During the course of cross-examination by Mr Anderson, Mr Young was asked about this diagnosis by Dr Weissman and whether or not it caused him to alter his prognosis or diagnosis. Mr Young was asked this:
“Q: Was there anything in Dr Weissman’s report, any single one thing
in that report that caused you to alter your prognosis?---A:
I reflected largely on the fact that Dr Weissman stated in his report that he diagnosed the severity of the Adjustment Disorder as being moderately severe and I had cause to think about the fact that once again, here is a psychiatrist who is assessing a patient for an independent medical examination. I see the patient at home and I just thought it was useful clinically for me to think about the fact that perhaps there could theoretically be some underestimation of the severity of the disorder, because of the fact that I see the patient at home. I didn’t however feel strongly enough to alter the severity that I’ve stated; I still feel that when I meet with a patient and I observe and I ask the patient to rate the severity of her condition, it generally falls within the mild to moderate range or as I said before, perhaps more at the moderate end of that spectrum.
Q:
Doctor, aside from Dr Weissman’s different rating as to severity, there was no observation in his report that caused you to alter your rating, am I right in saying that?---
A: Yes, I believe you are. Q:
So you are saying to this Court that you now theoretically are looking at re-rating your mild to moderate rating, based on Dr Weissman’s severe rating? Is that really what you are saying?---
A:
No, I don’t believe I am. I believe that my rating would stand; I believe that when I met with Mrs Heaton in general the severity of the disorder is the mild to moderate range. What I do feel however, is that it has to be understood that perhaps that rating is based upon the fact that I am seeing the patient in her home.”[48]
[48] T 62, L30 – T 63, L29
50 I have concluded from the evidence and the reports of Mr Young that his diagnosis and prognosis is that the plaintiff suffers and continues to suffer from an Adjustment Disorder in the mild to moderate range. The overall force of his evidence is that the plaintiff’s condition is improving and is likely to continue to improve once the legal proceedings in respect of the plaintiff have concluded. However, he adds that the plaintiff is presently unfit for work and this situation is likely to be the case into the foreseeable future and at least the next twelve months.
51 The plaintiff called Dr David Weissman, consultant psychiatrist, to give evidence. He saw the plaintiff for medico-legal purposes on one occasion, on 14 April 2010, for a period of forty-five minutes. He had available to him the two reports of Professor Vaddadi of June 2007 and May of 2008, the medical reports of Dr Phan of 30 April 2007 and 25 February 2008 and the first report of Mr Richard Young of 16 April 2008. He diagnosed the plaintiff as suffering a “moderately severe mixed depressive and anxiety syndrome, with symptoms and features of traumatisation”. He went on to say:
“I conducted a psychiatric assessment of the worker and concluded that she is suffering from a chronic Major Depressive Disorder with anxiety, panic and features of traumatisation relevant to her employment.”[49]
[49] PCB 98
52 Dr Weissman described the psychiatric prognosis as being “uncertain and guarded”.[50]
[50] PCB 98
53 Dr Weissman was called as a witness and was cross-examined particularly about the opinions formed by the treating general practitioner, Dr Pham, and the treating psychologist, Dr Young.
Q: The treating GP and the treating psychologist obviously see Mrs
Heaton on a much more regular basis than yourself, Doctor?---A: Yes. Q:
They will form views based on their observations of Mrs Heaton as to the severity of her condition and likely prognosis for her condition?---
A: Yes. Q: Were you interested in seeing what their views were beyond
2008?---A: Yes. Q: But you haven't been provided with those views?--- A: No. Q: The treating psychologist, Doctor, has rated Mrs Heaton in the
mild to moderate range of severity for her mental disorder?---A: Yes. Q:
And this psychologist sees Mrs Heaton on a three to four weekly basis and has done so since February 2007. Is that a view that you take into account in reaching your prognosis?---
A: I would take it into account. Q:
If there's an air of optimism about the prognosis from the treating psychologist to what extent does that inform your view as to the prognosis?---
A:
Again it's all additional information I take into account. I must say though and you haven't asked me yet that I don't agree that Mrs Heaton's condition is mild to moderate in severity.
Q: You base that conclusion upon what you saw during that interview
you had with her?---A: Yes. Q: During that interview did you explore with Mrs Heaton the extent to
which the impending litigation was affecting her mental state?---A: No. Q: Is this a case where there could be an effect on Mrs Heaton's
mental state because of impending litigation?---A: I'm always asked this question when I come to court and the
answer is always fairly similar, that it may to a certain degree.Q:
I think I'm right in saying that all of the other specialists engaged for an opinion in this case, Doctor, and that is the GP Dr Phan, the psychologist Mr Young, and Dr Strauss who's the psychiatrist engaged by the defendant, devote considerable comment as to the likelihood of improvement post litigation resolution. Why have you not tackled that issue in any way, shape or form in your report?---
A:
I don't often do that, it's just conjecture as far as I'm concerned, and secondly I do know from a recent case of my own private patient, whose name of course I won't mention, that the person even strangely enough deteriorated after a very, very favourable result in court. It was difficult to understand how and why, but that's what happened, and so I usually don't go there.[51]
[51] T74-75
54 In this passage of evidence, Dr Weissman made it clear that his diagnosis of the plaintiff as suffering “moderately severe mixed depressive and anxiety syndrome, with symptoms and features of traumatisation” was based upon his observations of the plaintiff when he interviewed her. I accept the evidence of Dr Weissman who impressed me as an expert witness in the field of psychiatry. I think there has been an optimistic tendency from the treating doctors to play down the severity of the plaintiff’s psychiatric illness. Both doctors see the plaintiff regularly and have done so now for nearly four years. Both Dr Pham and Mr Young are naturally optimistic that there treatment is working. I accept Dr. Weissman’s view that resolution of the plaintiff’s illness following resolution of the “legals” is speculation and I do not act on it.
55 Dr Weissman was of the opinion that the plaintiff is unlikely to return to work. He was asked about this in cross-examination:
MR ANDERSON:
Q: Doctor, in relation to the plaintiff's potential work in the future is it your view that the plaintiff may be able to return to work in the future?--- A: On the balance of probabilities no. Q: In your observations of her do you base that opinion on any other
medical information that you have received?---A: As in all cases I base my opinion on my examination, the reported symptoms, the observed signs, all of the information in the enclosures, my medico-legal experience, my clinical experience. Q: What is the main reason, if there is one, why this patient could not return to employment in a school environment such as a primary school?--- A: Okay. Well, firstly the nature, severity and extent of her depression and anxiety. Secondly, her general psychomotor retardation, which means the slowness in her bodily movements and facial expression and thinking; her loss of confidence and self esteem, her relative social withdrawal, her cognitive dysfunction in terms of flowing in impairment of her attention concentration, short term memory and speed of information processing augmentation, and as I'm looking at my report here she said that she can't read at present and that on its own would be a major cause of incapacity, let alone the other symptoms and features that I mentioned. Q: So you're basing that view on her reported symptoms to you at the
time of your consultation?---A: Very much so. And my clinical experience.[52] [52] T75-76
56 I also accept this evidence of Dr Weissman.
The Defendant’s Medical Evidence
57 The defendant arranged for the plaintiff to be medically assessed for medico- legal purposes by Dr Nigel Strauss, consultant occupational psychiatrist, who saw the plaintiff on two occasions, in February 2008 and February 2010.
58 In his 2008 report, Dr Strauss, in answer to specific questions, opined:
“… this woman is suffering from an adjustment disorder and currently is not ready to work. In other words her capacity to engage in employment has been compromised to a significant extent but I would envisage that over the next several months, or once her claim has been finalised, she will be capable of returning to normal work although I would recommend that she go back to a primary school and not a high school.
She is currently not capable of pre-injury employment but she will be capable of returning to similar work at a primary school within the next three months or following finalisation of her compensation claim.
Her current treatment is appropriate and should continue until she returns to work.
Her prognosis is good.”[53]
[53] DCB 46
59 In his 2010 report, Dr Strauss opined as follows:
“She was reviewed in April of 2008 at which time I noted that her situation had deteriorated because of her concerns about an upcoming court case. Her compensation claim was still perpetuating her symptoms.
I diagnosed an unresolved adjustment disorder and I stated that she could not work until her compensation claim was finalised.”[54]
and he concluded:
“This woman’s situation has not altered appreciably since I last saw her and I note that her compensation process is still in progress. Predominantly it is the workers compensation process that is perpetuating her symptoms and reminding her of her alleged problems several years ago.
Unfortunately her adjustment disorder with mixed anxiety and depressed mood is becoming further entrenched and I would estimate that there is about a 50% chance that she will eventually get back to some form of employment once her compensation process has been finalised. In other words there is also a 50% chance that her problems may remain entrenched and she will not be able to build up the confidence required to get back to some form of administrative work in the future. Only time will tell in this regard.
Currently she cannot work and I doubt whether she will attempt to return to work until her compensation process has been finalised.
She suffers from an adjustment disorder with mixed anxiety and depressed mood.
She perceives that she was treated poorly at work and as I have previously explained it is not for me to decided [sic] whether she was treated reasonably or unreasonably in the workplace. She believes that she was treated unreasonably and that is why she ceased work.”[55]
[54] DCB 57
[55] DCB 59
60 I do not act upon the evidence of Dr. Strauss. Much of his opinion depends upon acceptance of the premise that the plaintiff’s condition will dramatically improve once the legal process is resolved. I am not prepared to act on that premise in this application.
The Statutory Scheme
61 The application is brought pursuant to s.134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(c) of s.134AB of the Act, which requires the plaintiff to prove she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
62 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[56]
(b)
The mental or behavioural disturbance must be both “severe” and permanent in the sense that it is “likely to last for the foreseeable future”.[57]
(c)
In interpreting the word “severe” in the definition of “serious injury”, sub- paragraph (c) of subsection (37) of s.134AB, the word “severe” is stronger than the word “serious”[58] and it should be treated as stronger in terms of significance or gravity than serious.[59]
(d)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities of proving that her mental or behavioural disturbance is both permanent and severe, an in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare her income from personal exertion prior to suffering injury with the gross income which she is now able to earn from suitable employment or capable of earning from suitable employment. “Suitable employment” is defined in s.5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(e)
Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(f)
I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
[56] S.134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[57] Mobilio v Balliotis & Ors (1998) 3 VR 833 and Barwon Spinners at paragraph 33
[58] Mobilio at page 860 per Phillips JA
[59] Mobilio at page 854 per Brooking JA
63 As I have already indicated, I accept that the plaintiff is a witness of truth and I reject the submissions of Mr Anderson that she is not a witness of truth.
64 The main issue in this case is what is the nature of the mental or behavioural disturbance said to have been sustained by the plaintiff during the course of her work with the defendant between October 2006 and February 2007 and whether that injury is “permanent” in the sense that it is likely to last for the foreseeable future, and further, whether or not the injury is “severe”.
65 Each of the doctors that have seen the plaintiff have expressed the view that at the time of assessment, and I interpolate now, she is presently unfit to return to her pre-injury employment. Doctors Young and Weissman and the general practitioner, Dr Phan, expressed the view that it is likely that the plaintiff will be unfit, because of her illness, to return to work in the foreseeable future.
66 The plaintiff places great weight upon the opinion of Dr Weissman. He is the only doctor to have described the plaintiff’s Adjustment Disorder as being “moderately severe”. None of the other doctors that have seen the plaintiff have used the adjective “severe” to describe her illness.
67 However, Dr Weissman was strong in giving his evidence and was confident in his diagnosis based upon his observations of the plaintiff at interview. As I have said I accept his evidence and I act upon it.
68 I also accept the evidence of Mr Young and Dr Pham that the plaintiff is presently unable to work because of her condition and this is likely to be the case into the foreseeable future, that is for at least the next twelve months. I think their description of the plaintiff’s psychiatric condition as being “moderate” is born in part by optimism as treating doctors. I observed the plaintiff closely whilst giving evidence and whilst she was in the court. Having has the opportunity of observing her I have no difficulty accepting the observations of her as made by Dr. Weissman.
69 Whilst the plaintiff was challenged as to the consequences on her life by her injury, in that it was said she can still travel and drive a car and go shopping with a friend, she was not seriously challenged about her lack of concentration, low mood, tearfulness and other intimate aspects of her life which were all largely corroborated by the evidence of her husband who as I have said was not called for cross examination.
70 I accept the evidence of each of the medical practitioners that the plaintiff’s condition is likely to improve upon resolution of these proceedings.
71 Having accepted, as I have, the medical evidence of Drs Young, Pham and Weissman, I find the plaintiff is suffering a moderately severe mixed depressive and anxiety syndrome, with symptoms and features of traumatisation that is work related. I find that the plaintiff is presently unable to return to her pre-injury employment and that this is likely to be the situation for the foreseeable future and for at least the next twelve months.
72 The plaintiff has proved to me on the balance of probabilities that she presently suffers from a “permanent severe mental or permanent severe behavioural disturbance or disorder” within sub paragraph “C” of the definition of “serious injury” in sub section (37) of section 134AB of the Act. I am also satisfied on the balance of probabilities that the plaintiff is not presently fit for “suitable employment” as defined in the Act and that this is likely to be the case for the foreseeable future, being for at least the next twelve months.
73 For these reasons, the plaintiff will be granted leave pursuant to sub-section (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
74 I will hear the parties on costs.
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