Kaltsis v Ice Design Pty Ltd
[2012] VCC 623
•18 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01214
| ZOE KALTSIS | Plaintiff |
| v | |
| ICE DESIGN PTY LTD | Defendant |
---
JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3,7,8,& 9 May 2012 | |
DATE OF JUDGMENT: | 18 May 2012 | |
CASE MAY BE CITED AS: | Kaltsis v Ice Design Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 623 | |
REASONS FOR JUDGMENT
---
SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: serious injury - development of a psychiatric condition - whether a compensable injury - credit - whether the plaintiff had manipulated a false claim – whether the plaintiff had deceived medical practitioners into accepting she had a psychiatric condition which was compensable - whether the psychiatric condition met the requirements of the statutory test
LEGISLATION: Accident Compensation Act 1985, s.134AB (38)(b), (d) and (i)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, and Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
RULING: the plaintiff have leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan with Mr Podger | Zaparas Lawyers |
| For the Defendant | Mr J O’Brien | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 21 March 2011 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of and in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Ms A MacTiernan appeared with Mr Podger of Counsel for the plaintiff, and Mr J O’Brien of Counsel appeared for the defendant.
4 The plaintiff submitted that she had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Mr Kim Moutidis gave evidence and was cross-examined;
· Dr Handrinos, psychiatrist gave evidence and was cross-examined.
· Dr Stragalinos, general practitioner gave evidence and was cross-examined;
· Ms Hambleton, psychologist gave evidence and was cross-examined.
· Ms Bartholomew gave evidence and was cross-examined.
· Ms Dickson gave evidence and was cross-examined.
· The plaintiff tendered a letter of Tony Hargraves and Partners, Lawyers to the plaintiff dated 19 April 2012: Exhibit A
· The plaintiff tendered a Notice of Appeal dated 13 December 2011: Exhibit B
· The plaintiff tendered her Court Book ("PCB"), pages 6-41.4 and 59-101: Exhibit C;
· The plaintiff tendered an extract of the clinical notes of Mr Surkitt, physiotherapist: Exhibit D;
· The plaintiff tendered the hours of surveillance of the plaintiff: Exhibit E
· The plaintiff tendered an offer of suitable employment: Exhibit F
· The plaintiff tendered a letter of Allianz to Dr Duke, psychiatrist dated 26 November 2008: Exhibit G
· The defendant tendered a letter written by the plaintiff dated 20 April 2011 to Victoria Police: Exhibit 1
· The defendant tendered film taken of the plaintiff on 2 and 4 July 2008: Exhibit 2;
· The defendant tendered film taken of the plaintiff on 27 September and 10 October 2008: Exhibit 3;
· The defendant tendered film taken of the plaintiff on 22, 24 and 25 July 2009: Exhibit 4;
· The defendant tendered film taken of the plaintiff on 6 and 9 November 2009: Exhibit 5;
· The defendant tendered film taken of the plaintiff on 10 December 2010: Exhibit 6;
· The defendant tendered film taken of the plaintiff on 30 March and 12 April 2012: Exhibit 7;
· Ordinary medical certificate dated 24 February 2009: Exhibit 8
· The defendant tendered its Court Book ("DCB"), pages 1-11 and 26-95b and from the plaintiff's Court Book pages 102-110 and 142: Exhibit 9.
· The defendant tendered the clinical notes of Dr Stragalinos: Exhibit 10.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury, that is, an injury which he suffered arising out of the course of her employment on or after 20 October 1999.[1]
[1]S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e) Subsection (38)(I) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h) The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purpose of subsection 38 (c).
(i) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(j) Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(k) In conformity with Barwon Spinners (supra), I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
8 I am required by section 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.
The Events Leading up to Injury
9 The primary defence raised by the defendant is whether the plaintiff suffered a compensable injury. A determination of that question necessitates an examination of what occurred after the plaintiff made a return to work following an incident which resulted in her suffering physical injuries.
10 The plaintiff was employed by the defendant as the manager of one of its retail stores in Dandenong. Her employment was interrupted when she fell from a ladder on 28 February 2008. She was standing on the second step of the ladder attempting to remove a section of rail which comprised a fixture on which racks of clothes were hung, presumably for the purpose of display to customers. The plaintiff landed on her right side hitting her head on the concrete floor. She believes that she briefly lost consciousness.
11 It is only necessary to set out a short summary of the medical treatment which she obtained for the injuries she suffered in the fall because the claim made by the plaintiff for serious injury is based upon a psychiatric injury which she suffered as a result of the way in which she perceived she was treated by the defendant following her return to work.
12 The plaintiff saw Dr Stragalinos. She told him that she had suffered neck and right shoulder pain. She was referred to have an x-ray and ultrasound of her right shoulder on 6 March 2008; to a physiotherapist; to a chiropractor; and to a myotherapist for treatment. She recovered from the initial severity of her injuries to the point where she was able to return to work on 26 May 2008 working four hours per day, three days per week. Following her return to work she continued to obtain treatment from Dr Stragalinos. He referred her to have an MRI scan on 11 July 2008. After a meeting with a rehabilitation agency it was suggested she have further physiotherapy which she subsequently obtained to treat a persistently painful neck.
13 The plaintiff later developed pain in her lower back and right buttock. Dr Stragalinos referred her to a different physiotherapist who she saw until late December 2008 when the defendant refused to pay for any further physiotherapy treatment. In the same month the plaintiff increased her hours of work to seven hours per day, four days per week, and by January 2009 she was certified as fit for normal duties. She resumed normal duties at about that time.
14 The plaintiff perceived that when she first returned to work she was not well treated and that "management wanted me out".[4] Following her return to normal duties she "felt that I was not accepted by management of the employer." [5] The plaintiff’s evidence left me with the impression that the basis for her perception of an attitude by management was based upon a number of specific matters.
[4]PCB 9
[5]PCB 9
15 When the plaintiff returned to work she returned to the position of manager of the Dandenong store. Another employee of the defendant, Christie Rosse, was also appointed manager of the same store at the same time.[6] The plaintiff perceived, that although she was appointed as a manager, the appointment of Rosse together with the tasks which Rosse undertook when compared with those which the plaintiff was required to undertake demonstrated to her that she was not the manager in actuality.
[6]Transcript 199-200
16 The plaintiff said that the tasks required of a manager involved using the computer and doing rosters, as well as selling merchandise. Rosse took over the use of the computer and doing rosters which the plaintiff said left her doing what she described as the work of a casual. That is, dusting, sweeping floors and mopping, as well as selling merchandise. She said she felt undermined by not being permitted to undertake the work which was appropriately that of a manager.[7]
[7]Transcript 26-27
17 Ms Dickson swore an affidavit on 11 March 2011 and was called to give evidence. She described herself as the regional manager of the defendant. She was required to manage 13 stores operated by the defendant in Victoria and to oversee approximately 50 staff employed in those stores. She worked from her home in Victoria. She took her instructions from the head office of the defendant which was in Sydney.[8] Despite being the regional manager and having monthly meetings with the managers of the 13 stores,[9] Ms Dickson gave me the strong impression that her management was based exclusively on what she was instructed to do by head office, rather than her having any job description which required her to exercise the level of control and supervision of store managers and staff as the title of regional manager might suggest.[10]
[8]Transcript 194
[9]Transcript 199
[10]This resonated through the whole of the evidence given by her during cross examination at Transcript 194-224
18 The telephone in the Dandenong store was removed and secreted in the store preventing its use by staff employed at that store. Ms Dickson said that she put the phone away. She said she did that as a result of an instruction from head office.[11] She said that she gave permission to Ms Rosse to use the phone, and believed that she only used it once. However, the plaintiff said that Ms Rosse used the phone on a significant number of occasions.[12] Ms Dickson was unable to say whether that was so or not.[13] The plaintiff said that despite being a manager she was not permitted to use the phone.
[11]Transcript 222-223
[12]PCB 31
[13]Transcript 223-224
19 Ms Dickson said that she obtained an instruction from head office on 23 February 2009 that the plaintiff was to be transferred from the Dandenong store to either the Swanston Street store or the Knox City store.[14] She composed a letter dated 24 February 2009 in which she advised the plaintiff that because of operational requirements of the defendant "we will be transferring your assignment from Dandenong…". It then advised the plaintiff that "There are two available options for you…" It then referred to the other two stores.[15]
[14]Transcript 208
[15]PCB 29
20 The terms of the letter appear to me to demonstrate that the defendant had made a decision to transfer the plaintiff and that the options available to her were a transfer to one of those two stores. The inference I draw from the letter is that if the plaintiff did not accept either of those two options that she would not be working as a manager at the Dandenong store and would not have a job with the defendant.[16]
[16]PCB 18
21 The plaintiff perceived that the foregoing, and in particular the letter, amounted to conduct on the part of the defendant calculated to procure her resignation. The plaintiff said that when she was handed the letter she suffered shock and was extremely upset. She said that Ms Dickson made mention of the plaintiff moving to a another store at a meeting in November 2008 which involved a rehabilitation organisation known as Work Focus. The plaintiff said that the mention of a move adversely affected her to the extent that she became agitated because she felt the prospect of a move was hanging over her. It affected her ability to sleep.[17]
[17]PCB 18-19
22 The plaintiff said that at the time she was handed the letter her major concern relevant to the prospect of moving to another store was how she would cope with the extra time it would take to drive from her home to Knox City or Swanston Street.[18] There was no real issue taken by Mr O'Brien that travelling from Clayton South, where the plaintiff presently lives, to Swanston Street would involve a much longer period of time in commuting than it would from her home to Dandenong. The plaintiff said that travelling from her home to Knox City would add 45 minutes one way which would interfere with the arrangements she had put in place for dropping her children at their school.
[18]Transcript 28-29
23 The foregoing appeared to me to be the major matters which the plaintiff relied upon as being the cause of her perception that the defendant was working against her interests and to her detriment. There were some other matters which were not as serious in the plaintiff's mind, for example, she believed that she had been wrongfully denied a bonus. She said that another employee was paid a bonus.[19] However, Ms Dickson said that she had been told by head office that the Dandenong store had not met its budget which meant that no bonuses were paid to staff employed at that store.[20] The plaintiff applied for payment of her accumulated annual leave. It was denied at first by the defendant in a letter to the plaintiff dated 6 April 2009.[21] However, in a letter dated 26 May 2009 the plaintiff's accumulated annual leave was paid to her.[22]
[19]PCB 31
[20]Transcript 213-214
[21]PCB 34
[22]PCB 36
24 Ms MacTiernan submitted that the tone of the letters dated 6 April 2009 and 26 May 2009 were threatening and consistent with the plaintiff's perception that the defendant was acting against her interests and to her detriment. In particular, she referred to the position taken by the defendant that if the plaintiff did not return to work full-time it would be deemed that she had abandoned her employment and she would subsequently be terminated from her employment. The plaintiff ceased working for the defendant on 24 February 2009.
25 In addition to the affidavit sworn by Ms Dickson the defendant relied upon the affidavit of Ms Bartholomew sworn 30 March 2012[23] and the affidavit of Ms Sahagun sworn 25 March 2011.[24] The plaintiff swore three affidavits. The first was sworn on 19 October 2010.[25] The second sworn 5 April 2012 is largely devoted to the events which the plaintiff says led to her suffering a psychiatric injury, and also is an answer to the allegations made by Ms Dickson and Ms Bartholomew in their affidavits.[26] The plaintiff’s third affidavit was sworn 1 May 2012.
[23]DCB 10-11
[24]DCB 5-9
[25]PCB 6-16
[26]PCB 19-21
26 The plaintiff took particular issue with an allegation made by Ms Bartholomew who swore that she received information from a staff member that the plaintiff had been seen shopping when she had notified the defendant that she was sick.[27] The plaintiff denied that such an event occurred. Ms Bartholomew did not identify the staff member nor the day upon which the event was said to occurred. The only purpose in Ms Bartholomew referring to that event in her affidavit was to attack the plaintiff’s credit. The manner in which it was done is curious. The actual staff member who made the observation was not called upon to swear an affidavit as to when she made the observation and the substance of the observation. It amounts to little more than a gratuitous attack on the plaintiff's credit. I will say more about this later in these reasons.
[27]DCB 11
27 The plaintiff also took particular issue with the thrust of the matters deposed to by Ms Dickson that the conduct of the defendant was above board and reasonable, and that there was no basis upon which the plaintiff could reasonably say that the defendant was working against her interests and to her detriment.
28 The plaintiff did not seek to cross examine Ms Sahagun. She swore an affidavit on 25 March 2011 in which she described herself as the general manager in administration of the defendant. There was one issue raised by Ms Dickson and Ms Sahagun in their affidavits which Mr O'Brien pursued vigorously, and that was the intervention of Mr Moutidis on behalf the plaintiff.
29 Ms Dickson said that a few days following 24 February 2009 Mr Moutidis contacted her (presumably by telephone) informing her that the plaintiff was suffering from stress and could not return to work until further notice. He asked Ms Dickson not to contact the plaintiff, but to contact him in future. She said that Mr Moutidis identified himself as the plaintiff's solicitor. She described his tone as being angry and condescending to the extent that she felt quite nervous during that occasion of contact.[28] Ms Sahagun said that Mr Moutidis telephoned her on 12 March 2009. She said that he told her that the plaintiff was willing to drop her workers’ compensation claim if she could remain at the Dandenong store. That telephone call was followed by the plaintiff ringing Ms Sahagun making a request that she remain at the Dandenong store. The reason allegedly given by the plaintiff was that it was more convenient for her because of her children and that she had enrolled in a beauty course in Dandenong.
[28]DCB 3
30 The plaintiff denied that it was ever her intention to drop her workers’ compensation claim if she could remain at the Dandenong store.[29] Mr Moutidis admitted that he spoke to Ms Dickson and that he asked her to contact him in future rather than the plaintiff. He said that he described himself to Ms Dickson as a paralegal.[30] He admitted that he spoke to Ms Sahagun, but he denied that he said to her that the plaintiff would drop her workers’ compensation claim if she remained at the Dandenong store.[31]
[29]Transcript 34-35
[30]Transcript 118
[31]Transcript 120
31 What is obvious from the evidence of the plaintiff, when compared with the evidence of Ms Dickson, Miss Bartholomew and Ms Sahagun, is that the plaintiff perceived that the defendant was working against her interests and to her detriment whereas Ms Dickson, Miss Bartholomew and Ms Sahagun denied any such conduct on their behalf or through the head office of the defendant.
32 However, I accept the plaintiff's evidence that when she returned to work as a manager at the Dandenong store that there was an imbalance between the work undertaken by Ms Rosse and the plaintiff. The plaintiff did not undertake any management tasks, but only the tasks which she considered were those of a casual employee or of a non management level employee.
33 Both parties agreed that the telephone was removed for some inexplicable reason. The plaintiff said that Ms Rosse had access to the telephone and used it with some freedom and lack of restriction, but the plaintiff was denied use of it. I accept that this is what happened. Ms Rosse was not asked to swear an affidavit, and Ms Dickson was unable to contradict the plaintiff's evidence regarding the use of the phone.
34 It is understandable why the plaintiff developed a perception that the defendant was acting against her interests and to her detriment. To her, the perception became reality when Ms Dickson gave her the letter dated 24 February 2009, which she took to mean that unless she accepted relocation that she did not have a job. That would appear to be a fair conclusion to reach from the manner in which the letter was written.
35 I accept that the plaintiff's perception worsened when she received the letters dated 6 April 2009 and 26 May 2009. The letters are hardly conciliatory. However, by the time the plaintiff received those letters she had ceased work. The plaintiff's evidence of what occurred following her receipt of a letter dated 24 February 2009 resonates with the plaintiff having a perception that her contact with any person employed by the defendant was coloured by those persons acting against her interests and to her detriment.
The Injury
36 The plaintiff saw Dr Stragalinos on 29 February 2008 following the incident when she fell off the ladder. He treated the plaintiff. He followed her course of improvement eventually certifying her as fit to return to normal duties in January 2009.[32]
[32]PCB 58-59
37 The plaintiff saw Dr Stragalinos on 24 February 2009 which is the day she was given the letter. His clinical note of that consultation reads:
"increase anxiety, lethagry (sic lethargy) and feeling down this afternoon since being notified that she needs to relocate her work placement to a different store further away from home, She has two children she needs to look after also" [33]
[33]Exhibit 10
38 The plaintiff next saw Dr Stragalinos on 27 February 2009. On that occasion he noted that the plaintiff had an increase in her anxiety, insomnia and lethargy. The only other entries which were tendered were for 6 and 13 March 2009 which record similar symptoms.[34]
[34]Exhibit 10
39 Dr Stragalinos referred the plaintiff to Ms Hambleton who commenced treating the plaintiff in March 2009. He also referred the plaintiff to Dr Handrinos, psychiatrist who commenced treating the plaintiff in August 2009. Dr Stragalinos, Ms Hambleton and Dr Handrinos continued to treat the plaintiff. Each of them obtained a history from the plaintiff of the events which I have summarised which the plaintiff perceived to be the events which led to her suffering a psychiatric injury.
40 Dr Handrinos provided a report dated 2 April 2012.[35] In that report he expressed the opinion that the plaintiff was suffering from a major depressive disorder which included anxiety and panic attacks. He was of the opinion that the plaintiff was unfit for work at that stage, and he noted that she felt hopeless and helpless and was reliant on others to function in her home and with the care of her children. He prescribed her Lexapro to treat her psychiatric condition. He reduced the dosage from 40 mg down to 30 mg because of side-effects which the plaintiff was experiencing.[36]
[35]PCB 84-85
[36]Transcript 137
41 Ms Hambleton provided a report dated 15 April 2012.[37] In that report she expressed the opinion that the plaintiff was suffering from major depression of moderate severity and also symptoms related to a moderate adjustment disorder.[38] She was of the opinion that the plaintiff was unfit for work.[39]
[37]PCB 80.1- 80.4
[38]PCB 71, 77 and 80.2
[39]PCB 80.3
42 Dr Stragalinos was of a similar opinion to Dr Handrinos and Ms Hambleton. He provided a report dated 25 April 2012. In that report he expressed stronger opinion than Dr Handrinos and Ms Hambleton. He was of the opinion that the plaintiff was suffering from severe depression and anxiety which had evolved into a chronic condition and had deteriorated over the previous 12 months despite her regular consultations with Ms Hambleton.[40] He was of the opinion that the plaintiff had a poor short-term and long-term prognosis, and was unlikely to be able to return to work.
[40]PCB 64
43 Dr Stragalinos was also of the opinion that the plaintiff had developed generalised pains in her spine, right shoulder and right upper limb which he considered warranted a diagnosis of fibromyalgia. In his oral evidence he explained that it was his opinion that the plaintiff's psychiatric condition was the cause of the generalised pain and that the fibromyalgia was caused by the psychiatric condition.[41]
[41]Transcript 141 and 144-146
44 Dr Kornan, psychiatrist examined the plaintiff on a medico/legal basis on 5 November 2009 and 15 February 2012. He was of the opinion that the plaintiff was suffering from a major depressive disorder and an adjustment disorder with anxiety. He was also of the opinion that the plaintiff was unfit for work.[42]
[42]PCB 91-94 and 99-101
45 The defendant had the plaintiff examined by a number of psychiatrists. The first was Dr Duke who examined the plaintiff on a 18 November 2008. He was of the opinion that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood. It would appear he was of the opinion that the plaintiff could return to work, through rehabilitation, as a store manager.[43]
[43]DCB 30-31
46 The plaintiff was next examined by Dr Das on 19 March 2009. He was of the opinion that the plaintiff was suffering from major depression of moderate severity. He was of the opinion that she was not fit to return to work at that stage.[44]
[44]DCB 43-45
47 The plaintiff was next examined by Dr Strauss on 30 July 2009 and 14 March 2012. He was of the opinion that the plaintiff was suffering from anxiety and depression. He did not believe that she could work for the defendant again, but that she would be capable of working in alternative employment with a different employer. He thought that the compensation process was fuelling her concerns and worries and that the plaintiff would adapt better to her circumstances once that process was over.[45] He expressed a similar opinion following the second occasion diagnosing a pain disorder and an adjustment disorder.[46]
[45]DCB 55
[46]DCB 64
48 The plaintiff was next examined by Dr Sheehan on 13 August 2009. He was of the opinion that the plaintiff was suffering from a chronic adjustment disorder with depressed and anxious mood. He was of the opinion that the plaintiff had a good prognosis. He based it on a hope that the plaintiff would respond to antidepressant medication following the resolution of her WorkCover dispute when she could commence a graduated return to work.[47]
[47]DCB 76-77
49 Lastly, the plaintiff was examined by Dr Shan on 20 December 2010 and 13 March 2012. On the first occasion on which he examined the plaintiff he was of the opinion that the plaintiff was suffering from an adjustment disorder with anxiety and depression. He considered that there was some evidence of depression following the physical injury which the plaintiff suffered as a result of the fall. He was of the opinion that the plaintiff was not fit to return to work. On the second occasion on which he examined the plaintiff he considered that the cause of the plaintiff's psychiatric condition was her perception that the defendant was working against her interests and to her detriment, and that she had a similar perception of her incapacity for work. He was of the opinion that she had a capacity to perform manual work or office work under supervision where her interaction with other people was at a minimum.[48]
[48]DCB 85-86 and 91-92
50 Both Dr Strauss and Dr Shan were sent statements of Ms Dickson, Ms Bartholomew and Ms Sahagun. Dr Strauss considered that if the plaintiff had not been treated unreasonably that the validity of his psychiatric diagnosis as previously stated may be in doubt and instead it might be that the plaintiff was simply angry or upset and that she was guilty of elaboration of symptoms.[49] Dr Shan did not go quite that far. He preferred the diagnosis of an adjustment disorder to that of a major depressive disorder based upon the statements he was provided. Otherwise, he does not appear to have changed his opinion regarding the plaintiff's fitness for work.[50]
[49]DCB 68-69
[50]DCB 95
51 Firstly, I consider that the plaintiff gave her evidence in a reasonable manner. I accept that she perceived that the events which I have summarised lead her to believe that the defendant was working against her interest and to her detriment which caused her to suffer from symptoms of a psychiatrist injury later diagnosed by Dr Stragalinos, Dr Handrinos and Ms Hambleton. I reject the alternative expressed by Dr Strauss that the plaintiff possibly became angry and upset and is guilty of elaboration of her symptoms. He is the only proponent of that hypothesis. It is not consistent with any of the other opinions. I accept the weight of the competing opinions which demonstrate that the events recounted by the plaintiff were the cause of the psychiatric injury.
52 Secondly, I accept the evidence of Dr Stragalinos, Dr Handrinos and Ms Hambleton that the plaintiff has a major psychiatric injury which is disabling to the extent that the plaintiff is unfit for work. I also accept the evidence of Dr Stragalinos that the plaintiff has suffered from a secondary condition causally related to the onset of the psychiatric injury being fibromyalgia constituted by generalised pains.[51]
[51]Section 134AB(38)(i) permits me to take into account the physical consequences of a mental or by real disturbance or disorder in an application under paragraph (c) of the definition of serious injury
53 Thirdly, I have read the plaintiff's affidavits carefully and have compared them with what she deposed to in her oral evidence, and in particular, Mr O'Brien's cross examination of the plaintiff during which he tested the plaintiff's evidence on a number of fronts. I accept the plaintiff's evidence, in particular, her evidence in her second affidavit sworn 5 April 2012 in which she described the downturn in her mental state from February 2009. She described a major impact upon her social, recreational and domestic pursuits, particularly, with her children and Mr Moutidis, with whom she developed a relationship.[52]
[52]PCB 24-27
A Compensable Injury
54 In the course of the trial I asked Mr O'Brien if he contested the proposition that a perception of the kind which appeared to me to be the reason why the plaintiff reacted to the events in the workplace which resulted in her suffering psychiatric injury was compensable. He submitted that it could be.
55 I referred to Federal Broom Company Pty Limited v Semlitch[53] in which Windeyer J considered whether the worker who was suffering from a psychiatric disorder which caused her to be delusional was suffering from a disease; whether the disease was aggravated, accelerated, exacerbated or deteriorated; whether her employment was a contributing factor to the aggravation etc; and if it was whether there was any degree of incapacity for work resulting from the aggravation etc. In dealing with the question of whether the worker's employment contributed to the aggravation etc he said:
"The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. It seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so."[54]
[53](1964) 110 CLR 626
[54]at 642
56 On the footing that I prefer the evidence of Dr Stragalinos, Dr Handrinos and Ms Hambleton that the plaintiff has suffered a psychiatric injury, the question then is whether it is a compensable injury. I think the plaintiff, in all probability, perceived that the defendant was acting against her interest and to her detriment, but that there were events upon which that perception was based which might, in actuality, have been relatively innocuous. That is not to say that I do not believe the plaintiff or that I believe the evidence of Ms Dickson, Ms Bartholomew and Ms Sahagun. I do not think I need to go that far because I accept that the plaintiff perceived that the events were real and amounted to conduct on the part of the defendant to act against her interest and to her detriment.
Consequences
57 I propose to deal with the question of the plaintiff's loss of earning capacity consequences first because satisfaction of that will not necessitate having to separately consider the plaintiff's pain and suffering consequences.[55]
[55]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
58 I accept the plaintiff's evidence that she is in a parlous state of psychiatric health. I accept her evidence contained in her second affidavit sworn 5 April 2012 and also her oral evidence regarding the nature and extent of the consequences to her of the psychiatric injury. I am fortified in accepting the plaintiff's evidence because it is confirmed in the evidence of Mr Moutidis contained in his affidavit sworn 16 April 2012[56] and in the affidavit of Ms Karamanlis sworn 1 May 2012.[57]
[56]PCB 37-41
[57]PCB 41.1-41.4 with the exception of paragraph 7 which I struck out on the application of Mr O'Brien
59 The opinions of Dr Stragalinos, Dr Handrinos and Ms Hambleton appear to me to demonstrate that the plaintiff has suffered a major psychiatric injury which has rendered her unfit for work now and for the foreseeable future. Mr O'Brien tested those opinions. It was my strong impression that all that the cross examination achieved was to have those witnesses acknowledge that there is some hope that the plaintiff's situation might change in the future. However I was left with a strong impression that they considered that it was a faint hope.
60 I am fortified in reaching the conclusion that I should prefer the evidence of Dr Stragalinos, Dr Handrinos and Ms Hambleton because similar opinions regarding the plaintiff's fitness for work resonate in the opinions of the other psychiatrists who have examined the plaintiff. Certainly, Dr Kornan is of the same opinion. The psychiatrists who examined the plaintiff on behalf of the defendant are all of the opinion that the plaintiff has a psychiatric condition, but it is clear that they differ in their opinions regarding the plaintiff's fitness for work. I reject their opinions to the extent that they are in conflict with the opinions of Dr Stragalinos, Dr Handrinos and Ms Hambleton relevant to the plaintiff's fitness for work.
61 Mr O'Brien submitted that the films taken of the plaintiff demonstrate that the plaintiff has a capacity to enjoy life which is inconsistent with her evidence of being in a parlous psychiatric state. The earlier films[58] were taken in July, September and October 2008 before the plaintiff demonstrated serious symptoms of a psychiatric injury in February 2009. The subsequent films[59] were taken in July and November 2009; December 2010, and March and April 2012. In the earlier films the plaintiff had long blonde hair and was dressed in fashionable clothes, and as far as I could see was wearing make up and jewellery. In the subsequent films her attire was very casual, and although it was difficult to see whether she was wearing any make-up and jewellery, she appeared not to be.
[58]Exhibits 2 and 3
[59]Exhibits 4,5,6 and 7
62 The only film which demonstrated any particular activity in the subsequent films was that taken on 12 April 2012 which showed the plaintiff sitting at a cafe table wearing sunglasses and eating and drinking with two men. One of the men was Mr Moutidis and the other was his brother. The plaintiff was seated. She chatted to the two men. There was nothing demonstrably obvious about her demeanour which suggested one way or the other that she was suffering from the symptoms of a psychiatric injury or not.
63 I am not satisfied that the films are in conflict in any way with the evidence of the plaintiff, and furthermore, it is always difficult for a Judge to reach any conclusions about film of this sort in the absence of it being shown to medical witnesses for the purpose of the medical witnesses giving an opinion that the film is of some significance or otherwise. The film of 12 April 2012 could have been shown to Dr Stragalinos, Dr Handrinos and Ms Hambleton because it was available and it was short, and of the subsequent films it was probably the only relevant film showing the plaintiff undertaking any degree of activity which could be considered to be significant.
64 In the end I am satisfied that the plaintiff is unfit for work as a manager or as an employee in a clothing store of the kind run by the defendant. I am likewise satisfied that she is also unfit for any other work for which she is qualified by education, training and experience, such as, manual or office work or work as a shop assistant.
The Plaintiff's Credit
65 Mr O'Brien was instructed to make a series of attacks upon the plaintiff's credit which I consider do not to have any merit.
66 I will deal with them in no particular order. The first was related to the unusual nature of the plaintiff's domestic arrangements. The plaintiff separated from her husband in 2004. However, they remained in reasonably close contact. The plaintiff developed a relationship with Mr Moutidis. The plaintiff's husband moved back into the former matrimonial home with the plaintiff sometime in 2010. He moved out in August 2011. In December 2010 there was an altercation involving the plaintiff's husband and Mr Moutidis. Mr Moutidis was charged with a number of counts of assault. He pleaded guilty to recklessly causing injury.[60]
[60]Exhibit B
67 The plaintiff spoke to her husband who agreed to approach the police to have the charges against Mr Moutidis withdrawn. The plaintiff composed a handwritten letter dated 20 April 2011. She attended the relevant police station with her husband. They handed the letter over. At some later time the plaintiff's husband is alleged to have informed the police that he was forced to give his agreement to the content of the letter. Subsequently, the plaintiff was interviewed and was charged, among other things, with perverting the course of justice. The charges were subsequently withdrawn. The plaintiff’s solicitor made an application for costs against the Chief Commissioner on the occasion when all the charges were withdrawn against the plaintiff. An order was made in favour the plaintiff in the sum of $2500.[61]
[61]Exhibit A
68 Mr O'Brien cross examined the plaintiff at some length and also Mr Moutidis regarding the altercation and the charges laid against the plaintiff. He submitted that I should be satisfied that notwithstanding the withdrawal of the charges that the plaintiff had taken steps consistent with perverting the course of justice as well as consistent with the other charges.
69 The submission is utterly without merit. The plaintiff denied forcing her husband to attend the relevant police station when the letter was handed over. Mr Moutidis denied any involvement in what occurred between the plaintiff and her husband. The defendant made no effort to obtain evidence from the plaintiff's husband or the police which could satisfy me that on the balance of probabilities the plaintiff had taken steps consistent with perverting the course of justice as well as consistent with the other charges.
70 Mr O'Brien conceded that the onus of proof is borne by the defendant to prove each of the matters relevant to me being so satisfied on the balance of probabilities. However, he submitted that the plaintiff's husband is in the camp of the plaintiff and in consistency with Jones v Dunkell [62] I should draw an adverse inference against the plaintiff for not calling her husband. I consider that to be utterly wrong. As the onus of proof was borne by the defendant, it was for it to adduce evidence sufficient to satisfy me on the balance of probabilities. Consequently that must mean that the plaintiff's husband is in the camp of the defendant, and that if any adverse inference is to be drawn it is against the defendant. In any event, it seems to me that all this is very academic because the defendant made no effort to prove the allegations that the plaintiff's conduct was consistent with perverting the course of justice or the other charges.
[62](1959) 101 CLR 289
71 The second submission made by Mr O'Brien was principally based upon the evidence of Ms Sahagun that Mr Moutidis intervened on the behalf of the plaintiff telling Miss Sahagun that the plaintiff was willing to drop her workers’ compensation claim if she could remain at the Dandenong store. It was essentially put that there was a conspiracy between the plaintiff and Mr Moutidis to concoct a workers compensation claim if the demand for the plaintiff to remain at the Dandenong store was not met.
72 I am suspicious that Mr Moutidis’ motives were not entirely altruistic in intervening on behalf of the plaintiff. He admitted that he described himself to Ms Dickson as a paralegal which is not inconsistent with him describing himself to her as a solicitor. I am suspicious that he did ask Ms Sahagun to allow the plaintiff to remain at the Dandenong store, and that was based upon the plaintiff not making a workers’ compensation claim. However, there was no evidence to suggest that the plaintiff was a party to the conduct of Mr Moutidis. She denied being a party to any such demand.
73 In any event whether there was a conspiracy or whether the plaintiff knew what Mr Moutidis intended to do does not persuade me that the plaintiff's claim is a concoction. It would mean that the plaintiff has seduced and beguiled Dr Stragalinos, Dr Handrinos and Ms Hambleton who, as treating practitioners, have seen the plaintiff on a very large number of occasions collectively. Further that she has also seduced and beguiled all of the other psychiatrists who have examined her. I do not accept that experienced practitioners with their background would have been so easily fooled if the plaintiff did not have a frank diagnosable psychiatric condition. Furthermore, there is little doubt that the events described by the plaintiff which she pointed to as being the cause of the symptoms which led to her suffering a psychiatric condition actually did occur.
74 Part of the so-called conspiracy was an occasion when Mr Moutidis spoke to Dr Handrinos and informed him that the plaintiff’s symptoms had worsened. Dr Handrinos took that information on board in assessing the plaintiff. He subsequently prescribed the plaintiff medication. At its highest it was suggested that if it were not for the intervention of Mr Moutidis Dr Handrinos would not have altered his assessment of the plaintiff and would not prescribed her medication. Again, it would mean that the plaintiff and Mr Moutidis set about seducing and beguiling Dr Stragalinos, Dr Handrinos and Ms Hambleton. I reject this notion out of hand for the same reasons referred to in the preceding paragraph.
75 The last significant submission made by Mr O'Brien is that I should accept the opinion of Dr Strauss that the plaintiff may not have suffered a frank psychiatric condition, but rather is angry and upset and is guilty of elaboration of her symptoms. For reasons which are now apparent I consider that submission to be without any substance whatsoever. It is contrary to my acceptance of the evidence of the plaintiff and the lay witnesses who confirm the parlous psychiatric state in which he finds herself, and the medical evidence which I accept which points to the plaintiff suffering a major psychiatric illness.
76 Therefore, I find that the plaintiff has satisfied me that she has suffered a serious injury by meeting the requirements of the statutory test both for pain and suffering and loss of earning capacity.
Conclusion
77 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
78 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
---
3
0