Keane v Royal Women's Hospital, The
[2013] VCC 965
•8 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01750
| BERNADETTE MARY KEANE | Plaintiff |
| v | |
| THE ROYAL WOMEN'S HOSPITAL | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2013 | |
DATE OF JUDGMENT: | 8 August 2013 | |
CASE MAY BE CITED AS: | Keane v Royal Women's Hospital, The | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 965 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (c) of the definition of “serious injury” – leave sought only for pain and suffering damages – the extent of any “aggravation” of a pre-existing psychiatric injury – whether any permanent severe mental or permanent severe behavioural disturbance or disorder is “severe”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd Filipowicz [2012] VSCA 60; Kocak v Wingfoot Australia Partners & Ors [2011] VSC 285; Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect of psychiatric injury arising out of or in the course of employment with the first defendant over the period from April 2003 to September 2003.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr D Seeman | Nowicki Carbone |
| For the Defendants | Mr B McKenzie | Messrs Hall & Wilcox |
HIS HONOUR:
1 By way of Originating Motion issued on 17 April 2012, Bernadette Mary Keane (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for a psychiatric injury arising out of or in the course of her employment with The Royal Women’s Hospital (“the first defendant”) over the period from about 13 May 2003 to September 2003 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” within the meaning of s134AB(37) of the Act in respect of the injury.
3 The plaintiff, and her treating psychiatrist, Dr Simon Croke, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See Section 134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. That paragraphs reads:
“Serious injury means—
(a) …
(b) …
(c) permanent severe mental or permanent severe behavioural disturbance or disorder … .”
6 The mental or behavioural disturbance or disorder relied on for the purposes of paragraph (c) is described variously as: “Post-Traumatic Stress Disorder; Anxiety and Depression; Major Depressive Disorder.”
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by her arose out of or in the course or due to the nature of her employment with the first defendant on or after 29 October 1999;[3]
(b)“the injury” and the resulting mental or behavioural disturbance or disorder must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the consequences to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” must be “severe” – that is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than “serious” to the extent of being “severe”.[5]
The test for “severe” is sometimes referred to as the narrative test.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at paragraph [11]
[4]See Barwon Spinners Pty Ltd & Ors Podolak (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (d) of the Act
8 In determining the application, the Court:
(a)must make the assessment of serious injury at the time the application is heard;[6]
(b)notes that it has been observed that the question of whether any injury satisfied the definition of “serious injury” is largely a question of impression and value judgment;[7]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.
[6]See s134AB(38)(j) of the Act
[7]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The issues
9 Initially, counsel for the first defendant advised the Court that the issues were as follows:
(a)Although there was no issue that the plaintiff suffered a compensable injury in 2003, an issue arose as to whether such compensable injury plays a cause in her present condition (seemingly, such issue was based on the opinion of Professor Mendelson expressed in his report dated 25 February 2012);[8]
(b)If the compensable injury continues to be a cause of the present condition of the plaintiff, whether such condition was “permanent” and more particularly, whether it was “severe” within the meaning of the Act. In particular, counsel for the defendants joined with Senior Counsel for the plaintiff in submitting that given that the plaintiff had suffered some psychiatric symptoms prior to “the injury”, it was necessary for the plaintiff to establish the “severity” of the consequences, pursuant to the principles enunciated in Petkovski v Galletti.[9]
[8]See Exhibit 2
[9][1994] 1 VR 436; See also Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd Filipowicz [2012] VSCA 60
10 Later in the proceeding, I was advised by counsel for the defendants that no issue would be pressed in relation to causation of any impairment suffered by the plaintiff and the issue was whether, applying the principles set out in Petkovski v Galletti, any consequences suffered by the plaintiff by any employment “aggravation” of her pre-existing psychiatric state satisfied the narrative test. No doubt, such position was brought about by the decision in Kocak v Wingfoot Australian Partners & Ors,[10] wherein the Court of Appeal, relying on the High Court decision of Maurice Blackburn Cashman v Brown,[11] held that a Medical Panel opinion, although obtained for statutory benefit purposes, is binding in serious injury applications, as such applications determine questions or matters arising under or for the purposes of the Act.[12] In the present proceeding, there was tendered a Medical Panel Certificate of Opinion[13] wherein the Medical Panel expressed the opinion that the plaintiff suffered a 20 per cent psychiatric impairment resulting from the accepted psychiatric condition and that the degree of psychiatric impairment was “permanent” within the meaning of the Act.
[10][2012] VSCA 259
[11](2011) 242 CLR 647
[12]See Kocak at paragraph [37] and Maurice Blackburn Cashman at paragraphs [38] – [40]. It should be noted that the High Court has granted special leave in relation to Kocak which I was advised from the Bar table is to be heard in September 2013.
[13]See Exhibit C at page 60 PCB
The evidence of the Plaintiff
11 The plaintiff gave evidence that her affidavits sworn on 21 November 2011[14] and on 26 September 2012[15] were “true and correct” save for one minor correction.[16]
[14]See Exhibit B at pages 17 – 22 PCB
[15]See Exhibit B at pages 23 – 26 PCB
[16]Paragraph 24 of the first affidavit – the plaintiff bumped into Sally “Christie”, rather than Sally “Ross”.
12 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
·She is a fifty-eight-year old (born in November 1954) married woman with two adult sons.
·She recalls a relatively happy childhood, save that at the age of twelve her father left, and that caused some unhappiness.
·She attended high school until the equivalent of Year 10, after which she commenced working as a shoe shine at the Southern Cross Hotel. She completed the last two years of school at night classes at Coburg Technical School, during which time she was working at the Department of Aviation for about three or four years.
·When a teenager, she was raped and her mother admitted her to the Larundel Psychiatric Hospital for two days, although she did not have any further psychiatric treatment for this event.
·She ceased work in 1973 to have her first child and then later had her second child in 1978.
·In or about 1980, she commenced work for the first defendant in the Accounts, Admissions and Discharge Department as a full-time clerical worker and remained in that employment until shortly after the injury, save for a period of six months in 1989 when she worked in her sister’s business.
·In or about 1998, she underwent liposuction of her thighs and a lap band was inserted, which has occasionally caused her to vomit, but the loss in weight generally makes her day-to-day activities much easier to perform.
·In or about June 2000, her son, Justin, and his partner accused her of having an affair and, in particular, she states:
“My son and his partner were tracing my mobile telephone calls and my son hit me on the right side of the head, causing me to obtain approximately eight stitches in my head. I obtained an intervention order against my son and his partner at the time. I sought psychological treatment for about six months then once I began feeling better I ceased treatment. I continued to work during this time and my supervisor, Sally Christie, was aware of this situation.”[17]
[17]See paragraph 10 of the first affidavit
·In about 2006, she had a hysterectomy and in 2007, had a cholecystectomy.
·Up until 2003, she enjoyed her work very much with the first defendant. In particular, she deposes:
“I liked everyone I worked with and often saw colleagues outside of work. I knew Glenda outside of work and assisted her in getting a job at my work with the employer in about 1999. I got along well with Glenda at the time and enjoyed working with her.”[18]
[18]See paragraph 15 of the first affidavit
·On or about 13 May 2003, she left a “very expensive and sentimental ring” in the staff toilets and such ring went “missing”. Security and police were involved and during the course of the investigations, a daughter of Glenda was implicated in relation to such theft.
·She describes the events leading to “the injury” in the following terms:
“17When Glenda discovered that her daughter was implicated in the theft she started being very nasty towards me. She stopped talking to me and I often caught her gossiping with colleagues about me. Over time this progressed and most of my co-workers wouldn’t talk to me because they were angry that the police became involved. They acted as though I was not there, and when I had to ask Glenda something for work she would often pretend that I didn’t exist and not say anything back to me. When Glenda had to give me a history or something similar she would throw it onto my desk rather than handing it to me and talking to me normally.
18I tried a few times to approach Glenda about her treatment of me but she either pretended I didn’t exist or made derogatory remarks about me.
19I began to feel extremely isolated and I was often close to tears. It became obvious that Glenda and the others resented my presence at work. They would often say things like I should get a job somewhere else and I wasn’t wanted there. They often criticised me or my work and when I became upset they acted as though I was over acting.”[19]
[19]See paragraphs 17, 18 and 19 of the first affidavit.
·She attended her local general practitioner, Dr K Robertson, for a referral to Dr E Ross, a psychiatrist she had known from the year prior. She commenced seeing Dr Ross about once a week during 2003 and was prescribed Endep for “depression”.
·In or about September 2003, she was advised by Dr Ross that she had contacted the first defendant in order to tell them that she should change positions due to the state of her mental health and after mediation, she was transferred to The Royal Children’s Hospital on a return to work program.
·In or about 2005, Dr Ross retired and she commenced to see the psychiatrist, Dr Simon Croke, who she sees generally on a fortnightly basis.
·She describes the consequences of her injury in the following terms:
“26I continue to suffer from severe depression, stress and anxiety as a result of my psychiatric injuries sustained at work. I am often close to tears and find it difficult to deal with day to day problems. I find that as a result of my anxiety I have a need for everything to be perfect.
27As a result of my work injuries I find it difficult to trust people and as a result I often prefer to be alone. I have sometimes checked myself into hotels in order to be alone.
28As a result of my psychiatric injuries a few years ago I went on extravagant shopping sprees to try and make myself feel better. I bought so much that I ended up with [a] $50,000 debt on my credit card and I eventually declared myself bankrupt in or about May 2009.
29My depression and anxiety have taken an extreme toll on my family. My son was good friends with a girl who was present when my ring disappeared, which put him in a difficult position when the bullying started. My husband was initially very supportive, but over the years he has found my teariness and anxiety difficult to deal with. He now lives with my son.
30My injuries have isolated me from my family and I have not had any contact with my sisters for over 12 months.
31Each year around the anniversary of 13 May I become extremely down and depressed and I find it difficult to function normally. I think about the incidents at work on almost a daily basis.”[20]
[20]See paragraphs 26 – 31 of the first affidavit.
13 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
·Since her previous affidavit, she continues to suffer from ongoing stress, anxiety and depression and as stated in her previous affidavit, finds it difficult to trust people and continues to feel socially withdrawn.
·Since the injury, she feels her social and recreational interests have greatly reduced, whereas she used to enjoy socialising and interacting with friends and family.
·Her two sons are aged thirty-nine and thirty-five years respectively and there are four grandchildren with whom she would like to spend more time and in particular, take them out, but feels that she cannot be around large groups of people, especially on a regular basis.
·She has tried to reconcile and develop a closer relationship with one of her sisters who has been diagnosed with cancer but finds it difficult to go with her to get treatment as she feels anxious around people.
·The general maintenance around the house has deteriorated since her injury as, prior to the injury, she used to be responsible for all the general household maintenance and had no difficulty in performing such tasks.
·Since the injury, she has lost all contact with her former work colleagues and she misses not being around such colleagues and not being in the work environment she used to enjoy.
·She has difficulty sleeping during the night without feeling sad, anxious or depressed and as a result, she regularly tosses and turns and gets up during the night.
·She has become withdrawn from her family and friends and feels that she is “not the same person” as she was prior to the injury. It upsets her that she cannot interact with children freely.
·She has become depressed because of her restrictions and this has caused strain on the relationship with her family and in particular, with her husband. As a result of the injury, her marriage has also broken down and she has been separated from her husband for the past three years.
·Although separated from her husband, she still stays in contact with him and he pays bills which she later repays, as she struggles to remember when certain bills have to be paid, as her memory has been affected.
·She continues to consult with her psychiatrist, Dr Croke, approximately twice per month. He prescribes Pristiq, 50 milligrams, which she takes daily, and Endep, 100 milligrams, to manage “my condition”.
·Since her previous affidavit, she no longer consults Dr Kathryn Robertson and for a period of time she consulted Dr Habib until he left in February 2013, and now consults Dr Hammond at Sussex Medical Centre but rarely for her workplace injury. If Dr Croke is unavailable, she consults Dr Hammond, but her primary treatment is provided by Dr Croke.
·Prior to the injury, she was not required to rely on anybody and was a very independent person. Although she accepts that she did suffer some traumatic events early in her life and prior to working for the first defendant, she was a relatively outgoing social person who used to love and enjoy being around other people.
·She has been receiving a disability pension from Centrelink since approximately November 2010 of $557.40 per fortnight.
·In December 2011, she attempted some work at the Faculty Department of the Northern Metropolitan TAFE in Epping, performing duties similar to a receptionist and/or administrator type role. The job was for a two-week trial and involved basic filing, answering telephones and basic computer work. She only managed to work two days one week and two days the following week and was unable to return to work again, as when she was undertaking the role, she felt “an enormous build up of anxiety which by the second week had overcome” her and she could not return.
·She would love to be able to return to some work if she was able to.
14 Under cross-examination, the plaintiff accepted that she attended the psychiatrist, Dr Elizabeth Ross, initially in November 1997 for two to three months, at which time she had mild depressive symptoms brought about by family problems and in particular, her son, Justin.
15 The plaintiff also accepted that in August 1996, consistent with the records of her general practitioner, Dr K Robertson, she was having problems with Justin, who had become violent and aggressive, and the police were required to evict him from the family home. Furthermore, when it was put to her that such records also revealed in November 1997 that Justin had attacked her, causing her to have sutures to her scalp and it was necessary to get a restraining order against him, the plaintiff considered that such events occurred in 2000, rather than 1997.
16 Also, it was put to the plaintiff that the notes of Dr Robertson suggested that on 14 June 2000, the plaintiff was “under stress ++” and that she had been in a relationship for four years and that her son, Justin, had found out. In cross-examination, the plaintiff denied that she had been in such a relationship.
17 The plaintiff accepted that over the years there had been a number of incidents involving her son, Justin, but when it was suggested to her that such incidents had continued, the plaintiff answered:
“No, actually. He’s now working – he’s a very different person, he’s now working as a[n] undertaker, yeah, and he’s living in Brighton and he’s a very happy person so yeah, I don’t have incident.”[21]
(sic)
[21]Transcript (“T”) 16, L9-13
18 The plaintiff also accepted that at or around 5 August 2010, she made complaints to her treating psychiatrist that her husband gets “angry ++” and accused her of wanting to meet someone else and was suspicious when she has lots of free time. The plaintiff considered that she had most probably separated from her husband at that time but still had communication with him as he assisted her with paying the bills “cos [she] just doesn’t remember to do things with the stress.”[22]
[22]T19, L23
19 Counsel for the defendants referred to the letter from Dr Ross when she handed over the plaintiff to Dr Croke in February 2004 and in particular, to the reference that in August 2001, the plaintiff reported an increase “in depressive symptoms, with sleep disturbance, tearfulness, decreased energy, decreased appetite and some weight loss, feeling withdrawn and tired, and muscle pains. She also had a long history of panic.”[23]
[23]See Exhibit C at page 6 Plaintiff’s Court Book (“PCB”)
20 In answer to whether such was the case, the plaintiff asserted that she maybe had some “mild depression” but disagreed with the description of panic, and in particular, stated:
“I held my job down for 27 years at The Royal Women’s Hospital and never had a problem.”[24]
[24]T22 L3-4
21 In response to a query from the Court, she did accept that she did have the type of symptoms so described in the report and considered they were probably brought on by what she “went through with my son”.
22 The plaintiff also accepted that in 2001, she was commenced on Citalopram, which brought about some improvement, and then she developed what Dr Ross refers to as “polyarthritis” and that because of this, her anti-depressant was changed to Amitriptyline (Endep), 25 milligrams, to help with pain management.
23 When queried as to whether she continued to take Endep until the circumstances surrounding the lost ring, the plaintiff stated:
A: “That’s right I’m taking Endep for my fibromyalgia.
Q: Just to take you back a step. You were still taking Endep medication as at the time of the ring episode, is that right?---
A: That’s right, for my fibromyalgia.
Q: So as far as you’re concerned the Endep medication was only for your fibromyalgia?---
A: Yes, that’s right.
Q: And is still only now for your fibromyalgia?---
A: That’s right.”[25]
[25]T23, L14-21
24 The plaintiff was referred to a comment by Dr Ross in her report dated 18 February 2004 (directed to Dr Simon Croke) wherein she describes the plaintiff in the following terms:
“A vulnerable person who has lost a supportive friendship network at The Royal Women’s Hospital and is not finding her usual satisfaction for work.”
25 When queried about such comments, the plaintiff answered:
“That was my job I loved.”[26]
[26]T26, L9
26 The plaintiff accepted that after commencing at The Royal Children’s Hospital in late 2003, she obtained a permanent and full-time position in either 2004 or 2005 and remained in that position until there were redundancies in 2010. Her duties at The Royal Children’s Hospital involved her being a computer clerk in 2003 to 2005 in the Emergency Department, and administration officer/personnel assistant from 2005 to 2010, when she was made redundant. When queried about her performing these duties quite capably, the plaintiff gave the following evidence:
“… I was carried in the Department by the engineers, yes.”
HIS HONOUR:
Q: “Sorry, you were what?---
A: The engineers knew my situation and helped me through and carried me.”
MR McKENZIE:
Q: “So you say that you were carried. Is that right?---
A: That’s right.
Q: Would you agree that you haven’t suggested that you were carried in your work in your two affidavits or on any occasion you’ve told a doctor about this? I’m suggesting to you, what do you say?---
A: They allowed me to leave to go to my appointments with Simon Croke, the engineers.
Q: So that was the way in which you were carried? They let you go to see Dr Croke every two weeks?---
A: Every two weeks.”[27]
[27]T27, L23 – T28, L5
27 In response to a query from the Court, the following evidence was given:
HIS HONOUR:
Q: “Just so I understand this, when you started at The Royal Children’s Hospital how did that come about? Who sent you to The Royal Children’s Hospital?---
A: The Royal Women’s Hospital asked me if I would go to The Royal Children’s.
Q: This is after the - - - ?---
A: For my own safety.
Q: So that’s what I’m asking, is you went to The Royal Children’s as a result of the consequences of the ring incident. Is that correct?---
A: Yes, your Honour.
Q: And you were asked to go there because: (a) no doubt to help you but also to get you out of the environment at The Royal Women’s?---
A: That’s right.
Q: Now, when you went to The Royal Children’s – and as you’ve been taken to in your CV, you started there in April 2003. That’s correct, isn’t it?---
A: Mmm.
Q: And as you told the Court, you stayed there until you were made redundant with others in 2010?---
A: That’s right.
Q: Those seven years. Over the period of time how often were you seeing the psychiatrist?---
A: Every fortnight, your Honour.”[28]
[28]T28, L7-25
28 Under cross-examination, the plaintiff accepted that her work was full time, she did not work under any medical certificates, and that her work involved preparing letters, answering incoming telephone calls, attending to enquiries and relaying requests. The plaintiff further accepted that such activities involved a reasonably high level of concentration and attention to detail, together with a fair degree of memory use.
29 The redundancy at The Royal Children’s Hospital came about because the Engineering Department was not being moved across to the new Royal Children’s Hospital.
30 When queried as to what amount of time, if any, she was having off work as a result of psychological difficulties when working at The Royal Children’s Hospital, the plaintiff responded that she was using long service and sick pay and having brief days off. In response to questions from the Court, the plaintiff gave evidence that over the last couple of years of her employment with The Royal Children’s Hospital she probably had off “two weeks here, three weeks there” as a result of her psychological problems.[29] Also, when queried by the Court as to how she enjoyed the job with The Royal Children’s Hospital compared to the job she had been doing with the first defendant, the plaintiff answered:
A: “I gave them my time to The Royal Women’s and I loved my job there. I worked a lot with the cancer patients, taking them to the wards, going out of my own way to do that, I was on the Help Desk in Engineering and I felt maybe my wages for more because they pushed to help me but my job I loved was The Royal Women’s and it still affects me today.
Q: And if this ring incident hadn’t occurred, would you have stayed on at The Royal Women’s?---
A: Yes, your Honour.”[30]
(sic)
[29]T33, L20-29
[30]T34, L21-29
31 When giving this evidence, the plaintiff was quite emotional and upset when describing her love of the job with the first defendant.
32 The plaintiff accepted that she developed fibromyalgia prior to her losing the ring and she recalls that she woke one morning and just “couldn’t move”.[31] She underwent some blood tests and ultimately was prescribed Endep for such condition. As a result of such condition, she has pain in her armpits, elbow joints, behind her knees, in her buttocks and her neck. She agreed with counsel for the first defendant that as a result of such condition, she sometimes did not feel like getting out of bed and had to “push herself” to go to work. The condition of fibromyalgia sometimes affects her ability to go shopping, perform gardening, or even drive her vehicle.
[31]T40, L3
33 The plaintiff confirmed that she attempted to resume work at the Northern Metropolitan TAFE in Epping in or about December 2011 as a receptionist/administrative assistant, but only remained in that work for two days one week and two days the following week. Furthermore, she attempted to work as a receptionist at a general practice clinic and only lasted until about lunchtime.
34 She accepted that during 2010 and probably up to some time in late 2011, she was attempting to obtain clerical and work in emergency areas related to medical care. In particular, the following evidence was given:
Q: “So clerical medical positions. In other words, the sort of work you had been doing before the ring incident, is that right?---
A: The ring incident. Position similar to what I had at The Royal Women’s I wanted, yeah.
Q: So trying to get to the same sort of work that you’d been doing before the ring incident?---
A: That’s right, sir.
Q: On a full-time basis?---
A: I wouldn’t say it was a full-time position, yep.
Q: What were you seeking?---
A: Whatever I could get.
Q: And if someone offered you a full-time position, you’d grab it with both hands, I’d suggest?---
A: I’d hope that I could do a job like that, but I don’t know whether I would.”[32]
[32]T55, L29 – T56, L9
35 In answer to a question from the Court, the plaintiff stated that she goes to bed around 8.30pm, sometimes earlier, and would sleep until 6.00 the next morning.
36 Under re-examination, the plaintiff informed the Court that when she goes to sleep she takes the Endep to put her into a “deep sleep”. She was also shown a certificate of Dr Croke dated 27 August 2008, certifying her unfit for work from 4 July 2008 to 1 August 2008 as a result of her psychological condition.[33]
[33]See Exhibit 2
The medical evidence relied on by the Plaintiff
37 The plaintiff relies on medical reports from her initial treating psychiatrist, Dr Elizabeth Ross, dated 24 September 2003[34] and 18 February 2004, which is the report from Dr Ross handing over the care of the plaintiff to her current psychiatrist, Dr Simon Croke.[35]
[34]See Exhibit F at pages 3 – 5 Defendant’s Court Book (“DCB”)
[35]See Exhibit F at pages 6 – 7 of DCB
38 The plaintiff also relies on various medical certificates of Dr Ross certifying the plaintiff unfit for work from 1 September 2003 to 14 October 2003.[36]
[36]See Exhibit C at pages 44 – 47 PCB
39 Dr Ross reports that the plaintiff first consulted her in November 1997, at which time she had “mild depressive symptoms reactive to family problems”. Dr Ross notes that the plaintiff attended for two to three months and such symptoms responded to short-term psychotherapy.
40 Dr Ross again saw the plaintiff in June 2000 when she presented with “similar issues” and mild Depression and Anxiety. She was again treated with psychotherapy and improved until her family problems “escalated” in August 2001 and at that time her symptoms of Depression increased, causing Dr Ross to prescribe an anti-depressant, Citalopram, with a maximum dose of 30 milligrams.
41 Dr Ross notes also that during late 2001, the plaintiff developed joint and muscle pains and her anti-depressant was changed to Amitriptyline to help with pain relief.
42 Dr Ross notes that the mental state of the plaintiff remained stable on a low dose of between 25 to 50 milligrams daily until June 2003. At that time, Dr Ross states:
“ … her symptoms increased, with sleep disturbance, poor concentration, increase anxiety, irritability, lower mood and tearfulness. This increase in symptoms followed difficulties at work with a co-worker. Her anti-depressant has had to be increased to 150 milligrams daily and there has been some improvement in her mental state. Her feelings of depression and tearfulness however increase when issues about her work at RWH are raised … .”[37]
[37]See Exhibit F at page 3 – 4 DCB
43 Dr Ross diagnosed the plaintiff to be suffering from “a Major Depressive Disorder” with symptoms including lowered mood, weepiness, decreased appetite, anxiety, sleep disturbance, loss of energy and concentration and some compulsive behaviours. She was of the opinion that the plaintiff needed to continue her anti-depressant medication and weekly psychotherapy. Dr Ross was also of the opinion that the plaintiff could not return to work at The Royal Women’s Hospital as she was treated as “an outsider” and that alternative work should be found for the plaintiff.
44 In her later report dated 18 February 2004, Dr Ross states that the plaintiff is a –
“… vulnerable person who has lost a supportive friendship network at RWH, and is not finding her usual satisfaction from work … .”
45 The plaintiff also relies on a series of medical reports from Dr Kathryn Robertson, a general practitioner, who the plaintiff first consulted on 28 August 2003.[38]
[38]See Exhibit C at pages 51 – 54 PCB
46 Dr Robertson notes that at the time of the first consultation, the plaintiff was experiencing “work related anxiety and depression related to an incident at work earlier that year and had been seeing the psychiatrist Dr Elizabeth Ross”. Dr Robertson provided WorkCover certificates and was involved in her gradual return to work program with The Royal Children’s Hospital.
47 Dr Robertson notes that after the retirement of Dr Elizabeth Ross, the plaintiff was transferred to the care of a further psychiatrist, Dr Michael Wong, who she saw on two occasions, but later sought to be transferred to another psychiatrist and thus the referral to Dr Simon Croke.
The evidence of Dr Simon Croke
48 Dr Simon Croke, the current treating psychiatrist of the plaintiff, gave evidence and was cross-examined. He described himself as a consultant psychiatrist, practising at the Northpark Hospital. He has been practising as a consultant psychiatrist since 2000 and was a registrar in psychiatry for six years prior to that. He identified his reports dated 31 August 2006, 19 June 2008, 18 August 2008, 7 September 2008, 12 May 2010, 23 August 2012 and 29 May 2013 and gave evidence that the contents of such reports were “true and correct”.[39]
[39]See Exhibit C at pages 32 – 41 PCB
49 In his most recent report, Dr Croke notes that the plaintiff commenced seeing him on 12 May 2004 and since then has attended approximately on a “fortnightly to monthly basis”. He notes that there have been no hospitalisations during this period of time for psychiatric reasons and treatment has consisted of supportive psychotherapy, advice about lifestyle and community supports, and anti-depressant medication.
50 He has diagnosed the plaintiff to be suffering from a Major Depressive Disorder, in partial remission. He notes that the plaintiff has recurrent episodes of lowered mood, reduced motivation and energy, which in the past have lasted for weeks to months. In particular, he states:
“Mrs Keane’s has a 16 year history of diagnosed depressive illness. This originally occurred following several stressful family situations including domestic violence perpetrated by male relatives. Since 2003, while family concerns continue, a particular source of distress and ongoing fluctuating depression has been a work related issue in that year. She reports having been ostracised and verbally attacked by co-workers unfairly when she reported a theft of personal property to staff, which was taken apparently by others that she was accusing them. She remains preoccupied with this event, often tearful when discussing it and citing it as having led to a loss of confidence and trust in others in the workplace. This has led to Mrs Keane becoming very distressed and withdrawn in other subsequent work situations where ‘office politics’ have led to factions and verbal conflicts. Whilst these have arisen between other workers and not centred on her, she nevertheless has found that extremely difficult to negotiate. I have considered the diagnosis of Post Traumatic Stress Disorder to explain her reaction to the workplace events in 2003 but whilst she has some features of that condition I don’t believe that she fulfils sufficient criteria and prefer to see that as contributing to worsening and prolongation of her depressive illness.”[40]
(sic)
[40]See Exhibit C report dated 29 May 2013 at page 40 PCB
51 After noting that the plaintiff accepted a redundancy from her permanent position as a clerk at The Royal Children’s Hospital in 2010, she attempted returns to work in 2011, both as a receptionist in a general medical practice and as an administrative clerical position at a TAFE institution. On both occasions, Dr Croke notes that the plaintiff became distressed and concerned about her ability to cope, preoccupied with how others viewed her and might treat her. He also noted that other than these two attempts to return to work, she had applied for many positions without success.
52 In particular, Dr Croke further states:
“On the basis of the following factors: Mrs Kean’s preoccupation with the negative experiences at her previous work places, the unsuccessful attempts at return to work, the amount of time that has elapsed without regular work subsequently, and the somewhat fragile state of her ongoing depressive illness … I believe it is unlikely that Mrs Keane will ever successfully make a return to work appropriate to her skills and experience. In terms of her overall depressive illness, given that it has been present for 16 years, it is likely to persist in some form indefinitely.
I believe that her previous experiences at work including the traumatic effects of the events of 2004 and the subsequent perceived lack of support by employers/supervisors have contributed substantially to this situation. She was however already prone to depressive illness, having suffered from it previous to 2004 … .”[41]
[41]See Exhibit C report of Dr Croke dated 29 May 2013 at page 41 PCB
53 In earlier reports, Dr Croke had described her work experience in 2003 as causing –
“… a significant exacerbation of her condition with marked subjective deterioration in quality of life and occasional time off work being necessary.”[42]
[42]See Exhibit C report dated 18 August 2008 at page 36 PCB
54 Dr Croke gave evidence that at present, the plaintiff is prescribed 50 milligrams of Pristiq, which is an anti-depressant (Venlafaxine), together with another anti-depressant, Endep (Amitriptyline). Dr Croke noted that Endep, although an anti-depressant, is also used by general physicians to help with the pain of various conditions such as the fibromyalgia suffered by the plaintiff.
55 Dr Croke also confirmed that recently he sees the plaintiff every two weeks and since his commencement of treating her, the pattern of attendances has ranged between two and four weeks. Other than the prescription of medication, Dr Croke stated that the “psychotherapy side” of the treatment is important and that involves talking through the various stresses that the plaintiff is facing and relating them to her own personal coping style.
56 Under cross-examination, when taken to the report from Dr Ross by which she transferred the plaintiff to Dr Croke, Dr Croke gave evidence that he was aware that Dr Ross had seen the plaintiff between 1997 and 2003 but was unaware of how frequently she was seeing the plaintiff, leading up to the work episode.
57 Under cross-examination, Dr Croke was questioned as to what sort of matters were discussed during a typical psychotherapy session. Dr Croke responded:
“Well, certainly both related to employment in the sense of distress and still coming to terms with what happened in 2003 and the ongoing problems she’s had at other workplaces subsequently. They’ve been the content of the topics that we’ve discussed. If you like, the whole WorkCover process and the difficulty with finding work in more recent times, the stresses around that, so they’ve been topics.
The family matters have arisen from time to time and we have discussed those. I will say there has been some settling of some of those issues in that a particularly violent son as mentioned, he appears to have settled down, has matured and found a job and causes far less distress. Ms Keane is now living apart from her husband so there’s been some settling of those issues, but the family matters arising, if you like, as anyone’s family, everyone has family issues and other family issues will come up from time to time but I will say that the work related issues still be the majority.”[43]
(sic)
[43]T83, L2-22
58 Under cross-examination, Dr Croke was referred to his report dated 23 August 2012,[44] wherein the doctor states:
“Bernadette reports being relatively stable at present. She is still prone to hours, to days at a time of being lower in mood and tearful. At these times she gets preoccupied with past bullying that took place at her workplace leading to her departure from The Royal Women’s Hospital. She hasn’t had any more persistent or relapse for some years.”
(sic)
[44]See Exhibit C at page 39 PCB
59 When queried about the last sentence of the previous quote, Dr Croke responded:
“I am referring to an episode of relapse of depression that may go for weeks or months, regardless of circumstances. The pattern that Ms Keane has had has been to become distressed and preoccupied with these issues when things come up in relation to events at work or something to do with the family and it’s relatively short lasting and through support and psychotherapy as well hopefully, you know she works through those things. But what I was referring to there was no – no relapse that would go longer than weeks or months requiring … .”[45]
[45]T85, L15-24
60 Dr Croke confirmed that the plaintiff continued to get these periods of depression notwithstanding her ongoing medication, and in response to a question from the Court, he stated that if psychotherapy every two weeks was removed, the plaintiff would be at risk of deteriorating further with worsening and longer lasting bouts of depression. Furthermore, Dr Croke considered that the plaintiff’s condition had stabilised in recent years and he did not think there was realistically any chance of further improvement.
61 In response to a query from the Court, Dr Croke recalled the plaintiff talking about how she felt when she was required to leave the employment of the first defendant and considered such move to be “quite unfair” and resented it and felt that she had been very hard done by in terms of the way it had been handled by management at the time, and felt victimised and scapegoated.”[46]
[46]T95, L4-8
62 Furthermore, Dr Croke confirmed that it was his clear memory that the plaintiff found the job with the first defendant much to her liking and satisfying and gave her great enjoyment.
Medico-legal reports relied on by the Plaintiff
63 The plaintiff relies on the following medico-legal reports in support of her application:
(a)Report of the psychiatrist, Associate Professor N Paoletti, who examined the plaintiff on 31 May 2013;[47]
(b)Report of the psychiatrist, Dr David Weissman, who examined the plaintiff on 2 July 2013;[48]
(c)Report of the psychiatrist, Professor J Richard Ball, who examined the plaintiff on 4 September 2008 at the request of the agent of the first defendant;[49]
(d)Report of the psychiatrist, Dr N R Rose, who examined the plaintiff on 24 October 2008 at the request of the agent of the first defendant.[50]
[47]See Exhibit E at pages 84-95 PCB
[48]See Exhibit E report dated 2 July 2013 at pages 96-107 PCB and supplementary report dated 10 July 2013 at pages 108-111 PCB
[49]See Exhibit D report dated 5 September 2008 at pages 66-72 PCB
[50]See Exhibit D report dated 24 October 2008 at pages 73-81 PCB
64 After his examination, Professor Paoletti was of the opinion that the plaintiff suffered from a mixed anxious depressive illness and on the basis of the history given to him, he was of the opinion that such illness was in reaction to the work events involving the lost ring. He noted that she did have some predisposing factors due to poor coping with parental separation during her childhood, as well as a number of medical problems, but considered “these do not take away from the key role of the events at work in the precipitation and maintenance of her illness”.[51] Professor Paoletti was also of the opinion that the current level of anxiety in public and her Depression rendered the plaintiff unfit for any sustainable employment in the foreseeable future. He also notes that the plaintiff had become socially withdrawn and has minimal disposition or capacity for recreational pursuits. He notes that overall “there has been a pervasive and devastating effect on her lifestyle and quality of life”.[52]
[51]See Exhibit E at page 91 PCB
[52]See Exhibit E at page 92 PCB
65 After his examination, Dr Weissman was of the opinion that the plaintiff suffered from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity. Furthermore, he considered the plaintiff does not have a full capacity for suitable work although he could not categorically state that she was totally incapacitated for all work.
66 After his examination, Professor Ball was of the opinion that the plaintiff was suffering from an adjustment reaction with Depression and Anxiety associated with the events surrounding the loss of the ring at work. Professor Ball also notes that such condition has become a chronic depressive illness for which she has had ongoing supervision and treatment and continuing anti-depressants with a tendency to flare up at anniversary times.
67 After his examination, Dr Rose was of the opinion that the plaintiff was suffering from a moderately severe depressive reaction to multiple events in her life, culminating in the work injury. In particular, he states:
“The events of 13.05.2003 and the subsequent alleged rejection by Ms Keane’s former workmates and friends was a further manifestation of abandonment. She took this very badly and became withdrawn, depressed and anxious. Although she has had psychiatric and psychological treatment since then, she remains significantly impaired. In her favour she has been able to return to work, but at a lesser level than beforehand, and I think that she is probably struggling to do her work because of limited concentration and because of remaining preoccupation with issues of abandonment.”
Medico-legal reports relied on by the Defendants
68 The defendants rely on the following medico-legal reports:
(a)Report of the psychiatrist, Dr I Jackson, who examined the plaintiff on 7 October 2003;[53]
(b)Report from psychiatrist, Associate Professor Mendelson, who examined the plaintiff on 29 February 2012.[54]
[53]See report dated 31 October 2003 Exhibit 2 at page 14 DCB
[54]See report of same date at page 26 DCB
69 After his examination, Dr Jackson was of the opinion that the plaintiff suffered from an adjustment reaction with specific phobias, Anxiety and Depression. Such condition was in reaction to her workmates’ behaviour surrounding the loss of the ring. I note that Dr Jackson obtained a history from the plaintiff that she “returned” to Dr Elizabeth Ross as a result of the work incident. In particular, he obtained the history that she had attended Dr Ross “three or four years earlier” after being “bashed” by her oldest son and that Dr Ross at that time had treated her for about six to twelve months.
70 After his examination, Professor Mendelson was of the opinion that the plaintiff suffered from a Chronic Dysthymic Disorder which first became manifest in 1997. In particular, he is of the opinion that although the work event caused an “exacerbation” of her psychiatric symptoms in May 2003, such incident is not presently a significant contributing factor to any current psychiatric illness, although she remains aggrieved and resentful over these vents. As I have stated earlier in this judgment, those acting for the defendants do not press the opinion of Professor Mendelson on the issue of causation.
71 The defendants also rely on an affidavit of Georgia Shepherd sworn 28 July 2013.[55] Ms Shepherd is the workforce performance consultant of the first defendant and deposes, in part, that the plaintiff applied for redundancy when offered at The Royal Children’s Hospital.
[55]See Exhibit 3
Analysis of the evidence
72 It is perhaps apposite to make some comments about the plaintiff’s evidence. After observing her give evidence and being cross-examined, I gained the impression that the plaintiff was attempting to give honest and accurate answers to the questions posed to her. Although, on occasion, she disputed some of the histories put to her which were recorded by various treating doctors, such disputation was essentially in relation to when certain events occurred (for example, when she separated from her husband) and did not impact in any major way on her credibility.
73 Furthermore, both counsel agreed with my observation that the plaintiff became emotionally distraught when giving evidence of matters pertaining to the circumstances surrounding her lost ring when employed by the first defendant and her subsequent change of employment to The Royal Children’s Hospital.
74 I make the following findings of fact:
(a)The plaintiff is a fifty-eight-year-old married woman who has been separated from her husband for approximately three years. She has two adult sons, one of whom in years gone past has been prone to violence, sometimes directed to the plaintiff. Furthermore, over the years of her marriage, particularly in the early years of her marriage, her husband was prone to jealously which caused difficulties in the marital relationship;
(b)She had a relatively happy childhood, save that her father left the family when she was about twelve and this caused some unhappiness. Furthermore, when a teenager, she was raped and her mother admitted her to the Larundel Psychiatric Hospital for two days of treatment;
(c)She initially attended high school to Year 10, after which she worked as a shoeshine at the Southern Cross Hotel. Later, she completed the last two years of her schooling through night classes when working at the Department of Aviation for about three or four years;
(d)After being off work to have children for a number of years, she resumed employment in or about 1980, when she commenced employment with the first defendant in the Accounts, Admissions and Discharge Department as a full-time clerical worker and remained in that employment until about mid-2003, save for a period of six months in 1989, when she worked in her sister’s business. In particular, I find that she enjoyed such work immensely, having built up a social circle of workmates and being involved in helping a variety of people and in particular, cancer patients who she assisted around the wards;
(e)Prior to “the injury”, the plaintiff had the following episodes of depressive symptoms:
(i)In or about November 1997, she consulted the psychiatrist, Dr Elizabeth Ross, complaining of mild depressive symptoms as a result of family problems. At that time, she attended for two to three months, and such symptoms responded to short-term psychotherapy;
(ii)She again consulted Dr Ross in June 2000 when she again presented with mild Depression and Anxiety as a result of family problems. She was again treated with psychotherapy and improved;
(iii)In August 2001, her symptoms of Depression increased and at that time, Dr Ross prescribed an anti-depressant, Citalopram, with a maximum dose of 30 milligrams;
(iv)In late 2001, the plaintiff developed joint and muscle pains, which were ultimately diagnosed as fibromyalgia, and her anti-depressant was changed to Amitriptyline (Endep);
(f)In particular, I find that the plaintiff continued to take the Endep up until such time that “the injury” occurred. However, although it is not precisely clear on the evidence as to whether the plaintiff continued to attend Dr Ross on a regular basis up to the occurrence of “the injury”, I tend to the view and find that the consultations with Dr Ross probably ceased in 2001 before resuming after the occurrence of “the injury”. In this respect, I refer to the report of the psychiatrist, Dr Jackson, who examined the plaintiff on 7 October 2003. At that time, he obtained a history that the plaintiff was “re-referred” to her psychiatrist, Dr Elizabeth Ross, who she had seen “three or four years earlier for a period of six to twelve months”;
(g)I also find that the plaintiff suffered a psychiatric injury arising out of or in the course of her employment in or about May 2003 as a result of the circumstances surrounding her lost ring at work. Furthermore, I find that when she resumed consulting Dr Ross, her symptoms had increased and included sleep disturbance, poor concentration, increased anxiety, irritability, lowered mood and tearfulness. At that time, her anti-depression medication was increased and she lost various periods off work;
(h)Because of her mental state and her continued ostracisation by others at The Royal Women’s Hospital, it was arranged for her to take alternative clerical work at The Royal Children’s Hospital. Such work was far less satisfying to the plaintiff, given that her circle of friends had gone and she was not involved to the same degree with the assistance of patients;
(i)From 2003, she has received regular psychiatric treatment, initially from Dr Ross, and then 2004, Dr Croke, who has treated her continually over the period to date, on the basis that she attends either fortnightly or monthly for the prescription of medication and psychotherapy treatment;
(j)She continued to work at The Royal Children’s Hospital until applying for and accepting a redundancy in 2010 (or 2011). Throughout the period of time that she worked at The Royal Children’s Hospital, she was engaged in a full-time job which did involve a degree of concentration and memory use. I further find that throughout the course of this work, she was off work for various days, up to a number of weeks, as a result of her psychological difficulties, and that such periods off work were essentially paid through sick leave or long service leave.
75 In particular, and consistent with the position of the defendants, I do find that the psychiatric injury suffered by the plaintiff during the course of her employment with the first defendant in mid-2003 has been a cause of a permanent mental disorder. In this respect, I accept the evidence of Dr Croke that the plaintiff suffers from a Major Depressive Disorder with some elements of a Post-Traumatic Stress Disorder.
76 Given that the plaintiff clearly had psychiatric symptoms prior to “the injury” which required intermittent treatment from Dr Ross and some medication, both parties submitted that it was appropriate to apply the principles in Petkovski v Galletti[56] to ascertain whether or not the plaintiff had suffered a “serious injury” within the meaning of s134AB of the Act. Although Petkovski v Galletti was determined in the context of s93 of the Transport Accident Act, the principles have been long accepted to apply to industrial injuries determined under the Act.[57]
[56](op cit)
[57]See Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraph [19]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd Filipowicz [2012] VSCA 60
77 In the context of an aggravation of a pre-existing injury, Southwell and Teague JJ made it plain that the task of the Court is to analyse the extent of the impairment before and after the relevant injury. In referring to the submissions that had been rejected by the trial judge, Southwell and Teague JJ stated:
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.
The learned County Court judge rejected this principal submission of the respondent. … He said: ‘In my opinion, the Act simply requires me as an assessing judge to be 'affirmatively satisfied' that the applicant as at the date of the application is suffering from a 'serious injury' within the meaning of the Act.’
… it is clear that the submission for the respondent ought not to have been rejected by the judge; in this court, counsel for the applicant conceded as much. We are of that opinion for these reasons. One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.”[58]
[58]See Petkovski v Galletti (op cit) at page 443
78 Although Petkovski was decided in the context of an organic back injury, similar principles apply in relation to a psychiatric injury. It is for the plaintiff to establish as a matter of probability that the extent of any aggravation of her pre-existing psychiatric state is “severe” within the meaning of the Act. Although the Act makes clear that the concept of “severe” is greater than that of “serious”, it is ultimately a matter for the Court to determine the question on the basis of impression and value judgment.
79 Counsel for the defendants appropriately, in my view, highlighted that the plaintiff had demonstrated a clear capacity for employment when working at The Royal Children’s Hospital up until the time of her redundancy in 2010 (or 2011). Furthermore, he submitted that, on the evidence, from a psychiatric point of view the plaintiff was capable of performing some work. In this respect, counsel for the defendants referred to the decisions of Sumbul v Melbourne All Toya Wreckers Pty Ltd[59] and Stijepic v One Force Group Aust Pty Ltd& Anor,[60] both of which were decided in the context of paragraph (a) organic injuries. He submitted that similar principles can be applied when dealing with paragraph (c) psychiatric injuries. In this sense, he noted that the Court stated in Stijepic that if a worker successfully returns to alternative duties, it would tend in the absence of other relevant evidence against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. Of course, Ashley AJ and Beach AJA also added in Stijepic:
“But, as always, the evidence as a whole must be considered.”
[59][2006] VSCA 292
[60][2009] VSCA 181
80 I would accept that in paragraph (c) cases involving psychiatric injury, the fact, if it be the fact, that a plaintiff can return to full-time work involving a degree of responsibility, decision making and memory, clearly would be a relevant factor in determining whether the particular plaintiff has suffered “severe” consequences as a result of any psychiatric impairment.
81 After considering all the evidence in this matter, I am of the opinion that the plaintiff has discharged her onus in establishing that the extent of any aggravation of pre-existing psychiatric injury is “severe” within the meaning of the Act. In particular, I find that the plaintiff has suffered the following losses and consequences as a result of her psychiatric impairment:
(a)As a result of her “injury”, the plaintiff has, since 2003, required constant psychiatric supervision on a two-weekly or four-weekly basis, whereas she had had very intermittent treatment for her psychiatric condition prior to “the injury”. It is to be stressed that such treatment has been ongoing for the last ten years, during which time the plaintiff has lost time off work, sometimes for days, sometimes up to weeks, as a result of her depressive condition;
(b)As a result of “the injury”, the plaintiff has had various anti-depressants, and continues to take anti-depressants expressly for her depressive condition to date, whereas prior to “the injury”, she had been prescribed some medication of which was used in part to treat her fibromyalgia. It is to be noted that according to Dr Croke, the plaintiff now requires constant psychotherapy for her to be able to cope with the stresses she perceives as a result of her psychiatric condition;
(d)I also consider that as a result of “the injury” the plaintiff has become particularly distrustful of others, has difficulties when office politics are involved and tends to keep to herself, which also manifests difficulties about being engaged with her grandchildren. In this respect, I adopt the opinion of Professor Paoletti, who states that “overall, there has been a pervasive and devastating affect on her lifestyle and quality of life”.
82 I do not make any express findings as to the impact of “the injury” in relation to the marriage breakdown or any difficulties that she may have in relation to performing housework, gardening and the like, which may well be impacted by her physical symptoms arising from the condition of fibromyalgia.
Conclusion
83 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of a psychiatric injury arising out of or in the course of her employment over the period from April 2003 to September 2003.
84 I will hear the parties on the question of costs.
- - -
ANNEXURE A
1 The plaintiff tendered the following documents:
Exhibit A
· Certificate of Incapacity from Dr Croke dated 27 August 2008
Exhibit B
· Two affidavits of the plaintiff sworn 21 November 2011 and 9 July 2013, (Plaintiff’s Court Book (“PCB”) pages 17 – 26)
Exhibit C
· Medical reports of Dr S Croke dated 31 August 2006, 14 March 2007, 19 June 2008, 18 August 2008, 7 September 2008, 12 May 2010, 23 August 2012 and 29 May 2012 (at PCB pages 32 – 41)
· Medical certificates of Dr Elizabeth Ross dated 1 September 2003, 8 September 2003, 22 September 2003, 20 October 2003 and 22 December 2003 (at PCB pages 44 – 48)
· Report of Dr Ross dated 18 February 2004 (at PCB pages 49 – 50)
· Reports of Dr Kathryn Robertson undated, 30 October 2003, 6 May 2004, 7 February 2005 (at PCB pages 51 – 54)
· Report of Dr Michael Wong dated 5 April 2004 (at PCB pages 55 – 56)
Exhibit C
·Medical Panel Certificate of Opinion dated 28 January 2009 (at PCB page 60)
Exhibit D
·Psychiatric report of Professor J Richard Ball dated 5 September 2008 (at PCB pages 66 – 72)
·Psychiatric report of Dr N R Rose dated 24 October 2008 (at PCB pages 73 – 83)
Exhibit E
·Psychiatric report of Professor N Paoletti dated 31 May 2013 (at PCB pages 84 – 94)
·Psychiatric reports of Dr David Weissman dated 2 July 2013 and 10 July 2013 (at PCB pages 95 – 111)
Exhibit F
·Reports of Dr E Ross dated 24 September 2003 and 18 February 2004 (at Defendants’ Court Book (“DCB”) pages 3 – 6
2 The first defendant tendered the following documents:
Exhibit 1
· Résumé of plaintiff (at PCB pages 112 en 117)
Exhibit 2
· Psychiatric report of Dr I Jackson dated 31 October 2003 (at DCB pages 14 – 17)
· Report of Associate Professor Mendelson dated 29 February 2012 (at DCB pages 26 – 40)
Exhibit 3
· Affidavit of Georgia Shepherd (at DCB pages 42 – 46)
Exhibit 4
·
Extracts from the notes of Dr S Croke (at DCB pages 47 – 75,
76 – 77).
0
10
0