Jennifer Anne Winbank v Casino Canberra Ltd - [2012] ACTSC 169

JENNIFER ANNE WINBANK v CASINO CANBERRA LTD
[2012] ACTSC 169 (9 November 2012)

NEGLIGENCE – pure mental harm – action by employee against employer – employer exposing plaintiff to likelihood of confrontation with intoxicated and aggressive customer – employer aware of plaintiff’s psychological vulnerability – employer negligent

DAMAGES – personal injury – pure mental harm – no issue of principle

Koehler v Cerebos(Aust) Ltd (2005) 222 CLR 44
Wyong Shire Council v Shirt (1980) 146 CLR 40

Civil Law (Wrongs) Act 2002 (ACT)
Workers Compensation Act 1951

No. SC 667 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 9 November 2012

IN THE SUPREME COURT OF THE )
) No. SC 667 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JENNIFER ANNE WINBANK
Plaintiff

AND:CASINO CANBERRA LTD
Defendant

ORDER

Judge:  Master Harper
Date:  9 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff in the sum of $185,237.80.

This is a claim by an employee against an employer for damages for personal injury caused by the negligence of the employer, arising out of events during 2008. The plaintiff does not assert that she suffered any bodily injury, and the claim is for pure mental harm as defined in s 32 of the Civil Law (Wrongs) Act 2002 (ACT).
The plaintiff is a single woman born in 1979. She was about twenty-nine at the time of the events. She is now thirty-three. She commenced employment with the defendant at Casino Canberra in 1997, and had been in that employment for more than ten years by the time of the events.

The plaintiff’s claim against the defendant

The action was commenced in July 2009, and claimed damages arising out of an incident which occurred at about 5.15 am on 21 March 2008. The statement of claim pleaded that the plaintiff was working as a croupier at the Casino, and that a man grabbed betting chips with a value of $1,100.00 from her table and ran from the Casino into the street.
It was alleged that as a result of this incident the plaintiff suffered post-traumatic stress disorder, chronic anxiety and depression, requiring treatment by doctors and psychologists. It was asserted that the plaintiff had been unable to continue with her employment after the incident except for a couple of days immediately afterwards, followed by three unsuccessful attempts at graduated return to work during April and June 2008. It was said that because of the incident and the effects on her she would never be able to return to work in a Casino environment.
The alleged negligence of the defendant included failing to provide the plaintiff with a safe place and system of work, exposing her to a risk of injury of which it knew or ought to have known, failing to provide adequate supervisory and security staff, and failing to ensure that security staff were in place to react quickly to such an incident.
In February 2010 the plaintiff’s solicitors applied for leave to amend the statement of claim. The application was supported by an affidavit of the solicitor with conduct of the matter. He swore that having obtained further instructions from the plaintiff and further medical reports, he believed that in addition to the incident of 21 March 2008 a further incident had occurred when the plaintiff attempted to return to work, at about 10.00 pm on 23 June 2008, which had contributed to the plaintiff’s overall psychological injury. Leave was granted, and an amended statement of claim filed. This added a count in respect of the incident on that date. It was asserted that the defendant had directed the plaintiff on her return to work to carry out duties as an inspector. At about 11.00 pm on that date a man had become abusive and had directed personal and aggressive attacks towards the plaintiff causing her to suffer injury.
Factual assertions were added to the effect that at all material times the defendant held a liquor licence, and owed a duty to the plaintiff to take reasonable care to protect her from drunken, violent, quarrelsome or disorderly patrons, and from patrons using bad language.
In relation to the June incident, additional particulars of negligence were provided of requiring or permitting the plaintiff to return to work knowing that she was suffering psychological injury and knowing that she was returning to work as part of a rehabilitation program, and further, in those circumstances, requiring her to work as an inspector.
At the commencement of the hearing counsel for the plaintiff withdrew the count in respect of the March 2008 incident and informed the court that the plaintiff’s case against the defendant would be limited to the June 2008 incident. The March incident had been accepted by the defendant and its workers’ compensation insurer as causing the plaintiff injury entitling her to compensation under the Workers Compensation Act 1951. But it was no longer asserted that the injury to the plaintiff arising out of the March 2008 incident had been caused by any negligence on the part of the defendant.

The March 2008 incident and its effect on the plaintiff

The plaintiff was asked about the incident on 21 March 2008. She said that she had started her shift that night at 7.30 pm and was coming to the end of it. It was about 5.15 am. She was closing a $50 blackjack table, and had her float of chips on the table in front of her. She was counting them in the pit behind the table. She was waiting for another staff member to check the float and to sign off in a book. A young man lunged over her table, grabbed a handful of chips and ran to the exit and outside. It turned out that he had taken eleven chips, each with a value of $100.00. Later evidence was that he was caught within a day or two when he returned to the Casino to try to cash or use the chips, and was arrested and prosecuted.
The plaintiff’s evidence was that she was shocked by the incident. There was no security person in attendance. She went into a panic. She saw the then gaming shift manager and called him over. Her evidence was that in contrast to her earlier years at the Casino, security had become lax and there were occasions like this when there was no security officer within sight. The shift manager chased after the thief without success. The plaintiff made a written statement about the incident, including a description of the thief.
The plaintiff worked on after this for two or three days when another distressing incident occurred. She was verbally abused by a gambler. She closed her table, something she said she was not supposed to do under Casino procedures, and left immediately. She saw her doctor, complaining of symptoms of nervousness, acute anxiety and fear.
This was not the first time she had required medical treatment for a psychological problem. When she was twenty, about two years after she started working at the Casino, she had been diagnosed by her general practitioner as having a depressive condition, identified as bipolar disorder type two. A similar diagnosis was given to her in 2005-2006, and at about that time she attended the Black Dog Institute in Sydney. She was prescribed medication which included Epilim, Effexor and, from time to time, Temazepam for insomnia. In 2006 she spent some time at Shellharbour Hospital near Wollongong for treatment of this disorder.
Her recollection was that at about the age of twenty-one she had had three months leave without pay from the Casino “to try and get the medications all sorted out”. But during the years leading up to 2008 she had not needed any time off work and had been generally coping well. She had been working at least three shifts a week and sometimes as many as six, and she said that she loved her job.
She had frequently had to deal with patrons who were noisy, offensive or abusive. Part of her job was to defuse conflict and she thought she did this reasonably well.
She was asked what had been different about the incident in March 2008. She said that the difference was that she had not had backup. She had felt powerless and helpless.
After the March 2008 incident the plaintiff was referred to a psychologist named Sonia Simons. She saw her once a week for an extended period. Her understanding was that she was being treated for acute anxiety disorder and that Ms Simons was trying to stop this developing into post-traumatic stress disorder. She had not seen Ms Simons prior to the March incident. Between March and June 2008 she continued to be tense and anxious, with nightmares and sleeping problems. Her depression increased, and she had an increase in her dosage of Effexor.
The plaintiff made a successful claim for workers’ compensation. The employer’s insurer put in place a rehabilitation and return-to-work programme using an external rehabilitation consultant. There were discussions which included the plaintiff, the consultant and the general practitioner about the prospects of a return to work. About a month after the March incident the plaintiff went back to work on a trial basis with her doctor’s approval, and with a limitation as to the number of shifts and the duties to be performed. At this time she was limited to four consecutive shifts, dealing at Pai Gow, and otherwise performing inspecting and chipping duties. (Pai Gow is a game played at the Casino by regular patrons, mostly Chinese, which apparently does not attract one-off Casino patrons and does not have a culture of drinking of alcohol or heightened emotions).
The plaintiff had a number of unsuccessful attempts at returning to work. She said that on her attempt to return to work in April 2008 she had felt unsafe because there had been extended periods when there had been no security officers present. The plaintiff gave evidence that she had extracted some dates from her 2008 diary from which she was able to say that she attempted to return to work on 11, 17, 18 and 19 April, and 22 June. The shift on 11 April was without incident, but she had problems on the later dates in April because of the absence of security staff. She recalled an incident on one of the dates in April 2008 where a customer was drunk and rowdy. She reported this to the pit boss on duty, but the group were friends of the pit boss and the man was not asked to leave the Casino. The plaintiff found this distressing. Her general practitioner certified her as unable to return to work for the period from 20 April to 21 June 2008.
The medical certificates completed by the general practitioner, Dr Renshaw, are not easy to understand. They purport to follow a prescribed form under the Workers Compensation Act. A certificate signed by Dr Renshaw on 23 May 2008 records a diagnosis of acute anxiety state, with good prognosis. The treatment entry reads “medication plus massage plus focused psychological therapy; fit for inspector duties and dealing Pai Gow/chipping; continue with medication.” The certificate then, under the heading “Proposed treatment plan” states that the plaintiff had been referred to the psychologist Sonia Simons, with treatment likely to be required for six to twelve weeks. The certificate gives a negative answer to whether the patient will be incapacitated for work for a continuous period of longer than seven days, but inconsistently it goes on to certify the plaintiff as unfit for pre-injury duties from 19 May to 19 June 2008, with a further medical assessment to take place on that date. The certificate seems to have been accepted by the defendant and its insurer as entitling the plaintiff to continuing payments of workers’ compensation during the stated period.
The next certificate in evidence was signed by Dr Renshaw on 19 June 2008. This certificate again gave a diagnosis of acute anxiety state with a good prognosis, and treatment of medication, massage and focused psychological therapy. The certificate also repeated the proposed treatment plan with referral to Ms Simons and treatment likely to be required for six to twelve weeks. Again, inconsistently with the rest of the certificate, Dr Renshaw gave an answer in the negative to the question about incapacity for work for a continuous period of longer than seven days. As to fitness to work, the certificate stated “is fit for suitable duties on 22 June 2008 commencing at 19.30 for a duration of six to eight hours, duties to be: inspector and chipping. Date of next medical assessment 24 June 2008. Unfit for duties outside the above parameters. To be reviewed on 24 June 2008.”
Dr Renshaw did not give oral evidence and his full records were not tendered. The precise duties of an inspector at a Casino are not a matter of general knowledge within the community or among general medical practitioners, and I must assume that Dr Renshaw based his opinion that the plaintiff was fit to work as an inspector from information provided to him by the plaintiff about what that work involved.
On 4 April 2008, two weeks after the March incident, the defendant’s insurer, as required by the Workers Compensation Act, engaged a rehabilitation provider, Ms Rebecca Lockett of Insight Rehabilitation, to assist the plaintiff with her return to work. Ms Lockett prepared a report early in August 2008. She met with the plaintiff on 18 April. The plaintiff had been staying with her parents at Moruya on the south coast of New South Wales until then. The plaintiff told Ms Lockett about the theft of chips, saying that there had been no security guards visible at the time, and that on several occasions at the Casino this had been the situation. Ms Lockett arranged a meeting with the plaintiff and Ms Greta Evans, the contact staff member nominated by the Casino for the rehabilitation attempts.
Ms Lockett noted that the plaintiff had a history of pre-existing bipolar disorder which had been diagnosed some nine years earlier. This had been controlled by medication including Effexor, and following the March incident her general practitioner had increased her dosage of this medication, though without any reported benefit.
The plaintiff told Ms Lockett that her psychologist Ms Simons had diagnosed acute stress disorder. Ms Lockett attended a medical review with the plaintiff and Dr Renshaw on 18 April, when the doctor certified the plaintiff fit to return to work on limited duties: no more than four consecutive shifts, limited to inspector tasks, dealing Pai Gow and chipping. Ms Lockett noted that Pai Gow had regular players and the plaintiff felt comfortable with them. The plaintiff said that her main issue was a feeling of loss of power.
On 24 April 2008 the plaintiff told Ms Lockett of the incident where she had sought the removal of patrons who were drunk, but they were friends of the pit boss who declined to act on her request. The plaintiff said that this had made her feel threatened, unsafe and unsupported by her supervisor. She had developed symptoms of appetite loss and suicidal thoughts. Her general practitioner had certified her as unfit for work until 9 May and she had returned to stay with her parents.
On 9 May Ms Lockett attended Dr Renshaw’s rooms for a review of the plaintiff. Dr Renshaw certified the plaintiff unfit for work until 24 May. On 13 May 2008, Ms Lockett arranged and attended a meeting with the plaintiff and her mother, and Ms Evans and a Mr Bishop from the Casino. The meeting was held at the office of Insight Rehabilitation because of the plaintiff’s reluctance to attend a meeting at the Casino. The plaintiff expressed concerns about security and a lack of professional behaviour by staff at the Casino. Ms Evans and Mr Bishop said that they would take these concerns on board but would be limited as to what other action they could take in circumstances where the plaintiff did not wish to lodge a formal complaint.
Ms Lockett reported that the plaintiff had attempted to return to work on several occasions but had said that each time a trigger event had occurred causing deterioration in her condition.

The June 2008 incident

The plaintiff’s evidence was that 22 June 2008 was a Sunday, generally a fairly quiet night at the Casino but rather busier than usual because there had been football matches during the day. The most senior person on duty was the gaming shift manager, Mr Keung Siu.
The plaintiff was working on the main floor of the Casino. There was also in operation, on a mezzanine level, a “high rollers” section.
The main gaming floor was divided into four “pits”, each pit comprising an oval arrangement of about ten tables with a central podium. The tables faced outwards to the players, with the dealers on the inside of the pit, which was roped off between tables to prevent public access to the central area. There were two inspectors in each pit, each supervising about five tables. The next level above inspector was “pit boss”. One pit boss was responsible for supervising the gaming floor. The pit boss reported to the gaming shift manager, who was responsible for the operation of the whole Casino during his shift. The Casino staff were rostered for a shift, which varied between seven and ten hours. The plaintiff’s preferred shift was from 7.30 pm, usually finishing at about 5.00 am or sometimes 6.00 am depending on how busy the Casino was by the end of the shift.
The plaintiff’s oral evidence was that she began her shift at 7.30 pm, this being her first day back at work after about two months off. She was directed by the pit boss to go to Pit 2 and act as inspector at what she described as the pontoon end of that pit. The various staff rostered on for the shift were listed on a noticeboard in the staff area downstairs at the Casino. The pontoon end of Pit 2 included low-value ($5 and $10 bet) tables where in the plaintiff’s experience there were more likely to be problems with drunk or rowdy patrons. The pit boss on duty that evening was Matthew Nicholls and the gaming shift manager was Keung Siu.
The plaintiff explained that the Casino house rule was that dealers and inspectors were not authorised to call security staff. Only the pit boss and the gaming shift manager had that authority. A dealer seeing a need for security staff involvement had to communicate this to an inspector, who had then to get the message across to the pit boss.
On the night, as inspector, the plaintiff was responsible for five tables: three blackjack tables, a poker table and the pontoon table. The pontoon table was, the plaintiff said, the one most likely to be rowdy. There were seven “boxes” on the pontoon table, with up to three players per box, and thus a maximum of twenty-one players at the table at the one time, although it was unusual to have as many players as that. The normal range on a Sunday night would be about five to ten players at a time.
The plaintiff returned to the pit after a break at about 10.40 pm, and immediately noticed that the pontoon table was rowdy and might need her attention. There was a group of friends playing on the table. The plaintiff went to the dealer, Tony Wang, and asked him how things were going. As she did so, one of the players loudly called the dealer a “prick”. The player was of stocky build with a red and flushed face. He was wearing jeans and a blue and white striped shirt, and was probably in his early twenties. The plaintiff formed the view that this man was intoxicated. He was quite aggressive and was drinking his drinks very quickly. He was betting erratically and soon ran out of money. Her recollection was that he was drinking rum and coke. Drinks were served at the tables, by waitresses employed by the Casino.
The plaintiff told the man that if he abused the dealer again he would be removed. The man commenced to abuse her verbally and aggressively. He called her “a stuck-up little bitch” and asked what she was going to do about it. He said that security would not kick him out. The plaintiff said that she became scared and felt threatened. She was shaking and wringing her hands. She tried to calm the man down and asked him to stop using bad language. She told him that he would be removed if he did not settle down. She looked around but could not see the pit boss, who she thought was on a break, or the shift manager. Normally there would be another pit boss on the floor whilst a pit boss went on a break but on that Sunday evening Mr Nicholls was the only pit boss on duty. There were uniformed security staff on duty but she could not see them from where she was. She thought she had seen four security officers earlier in the evening.

The abuse by the player continued. He threatened to jump over the rope separating the customer area from the staff area within the oval of tables. The plaintiff said that she felt physically afraid for her safety. She became dizzy and was struggling to breath. She was sweating and felt as though she might choke.
She said that it was almost twenty minutes before Mr Nicholls returned from his break. Shortly before he did so, she saw Mr Siu, the shift manager, and signalled him over.
The plaintiff added that before Mr Nicholls went on his break she had told him that the group at the pontoon table were drunk and were being abusive, and should be removed, but Mr Nicholls took no action. She said that Mr Siu, when informed of the position, went to find security officers. Shortly afterwards the man was escorted from the Casino forcibly by three security officers.
Scott Gibson was a security shift manager with the Casino in June 2008. He had been a security officer there for about twelve years. He left the Casino in 2009.
He confirmed that an inspector in the position of the plaintiff had no authority to call security direct, and that this had to be done through a pit boss. He said that it was very rare for there not to be a pit boss on the gaming floor but that there were occasions when staff had to wait to speak to a pit boss who was busy doing something else.
Mr Gibson remembered being on duty on the night of the June incident. It was a quiet night, as Sundays generally were, and he was in the office doing paperwork. There should have been six security staff on duty during the shift but on the evening there were only five. One was on fixed duty at the front door and another on fixed duty at the staff entrance on a lower level. The other two would generally have been moving about the public areas of the Casino. One of these was the security supervisor on duty, who was senior to the others but reported to Mr Gibson as security manager. The remaining security officer was, according to contemporaneous timesheets, on a dinner break at the time of the incident.
Mr Gibson had been involved with some hundreds of removals during his time at the Casino. He explained the routine adopted by security staff, and said that 80% or more of customers when required by security would leave without physical force being necessary.
Mr Gibson said that there had been a rule that there must always be a security staff member on the gaming floor, but he said that this had not always happened during his time. Equally, there should always have been a pit boss on the floor but this had not always been the case either.
He thought that there were about eighty cameras in different locations around the Casino, recording continuously while the Casino was operating. Surveillance operators monitored the camera footage, and had the capacity in the course of this to zoom a particular camera in to provide close-up footage of its viewing area. This would be used to record a removal by security staff of a patron, including a full view of the patron for future recognition purposes.
Mr Gibson agreed that it had been part of his duty to make a written report of any security lapse or any incident out of the ordinary, and that he had made no such report on the night of the June incident.
Peter Brown was employed at the Casino for some ten years until he left in September 2008, by which time he was an inspector. He had not been working on the night of the June incident. His evidence was that dealers were expected to continue dealing and playing notwithstanding incidents at their table which might involve an inspector, pit boss, or security staff. In the event of such an incident, dealers were expected to cope with the customer as far as possible, and inspectors were encouraged to resolve altercations without involving their pit boss who would be likely to be busy with other duties.
Christopher Burke had been on duty on the night of the June incident as a security officer. By the time he gave evidence he was a security shift manager with the Casino. He had been involved in the removal of the unruly customer during the June incident, which he remembered as it was the first physical removal he had been involved in. His evidence was consistent with other evidence generally in the case and was not controversial.
Keung Siu was the gaming shift manager on the night of the June incident, and remained in that position by the time of the trial. He had been employed at the Casino since 1994 and had worked his way up through roles as dealer, inspector and pit boss. He remembered the evening of the incident. His recollection was that he had been on the gaming floor when the trouble arose. He recalled a conversation with the pit boss, Mr Nicholls, who recommended to him that the unruly customer should be removed because of his unacceptable behaviour. He had seen physical removals of patrons on numerous occasions over his years with the Casino, at the rate of perhaps one a week. He had been the most senior Casino staff member on duty on the night in question. He recalled being aware that the plaintiff had recently come back to work after an incident some time earlier, but had been unaware that she had been on workers’ compensation. He was unaware that the night was her first night back at work after her break, and was unaware of any medical restrictions upon her. There had been no reason why she could not have been allocated to the high rollers area on the night. The roster would have been settled by the pit boss on duty during the day shift earlier on the day, who was responsible for the roster for the night shift. Mr Siu had started work that night at about 8.30 pm, well after the day shift staff had left.
Mr Siu said that he would not have known whether security were short-staffed on the night. He did not deal with security rosters and was not in charge of security.
He disagreed with the proposition that dealers and inspectors did not have authority to call a security staff member. His understanding was that dealers and inspectors could call security if necessary at any time.
He agreed, having seen the video footage from some of the cameras on the night of the June incident, that there had been periods of time where there was no pit manager visible within the pit and that he was not present himself.
The video tape I have mentioned was played in court during the plaintiff’s evidence, and tendered so that I have had the opportunity to review it in the course of preparing these reasons. The video footage has helped me to visualise the gaming floor of the Casino, and the area of the floor where the March and June incidents took place. The film is not particularly clear and some of the subtleties which senior counsel for the defendant addressed on were not entirely apparent to me even after careful viewing a number of times in chambers. The film clearly shows the removal of the unruly patron during the June incident but does not help me particularly as to the behaviour or demeanour of the plaintiff on the gaming floor.

The medical reports

None of the medical practitioners or other health professionals involved in the plaintiff’s treatment, or in providing expert opinion for the purposes of the case, gave oral evidence. A substantial volume of material was tendered in report form.
Dr Rodney Farnbach, consultant psychiatrist, assessed the plaintiff for the workers’ compensation insurer on 17 June 2008, a few days before the June incident. He had clearly been asked to assess her in relation to the effect upon her of the March incident. He took a history from her. He reported that she told him that she had not been unduly perturbed or upset on the evening of the March incident. She had finished her shift and gone home. The next night, a man who had lost money at her table became angry and abused her loudly and rudely, although he did not threaten or menace her. She called for help which came after about ten minutes. She felt intimidated and angry. She was frustrated because she was not allowed to respond to his behaviour. In the normal course of events she would have responded assertively and perhaps aggressively. She continued to work for a few days but on 26 March 2008, suffering from severe anxiety, she went off work for two weeks. Following this second incident she felt anxious and on edge. She had palpitations. She felt hot and dizzy. She was shaky and cried. She refused to continue dealing. Her pit boss tried to persuade her to carry on but the plaintiff became angry with her. She developed symptoms of depression. Her sleep and appetite were affected. She felt guilty because she had not handled the situation properly. She avoided going near the Casino. Her level of energy was greatly reduced.
The plaintiff told Dr Farnbach that she was afraid of having to work again in a situation with inadequate security. She said that she was scheduled to attempt a return to work on the night of Sunday 23 June 2008 when she would not be dealing. She was confident that in due course she would be able to get back to the work she was doing before the March incident.
Dr Farnbach diagnosed her as suffering from post-traumatic stress disorder and major depressive disorder with anxiety. He said that immediately after the events of March 2008 her symptoms would have been of moderate severity, but that her condition had generally improved considerably, particularly over the two weeks before he saw her. He regarded her depression as secondary to her stress disorder. Dr Farnbach was a little doubtful about the plaintiff’s downplaying of the chip-snatching incident and seems to have thought that this was probably what had triggered her symptoms. He advised that she was fit to attempt to return to work. She would need to be on modified duties for some time and should not be dealing at a table. If simply being at work at the Casino caused her to be very anxious, she should be referred to a psychologist with experience in treating post-traumatic stress disorder using techniques shown to be effective such as cognitive behaviour therapy or eye-movement desensitisation.
Dr Farnbach did not think that the pre-existing bipolar disorder had contributed to or predisposed the plaintiff to the development of post-traumatic stress disorder or the depression from which she was suffering when he saw her. He thought that she would have developed both of those conditions regardless of the bipolar disorder. The recent events had not in his opinion aggravated that condition. He thought that her prognosis was good and that given time she should eventually be able to resume her previous duties. He thought that she might benefit from psychological therapy for about another month.
Dr Farnbach’s report is particularly relevant to my task as it is the only expert report in evidence which predates the June incident which now constitutes the plaintiff’s cause of action against the defendant.
In January 2009 the workers’ compensation insurer sent the plaintiff to Dr JR Champion, a psychiatrist practicing at Mosman in Sydney. She was by then living with her parents at Moruya. She gave Dr Champion a history that she had enjoyed her work at the Casino until the incidents of March and June 2008.
She told him that she had been diagnosed with bipolar disorder at the age of about 20. She had become depressed following an incident when a male friend had made unwelcome advances to her and she had physically attacked him. She had been prescribed antidepressant medication by her general practitioner. This had not, as she assessed it, been effective and she had taken amphetamine which she had obtained from friends. Dr Champion noted that amphetamine abuse was a recognised cause of mental illness.
Since then the plaintiff had taken prescription medication in the form of Epilim, a mood stabiliser, and Effexor, an antidepressant. She thought that she had become addicted to Xanax and had ceased to take medication for about two years between 2004 and 2006. During that period she had taken recreational drugs occasionally, including cocaine, ecstasy and ice.
In the course of the consultation the plaintiff told Dr Champion that as a teenager she had used marijuana excessively. After having a convulsion at about age 15 she had ceased this.
He asked her about alcohol consumption. She said that she had been an occasional drinker in the past but by the time he saw her she was binge drinking three or four times a week, drinking cask wine or vodka. She said that she had recently been raped by a man she knew while drunk.
She said that another psychiatrist, Dr William Knox, had diagnosed her as suffering from borderline personality disorder. Dr Champion said that this condition was characterised by a pattern of instability of interpersonal relationships, self-image and affect, with marked impulsivity.
The plaintiff said that she had been treated from age 21 for about three years by another psychiatrist, Dr Blasharski, with cognitive behaviour therapy. She had found this helpful with her self-esteem.
The plaintiff told Dr Champion that on occasion she had engaged in self-injurious behaviour including slashing her wrists. She had been charged by police with driving offences twice.
She described the chip-snatching incident of March 2008 to him. She said that at the time she had felt shaky but did not think that it would affect her. That night she had felt very cold and had had disturbing dreams. She had come back to work the next day but during the shift a man at her table had become aggressive and started swearing at her. This sort of thing had happened many times over her ten years in the job and she would normally have been able to handle it without problems. On this occasion she had been unable to do so and had “lost the plot” and closed her table, feeling very angry. She had then had a confrontation with a supervisor at the Casino, and had been referred to the shift manager. She had told him that she was going home and would not be back.
She had come back to work the next day, and worked for another two nights but found that work produced too much anxiety. She had seen her general practitioner, Dr Renshaw, and had been referred to Ms Simons, psychologist, whom she had seen a number of times before moving to Moruya. At Moruya she had seen another psychologist, Dr Lloyd Murray. Both psychologists had given her cognitive behavioural therapy.
She told Dr Champion that she had been treated poorly by the Casino and had become convinced that they wanted to get rid of her. A rehabilitation provider had made attempts to get her back to work without a great deal of success. On two occasions something had happened, she was unable to recall what, and she had left work after a few hours. During June she had returned to work, keen to see whether security staff would be available if required. A customer had become abusive. She had tried to find security without success and had become upset and had left work.
Dr Champion confirmed with the plaintiff that similar situations had occurred regularly during her ten years but that she had previously been able to manage such confrontations without difficulty.
Dr Champion’s opinion was that the plaintiff was probably suffering from borderline personality disorder aggravated by substance abuse.
Dr Champion picked up from documentation that had been provided to him that the plaintiff had been admitted to Hyson Green at Calvary Hospital in June 2008, which the plaintiff had not mentioned to him as part of the history.
By the time he saw her, he did not think that she was suffering from post-traumatic stress disorder or from significant anxiety or depression which might prevent her from returning to work. He noted that she seemed angry about a perceived failure by her employers to provide sufficient security. He thought that she might well have been unfit for work temporarily because of the incidents during 2008 but that she was fit to return to her former duties by the time he saw her, although she appeared strongly motivated against this. He did not believe that the incidents at the Casino had caused anything other than a temporary exacerbation of her symptoms, which had long since resolved. He would have expected such symptoms to have resolved within a matter of days, or weeks at the most. It was in his opinion her extreme anger with her employers over matters concerning her perceptions of work security, rather than any psychiatric disorder, which was preventing her from going back to work at the Casino.
Dr Champion re-examined the plaintiff in November 2010, at an appointment arranged by the solicitors for the defendant for the purposes of this action. She was by then living at Wollongong and buying a house. She was working part-time for Woolworths, about twelve hours a week, packing orders for home shopping. She felt tired most of the time. She read a lot, and spent time on her computer, for example with Facebook. She was under the care of a general practitioner at Wollongong and was continuing to take Epilim and Effexor. She was also taking Imovane, a sedative tranquilliser, and Duromine, an appetite suppressant. She had been seeing a local psychologist on referral by her general practitioner, about once a fortnight for three or four months. She was drinking very little but drank to intoxication about once every three months. She had not used recreational drugs for the last six years. She was having difficulty sleeping for more than four hours a night and had been referred to a specialist about this. She felt tired and anxious most of the time, and described symptoms of panic attack.
She attributed her symptoms to the “robbery” at the Casino in 2008, a reference to the chip-snatching incident in March of that year. She often thought about the Casino but could not bear to go to Canberra at all, even to see friends and relatives there.
She told Dr Champion that she had read his report to the insurance company of February 2009 and had become upset that the report contained so many mistakes. On questioning she was unable to give examples, but came up with some comments when Dr Champion took her through the report paragraph by paragraph.
On examination Dr Champion did not find any evidence of depression or anxiety, and concluded that she was not by then suffering from any recognised psychiatric condition.
Dr Champion reviewed a considerable volume of psychological and psychiatric documentation. He said that the corrections which the plaintiff wished to make to his earlier report related only to minor matters. He concluded that the plaintiff’s condition was probably borderline personality disorder rather than bipolar disorder, although he could not absolutely exclude the latter diagnosis and thought it possible that she might suffer from both conditions, which were not mutually exclusive. Her condition involved unstable personality function in a number of areas, and it was likely that she would continue to be troubled from time to time with intense anger, anxiety and depression. She might be prone to behaviour such as excessive use of alcohol and recreational drugs. She might engage in reckless driving and self-injurious behaviour. All of this was in his opinion unrelated to her experiences at the Casino in 2008, and such behaviour was likely to be of short duration with a return to normal function shortly afterwards.
At such times she would need treatment based on support, care and protection from herself. Such care would typically be of short duration. Her prognosis was guarded but she seemed to be coping with her personality disorder most of the time. Research suggested that over decades more stable personality function would tend to develop.
Associate Professor Jeffrey Looi, consultant neuropsychiatrist in Canberra, wrote to the plaintiff’s general practitioner in June 2009. He noted a history of anxiety symptoms since a workplace incident in March 2008, with a background of longstanding bipolar disorder. The plaintiff had complained to him of anxiety, sleep disturbance with nightmares, and fearfulness. She told him that she was involved in litigation with her employer following attempts at graduated return to work on at least three occasions. She said that through a combination of difficult incidents with verbally assaultive or aggressive behaviour, and lack of support from Casino staff, she had decided not to go back to work at the Casino. She felt that her employer had been unsupportive and unsympathetic. She referred to unsuccessful attempts to return to work in April and June 2008. She stated that after the episode in June 2008 she had become very distressed and suicidal. She had been an inpatient at Hyson Green. She also referred to an assault incident earlier in 2009, and high alcohol intake which she said she had ceased.

Professor Looi said that she presented with a generalised anxiety disorder following a degree of post-traumatic symptomatology from which she seemed to have recovered. She appeared depressed, which concerned Professor Looi because of her bipolar disorder. He recommended psychotherapy including meditation and relaxation strategies, and suggested an increase in her dosage of Efexor.
I have the benefit of a report by the treating psychologist Sonia Simons, dated 7 July 2009. Ms Simons said that she had seen the plaintiff on six occasions, beginning on 3 April 2008, the last session having been on 31 March 2009. Each session lasted about an hour.
Ms Simons recorded a history of a sexual assault at age 15 and a diagnosis of bipolar disorder at age 20. The latter had been controlled by psychiatric treatment and medication.
The incident which Ms Simons had clearly been asked to assume was the focus of the compensation claim was the chip-snatching incident in March 2008, followed the next night by being sworn at by a drunken customer, where again the plaintiff did not feel supported by security. She had felt intimidated and powerless, and began to have violent nightmares which had continued intermittently. Ms Simons described the symptoms of which the plaintiff complained as classic and reasonably significant symptoms of trauma: initially acute stress disorder, and subsequently post-traumatic stress disorder or complex traumatic stress disorder. The latter condition can result from exposure to multiple trauma and from exposure to high levels of chromic stress as opposed to exposure to a single traumatic event. Her excessive drinking of alcohol was consistent with the condition and was a way of avoiding thinking about the incident.
Ms Simons noted that the plaintiff was admitted to Hyson Green for about two weeks in late June 2009 with suicidal thoughts but did not record any history of a specific event triggering this. In particular, she made no mention in her report of the June incident at the Casino.
She did record as a significant matter a sexual assault on the plaintiff while affected by alcohol early in 2009. She said that many of the plaintiff’s symptoms appeared to have been remitting prior to that incident but had returned. The plaintiff had intentionally cut herself, and an ambulance had been called. Her nightmares had returned and she had felt unable to get out of bed on many occasions since. She had been very upset by reading a report by Dr Champion who had rejected the diagnosis of bipolar disorder and arrived instead at a diagnosis of borderline personality disorder accompanied by drug and alcohol abuse. The plaintiff was particularly upset that her treating general practitioner, Dr Renshaw, had accepted Dr Champion’s opinion.
Ms Simons had carried out testing in the form of a personality inventory assessment, initially in May 2008 and for a second time in February 2009. The first results were consistent with an individual suffering from marked distress. The plaintiff had been experiencing severe anxiety and using maladaptive behaviour, including excessive alcohol use, to control this. Her scores showed elevations on self-harm, stress, disordered thinking and phobias. She tended to be pessimistic and dwelt on past failures and lost opportunities. She showed considerable uncertainty and indecision about the future.
The second test was administered after the then recent sexual assault. The results showed marked distress and severe impairment in functioning, with unhappiness, moodiness and tension accompanied by low energy levels, passivity, low-esteem and powerlessness. She complained of numerous physical problems which compromised her daily functioning. She still admitted to high-level alcohol use and some drug use. She had little sense of direction or purpose in her life and had elevated suicidal ideation.
Ms Simons said that it was difficult to determine whether the plaintiff’s continuing difficulties (presumably by March 2009, when she had last seen the plaintiff) were due primarily to the Casino incident or the sexual assault. The Casino incident she was referring to was clearly the incident of March 2008 and not that of June 2008. She said that the plaintiff fulfilled the criteria for post-traumatic stress disorder but she was unable to determine whether this was due to the Casino incident or the assault.
Ms Simons was provided with copies of reports by Dr Farnbach and Dr Champion among others. She preferred Dr Farnbach’s opinion to that of Dr Champion as more consistent with her own findings.
She concluded that the Casino incident of March 2008 had probably made a significant contribution to the plaintiff’s condition when she first saw her. She had then gradually improved but had gone backwards after the sexual assault early in 2009. She would always need a safe working environment and in Ms Simons’ opinion should avoid workplaces requiring security such as casinos and banks. She was unfit to work at the Casino in any capacity, primarily because of her concerns about security.
The plaintiff was referred by her solicitors for reports for the purpose of these proceedings to Mr Tom Sutton and Dr May Matias. Mr Sutton is a clinical psychologist of many years experience, practising in Canberra. Dr Matias is a Canberra psychiatrist.
The plaintiff saw Mr Sutton in December 2009 and December 2010. He carried out a wide range of psychometric tests. He was able to exclude exaggeration and malingering. He found symptoms of anxiety but not post-traumatic stress disorder. There were features of a dependant personality disorder.
As to bipolar disorder, Mr Sutton noted that Dr Champion’s opinion about this was reached after a single brief interview and stood in contrast to the weight of other expert opinion. The results he had obtained did not negate the diagnosis, but were consistent with the condition being present, with the symptoms controlled and not showing up as clinically elevated. He found “not a shred of evidence” of borderline personality disorder. He disagreed strongly with Dr Champion about that diagnosis.
This meant that the plaintiff had a pre-existing vulnerability which had been manageable but which lowered her threshold of coping in the event of further trauma. She had been exposed to traumatic experiences in her employment at the Casino capable of explaining his findings, which were consistent with those of Ms Simons.
Again, the history given to Mr Sutton focused on the incidents of 21 and 22 March 2008 at the Casino, but he was made aware of the June incident and of the plaintiff’s admission to Hyson Green with suicidal symptoms shortly after it.
Mr Sutton repeated the testing in December 2010 and confirmed his previous opinion. By the end of 2010 the plaintiff presented as more anxious and depressed than previously. She had been undergoing psychological treatment in Wollongong which had not been satisfactory. Mr Sutton recommended treatment by a psychodynamically trained therapist in Sydney. It does not appear that the plaintiff pursued this.
Dr Matias saw the plaintiff on two occasions, in January and December 2010. She recorded the March 2008 chip-snatching incident as the “initial injury”, and recorded a number of subsequent incidents, starting with the one the following day, as compounding the initial injury. The plaintiff apparently told Dr Matias that she did not come back to work after the day following the March incident, until June 2008 when she described the incident of that time.
The plaintiff told Dr Matias that ten weeks after she saw Dr Champion in January 2009 her workers’ compensation payments were stopped. She was very resentful about this.
Dr Matias said that it was clear that the plaintiff had suffered from post-traumatic stress disorder following the cumulative effects of the episodes and injuries while working at the Casino during 2008.
It seems that the plaintiff did not tell Dr Matias about the sexual assault in early 2009, although Dr Matias picked this up from copies of reports provided to her, by Ms Simons, Dr Farnbach, Dr Champion and Mr Sutton. The high probability was that the plaintiff’s condition of chronic post-traumatic stress disorder had been caused by the March incident at the Casino and aggravated by the incidents the following day and in June 2008. Dr Matias thought that by the end of January 2010 her condition had stabilised. She would benefit from psychological treatment but should continue with her medication. It was unlikely that she would be able to return to work at the Casino, or to any work which might lead to a possible confrontation with clients or customers. She was at the time working in Wollongong in a data-entry job, which Dr Matias regarded as suitable for her. There was no evidence of exacerbation of her pre-existing bipolar disorder, which Dr Matias described as being in remission.
When Dr Matias saw the plaintiff again at the end of 2010, her condition was generally the same. She had changed jobs and was by then working as a night filler at a Woolworths store in Wollongong, working twelve hours a week. Dr Matias accepted that her residual anxiety prevented her from working at the same level she had before the Casino incidents.
Mr Michael Guy is a psychologist in private practice in Wollongong. He reported in April 2011 that he had seen the plaintiff for nine sessions of treatment for post-traumatic stress disorder. The plaintiff had sought him out as a practitioner who offered eye-movement desensitisation and reprocessing (EMDR) as a treatment for that condition. The history given to Mr Guy was that following a robbery at the Casino in March 2008 the plaintiff had developed severe anxiety, and found it difficult to return to work despite psychological treatment. Following a second incident in June 2008 she had had a severe depressive episode leading to admission to hospital for two to three weeks.
Mr Guy found no evidence to support a diagnosis of borderline personality disorder, and disagreed with Dr Champion about this. He found that the plaintiff met the criteria for a diagnosis of post-traumatic stress disorder.
He said that the plaintiff’s return to work after the March 2008 incident was in hindsight premature. It was not uncommon for employers to fail to understand and accept post-traumatic stress disorder, and hence to mismanage a return-to-work programme. The plaintiff should not have been exposed to the possibility of further incidents mirroring the chip-snatching incident, at least so far as a lack of security was involved. The plaintiff’s return-to-work programme should have been managed in such a way that security personnel were readily at hand in case of any further incident. It was not surprising to him that the June incident had become the focus of treatment. He was optimistic that with further treatment there would be an improvement in the plaintiff’s condition, but she should not in the future be employed in an area where there was any likelihood of a threat from members of the public. Her then job at Woolworths appeared suitable, but he favoured her retraining for a different career. She had expressed interest in completing a science degree at university which he would encourage. She would need up to fifty further sessions of EMDR, as well as support in creating a new social network, and therapy to improve her self-confidence and reduce her susceptibility to relapse.
Perhaps regrettably there were no reports in evidence by a number of treating doctors and other health professionals, including Dr Knox, the Canberra psychiatrist who had treated the plaintiff before the Casino incidents; Dr Lubbe, the psychiatrist under whose care the plaintiff was admitted to Hyson Green, and who had been involved in her treatment some years previously; Dr Blasharski, a psychiatrist who had been involved in the plaintiff’s care prior to the incidents; and Mr Lloyd Murray, a psychologist practising at Moruya, who treated the plaintiff extensively for bipolar disorder. It is understandable that parties put into evidence medical reports and other material which suit their case and may choose not to put into evidence material which does not, but it is unfortunate when this deprives the Court of the full background, particularly when some of the expert witnesses whose reports are in evidence record that they have read and taken into account reports by other health professionals which are not in evidence. In respect of doctors and health professionals who were plainly involved in the plaintiff’s treatment before and after the 2008 incidents, I am left with no alternative but to treat such witnesses as being generally in the plaintiff’s camp. There being no explanation for the fact that they were not called to give evidence and no reports by them were tendered, I am left with no alternative but to draw the inference that their evidence would not have assisted the plaintiff’s case. I recognise that this may go no further than a neutral inference, and am not to be taken as suggesting that the evidence of any of them would have damaged the plaintiff’s case.

The oral evidence relevant to damages

On 24 June 2008, two days after the incident, Ms Lockett attended a review with the plaintiff at Dr Renshaw’s surgery. The plaintiff produced a letter from her psychologist, Ms Simons, expressing grave fears for the plaintiff’s safety and recommending immediate admission to the Hyson Green Mental Health Facility at Calvary Hospital for psychiatric assessment. The plaintiff confirmed that she had had suicidal thoughts and had formed a suicide plan. Dr Renshaw arranged for immediate admission to Hyson Green under the care of a psychologist, Dr Lubbe. Ms Lockett obtained approval from the insurer to meet the cost of this admission and drove the plaintiff to Hyson Green, where she spent sixteen days as an inpatient.
Ms Lockett’s report of 8 August 2008, which includes her summary of what she was told about the events of June 2008, makes no specific mention of the incident which now constitutes the plaintiff’s cause of action. I take into account the fact that Ms Lockett saw her role as arranging rehabilitation for the plaintiff, and reporting to the insurer, in relation to the incident of March 2008, and that she had been given no specific information by those instructing her about any incident in June 2008.
Ms Lockett was expected to give oral evidence but was unable to do so because of illness at the time of trial. I draw no adverse inference against either party in those circumstances.
Senior counsel for the defendant tendered a copy of the records in relation to the plaintiff held by Queanbeyan District Hospital and Health Service in response to a subpoena issued in workers’ compensation proceedings in the Magistrates Court early in 2010 between the same parties. The records are voluminous and not always easy to read or follow, but it is apparent that well prior to 2008 the plaintiff had had a number of attendances, including some admissions as an inpatient, at Queanbeyan District Hospital where she had been diagnosed as suffering from either bipolar disorder or borderline personality disorder. At least one of these attendances required treatment to the plaintiff’s wrist or wrists following an apparent suicide attempt.
The plaintiff gave oral evidence about how she was after the June incident, physically and mentally. She said that she felt battered and suicidal. On 24 June 2008, two days after the incident, she woke up after a series of nightmares and decided to kill herself. Her plan was to drive to an isolated area and attach a tube to her exhaust pipe, so as to poison herself in her car with carbon monoxide. Something made her stop and think, and she telephoned Ms Simons. Ms Simons called Dr Renshaw and Ms Lockett, and they all met at Dr Renshaw’s rooms. Dr Renshaw had her admitted immediately to Hyson Green. As previously mentioned, Ms Lockett drove her there. She was admitted under the care of Dr Lubbe. She was treated with medication and sessions with a psychologist focused on relaxation and “mindfulness”.
Over the next few months her nightmares continued and increased in intensity.
Ms Lockett monitored her progress over the period from 4 April 2008 to 29 January 2009 on instructions from the workers’ compensation insurer, GIO General Limited, through its case manager, Stacy Turner. Ms Lockett prepared four reports, dated 8 August, 19 September and 12 December 2008 and 29 January 2009. The representative of Casino Canberra is listed on the first three of those reports as Greta Evans and on the fourth as Jasmina Troni. Neither Ms Evans nor Ms Troni gave evidence, and their names were not mentioned by the Casino staff members called in the defendant’s case.
In the first of Ms Lockett’s reports, as previously mentioned, she did not make specific mention of the June incident but referred in general terms to trigger events which had led to further deterioration of the plaintiff’s condition on each of her attempts to return to work. She mentioned the medical review with Dr Renshaw on 24 June, and the immediate admission to Hyson Green, where the plaintiff stayed for sixteen days. The report concluded with a statement that the plaintiff was “feeling a lot better and . . . continuing her treatment with Ms Simons”.
The September report recorded that the plaintiff had continued with that treatment. She had missed a medical appointment on 2 September because she was staying with her parents at Moruya. Her mother had telephoned to say that the appointment would need to be postponed because she was having a lot of difficultly getting her daughter out of bed and ready to travel to Queanbeyan for the appointment. She said that the plaintiff was continuing to complain of nightmares and was becoming housebound because of fear of confrontation when out. The plaintiff’s parents had arranged for her to stay with friends in Queensland for a long weekend. During this period the plaintiff visited two casinos on the Gold Coast to test her capacity to cope with a casino environment. She found that she experienced significant fear and anxiety in the casino setting.
At a review on 17 September, Dr Renshaw expressed uncertainty as to whether the plaintiff would be able to return to work at Canberra Casino in any capacity. He thought that her employment goals might need to change.
In the December report, Ms Lockett referred to a further review by Dr Renshaw on 20 October when he had expressed his belief that the plaintiff would never be fit to return to work at the Casino, and that she might benefit from a vocational assessment to identify other employment options.
Ms Lockett had a meeting with the plaintiff on 13 November 2008. The plaintiff complained that her nightmares had increased in intensity and that “she was actually now seeing the face of the alleged assailant in her dreams”. Because Ms Lockett had not mentioned anything about the June incident, or any other assailant, I take this to be a reference to the man who stole the chips in the course of the March incident. The plaintiff told Ms Lockett that as a coping mechanism she wanted to sleep with a knife under her pillow so that she could use this in her dream for defensive purposes. Ms Lockett discouraged this, feeling that the plaintiff might inadvertently injure herself in her sleep, and the plaintiff agreed not to pursue this idea.
At a further meeting on 8 December 2008, the plaintiff told Ms Lockett that she had increased her alcohol consumption over the last month, which concerned her.
The plaintiff confirmed in her oral evidence that at about that time her dreams had been so realistic that it seemed that the events were actually happening in her bedroom. She thought that it might be possible for her to use the knife in her dream to defend herself if necessary. She did not mention in her oral evidence anything about identifying a particular assailant.

In a report dated 29 January 2009, Ms Lockett noted that the plaintiff had told her on 6 January 2009 that she had been to the Canberra Casino Christmas party and had coped well with it, but talking to other staff members at the party, she realised that nothing had changed, and felt vulnerable about returning to the Casino. Ms Lockett attended a review with the plaintiff and Dr Renshaw on 8 January. Dr Renshaw remained of the view that the plaintiff was unfit to return to work at the Casino at any capacity.
Ms Lockett’s final report in evidence was dated March 2009. She noted that at a further review by Dr Renshaw on 20 February, the plaintiff had been advised not to return to employment at the Casino. Accordingly her role had changed from one of returning the plaintiff to work, to the achievement and maintenance of maximum function. She noted that the plaintiff was receiving treatment from a psychiatrist, Dr Toh, but that she had been unable to obtain a report from that doctor. She said that Ms Turner, the case manager with the workers’ compensation insurance company, had instructed her firm to cease attempts at rehabilitation and to close its file. By that time the plaintiff remained certified unfit for work.
Ms Lockett’s reports must be seen in the context that her task was to do what she could to get the plaintiff back to work at the Casino, within the framework of the workers’ compensation legislation.
The plaintiff’s oral evidence was that her condition had improved by the time of the hearing. She still had dreams about being attacked from time to time, and woke up terrified. In August 2009 she decided to move from her parents’ home at Moruya to live at Wollongong, where she had lived before and had a number of friends. She had found a general practitioner Dr Iqbal, whom she saw from time to time in relation to the after-effects of the Casino incidents, as well as for other things. She was continuing to take prescription medication to control her bipolar disorder, and seeing Dr Iqbal for renewal of her prescriptions in that regard from time to time. By the time of the hearing the plaintiff said that she was taking an increased dose of Effexor, and various sleeping tablets, including Xanax, from time to time. Her estimate was that she was seeing Dr Iqbal about three times a year for issues solely related to her claim. She was also seeing Mr Guy once a week.
The plaintiff found work in Wollongong with a financial consulting firm, Tarrants, in September 2009. She worked there until May 2010. She did not cope well with the work. She had a number of absences due to stress. She found the workload overbearing, and was continually asked why she was unable to complete her work in the time allocated. In May 2010 she was made redundant, and left with some additional pay in lieu of notice. In the following month, June 2010, she found work at Woolworths at Wollongong as a casual shop assistant. After some time this was converted to a part-time position, working twelve hours a week packing home orders for delivery. By the time of the hearing the hours had increased to twenty-six a week.
The plaintiff said that she use to have an almost photographic memory but she found that by the time she was giving her evidence she had difficulty in concentrating and in remembering basic things. She found herself drifting off into a daydream. She had trouble composing sentences and in learning. She had previously had good mathematical skills but this was no longer the case.
Her evidence was that after the June incident she needed help with choosing her clothes and dressing and also with bathing and meals. Her parents helped her with this after she moved to stay with them at Moruya between January and August 2009. Prior to that her parents stayed with her much of the time at Queanbeyan. She thought that this had been for about half of the period between June 2008 and January 2009.
She said that after she moved to Wollongong in August 2009 her parents came to look after her about once a fortnight, one at a time, staying for three or four days.
In cross-examination, the plaintiff agreed that on her thirtieth birthday in April 2009 she had been found by police extremely intoxicated, her speech unintelligible, and unable to stand without assistance or maintain to her balance in a seated position. She had been drunk again in November 2009 when working at Wollongong, and on another occasion at a party in Canberra. She agreed that she had been drunk on a number of occasions and had posted the fact on her facebook page.
In February 2009 she was charged with drink-driving at Queanbeyan. Her licence was suspended for eight months and she was fined.
She conceded a conviction in 2005 for an offence in relation to overpayment of Centrelink benefits. She had continued to receive Centrelink benefits while working at Wollongong. This resulted in her being placed on a good-behaviour bond for twelve months. She had been ordered to repay some $3,700.00 in benefits.
She agreed that over the years she had taken ecstasy and amphetamines at various times.
The plaintiff agreed that early in 2009, at about the time she was sexually assaulted, she had been drinking heavily, to an extent described as binge-drinking, every second night.
The plaintiff’s father was called to give evidence about the effects of the Casino incidents on her. He and his wife have lived at Moruya Heads for twenty years. He lived at Captain’s Flat for forty-seven years before that. The family at one point had a flat at Queanbeyan where they stayed. His evidence was that his daughter had found it difficult to cope with her diagnosis of bipolar disorder, but that she had learned to cope with it. Before the Casino events she had been over-confident, but after what he called the robbery she had become frightened of her own shadow. The incident in June 2008 had “sort of finished everything off”. She would no longer go out on her own. She seemed frightened that someone would accost her. She came to Moruya to stay with her parents, and would wake up screaming and crying after a nightmare. Her father would go and sit with her to calm her down. She would not sleep with the light off. After some months she moved to Wollongong. Her father would visit her once every two or three weeks, and her mother would also visit from time to time.
He confirmed that her memory was much worse than it had been. He looked after her correspondence, including paying bills. He also monitored her use of Xanax sleeping tablets, and her prescriptions and supply of these.
He was aware that before 2008 she had sometimes drunk too much but was unaware that she had used illicit drugs. He discovered a great deal about her life when he read medical reports in connection with the case.
He had been aware of the sexual assault on her in January 2009. He agreed that this had been a frightening experience, but said that she had already been “pretty bad” prior to that event. He agreed that she had been affected badly by the chip-stealing incident.

Liability

As the High Court of Australia reaffirmed in Koehler v Cerebos(Aust) Ltd (2005) 222 CLR 44 at [19], the starting point for a claim such as the present one is that an employer owes an employee a duty to take all reasonable steps to provide a safe system of work. In relation to pure psychiatric injury, the issue of breach of duty requires consideration of the foreseeability of the risk of injury and the reasonable response to that risk in the manner described in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. In addition, the content of the duty of care must be scrutinised so as to take account of the obligations owed by the parties to one another under the contract of employment, any equitable obligations arising from the relationship and any applicable statutory provisions.

What has been described as the Shirt calculus has in this Territory been put in statutory form, or perhaps removed and replaced, by Part 4.2 of the Civil Law (Wrongs) Act 2002. I am required in particular to have regard to the provisions of s 43 of the Act, which is in the following terms:

Precautions against risk – general principles 43

(1) A person is not negligent in failing to take precautions against a risk of harm unless –

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

I must also take into account the provisions of s 45 of the Act, which I shall not set out, as to the general principles to be applied on the question of causation.

Purely psychiatric injury, which is called pure mental harm in the Act, is compensable (s 33). But I must take s 34 into account. The section provides that a defendant does not owe a duty to a plaintiff to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. In considering this question the court must have regard, among other things, to any pre-existing relationship between the plaintiff and the defendant (such as, in this case, that of employee and employer). The section does not affect the duty of care a defendant has to a plaintiff if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.

Section 35 provides that damages must not be awarded for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

In Koehler, a judgment in the plaintiff’s favour at first instance had been set aside by the Full Court of the Supreme Court of Western Australia. The High Court dismissed an appeal by the plaintiff, essentially for the reason that whilst the plaintiff had suffered a psychiatric injury, the employer had had no reason to suspect that the plaintiff had been at risk of such injury, there having been no indication, explicit or implicit, of any particular vulnerability on her part.

It appears that on the facts in Koehler, the defendant in that action would have succeeded in a statutory defence based on s 34 of the Civil Law (Wrongs) Act if the tort had been committed in this jurisdiction. It is no doubt for this reason that the plaintiff in the present case, on her counsel’s advice, elected not to pursue her claim in respect of the March 2008 incident, there being no evidence, before me at least, that the Casino was on notice of the plaintiff’s bipolar disorder, or of any psychiatric vulnerability on her part, at the time of that incident.

I am satisfied that the position was very different by the time of the June incident. The plaintiff had by then made a claim for workers’ compensation for what is called in the Civil Law (Wrongs) Act pure mental harm caused by the March incident. She had been provided by the employer and the workers’ compensation insurer with the assistance of Ms Lockett as a rehabilitation consultant. An employee of the Casino, Ms Evans, had been present with Ms Lockett at consultations with the plaintiff and her general practitioner, Dr Renshaw. There were a number of these between the March and the June incident, during which time the plaintiff made some attempts to return to work at the Casino which were unsuccessful. Ms Evans must have been well aware of the limitations placed by Dr Renshaw on the work the plaintiff should do during these attempts, and the reason for the limitations.

There is no evidence that Ms Evans passed any of this information on to those on duty at the Casino on the night of the June incident, the first night of a return to work by the plaintiff. If Mr Siu had been aware of the background, and of the contents of Ms Lockett’s report, it would have been apparent to him that there was a risk involved in returning the plaintiff to duty as an inspector on the gaming floor, particularly at the pit to which she was allocated. There is no evidence that there would have been any difficulty in allocating the plaintiff to the high rollers area or to the Pai Gow area, where there would have been little if any risk of an incident such as occurred.

Further, it is apparent from the evidence that the pit boss who was the plaintiff’s immediate superior on the night, Mr Nicholls, was unaware of the history and of the limitations earlier recommended by Dr Renshaw. It is equally clear that the duty security manager, security supervisor and security officers were equally unaware of the plaintiff’s vulnerability.

I am accordingly satisfied that the defendant knew on the night of the June incident that the plaintiff was a person of less than normal fortitude, so that the s 34 defence is not available to it.

I am satisfied that the risk that the plaintiff might be involved in a confrontation with an intoxicated, aggressive and unpleasant customer on the night in question was reasonably foreseeable and not insignificant. I am satisfied that there were precautions readily available to the Casino, in the form of allocating the plaintiff to a low-risk gaming area, and I am satisfied that a “reasonable person” in the position of the Casino in all of the circumstances would have taken such precautions. I have no doubt that the probability of the plaintiff being involved in an incident likely to cause her mental harm would have been negligible if such precautions had been taken, and that the precautions could have been taken without any particular burden on the Casino or its other staff.

It follows that the plaintiff has made out her case in that she has established that on the night of the June incident the Casino committed a breach of its duty of care to her as an employee.

Damages

I am satisfied that the plaintiff has suffered damage as a result of the negligence of the defendant in failing to provide her with a safe system of work on the night of 22 June 2008. The plaintiff initially sought damages for the March 2008 incident but withdrew her claim in that regard at the commencement of the hearing. I must take the plaintiff as she was on 22 June 2008, immediately prior to the incident at the Casino on that night, and in assessing damages, consider the effect of the defendant’s negligence on her as she was at that time. The comparison I must make is between the reality of what happened to the plaintiff on that night and its effect on her since, and the theoretical position the plaintiff would have been in, then and since, if the incident involving the intoxicated customer at the Casino on that night had not occurred.

I am satisfied that the incident was the major cause of the plaintiff’s urgent admission two days later to Hyson Green, and the need for her to spend sixteen days as an inpatient at that facility.

As I said at paragraph 59 above, I find Dr Farnbach’s report of great assistance in determining the position the plaintiff had reached shortly before the June incident. She expressed her confidence to Dr Farnbach, five days before the incident, that in due course she would get back to the work she had been doing before the March incident. Dr Farnbach accepted that she was suffering from post-traumatic stress disorder and major depressive disorder with anxiety, initially of moderate severity. But his opinion was that her condition had improved considerably, particularly over the two weeks before he saw her (paras 56 to 58 above). He regarded the bipolar disorder as irrelevant to her development of post-traumatic stress disorder and depression. Her prognosis was in his view good, and he thought that she should eventually be able to resume her previous duties.

Other health professionals who saw the plaintiff between the March incident and the June incident included her general practitioner, Dr Renshaw, and her treating psychologist, Ms Simons. Dr Renshaw last saw the plaintiff prior to the June incident on 19 June 2008 (see paragraph 21) when he gave her a certificate of fitness of return to work on 22 June subject to specified limitations. As I said earlier, Dr Renshaw’s certificates are not easy to understand, and I prefer the clearer expression of opinion by Dr Farnbach.

Although Ms Simons commenced to treat the plaintiff between the March and June incidents, her report does not assist as to the plaintiff’s condition immediately before the June incident.

I take account of the fact that until the amendment of the statement of claim early in 2010, all of the doctors who had been asked to provide reports had been told that the plaintiff’s claim arose out of the March 2008 incident. In the circumstances it is unsurprising that in the reports prepared prior to February 2010 there was no particular focus on the June 2008 incident. Even after February 2010, the claim as pleaded was one which arose out of the March incident, with the June incident appearing as an aggravating event rather than a fresh and separate cause of action. In the circumstances even Dr Champion, who first saw the plaintiff in January 2009 but reviewed her in November 2010, does not seem to have been asked to provide a specific opinion about the significance of the June incident as a separate event.

I should add that by November 2010 I think that the plaintiff herself probably saw the claim as principally arising out of the March incident, with the June incident being an aggravating event rather than a fresh cause of action, to the extent that the plaintiff was likely to have comprehended what that might mean. For this reason Dr Champion’s reports are of less assistance than the report by Dr Farnbach.

On the question of whether the plaintiff’s underlying condition was bipolar disorder or borderline personality disorder, I conclude that it was more likely to have been the former. I prefer the opinions expressed by Dr Farnbach, Professor Looi, Dr Matias and Mr Sutton to that of Dr Champion on that issue.

I gain some assistance from the personality inventory assessments conducted by Ms Simons, the first in May 2008 and the second in February 2009. My difficulty is that whilst the first was conducted a month before the June incident, the second was shortly after the January 2009 sexual assault, and I do not have the benefit of such an assessment in the period between the June incident and the sexual assault. However, the results in May 2008 (see paragraph 88) showed marked distress, severe anxiety, pessimism and indecision about the future. The results in February 2009 (paragraph 89) also showed marked distress and do not seem to have been greatly different, though perhaps somewhat more severe. This would hardly be surprising considering that the sexual assault was a major incident in the plaintiff’s life and led almost immediately to what seems to have been a suicide attempt.

The plaintiff carries the onus of satisfying the court of the effect of the June 2008 incident upon her. The comparison I must make with the position which would probably have obtained if it had not been for the June incident should include the January 2009 sexual assault. There is no reason to suppose that that assault would not have happened regardless of whether the June incident had happened.

At a practical level, it seems to me highly unlikely that the plaintiff, if the June incident had not happened, would have got back to a position where she could have coped with all of the duties required of a gaming floor employee at the Casino. The March incident had exposed her vulnerability to incidents like the chip-stealing event, although she was not actually hurt or even threatened physically. The attempts at return to work had been unsuccessful. It may be that she would have coped with work at the Casino if limited to the high rollers area or the Pai Gow table, but it would have been unrealistic to expect the Casino to cope permanently with such restrictions on a single staff member. A reintroduction to the workplace with those limitations would no doubt have helped the plaintiff with her recovery, but it seems to me inevitable that she would eventually have been required to return to full duties, where she would, probably equally inevitably, have eventually been confronted by a situation such as confronted her during the June incident. Additionally, whilst the Casino might have been expected to treat her differently to other staff in relation to the presence of security personnel while she was working, this also could not have gone on indefinitely and she was therefore at risk of exposure to such an incident at a time when security staff were not immediately available.

The sexual assault in January 2009 would, I think, have added to the plaintiff’s vulnerability to confrontational incidents at the Casino. Whilst I recognise that she had worked at the Casino for ten years before 2008, I am satisfied that assuming that the June incident had not happened but that the January 2009 sexual assault had happened, the plaintiff would have been unable to return to full duties at the Casino and would after some period of time attempting to get back to full duties, have had to admit she was unable to do so, and that her employment at the Casino would have ceased.

This brings me to the assessment of the various components of an award of damages. The June 2008 incident at the Casino had a significant effect on the plaintiff, leading to her spending sixteen days in a psychiatric institution. I think that she had probably made a substantial recovery from its effects by January 2009 when she was sexually assaulted. I think it likely that the impact of the sexual assault on her was to some extent worsened by her condition following the Casino incident in June the previous year. That incident can be expected to have some permanent impact upon her, if impossible to measure. It seems to me than an appropriate award of general damages for the psychological equivalent of pain and suffering, and for interference with the amenities of life, would be $50,000.00. I apportion that sum equally between the past and the future, and allow interest on the past component at 4% per annum, spread over the period since July 2008, with the past component a little more heavily weighted towards the early part of that period. I allow $5,000.00 for interest.

Out-of-pocket expenses are agreed at $12,385.80, on which there is no claim for interest.

I make an allowance for the possibility that the plaintiff will require treatment in the future, of which the defendant’s negligence will have been a cause. This is quite impossible to approach in anything like a mathematical fashion, but some allowance must be made. That allowance must take into account the fact that it is recoverable immediately but that any expenses may not be incurred until some indeterminate time in the future. I allow $1,500.00 for future treatment expenses.

The plaintiff makes a claim for the commercial value of services provided to her by her parents. I apply an hourly rate of $23.00, consistently with other recent decisions of the Court. The evidence does not permit me to perform a calculation to arrive at a figure. The evidence is of various periods when the plaintiff stayed with her parents or they came and helped out, staying with her, with other periods in between. I allow $10,000.00 for the past Griffiths v Kerkemeyer component, plus interest at the prescribed statutory commercial rate of 9%, of $2,000.00. I am not satisfied on the evidence that a claim for future care is made out.

The plaintiff claims damages for past loss of earnings, and for loss of earning capacity for the future. Her nett rate of pay at the relevant period was approximately $1,400.00 per week. I am satisfied that the plaintiff has lost the equivalent of a year’s earnings at that rate as a result of the defendant’s negligence, and I allow $72,800.00. That figure attracts interest at 9% per annum, which I calculate at $25,000.00. The plaintiff is also entitled to damages for the loss of the employer’s contribution to her superannuation which would have accompanied those earnings, which I allow at the rate generally allowed by the Court in recent cases of 9%, a figure of $6,552.00.

I am not satisfied that the June 2008 incident has caused the plaintiff any further loss of earning capacity likely to be reflected in actual loss of earnings in the future, and I make no allowance for future economic loss.

The amount I award for damages is accordingly as follows:

General damages $50,000.00

Interest on past component $5,000.00

Past expenses $12,385.80

Future expenses $1,500.00

Past care and services $10,000.00

- Interest thereon $2,000.00

Past economic loss $72,800.00

- Interest thereon $25,000.00

Loss of superannuation benefits $6,552.00

$185,237.80

I am satisfied that that sum adequately and properly reflects the loss suffered by the plaintiff as a result of the defendant’s negligence. There will accordingly be judgment for the plaintiff for that amount.

My provisional view is that costs should follow the event, but I shall hear the parties in case there are considerations to be taken into account of which I am unaware.

I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are
a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 9 November 2012

Counsel for the plaintiff:                  Mr DI Richards
Solicitors for the plaintiff:                Maurice Blackburn Lawyers
Counsel for the defendant:               Mr GA Stretton SC
Solicitors for the defendant:             King and Wood Mallesons
Date of hearing:  14, 15, 16 June 2011
Date of judgment:  9 November 2012

General damages	$50,000.00
Interest on past component	$5,000.00
Past expenses	$12,385.80
Future expenses	$1,500.00
Past care and services	$10,000.00
- Interest thereon	$2,000.00
Past economic loss	$72,800.00
- Interest thereon	$25,000.00
Loss of superannuation benefits	$6,552.00
$185,237.80