Kennedy v Monivae College

[2023] VCC 1931

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04381

FRANK EDWARD KENNEDY	Plaintiff
v
MONIVAE COLLEGE	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Warrnambool
DATE OF HEARING:	18 October 2023
DATE OF JUDGMENT:	27 October 2023
CASE MAY BE CITED AS:	Kennedy v Monivae College
MEDIUM NEUTRAL CITATION:	[2023] VCC 1931

REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION         

Catchwords:               Workplace bullying – application for finding a serious injury based on paragraph (c) of definition of “serious injury” in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – whether consequences of injury sufficient to render it “severe”, as required by definition – application dismissed      

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic)

Cases Cited:Mobilio v Balliotis & Ors [1998] 3 VR 833; Transport Accident Commission v Katanas (2017) 262 CLR 550; Katanas v Transport Accident Commission [2015] VCC 1156; [2016] VSCA 140; (2016) 76 MVR 161

Judgment:                   Application dismissed      

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett KC with Mr G Pierorazio	Dwyer Legal Warrnambool
For the Defendant	Mr R H Stanley SC with Mr T Storey	T G Legal + Technology

HIS HONOUR:

Background

1Mr Kennedy was born in 1973.  He married his wife in February 2020, but they have been together for 22 years.  They have two children; a son aged 13, and a daughter aged 9.  Mr Kennedy finished his education at Year 10 at Hamilton Technical College (Plaintiff’s Court Book (“PCB”) 3, [1]−[4]).

2Early in Mr Kennedy’s working life he worked as a cleaner at a Safeway supermarket and a store assistant at a Coles store.  He did labouring work with Norm Kenny Waste Disposal.  He worked at Hamilton Furnishings and as a casual tree planter with a company known as Arianda Pty Ltd.  Mr Kennedy was unemployed for a period of 10 years, working on some projects such as repairing paths and walkways in parks under a “Work for the Dole” scheme, and a short-term placement at Hamilton Abattoirs before it ceased operation (PCB 4, [5]−[6]).

3Mr Kennedy attributed his long period of unemployment to his “literacy and numeracy” (Transcript (“T”) 9, Lines (“L”) 30−31). He was therefore unemployed for the majority of his twenties (T10, L5−6).

4Mr Kennedy began employment with Monivae College (”the College”) as a cleaner in March 2000, working four hours a day, increasing to six hours a day from 2004.  He continued in casual employment, but by 2012 he was working 37 and a half hours per week (PCB 4, [7]−[8]). His supervisor was Mr X, who, he said, “would supervise the cleaners and the maintenance workers at the school”.  Mr Kennedy complains that he was throughout his employment “subjected to bullying” by Mr X.  He said Mr X verbally abused him “but not in front of other people”.  According to Mr Kennedy, Mr X berated him as “fucking idiot”, “fucking dickhead”, “whinger”, and “sticky nose”.  Mr Kennedy said protests on his part “only made matters worse” (Ibid, [9]−[10]).

5Mr Kennedy said he sought treatment from his general practitioners Dr Scaife in December 2010 and Dr Andrew McAllan in July 2011.  Dr McAllan prescribed anti-depressants “to help [Mr Kennedy] sleep of a night”.  According to Mr Kennedy, his employer, Monivae College, “was aware of the bullying”.  He said that the deputy principal, the principal of the College, the parish priest, and another priest at the College, were likewise aware of the bullying.  Mr Kennedy said Mr X “was untouchable” (Ibid, [11]−[12]).

6According to Mr Kennedy, he reported Mr X’s behaviour to the College’s business manager and a new business manager in 2012.  He said in a meeting with the business manager in 2012 he wept, telling him “things were so bad with [Mr X] that I was going to knock myself off”.  The manager asked Mr Kennedy if he wanted him “to sack [Mr X]”.  Mr Kennedy said he replied “no”, but regretted having done so.  The business manager referred Mr Kennedy to a counsellor.  He began seeing Ms Mary Anne Taylor on 6 August 2012, seeing her regularly for almost five years until 18 May 2017 (PCB 5, [13]−[14]).

7Mr Kennedy said that Mr X “got progressively worse as the years went by”. He said he was at least twice threatened by Mr X “with violence”.  He said that in February 2013 he sarcastically thanked Mr X for a long-awaited vacuum cleaner repair, and Mr X “had a go at me, raising his fists as if wanting to fight me”.  He said he reported this matter to the then business manager.  On 15 October 2014, Mr Kennedy said he was walking to his car at lunchtime to drive home for lunch, and Mr X said words to the effect “[d]o some work you fucking idiot”.  On 25 March 2015, at the Blessing and Opening Ceremony of the Chevalier Centre at the College, he complained that Mr X walked past and called him a “fucking dickhead” for no reason.  On the last day of Term 3 in 2015, according to Mr Kennedy, there were drinks at Alan Myers’ House when Mr X stood beside him and called him a “fucking dickhead” (PCB 5, [15]−[19]).

8On 8 March 2016, Mr X yelled at Mr Kennedy as he approached his car to go home at about 4.28pm.  Mr Kennedy later learned that Mr X “was telling [him] it’s not fucking time to go home yet” (Ibid, [20]). He said Mr X then raised his fists, stating “I’ll fucking hit you” (PCB 6, [20]). Mr Kennedy says he reported this to the business manager.

9In March 2016, Mr Kennedy said he “made a formal complaint relating to [Mr X]” which was investigated by the College’s deputy principal, who concluded, according to Mr Kennedy, that “there was sufficient evidence in the majority of my claims to conclude that the complaint of workplace bullying made by me against [Mr X] met the definition as defined by the CECV Anti-Bullying Guide” (Ibid, [21]−[22]).

10Mr Kennedy says he accepted a redundancy from the College, finishing work “on or about 15 March 2019”.  He said he was told that the College:

“…was going to drop my hours back down to 4 hours per day on the basis they did not have any more work available for me.  It was either that or accepting a redundancy.  That left me with little choice but to accept a redundancy as I could not stand the thought of having to work on reduced hours and put up with [Mr X] who would have without doubt continued to mouth off at me.” (PCB 6, [23])

11In cross-examination, his evidence on these matters was slightly different.  He said that as at 2019 he was contracted to work six hours a day – in fact, more than that: 37½ hours per week (T11, L19−24). He sought the assistance of his union, which made a submission on his behalf dated 22 February 2019 (Defendant’s Court Book (“DCB”) 76). This submission, over the signature of one of the union’s industrial officers, stated on its last page, inter alia:

“[W]e request you immediately write to Mr Kennedy confirming that his hours will be maintained at seven and a half hours per day and that the College will continue to offer him work cleaning the dormitory.” (DCB 78)

12The union submission complained that the action against Mr Kennedy constituted discrimination (T12, L6−9). Mr Kennedy agreed that had the College acceded to the union’s submission he would have been happy to continue employment there for six or 7 and a half hours per day (T12, L21−24).

13In his opening statement on behalf of Mr Kennedy, Mr Brett KC described his client’s mistreatment by Mr X as “not constant particularly over the later years when [Mr X] was not his supervisor” (T3, L22−25).

14Mr Kennedy said that following his redundancy at the College he was able to find casual work cleaning the Hamilton Police Station through an organisation called Pickwick Pty Ltd (PCB 6, [24]), Mr Kennedy explained that his cousin’s husband worked for Pickwick (T12, L30−31). Pickwick is a cleaning contractor which undertakes cleaning at a large number of locations, including the Hamilton Police Station (T13, L5−10). Mr Kennedy said that he underwent an orthodox job interview, learnt the systems and practices at the police station, and worked six days a week there, varying from one and a half to three hours a day (Ibid, L18−26).

15In July 2019, Mr Kennedy said he “picked up some casual cleaning work at the Hamilton Golf Course”. He answered an advertisement in a local newspaper. The hours varied between two hours a week and 14 hours a fortnight, with take home pay varying from $40 per fortnight to $300 per fortnight. This work was suspended in April 2020 “due to the coronavirus”, though some limited work recommenced in September 2020. This work lasted for about six weeks and, therefore, that work came to end for a while (PCB 6, [25]).

16As at May 2022, the date of Mr Kennedy’s first affidavit, he was “working between 13 and 20 hours per fortnight at the golf course, and earning between about $280 and $400 nett [sic] per fortnight depending on…hours and…shifts” (PCB 6-7, [25]).

17Mr Kennedy said he was also employed as a casual cleaner for Choice FM Pty Ltd (presumably a cleaning contractor) at the Hamilton office of the Department of Primary Industries, where he worked roughly 24 hours a fortnight “give or take”. His take home pay from that work was “roughly $600 a fortnight” (PCB 7, [26]).

18He said he also does “fill in” work for his cousin’s husband (his connection at Pickwick) during the cousin’s leave over the 10-day Christmas break. He said at Christmas 2021 he worked in that capacity at the local Centrelink office and at Bendigo Bank in Hamilton (PCB 7, [27]).

19As at 2022, he attended general practitioner, Dr McAllan, who prescribed him Apo-Citalopram, an antidepressant to be taken at 10 o’clock every morning. Dr McAllan also referred Mr Kennedy to psychologist, Dr Katrina Malin, for his “psychological condition”. He saw her first on 15 October 2020 and continued “every four to six weeks” (PCB 7, [28]).

20As at the May 2022 affidavit, Mr Kennedy said he still experienced “negative thoughts about what happened to me whilst working at the college”.  He said he also had “flashbacks” and suffered from “reduced motivation and energy levels”. He was subject to panic attacks which resulted in difficulty breathing.  He suffered from anxiety and was sometimes tearful and irritable with his children – “[i]f they do the slightest thing wrong, it tends to set me off and I go off my rocker” (Ibid, [29]).

21Mr Kennedy said in his viva voce evidence that these days he finds visits to Warrnambool stressful and therefore avoids them (T37, L20-26).

22Mr Kennedy complains that his social life has been constrained since his experience at Monivae College.  He said:

“…I tend to socialise less these days and no longer see the friends I had made at the college whilst working there for 19 years or so … we hardly go out at all anymore.” (PCB 7, [31]-[32])

23He said that before his injury he “used to go out for dinner, to the cinema and to the indoor swimming pool, things that” he no longer does because of his injury (Ibid). He said he is fearful of “walking around the streets and bumping into former colleagues” (PCB 8, [32]).

24On one occasion he saw Mr X “drive around the local streets … and that brought the thoughts of having to deal with him flooding back” (Ibid).

25Mr Kennedy said he continues playing golf:

“…I have been playing with a teacher friend of mine for a number of years.  I find it relaxing. Whilst working for the defendant and because of my irritability, I found that I was easily upset and would for example chuck my golf clubs around.  Since ceasing work with the defendant, this is less of a problem for me.” (Ibid, [33])

26He said he is now “forever worried about doing something wrong at work”.  He described an incident which occurred on 28 March 2022 at the Hamilton Police Station:

“…where a Sergeant I know only as Jimmy went off at me because I sat down next to him while he was eating. He told me late last year [viz late 2021] that he has a phobia of people watching him eat.  I had momentarily forgotten this when I sat next to him, but his reaction to me sitting next to him caused me to cry uncontrollably when I got home, and I was bawling down the phone to my supervisor. Since my experiences with [Mr X] I cannot handle any form of conflict.” (Ibid, [34])

27Enlarging on these events, in a history given to Associate Professor Peter J Doherty, consultant psychiatrist, conducting a medico-legal assessment for the defendant, Mr Kennedy told the Associate Professor he was “verbally abused by one of the officers [at the Hamilton Police Station]” and “I had a brain fart, impulsive ass”.  He said “he gave me a serve for five minutes, and I said sit down and watched him eat his hamburger” (DCB 46).

28According to the Associate Professor:

“He said the employer, Pickwicks in Melbourne, said it feels I should not work around that police officer.  The HR woman said I would take a bite of his hamburger and put my hands on his hamburger.” (Ibid)

29Mr Kennedy made a complaint to Fair Work Australia, appearing via Zoom.  The determination was in his favour with an award of compensation of $22,000. It seems Mr Kennedy retained solicitors for the purpose of that application (T14).

30In an updated affidavit sworn 21 August 2023, Mr Kennedy said that he continued to see his treating psychologist, Dr Katrina Malin, “once every 4 weeks” and relied on “an anti-depressant, Escitalopram, which I currently take twice a day” (PCB 9, [3]-[4]). He also takes Quetiapine tablets “to help me with my sleep” which he takes every night (Ibid).

31Without the sleeping medication, he said he “again experienced bad dreams and thoughts of self-harm and knocking myself off” (Ibid, [5]).

32Despite the loss of the cleaning work at Hamilton Police Station, Mr Kennedy continues to work as a cleaner at the Department of Primary Industries at the rate of 15 hours per week “although this will drop down to 9 hours per week when the cleaner who is away with an injury returns” (PCB 10, [8]).

33He also works six and a half to 10 hours per week at Hamilton Golf Course.  He complained that despite his wife’s employment part-time as a food and domestic services assistant at Penshurst and District Health Services, the family has had to refinance their home “in order to pay off credit cards and personal loans” (Ibid, [9]-[10]).

34He complains that he is unable to participate in activities at school for his children.  He said he does not like attending teacher/parent nights.

35Mr Kennedy says he finds it difficult “tolerating my children when they’re playing up”, and sometimes resorts to locking himself in his room until they stop.  He dislikes attending work-related functions, either for himself or his wife (Ibid, [16]-[17]).

36Mr Kennedy said he continues to enjoy golf, playing three times a week “with a mate of mine who I’ve known for 30 years and who understands what I have gone through as he was a teacher at Monivae College” (PCB 11, [20]).

37Otherwise, he said he spends a lot of time watching television, occasionally going out for half an hour or so. He said he remains fearful of running into Mr X and avoids large crowds. Seeing former work colleagues brings back thoughts of his bullying.  He was upset by seeing “a canteen lady who was wearing the Monivae College uniform” (Ibid, [22]).

38He has experienced chest pains, which Dr Malin (his treating psychologist) has diagnosed as stress related.  Despite taking sleeping tablets, he still wakes up in the middle of the night.  He has suffered a decrease in libido “because of my injury” (Ibid, [25]).

39He said “hardly a day that goes by where I don’t ruminate about the bullying I experienced” at Monivae College (PCB 12, [26]). He said he continues to suffer from anxiety, his memory is impaired and he is “less trustful” of his bosses at work (Ibid, [27]-[29]).

40In this proceeding, Mr Kennedy seeks leave to bring a claim for damages for bullying against the defendant based upon a finding that he has suffered a “serious injury” as a result of his treatment as an employee at Monivae College.  He seeks leave based solely upon his psychological or psychiatric injury and for the recovery of damages for pain and suffering but not for loss of earnings or earning capacity.

41Mr Kennedy’s wife, Belinda, swore an affidavit explaining that they had first met in 2001 (PCB 13, [2]). Her affidavit corroborated Mr Kennedy’s account of the bullying which he said he suffered at the hands of Mr X and the decline in his health and lifestyle as reported, as well as his avoidant behaviour relative to Monivae College and those connected with it (PCB 14-17).

Legal considerations

42Section 327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) authorises a “worker” to recover damages “in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”. Mr Kennedy’s case is that he has sustained a serious injury within the meaning of the Act.

43Section 325 of the Act defines the phrase “serious injury” as follow:

“(a)   permanent serious impairment or loss of a body function; or

(b)    permanent serious disfigurement; or

(c)    permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d)    loss of a foetus.”

44Mr Kennedy’s case is that he has suffered a serious injury within the meaning of paragraph (c) of the definition. 

45Sub-section (2) of s325 makes additional provision for the operation of this definition for the purposes of Part 7. The lengthy sub-section provides as follows:

“(2)     For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—

(a)the following definitions apply—

"foetus" has the same meaning as in section 214(2);

"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986; s. 325

(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to

(i)pain and suffering; or

(ii)loss of earning capacity—

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—

(i)the pain and suffering consequence; or

(ii)the loss of earning capacity consequence—

is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless

(i)the pain and suffering consequence; or

(ii)the loss of earning capacity consequence—

is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—

(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and

(ii)     the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;

(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—

(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—

(A)earning, whether in suitable employment or not; or

(B)capable of earning in suitable employment—

as at that date, whichever is the greater, and—

(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—

(i)has; or

(ii)after rehabilitation or retraining, would have–

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

(i)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;

(j)the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;

(k)the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.”

46In Mobilio v Balliotis & Ors [1998] 3 VR 833, 846, Brooking JA, speaking of the definition of “serious injury” in the Transport Accident Act 1986, said that the use of the word “severe” in paragraph (c) denoted a more stringent test for a finding of serious injury under that paragraph than was applicable under paragraph (a) of the definition. His Honour’s statement was approved by the High Court, Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ in Transport Accident Commission v Katanas (2017) 262 CLR 550, 555 [5].

47It seems therefore that Parliament has deliberately made the road to success for a plaintiff relying on paragraph (c), as Mr Kennedy does, more difficult than would be the case for a plaintiff relying on an organic injury for instance to the neck, the low back or one of the shoulders.

Expert opinions

48Western District Health Service provided a report to Mr Kennedy’s solicitors dated 24 October 2019, addressed “To whom it may concern” advising that Mr Kennedy had been “a client at the Frances Hewett Community Centre- Counselling Service”.  He was seen by counsellor Mary-Anne Maylor from 6 August 2012 every three weeks until 18 May 2017.  According to the report, these sessions”

“…addressed work place bullying with; education on depression, anger management, and problem solving skills work related issues. The counsellor also referred him to his GP for depression and insomnia medication.”  (PCB 18)

49The report stated that Mr Kennedy:

“…continued with his counselling sessions after his workplace issues had been largely resolved and he was better managing his relationship with management and fellow workers. These sessions focused on his work and family issues.” (Ibid)

50General practitioner, Dr Andrew McAllan, provided a certificate dated 3 December 2020, stating “[o]n review today, considering his current mental health, my opinion is that Frank can work up to 30 hours per week” (PCB 19).

51Dr McAllan provided a lengthier report dated 18 June 2020 to Mr Kennedy’s solicitor, reporting Mr Kennedy’s employment history at Monivae College and the termination of that employment.  The doctor noted that Mr Kennedy had obtained alternative work as a cleaner with significantly reduced hours, and continued:

“…however he is discovering, despite his stress and anxiety, that he is actually appreciated in his new occupation. Unfortunately this has not re-established his confidence in his abilities to do duties. He is finding that he is anxious, feeling down and finding that he is ‘second guessing’ himself about what he is going to do.” (PCB 20)

52The doctor continued:

“He remains psychologically traumatised by his experience working at Monivae College.  He finds it even difficult to drive past Monivae College without feeling anxious.  He does try to avoid driving near there so as to not experience those feelings of tension and panic.  Not surprisingly he has found that his reduced confidence in his work life has affected his personal life. His diminished mood has affected the quality of his involvement with family life”. (PCB 21)

53The doctor said he had commenced Mr Kennedy on a “new antidepressant and will look at sending him to a psychologist to help him re-establish his feelings of confidence…” (Ibid).

54Western District Health Service provided a further more extensive report dated 19 June 2020 to Mr Kennedy’s solicitors, which was slightly more elaborate than the earlier document.  The report noted that during the five years of counselling, 2012-2017:

“The counsellor provided generalised counselling interventions including; ventilation, empathy, provided thought challenges to his relationship perceptions and skills in seeking support.  As a result a hearing took place and Frank received support from the principal and his manager with the outcome of the bully being reprimanded.  The counsellor’s interventions focused on debriefing about his job and using his management to resolve work place relationships. Other interventions focus on him being the primary carer to his mother after a (sic) injury in 2016, and family discord with his siblings about his carer role and using VCAT to manage the issues.” (PCB 22)

55According to the report:

“The outcomes included a reduction in feelings of scrutiny, reported thoughts of recognition around his work contribution, along with increased work hours and reducing financial burden. Improved work place engagement reported as polite and change perceptions of his work place relationships.” (Ibid)

56Dr Katrina Malin, as previously noted, has provided ongoing psychological counselling for Mr Kennedy.  She furnished a number of reports to his solicitors as to the treatment which she has administered.  The first, dated 14 March 2021, rehearsed how Mr Kennedy “reported a long history of what he perceived as intimidation and bullying behaviour experienced during his employment at Monivae College” (PCB 24).

57Dr Malin reported symptoms of stress and anxiety “[h]ypervigilance, anger, reactive mood states, a sense of frustrations based on work ethics” (PCB 25).

58Dr Malin diagnosed Mr Kennedy as suffering from Post-Traumatic Stress Disorder as defined in the psychiatric diagnostic manual “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (DSM-V)” (PCB 26).

59Responding to the question as to whether Mr Kennedy’s employment at Monivae was a “contributing factor to any psychological injury”, Dr Malin said:

“The ongoing exposure to situations that Frank has reported over the past years, has directly contributed to level of distress that have impacted on his mental wellbeing. Furthermore, his ongoing employment he feels is likely to be jeopardised as he feels he reacts more now to situations that [scil than] he previously did.” (Ibid)

60Dr Malin noted Mr Kennedy had received general practitioner treatment and counselling.  She said “it is likely that further counselling would enhance his ability to manage past reactions and enjoy a productive quality of life” (PCB 27).

61She did not advocate psychiatric treatment. She said “from a psychological perspective, Frank has capacity to re-enter the workforce, which he has engaged in” (Ibid). She noted, however, the problem with COVID restrictions.

62Dr Malin’s second report was dated 25 November 2021. Once again, she rehearsed his history.  Her diagnosis this time was again one under DSM-V, namely “adjustment disorder with mixed anxiety and depressive mood” (PCB 31).

63She noted at that stage that Mr Kennedy worked three part-time cleaning jobs, but felt “his current employment could be jeopardised if he is placed under increased stress such as being exposed to environments such as he experienced in Monivae” (PCB 32). She concluded that Mr Kennedy’s condition was stable (PCB 33).

64Dr Reid of Hamilton Medical Group, who took over from Dr McAllan as Mr Kennedy’s treating general practitioner, provided a report to his solicitors dated 10 March 2023.  The doctor said “Mr Kennedy suffered a deterioration in his mental health while employed at Monivae College where he worked as a cleaner between 2000 and 2019” (PCB 34).

65The doctor rehearsed the history of bullying, verbal abuse and exclusion from social interaction.  He recorded, consistently with Mr Kennedy’s affidavit, that Mr Kennedy was prescribed the antidepressant, Citalopram (20 milligrams), and Quetiapine (25 milligrams) to treat sleep disturbance.  The doctor said that Mr Kennedy “suffered restrictions and loss of enjoyment in his social, domestic and recreational activities” and was “much less sociable than he was previously”.  He said Mr Kennedy had reduced libido, suffered from insomnia and irritability, which affected relationships with himself and his wife (PCB 35).

66A later report dated 31 July 2023 from Dr Reid was generally to similar effect.  The doctor said “Mr Kennedy does require ongoing treatment for his psychological injury” (PCB 37).

67Dr Malin provided an updated report to Mr Kennedy’s solicitors by way of letter dated 2 August 2023.  She repeated the diagnosis of an adjustment disorder with mixed anxiety and depressed mood, in accordance with DSM-V.  She noted many of the symptoms complained of by Mr Kennedy himself, interestingly observing “[t]here is a definite lack of satisfaction in his quality of life, motivation is flat, and he must push himself to play golf” (PCB 39).

68She noted that Mr Kennedy “continues to attend monthly counselling” (PCB 40). She said he had “functional capacity to perform physical duties however psychologically returning to Monivae with the current management team is not recommended or supported” (PCB 41).

69Consultant psychiatrist, Dr Louise N Seward, saw Mr Kennedy for medico-legal purposes at the request of his solicitors.  She provided a report of her assessment by letter to the solicitors dated 25 July 2023.  She noted having available a large number of documents, including various reports from Dr Malin, Dr Reid, Dr McAllan and two Medical Panel Determinations and “investigation report” (PCB 44).

70Dr Seward took a history relative to the “hamburger incident” at Hamilton Police Station to the effect that Mr Kennedy “was falsely accused of doing something that he did not do.  He stated that he sat down next to a police officer, who was eating a hamburger, for 5 seconds” (PCB 46).

71Dr Seward said that Mr Kennedy was “particularly upset after the incident at the Hamilton Police Station, as he felt that people were spreading lies about what he had done, but this has settled down”.  She noted Mr Kennedy’s assurance that “he had a sense of humour, and had friends in the town with whom he could share a joke”.  She noted “[h]e might still wake at 4 or 5 in the morning but gets back to sleep.  He is sleeping from about 11:00 p.m. to 7:00 a.m” (PCB 50).

72Dr Seward noted Mr Kennedy “denied active suicidal thoughts”.  She found his insight and judgement satisfactory. She noted a description of “avoidant behaviour” relative to Mr X and Monivae College and recurrent intrusive thoughts about his problems at the College (PCB 52).

73As to his lifestyle, Dr Seward noted that he functions as “Mr Mum”, and he “helps with the children in the morning, and gets them to school, and does the dishes and then puts on a load of washing”.  She noted that Mr Kennedy “attends to his grooming.  He gets up and showers and dresses every day” (PCB 53).

74She noted the same symptoms of social isolation complained of by Mr Kennedy and his irritability with his children and the loss of libido (PCB 56). According to Dr Seward, “Mr Frank Kennedy has developed an Adjustment Disorder with Depressed and Anxious Mood in the setting of workplace stressors while he was employed as a cleaner at Monivae College” (PCB 54).

75The WorkCover insurer had Mr Kennedy assessed for medico-legal purposes by Dr Estela Papier, consultant psychiatrist, on 6 January 2020.  The doctor provided a report to the insurer by letter dated 8 January 2020.  The doctor diagnosed Mr Kennedy as suffering from “[a]n adjustment disorder with depressive and anxiety features and trauma symptoms with a differential diagnosis of major depressive disorder with anxiety” (DCB 9). These diagnoses were said to have been made according to DSM-V.

76The insurer also had Mr Kennedy assessed by consultant psychiatrist, Dr Gregor Schutz, on 4 August 2020.  The doctor provided a report to the insurer dated 10 August 2020.  As at that date, the doctor concluded that “Mr Kennedy's injuries are not stable for the purposes of impairment assessment (DCB 22). He diagnosed, in accordance with DSM-V, “an adjustment disorder with anxious and depressed mood”, (Ibid) which the doctor was inclined to attribute to Mr Kennedy’s employment with the College.

77Carrying out an impairment assessment for statutory purposes, the doctor found none of the various headings for assessment more seriously affected than “mild” (DCB 26).

78A Medical Panel constituted by Dr Sudeep Saraf and Dr Anthony Sheehan in a Determination dated 20 February 2021, once again diagnosed an adjustment disorder with mixed anxiety and depressed mood (DCB 32). They noted a statement by Mr Kennedy that he was “not experiencing suicidal ideation” (DCB 31). The Panel found a 10 per cent psychiatric impairment (DCB 34).

79A further Medical Board Determination dated 4 March 2022, by a panel consisting of Dr Anthony Sheehan and Associate Professor Abdul Khalid, noted that:

“Mr Kennedy said that his mood varies but ‘most of the time I'm happy.’ Mr Kennedy said that he had maintained contact with one friend playing golf regularly and said that this helps to distract his attention from his work issues. Mr Kennedy said that at times he does feel sad and tearful when thinking about what happened at Monivae College and also the recent upsets caused by his current employment difficulties. [Presumably the hamburger incident].” (DCB 36-7)

80The second Panel also diagnosed “a chronic adjustment disorder with mixed anxiety and depressed mood” (DCB 38).

81Associate Professor Peter J Doherty, a consultant psychiatrist, undertook a number of medico-legal assessments at the request of the defendant’s solicitors.  The first, contained in a letter dated 31 November 2022, noted that the professor had been provided with some 12 items by way of reports and investigations.  In particular, the two Medical Panel determinations and medico-legal reports from Drs Schutz and Papier, along with reports from general practitioner, Dr McAllan, and psychologist, Dr Malin (DCB 42).

82The Associate Professor noted that the assessment was carried out via Zoom (DCB 43). The Associate Professor noted that Mr Kennedy had been diagnosed “as having an adjustment disorder with depressed and anxious mood” by two Medical Panels and by independent psychiatrists.  He continued “[t]hat is not an unreasonable diagnosis and explains the mild clinical symptoms reported by the worker.  The disorder has largely remitted under treatment” (DCB 49).

83He also observed that:

“The issues at Monivae have faded considerably. There is now an issue at a new worksite, and that is unrelated to the Monivae issues and reflects pre-existing personality factors and vulnerabilities.” (DCB 50)

84The Associate Professor provided a further assessment to the defendant’s solicitors by letter dated 25 September 2023.  The Associate Professor said “[t]here is no change to the worker's psychiatric condition over the two psychiatric examinations I have had with him” (DCB 59).

85According to the Associate Professor, the progress towards remission which he noted in his first report had been set back by the incident at Hamilton Police Station. He continued:

“An issue of note is that as the legal proceedings get closer to finalisation, the issues of Monivae become heightened. He does not like talking about them. He still feels resentment and anger. It would appear that the issues that occurred in the relevant workplace are not resolved because of the rigidly [scil rigidity] of his thinking, and the intensity of his feelings, and they will fade very slowly.” (DCB 60)

86The Associate Professor provided a supplementary report by way of letter to the solicitors dated 30 September this year.  Having been provided with supplementary material, the Associate Professor said that his diagnosis did not change.  He observed “[a]s indicated by the psychologist in October 2021, the worker has limited insight into other's behaviour. Thus, his reaction to conflict and negative comments can be inappropriate and misplaced” (DCB 64).

Conclusions

87In Katanas v Transport Accident Commission [2015] VCC 1156, a very experienced and highly regarded judge of this Court refused a finding of serious injury sought under the Transport Accident Act 1986.  His Honour noted the statutory requirement for a disorder under paragraph (c) of the definition to be severe, and continued:

“the consequences arising from a transport accident must be more substantial than the test posed [in relation to 'serious long-term impairment or loss of a body function']; that is, that they must be more than 'very considerable' when a comparison is made with other cases in the possible range of impairments.  Thus, consideration must be given to the vast array of mental disorders which may be encountered following a transport accident.  At one end of the spectrum is mild anxiety as a result of trauma, easily overcome without medical intervention.  At the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences, including psychoses, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts, suicidal ideation and suicide attempts.  Such conditions require extensive treatment and medication.  It follows that for a mental disorder to be described as being 'severe', it is at the upper echelon of those disorders in the possible range." (Emphasis added.) ((2017) 262 CLR 550, [14])

88The Court of Appeal, consisting of Ashley, Osborn and Kaye JJA (Kaye JA dissenting) (Katanas v Transport Accident Commission (2016) 76 MVR 161; [2016] VSCA 140), set aside his Honour’s determination. The majority (Ashley and Osborn JJA), having quoted at greater lengthy from his Honour’s judgment, said:

“The effect of what the judge said in the impugned passage was that the spectrum of least case to worst case was established by setting up, at the one end, a mild condition not requiring treatment; and at the other end, grave psychiatric disorders provoking the most extreme symptoms and consequences, such as to require extensive treatment and medication; and then to say that it followed that for a mental disorder to be described as ‘severe’, it is ‘at the upper echelon of those disorders in the possible range.’” ((2016) 76 MVR 161, 167; [2016] VSCA 140, [18])

89Their Honours continued on the same page:

“We do not doubt that the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be accounted as severe. But in our view the spectrum which the judge described was only one amongst a number of ways in which the question of severity might be approached, each of them being incomplete in itself. For instance, one might frame a spectrum, in a particular case, by reference to the accepted frequency and severity of the claimant’s symptoms (or consequences) such as flashbacks or nightmares, or by reference to the extent of inhibitions upon the claimant’s daily activities, or by reference to the extent of inhibitions upon the claimant’s occupation or further education. In each instance, a spectrum could be set up, ranging from zero to very great. But whilst each spectrum would be relevant to determination whether the statutory test was satisfied in the particular case, no one of them, by itself, would answer the critical question. In our opinion, the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test,...” (Ibid, 167; [19])

90Katanas’ case is particularly pertinent here because what the primary judge in that case said could be said likewise of Mr Kennedy’s case.  He has had no inpatient psychiatric treatment.  He has not been treated by a psychiatrist.  Indeed, he does not require frequent general practitioner attendances.  He is able to obtain his medication via an online service known as “Hot Docs”.  The “Docs” referred to is apparently a reference to “doctors” rather than “documents” (T33, L24-31).

91In Katanas’ case, the order of the Court of Appeal was that the decision of the primary judge be set aside and the matter remitted for determination to a different judge ((2016) 76 MVR 161, 168). The court did not determine that Ms Katanas had suffered a serious injury. The majority of their Honours accepted that the matters which had weighed with the primary judge were proper considerations as to whether the relevant disorder was “severe” so as to meet the requirements of the statutory definition. Their decision to set aside his Honour’s determination was based on the view that other elements of the life and condition of Ms Katanas should have been considered in making the determination.

92Seeking, therefore, to consider the range of circumstances which the majority of the Court of Appeal and the High Court regard as appropriate, I note, first, that the treatment which Mr Kennedy is receiving and the treatment which he is not receiving more pertinently, tend to mark his injury as less than severe.  Secondly, whilst Mr Kennedy is not seeking to bring a damages claim based on loss of earning capacity, the fact that he has been able to return to similar work viz part-time and/or casual cleaning work, as he did at Monivae College, is also a contraindication for the finding which he seeks.  Thirdly, whilst he does complain of social isolation and irritability, he has continued to be able to function both as a parent and as a member of the community.  Golf seems to be his special interest, and he is able to continue enjoying that pastime. 

93As he has told some examiners, he does have a sense of humour and his irritability has not entirely prevented him from socialising.  He agreed that he enjoys the company of some of the workers at the local Mitre 10 outlet, saying “that’s where I go down and have a chat … before [I] go home” (T24, L22-25). He is able to play with his son: they build Lego together (Ibid, L28-31).

94Fourthly, aside from being able to continue in employment with his cleaning which, by its nature, carries with it a degree of responsibility, he was able to function in society and was able to bring proceedings, presumably with the assistance of legal practitioners or social workers, to obtain what he regarded as a satisfactory outcome for the care of his mother.  In that respect, he brought proceedings against one or more of his siblings in the guardianship jurisdiction of the Victorian Civil and Administrative Tribunal (T27). He secured the appointment of State Trustees to manage his mother’s financial affairs. The ultimate objective was to obtain his mother’s admission into a retirement home “because she wasn’t looking after herself” (T27, L13-16). In a broad sense, therefore, Mr Kennedy continues to function as a family member and as a member of the community. He maintains an acceptable sleep pattern albeit with the assistance of medication (T68, L14-6; T69, L7-8).

95As Associate Professor Doherty opined, some of Mr Kennedy’s current presentation may be traceable to the “hamburger incident”.  Nevertheless, it was not contended on behalf of the defendant that this should be regarded as some sort of novus actus interveniens.  Any exacerbation of Mr Kennedy’s condition resulting from this matter is to be regarded as causally linked to the injury suffered at Monivae College.

96Mr Kennedy’s symptoms, as recorded by all examiners and by his own affidavits and viva voce evidence, undoubtedly exist and are significant.  None of the consequences of his injury, which I have sought to analyse, in itself or in combination with any of the others, in my view, indicates that he suffered a severe psychological injury by reason of his experience at Monivae College.

97This application is dismissed.