Koehler v Cerebos (Aust) Limited

[2002] WADC 108

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   KOEHLER -v- CEREBOS (AUST) LIMITED [2002] WADC 108

CORAM:   COMMISSIONER GREAVES

HEARD:   8, 10-12, 15-16 OCTOBER, 17, 19, 21 DECEMBER 2001 & 21-25 JANUARY 2002

DELIVERED          :   5 JUNE 2002

FILE NO/S:   CIV 2631 of 1998

BETWEEN:   NUHA JAMIL KOEHLER

Plaintiff

AND

CEREBOS (AUST) LIMITED
Defendant

Catchwords:

Negligence - Liability of employer - Unsafe system of work - Plaintiff merchandiser required to undertake duties of sales representative - Five day workload completed each week in three days over six months - Plaintiff developed complex fibromyalgia and a major depressive illness - Plaintiff's earning capacity totally destroyed - Pre-accident capacity and prospects excellent - Damage for non-pecuniary loss 30 per cent of a most extreme case or $79,470.90 - Past pecuniary loss $206,614.33 - Future pecuniary loss $383,433.21 - Total award $856,742.81

Legislation:

Workers Compensation and Rehabilitation Act 1981

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff:     Mr E M Heenan QC & Ms J M Stevens

Defendant:     Mr D R Clyne

Solicitors:

Plaintiff:     Marks & Sands

Defendant:     McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Bresatz v Przibilla (1962) 108 CLR 541

Council of The Shire of Wyong v Shirt & Ors (1980) 146 CLR 40

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291

Gillespie v Commonwealth of Australia (1991) 104 ACTR 1

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Miller v The Royal Derwent Hospital Board of Management & Anor (1992) A Tort Rep 81-175

Morton v William Dixon Ltd [1909] SC 807

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383

Paris v Stepney Borough Council [1951] AC 367

Teubner v Humble (1963) 108 CLR 491

Villasevil v Pickering (2001) 24 WAR 167

Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483

Case(s) also cited:

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35

Astley v Austrust Ltd (1999) 197 CLR 1

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Bensley v Commonwealth, unreported; DCt of WA; Library No 4351; 17 March 1995

Black v Motor Vehicle Insurance Trust [1986] WAR 32

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1997) 52 ALJR 20

Breen v Williams (1996) 186 CLR 71

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Bus v Sydney City Council (1989) 167 CLR 78

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Chappel v Hart (1998) 156 CLR 517

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Commissioner for Railways v Ruprecht (1978) 142 CLR 563

Compania Naviera Maropan S/A v Bowaters Lloyd Pulp & Paper Mills Ltd [1995] 2 QB 688

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226

County Ltd v Girozentrale Securities [1996] 3 All ER 834

Davie v New Merton Board Mills [1958] 1 QB 210

De Sales v Ingrilli (2000) 23 WAR 417

Dell v Dalton (1991) 23 NSWLR 528

Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177

Heather v Vita Pacific Ltd (1996) 6 Tas R 52

Hendrie v Rusli [2000] WASCA 249

Heskell v Continental Express Ltd [1950] 1 All ER 1033

Jaensch v Coffey (1984) 155 CLR 549

Jongen v CSR Ltd (1992) A Tort Rep 81-192

Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273

Kelly & Anor v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 October 1997

Kember v Thackrah [2000] WASCA 198

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Lawson v Flavel [2001] WASCA 272

Lister v Romford Ice and Cold Storage Pty Ltd [1957] AC 555

Mannall v State of New South Wales [2001] NSWCA 327

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Marsland v Andjelic (1993) 31 NSWLR 162

McLean v Tedman (1984) 155 CLR 306

Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196

Morgan v Tame [2000] NSWCA 121

Nicholson v Nicholson (1994) 35 NSWLR 308

Nolan v Hamersley Iron Pty Ltd (2000) 23 WAR 287

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Petch v Customs & Excise Commissioners [1993] ICR 789

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Reardon Smith Line Ltd v Australian Wheat Board [1956] AC 266

Sinnott v F J Trousers Pty Ltd [2000] VSC 124

Smith v Charles Baker & Sons [1891] AC 325

Smith, Hogg & Co v Black Sea & Baltic General Insurance Co [1940] AC 997

Southgate v Waterford (1990) 21 NSWLR 427

State of New South Wales v Seedsman [2000] NSWCA 119

Sungravure Pty Ltd v Meani (1964) 110 CLR 24

Thomas v O'Shea (1989) A Tort Rep 80-251

Toth v Yellow Express Carriers [1969] 2 NSWR 425

Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Walker v Northumberland County Council [1995] 1 All ER 737

Western Mining Corporation Ltd v Kinna, unreported; FCt SCt of WA; Library No 930128; 11 March 1993

Westralian Caterers v Eastmet (1992) 8 WAR 139

Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

Wodrow v Commonwealth (1991) 105 FLR 278

Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679

Wylie v The ANI Corporation Ltd [2000] QCA 314

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

COMMISSIONER GREAVES:

Introduction

1. During 1995 and 1996, the plaintiff worked for the defendant in its business of processing, manufacturing, packaging and retailing food products.  The plaintiff claims the defendant's system of work was unsafe during the last six months of her employment.  She claims the unsafe system of work caused her to develop fibromyalgia and major depressive illness, which psychiatric condition is now chronic.  The plaintiff pleads the following facts in pars 3 to 6 of the amended statement of claim, which the defendant denies:

   "3.During 1996 the Plaintiff was required by the Defendant to take on the dual role of Merchandiser and Sales Representative for an area from Quinns Rock to Fremantle servicing 15 50 of the Defendant's customers.

   The Plaintiff had been required to service some of these customers in 50 hours per week as a full‑time Sales Representative, however during 1996 she was required to service the customers and to merchandise (display) the products in 24 hours rather than 50 hours per week.

   4.After June 1996 the Plaintiff became stressed and anxious and reported her problems to her immediate superior.  She requested assistance with her dual roles of Merchandising and Sales Representative and more realistic targets with regard to sales and servicing.

   5.In September/October 1996 the Plaintiff developed symptoms of Complex Fibromyalgia syndrome and a stress and anxiety disorder which developed into a major depressive illness ("the psychiatric disorder").

   6.The development of the Plaintiff's injuries and illness as referred to in paragraph 5 herein were caused and/or contributed to by the negligence and/or breach of statutory duty and/or breach or contract of the Defendant."

Sequence of these reasons

1. I propose to review first the evidence of the plaintiff herself about the defendant's system of work and about her alleged injuries, illness and disabilities.  I shall then consider the expert medical opinion for the plaintiff and defendant followed by the evidence for the defendant about its system of work and the opinion evidence for the plaintiff about that system.  Thereafter I shall turn to consider the authorities and the facts to be found on the evidence in relation to liability and assessment.

The plaintiff's evidence about the defendant's system of work and her injuries, illness and disabilities

1. The plaintiff gave evidence she was born on 23 August 1954 in Baghdad, Iraq, where she lived until the age of 18.  She then moved to the United States of America with her parents where she lived in Detroit.  She was married on 23 July 1976.  She and her husband remained in the United States for seven years, during which their son was born on 2 December 1980.  The plaintiff said her husband was raised in Australia and in 1983 they arrived in Melbourne where they set up home.  After her son turned 5, the plaintiff obtained part-time employment at Myers.  The family moved to Western Australia in 1988 where the plaintiff said she took up a full-time position in charge of the toy department.  It appears the plaintiff left Myers in October 1989 and thereafter was employed by the Sharp Corporation, Pine Warehouse and Zamels Jewellers for short periods, both part and full-time.  In November 1991, the plaintiff obtained employment with Arnotts Biscuits where she remained until November 1994 in a part-time position described as "selling support".  She said she was "a sales rep merchandiser".

2. In November 1994, the plaintiff obtained a full-time position with the defendant as a sales representative.  The plaintiff said she enjoyed working for the defendant and explained how in November 1995 she "was successful enough that they picked me as sales rep of the year in the first year versus all those who have been there 10 years or more".  She described her general health up until late 1995 as "excellent".  The plaintiff said she had never suffered from serious illness, depression or psychological disorders.

3. The plaintiff then described how she worked for the defendant during 1995 and through the early part of 1996 in the full-time position of a sales representative.  She said at that time the defendant held the distribution rights for Tetley Tea in Australia.  In early 1996, the defendant lost that franchise.  At that time, the defendant also employed Mr Stephen De Coster and Mr Gavin Radford as full-time sales representatives.  Their supervisor was Mr Rick Morgan, Mr Ian Allan was the marketing manager and Mr Chris Budd the State manager.  The defendant also employed three merchandisers.  Each sales representative was supported by a merchandiser.  The plaintiff was provided with unrestricted use of a motor vehicle.  The plaintiff described her role as a sales representative and the role of a merchandiser.  The plaintiff negotiated sales of the defendant's products to independent supermarkets.  After the products were delivered to the supermarkets, the merchandiser set up the display of those goods in the supermarket where necessary.

4. The plaintiff stated the defendant expressed no dissatisfaction with the performance of her duties before or after March 1996.  In March 1996, Mr Budd called the plaintiff to a meeting at the defendant's Perth Office with two senior members of the defendant's Australian staff, Mr Paul Kerr and Mr John Douglas.  One of them handed the plaintiff an envelope and invited her to open it.  The plaintiff continued:

   "… it said that I was being retrenched and what package I was going to have and whatever whatever, and as I am reading it they're telling me why, Doug Love is telling me why I am being retrenched as I am reading the letter, and it's because of the Tetley Tea.  I knew somebody was going to go.  I didn't realise it would be me, because I supposedly was the best rep they had, but they explained why they did that.  … they said I'm the last one to join, therefore they saw it as the first one to go …".

5. The plaintiff produced Exhibit 53 which is a letter from the defendant to her dated 26 March 1996 together with a statement of the plaintiff's "termination cheque for $4,975.95".  The letter reads:

   "As you are aware, at the end of March 1996, the association between Cerebos (Australia) Limited and Lyons Tetley Australia ends.

   As a result, the operational requirements of our business dictates a reduction in our national sales workforce.  Unfortunately, we have to advise you that as a consequence, your employment will be terminated as of today's date.

   The details of your redundancy package are as follows:

   1.One month's payment in lieu of notice.

   2.Four week's severance pay.

   3.The company undertakes to settle all outstanding expense claims.

   4.Use of your current fully maintained company car for a period of one month.  Your responsibilities will remain as under the Cerebos Vehicle Policy.  The vehicle should be returned to your state sales office by close of business on 26/4/96.

   5.If you are in possession of any company equipment, this should also be returned with your vehicle.

   6.Your termination pay details are outlined in the enclosed letter from the Payroll Manager.

   We wish to thank you personally for your contribution to our business and wish you every success in the future."

6. The evidence of the plaintiff is that the three men immediately offered the plaintiff the position of a merchandiser with the defendant.  Her evidence was that the terms of the offer were discussed including permanent rather than casual employment, a higher rate of pay than other merchandisers including sickness benefits and holiday pay.  The plaintiff continued:

   "… I accepted it, because Paul Kerr said to me, 'You do realise we are not going to just sit back because we lost the Tetley Tea and accept 20 per cent less revenue.  We are in the process of acquiring other companies, other products, and we expect our business to continue to increase, and to his assessment, being third in charge of the company, he thought that it would be about 6 months before they acquired enough products, enough sales turnover, to be able to justify the expenses of a full-time person again, so they said, 'It is only temporary.  You will only have merchandiser's duties.  Go away.  Have fun for a month.  You've been paid for it.  Come back on 29 April.  In about 6 month's time you can have your job full-time again'."

7. Exhibit 54 contains the terms of the plaintiff's employment as a merchandising representative:

   "My note is to provide confirmation of your employment under the terms of merchandising representative.

   Employment conditions.

   A)Officially commence merchandising services from April 29th next.

   B)Working week will consist of Monday, Tuesday & Wednesday (24 hours).

   C)Salary structure is confirmed at $14.00 per hour.

   D)Car allowance of 47¢ per km.

   E)Out of pocket expenses to support incidental expenditure will apply and authorised by myself.

   Unofficially we look forward to seeing you on Monday 17th next to work out the remaining representatives role and officially say welcome back as in (sic) important team member.

   Best personal regards."

8. The plaintiff said that following the meeting, Mr Budd rang her later on that day at home.  She said she did not stop working for the defendant because Mr Budd wanted her to come back and finish her full-time employment for the month of April 1996.  The plaintiff took one week off to buy a car and then returned to work full-time for the following three weeks.  Mr Budd asked for the defendant's cheque and the plaintiff gave it back to him.  The plaintiff went on to recount that on 29 April 1996 she began her part-time employment as a merchandiser.  She saw Mr Gavin Radford who showed her what she described as her "territory listing".  The plaintiff continued:

   "… when I saw the stores that are on there I told him straight away, 'there's no way I can do this in 24 hours'

   … Because a lot of my big turnover stores were still there. …"

9. The plaintiff referred to Exhibits 16 and 17.  She said Mr Rick Morgan gave her Exhibit 16 in November 1994 and Mr Gavin Radford gave her Exhibit 17 on 29 April 1996.  She continued:

   "All the stores that were A and B, in the northern areas stayed the same, all 16 of them, stayed the same thing on my new area, and this is why I said to Gavin right away 'this is not going to work'."

10. The plaintiff gave evidence Mr Radford did not discuss with her who the sales representative for the area depicted on Exhibit 17 was to be and she carried out the sales representative work and the merchandising work.  She said Mr Radford told her to try it for one month and if she felt she could not cope to let him know.  She said she complained to Mr Radford after the first week and subsequently to Mr De Coster, Mr Allan and Mr Budd.  She said the general nature of her complaints was shortness of time for the priorities given to her and the size of the area in Exhibit 17.  She said Mr Radford did not want to know about her complaints.  She said she wrote complaints in various weekly reports contained in Exhibit 48.  She said she complained to Mr De Coster about the size of the area, the number of stores and the time available over three days as a part-time merchandiser.  He suggested she should take it up with Mr Ian Allan who suggested she should take it up with Mr Chris Budd.  She wrote to Mr Budd by memorandum dated 20 May 1996 which became Exhibit 39 and which reads:

    "Subject:  Territory A1

    I'm writing to you because I'm very concerned about my territory coverage.  We need to do some changes urgently.  The variety of stores I have along with my selling capabilities are making it impossible to provide a continuous reliable service.

    Firstly looking at the territory I have:  48 stores:  Territory A1:

    8 Supa Value stores:   Purchased 800 CTNS Gravox.

    3 Cheap Food stores:         "       500 CTNS Gravox.

    2 Bi Lo stores:                   "       260 CTNS Gravox.

    1 Advantage store:      Will purchase around 200 CTNS Gravox.

    1 Farmer Jack store:    Not visited yet.

    14 Foodland stores: Five have been visited with 250 CTNS Gravox purchased.

    5 Action stores:         Four have been visited purchased 300 CTNS.

    8 Coles stores:          None have been visited yet.

    6 W/Worth stores:     3 visited but not yet approached on Gravox.

    As you will see I've sold well over 2000 CTNS Gravox alone, not counting anything else since starting my new territory 3 weeks ago.  Displays are starting now.  All the time this will take plus all the time it's taking to continuously relay stores in all sorts of products and the cutting in of 100's of extra distribution products including some times, helping Gavin/Ian/Steven I have no time to check what the opposition is doing or extract helpful industry information.  This is much more than 24 hours can allow for.

    To give my displays to Bianca in my opinion is unfair to her as she already helps Gavin a lot and has a large area to cover.  The way I see it there are two ways to solve this problem.

    (1)     To reduce the territory amount of stores.

    (2)     To work on a fourth day.  May be if you could please explain to Doug Love that since the company have saved considerably in reducing 1 full time employees salary and vehicle plus comparing my productivity level to that of Lucy's he might approve and extra 4-5 hours for me which is still acceptable under a part time agreement.  This will secure sales and solve a lot of the overload problem.

    If the choice is to reduce stores then my suggestion is to give the following stores to Gavin:  (1) Advantage Joondalup.  (2) Bi Lo Woodvale. (3) Bi Lo Beaumarise.  (4) S/Valu Heathridge.  (5) S/Valu Wembley Downs.  Give Bianca (1) Coles Joondalup.  (2) F/Land Edgwater.  (3) F/Land Greenwood.

    A big reason why I'm successful in sales is because I'm trustworthy, reliable and do a lot of follow ups to insure (sic) excellence in customer service.  What I have now will shortly blow up in my face.  I'll have to turn a blind eye to many things if the current arrangement is to continue, however I do not operate that way and I'm not about to start now.

    I'll await your urgent reply please.

    Thank you."

11. The plaintiff wrote again, this time to Mr Ian Allan by memorandum dated 28 May 1996 which became Exhibit 40 and which reads:

    "Subject:  Action Tomato Paste

    The product normally is on the far end of the bay with a single facing.  This is mainly due to the Leggo rep move than anything else.  I found that I can basicly (sic) move any product at Action to our advantage and I'll have no arguments from management.  However in my particular case I now have a well over the top over loaded territory and all my time is going on Gravox & Salt.  Cutting in as many missing lines as possible and relaying and displaying where I've had time I've increased to 2 facings and moved us in to the middle.  Some stores I haven't done so yet.

    Also the N.A.S. Sachet is not accepted at Action.  This same exact story applys (sic) to W/Worth with the exception of them not carrying the jar.

    In short we reps can fix this problem at store level except for 'variant distribution acceptance'.  The problem is just what do you want us to prioritise out of the 1000 things needing to be done when we are also one full time person short."

1. A perusal of the reports contained in Exhibit 48 reflects among other things the plaintiff's concern about the level of sales she was able to achieve in three days.  The report dated 23 August 1996 bears the endorsement "Nuah, sales as expected from your territory, well done".  The reports in Exhibit 48 demonstrate the defendant expected the plaintiff to undertake duties as a sales representative and merchandiser, while at the same time train new merchandising staff.  She said her territory and workload were not reduced as a result of her complaints.  She said she complained to Mr Budd three times, the last occasion in September which she described as follows:

   "The third one was in September and I asked him if he knew any more about when I would be back to full time employment because in those 5 months the company was acquiring a lot more products and acquisitions, just like Paul Kerr said to me all along, back in March, so seeing that we had grown so much in products and of course that means a lot more work all the time, I thought I will ask when do they expect that I would go back to full time, being as 4 months had already past.  He said he wasn't in a position to offer me anything on that.  Nothing definite to tell me about that decision.

   … I said to him, 'Okay.  Well, in the meantime what have you finally decided about either changing the territory, reducing it, more hours or giving me help?'  He refused every single one … he said no to everything, so I just sort of – I looked at him in just total disbelief because here I was doing so much productivity level, far more than anyone, even far more than when I was full time, that he even picked me as rep of the year for and he's still refusing, so I just started walking outside of his office with just this look of disbelief on my face and he can tell, so he put his arms up in the air and he goes, 'I don't give a shit. I'm retiring in so many days I don't give a shit' that was his final answer."

2. The plaintiff referred to her diary, Exhibit 50, and the entry for 19 September 1996 which reads:

   "I went to see Chris about my workload.  Instead of him offering me help he said that I wasn't allowing enough time for certain duties and threatened 'Do you want to lose your job'.  He was completely ignorant about all the duties I was made to do for others on top of my own work."

3. The plaintiff said that this discussion occurred at the third and last meeting with Mr Budd. 

4. The plaintiff explained why she persevered when there was no response to her complaints:

   "I thought I will put up with it until near 6 months and then go back to full time because Paul Kerr had promised me that – he said that they're going to have more requisitions and more products and I was out there selling all these new ones and I can see the workload is getting more and more because the company's doing more and more requisitions so I thought, well, I'll stick it out because then after 6 months I'll have my old job back and then Bianca will work for me again."

5. The plaintiff referred to an internal memorandum from Mr Budd to Mr De Coster dated 26 April 1996 which became Exhibit 29 and which she said reflects the stores which were allocated to her on 29 April 1996, being 5 A stores 14 B stores and 31 C stores, a total of 50 stores.  The plaintiff explained by reference to Exhibit 26 the significance of the categories A, B and C.  Category A stores require weekly calls, category B stores require fortnightly calls and category C stores require calls every four to six weeks.  The plaintiff said her territory and stores remained as reflected in Exhibit 29 from 29 April 1996 and did not change.  She denied the suggestion in Exhibit 57 that following 29 April 1996 the defendant increased the number of stores the plaintiff was required to visit each week at her request.

6. In cross‑examination, the plaintiff again denied that she either requested duties as a sales representative or an increased number of stores.  The plaintiff was asked whether the defendant set targets for her.  She referred to the weekly reports, Exhibit 48, and the monthly priority number for each store which she said was the minimum she was expected to sell.  She said sales representatives were given a "priority list" each month which were returned to the defendant with the weekly report at the end of each month.  She explained:

   "I get to read what the priorities set to me are for the month.  I then have to keep that document for that month so I can achieve those priorities that are set for me for those stores.  When the month is over it goes back to the company along with the last report for that month."

7. The plaintiff said between 29 April and 2 October 1996, on 23 occasions she was sent to do "gigantic-sized jobs for others" on top of her own territory.  She was asked why she did not seek alternative employment and she repeated she had been promised her full-time job back after six months.  She continued:

   "They are the ones who begged me to have that part time job and made it more worth my while than they've ever offered anyone else, they made a new job.  There was never this job in the company before.  They created this job for me to keep me so then 6 months later I go back to full time they were scared shitless that I would leave and they'd lose that kind of sales turnover, especially when they need someone full time."

8. The plaintiff was asked what it was about the workload that was too much to which she replied "shortness of time for all the duties that I was asked to do".  She added that many of the products were "too heavy" in circumstances where she was required to handle many cartons over sustained periods of time.  The plaintiff was referred to her diary entry for 2 October 1996 where she recorded she continued heavy lifting and displays and could not take it any longer, so she went to see her doctor.  She gave evidence that at that time she thought all her aches and pains were coming from the physical part of her job.

9. The plaintiff described the features of her life since October 1996 which have prevented her from working as follows:

   "In the very beginning I had a lot of physical pain and very short (sic) after 2 October, in about two weeks or so I started to notice that mentally I wasn't the same.  I started to forget things, misplace things.  I started to notice people were getting upset with me, couldn't figure out why they were getting upset with me.  I wasn't able to sleep at all.  The first six weeks were impossible, to get any sleep, even with sleeping tablets.  Was totally exhausted, even small things became major things.  For instance, talking to my husband I seemed to not understand what he is saying to me and he doesn't understand what I am saying to him …"

10. The plaintiff recounted how she first consulted Dr Hendry and then Dr Hayes and Professor Burvill.  She described how she takes Zoloft and Prothiaden every night.  She also takes Nurofen for muscle pain.  The plaintiff gave evidence she goes out "very very little .. because I feel very safe at home.  If I am stupid at home, it doesn't matter if I am stupid outside, then I'm putting my safety at risk".  She said she easily falls asleep at the wheel and she finds being out in the car gets her very stressed.  She said she has trouble counting coins and she keeps shopping to a minimum by herself.  She said she leaves the household routine to the weekend so she can rely on her husband.  Prior to 1996, she said she carried out the household routine with domestic help but now she does most of it with her husband most of the time.  She added:

    "… Ever since I became ill I do what I want to do when I want to do it and how I want to do it and no one can tell me otherwise because anything else than this means stress.  If I get stressed everything goes down the drain and Dr Burvill has to start all over again."

11. The plaintiff said when she first went to Dr Hendry she had a very hard time moving altogether, plus she had a groin injury.  She said she had pain which started from the top of her neck, went down through her shoulders, to her arms, her fingers, wrists, her legs, the lower part of her back, the upper part of her back and her feet.  She said she was getting pretty exhausted in September 1996 but she still tried to go back to work.  The plaintiff said when she first consulted Dr Hendry she suffered continuous pain which increased when she was upset to "stabbing sort of pains".  She said the physical pain subsided over the time she consulted Dr Hayes.  She said she still suffers pain at the top of her shoulders and weakness in her wrists but agreed that this pain is a relatively small factor in her overall disability at the moment.  She said she believes her biggest problem is her "mental problems".  She continued:

    "In my current condition life presents itself to me as stress.  So lets say I wake up in the morning and I have to do a load of laundry.  I would procrastinate on that half a day because I am telling myself I have to do something.  The 'have to' presents itself as stress because I'm putting something on myself to achieve, and that presents itself as stress.  If in the afternoon I have to make a meal that presents itself into stress.  That's why I can't do nothing until my husband comes home and we don't eat until 7.30pm, 8.00pm nowadays.  So that's how life presents itself to me and the smallest things present themselves as stress, even for instance when I had that housekeeper when I was sick and got rid of her because of having to remember she was going to come on a specific day stressed me, having to make sure I had cash in my wallet on that day that she arrived stressed me, having to speak to her to tell her exactly what I want her to do that day stresses me so that it was a hell of a lot better getting rid of her and doing nothing or having it all done by the family than me having to communicate with someone who was there to help me."

12. The plaintiff went on to say that she experiences emotional outbursts, arguments, shouting and throwing and breaking things.  She said she has had "a lot" of these episodes in the last 12 months, more than once a month, once a week.

13. In cross examination, the plaintiff stated she could not do housework from October 1996 "mainly from a mental perspective … not because I had broken arm or leg … yes, I can do it.  Whether I do do it is another story. … I can only deal with things as my stress allows me to and I explained that yesterday".

14. The plaintiff was referred to Exhibit 7 and the report of Professor Peter Burvill dated 4 October 2001 at par 5 where the doctor observes:

    "Her present symptoms include the following: tiredness during the day, often feeling drowsy and wanting to sleep during the day, but having difficulty in getting to sleep at night.  She is very slow in many of her normal domestic duties, and at times finds it difficult to undertake normal household duties such as cooking.  She has marked loss of her former self confidence and self esteem and has a diminished concentration and impaired short term memory.  Her libido is markedly diminished.  She has a very poor tolerance of any stress, rapidly becoming very irritable, argumentative, verbally and occasionally physically aggressive."

15. The plaintiff said Professor Burvill used his own words to describe what she had told him over many consultations.

16. The plaintiff was also referred to Exhibit 11 which is the report of Ms Gisela Loader, Rehabilitation Consultant, dated 29 October 1996 and addressed to the Worker's Compensations Insurers.  At p 1 of that report, Ms Loader records:

    "Nuha reports that she has experienced severe tiredness and pain in shoulders, arms, neck, back, groin and feet following work for some months.  The symptoms settled on her days off but recurred on returning to work.  She noticed the first difficulties about one month after her employment situation and duties had changed at the beginning of May 1996.  She reported her difficulties to management on several occasion (sic) from about July, requesting that her work load be rearranged.  However this was not possible and she was asked to prioritise, which she found difficult to accomplish while maintaining high standards.  The symptoms increased to the point where she felt she was not able to continue to work and consulted her GP Dr Hendry on 2/10/96 and referred to and seen by Dr John Hayes on 23/10/96.  She has not returned to work so far."

17. The plaintiff was asked whether she first noticed difficulties one month after taking up the part-time position.  The plaintiff said this was so.  She said she reported her difficulties before July 1996 to the defendant.  She denied she told Ms Loader she was asked to prioritise and stated she was told the opposite by management.  She denied again she was told to prioritise by the defendant.

18. The plaintiff was also referred to her worker's compensation claim form, Exhibit 59, which in part contains the question "What actually happened and what caused the occurrence?  Include:  (i) what action was involved, eg – fall, caught between, struck by moving object" to which the plaintiff replied in writing:

    "Over two day period continuous heaving lifting of stock to build displays and climbing ladder with stock cartons of tomato sauces, table sauces and salad dressings."

19. The form continues "Describe (i) the most serious type/s of injury or disease caused by the occurrence, eg fracture, burn, cut, abrasion" to which the plaintiff has replied in writing:

    "Muscle pains and aches, back, groin, left and right arms, shoulders, feet and neck."

20. The plaintiff stated she believed this information was correct when she signed the form as true and correct.  In re-examination, the plaintiff stated at the time she was retrenched, she was re-engaged as a merchandiser only and said thereafter she was told to return immediately back to work to finish her full-time employment and start the new arrangement on 29 April 1996.  She said she was given her new territory on 29 April 1996 by Mr Radford and neither Mr Radford nor Mr De Coster performed the duties of a sales representative in her territory.  She said she asked Mr Radford if he was the sales representative for that territory and he said, "No, you are".

21. She continued:

    "I was given a number of different priorities of which some were sales.  There was a number of priorities and budgets to achieve those priorities in my area and they were given to me in the beginning of each month, in writing."

22. The plaintiff said that the priority lists were returned to the defendant each month and have not been in her possession since.  The plaintiff reaffirmed that on and after 29 April 1996 she was only ever given the one territory, which included four supermarkets from her previous territory.  She said these supermarkets were not added to her territory but became part of her part-time territory.  She said she asked to have some supermarkets removed from her territory but that did not occur.  The plaintiff was asked about her ability to perform household tasks after October 1996 and now.  She replied:

    "In the beginning I was physical.  I was always exhausted and in a lot of pain and in the first couple of years, I flatly refused to do any of it, from a mental point of view … the position now I do it if I feel like it, when I feel like it, how I feel like it and if I feel like it … I said before that every day common life matters present themselves to me as a stress situation because I see it as I have to accomplish or achieve something and if I am wanting to go and, lets say, cook a meal or do any of the number of things mentioned, I am putting pressure on myself to perform and I cannot do that.  I can't deal with that."

23. The plaintiff agreed that from a physical point of view, she has been able to perform all her household duties since October 1998.

24. The plaintiff returned to Exhibit 39 and the concluding sentence.  The plaintiff explained:

    "The way I see the situation is that it's my credibility on the line because I'm always on the road and my job is with my customers and if I lose that credibility I'll be out.  No one will deal with me.  Its very important, the customer relations is kept at absolute best."

25. The plaintiff again emphatically denied that the defendant's staff told her to alter her work habits in order to give priority to the more important jobs.  The plaintiff also said she explained to Ms Loader she had approached the people above her and every one of them on a number of occasions to ask for assistance and made suggestions about the different ways she felt she could manage the territory with the same stores that were in it, but no body wanted to know, no one replied to her, any of her letters, or spoke to her about it.

26. The plaintiff explained she had no inkling of a psychological or psychiatric condition in early October 1996.  She believed her very heavy workload three days a week was the cause of her physical symptoms.  She said the build-up of responsibility after April 1996 was very stressful.

The expert medical evidence for the plaintiff and defendant about the plaintiff's injuries, illness and disabilities in 1996 and at trial

1. The plaintiff first consulted Dr Neil Hendry on 2 October 1996.  By his report of 28 October 1997 (Exhibit 4) he states the initial consultations focused on the plaintiff's physical symptoms.  He says it then became clearer that there were significant stress related issues leading to depression.  There was no previous history.  He observed:

   "My first impression of Mrs Koehler was that she was impeccably dressed and had the demeanour of a woman who was highly competent and efficient.  Her speech was very articulate and expressive.  Over the course of the subsequent year I have watched Mrs Koehler's functioning dramatically deteriorate."

2. Dr Hendry referred the plaintiff to the rheumatologist, Dr John Hayes, who first saw the plaintiff on 23 October 1996.  In his report of 31 October 1996 (Exhibit 5), Dr Hayes records the history which the plaintiff gave him similar to that which the plaintiff gave in evidence.  He expressed the opinion the plaintiff most likely had a work related "fibromyalgia syndrome", which he said is currently subject to considerable debate in rheumatological literature.  Dr Hayes reviewed the plaintiff on 19 November 1996 and reported on 11 December 1996:

   "… I believe this lady's symptoms are multifactorial, ie she demonstrates features of Depression combined with a CHRONIC PAIN SYNDROME consistent with Fibromyalgia Syndrome.  The alleged pressure of her work appears to be the precipitating factor in the onset of this lady's symptoms, hence I have referred to this as being a 'work-related Fibromyalgia Syndrome'.

   Fibromyalgia Syndrome is thought to be a psycho-physical disorder resulting in Pain Amplification in certain people predisposed to developing this type of condition.  Hence the patient's psychological makeup in the first place is of significant importance in the development of this condition which in turn has been precipitated by the stress of her work."

3. By January 1997, Dr Hayes formed the opinion the plaintiff needed psychiatric help because many features of her anxiety and depression were clouding her clinical picture.  He referred her to Professor Peter Burvill.

4. In his report of 21 July 1997, Dr Hayes referred to the plaintiff's claim she had to do five days work in three days and expressed the opinion the plaintiff thus had to work a lot harder, which he considered was the main contributing factor to the stress which has precipitated her symptoms.  He expressed the opinion that her retrenchment had nothing to do with it and he doubted whether the unloading of crates and displaying cartons of heavy retail products would predispose the plaintiff to musculo‑skeletal injury.  He continued at par 3 of the report:

   "3.Fibromyalgia Syndrome is thought to be a psycho‑physical disorder and the psychological stresses she has been under at work most likely precipitated the onset of her symptoms.  Most patients with this condition have chronic pain continuing indefinitely for 5 years or much longer.  Some patients do recover, however this, in turn, may depend a lot on the psychological and emotional state and how well they are able to cope with their pain syndrome.  It is possible that she could be rehabilitated back into her original position at some stage in the future.  Clearly this would depend on the availability of work as well as the patient's motivation to re-enter the work force.

   4.At the present time I do not feel that she is capable of working in any capacity mainly due to her psychological state.

   5.Research has shown that most patients with Fibromyalgia Syndrome are symptomatic for 5 years or longer.  Many patients have chronic lifelong symptoms.  Some patients, however, do make a full recovery.  It is thus very difficult to predict how long this lady is like to be symptomatic.

   6.I have enclosed papers by Professor G O Littlejohn and Professor R S Panush which were presented at the recent 19^TH CONGRESS OF RHEUMATOLOGY in Singapore in June 1997.  These papers outline the modern thinking on the development of Fibromyalgia which is now considered to be a disorder of function within the pain system resulting in sensitisation of dorsal horn pain transmission regions which, in turn, cause the clinical features of Fibromyalgia.  Mrs Koehler would fit into the category of 'Complex Fibromyalgia Syndrome'.  These patients are usually more disabled and have significant psycho-social factors interacting with the Fibromyalgia.  The long term prognosis is also very guarded in that most patients remain symptomatic indefinitely.

   7.Mrs Koehler has demonstrated florid psychological features of anxiety in particular accompanied by panic attacks and she is unlikely to show improvement in her physical symptoms until her emotional state is better controlled.  I would strongly disagree with the view by Dr Marsden that this lady has a Factitious Disorder, nor is she trying to exaggerate her symptoms."

1. Dr Hayes saw the plaintiff before trial on 19 September 2001.  In his report of 4 October 2001, he records that the plaintiff continued to complain of pain over both shoulder regions and a sensation of "weakness" in both wrists together with a "slight ache", worse when using her hands.  He observed the overall degree of musculo-skeletal pain appeared to be considerably less than when he saw her between 1996 and 1998.  He considered the plaintiff's physical symptoms had definitely improved with the passage of time and likewise her emotional state had improved as well.  He expressed the opinion that the plaintiff then had only minor residual symptoms of fibromyalgia.  He noted the plaintiff continues to have ongoing psychiatric care.

2. In his evidence before me, Dr Hayes said between October 1996 and October 1998, the plaintiff's physical symptoms and her psychological state were "quite bad and she certainly couldn't work at all during that period".  On 19 September 2001, Dr Hayes felt the plaintiff's psychological state and her physical symptoms had improved.  He felt if the plaintiff was motivated to return to work, she could carry out light clerical-type work, such as a receptionist.  He expressed the opinion the plaintiff's capacity to perform such work depended to a large degree on her psychological state.

3. In cross‑examination, it became apparent Dr Hayes was not aware of the date of the plaintiff's retrenchment.  When informed, he said that would certainly be a stressor or a stressful factor.

4. Dr Hayes confirmed his opinion that from examination on 19 September 2001, the plaintiff had tender points only on top of the shoulder.  He was referred to par 6 of his report of 4 October 2001 where he expressed the opinion there are personality traits which would predispose a person to the plaintiff's condition.  He was asked how such personality traits may be recognised and replied, it is: (T47)

   "… more than likely they have got underlying psychological problems in the first place and that the stress at work, etc is what sort of ignites the flame and brings out the physical symptoms and the overt psychological problems."

   He agreed it would be difficult to recognise those traits in advance.

5. In re-examination, Dr Hayes expressed the opinion the reduction in the plaintiff's hours from 29 April 1996 was a major stress factor.

6. Professor Burvill first saw the plaintiff on 30 January 1997.  At p 2 of his report of 3 April 1997 (Exhibit 7), he says she complained of excessive tiredness, and widespread pain, involving areas as diverse as her neck, across her chest, her back, shoulders and down both arms and into her groin.  By the time Professor Burvill saw the plaintiff, she said she was physically much better, although far from 100 per cent and in particular, still became very tired quickly and still had a residue of widespread pain.  Psychiatrically, her symptoms included increasing depression, marked insomnia, poor concentration, short term memory loss, making simple mistakes when talking and in simple tasks such as spelling in her grocery list, marked lack of confidence, withdrawal from contact with people, loss of interest and ability to do her housework, not wanting to drive a car and continued feeling of anxiousness and tenseness.  Professor Burvill recorded similar symptoms when he saw her again on 13 March 1997.  He said he made a diagnosis of a moderately severe major depressive illness, associated with marked agitation and anxiety symptoms.  He noted there was no past history of psychiatric illness.  He said he was unable to detect any personal problems which may have contributed to the plaintiff's physical or psychiatric state.  He expressed the opinion there was a very clear association between the events described in the work place and her present psychiatric condition.  He expressed no opinion upon the diagnosis of fibromyalgia by Dr Hayes.  Professor Burvill's subsequent report of 22 May 1997 suggests that at the time of writing his report of 3 April 1997, he had not seen the reports of Dr Hayes.  Professor Burvill was then of the opinion the symptoms of fibromyalgia and major depression were not directly related to the termination and reappointment of the plaintiff in March and April 1996, but were related to her work conditions.

7. In his report of 28 October 1997, Professor Burvill expresses the opinion the plaintiff suffers from two different medical conditions, complex fibromyalgia syndrome and major depressive illness.  He says although one is often associated with the other, that is not always so.  In this case he expresses the opinion the onset of each condition was associated with the same psychological stress.  He says each condition should be seen as a separate condition in its own right although they have a common aetiology.  He continues at par 5 of that report:

   "In my opinion Mrs Koehler is disabled and unable at present to continue to work on account of a major depressive disorder.  In addition, as far as I can assess from the history given to me by Mrs Koehler, the Complex Fibromyalgia Syndrome, in its own right, irrespective of whether or not she had major depressive illness, disables her to the extent of preventing her from continuing to work.  As this condition is predominantly a rheumatological condition, I refer you for specific details to Dr Hayes.  However, I can say that Mrs Koehler suffers intermittent, very sharp stabbing pains of short duration whenever she lifts heavy objects and that this pain subsides when she places them down.  As such, this considerably impairs her ability to work, as it does impair her to undertake certain household duties.  In her last occupation with Cerebos Foods, lifting and carrying heavy objects was an essential part of her occupation.  In addition, Mrs Koehler suffers a different type of pain, a more constant nagging pain in her various joints, including her shoulders, her arms, wrists and her legs.  This latter pain is made worse in situations where she is under pressure, when she is anxious and tense and various changes in the weather, especially in cold weather.  This pain is greatly relieved when she lies down and when she is relaxed.  As tension and anxiety are a major contributor to the symptoms of Mrs Koehler, she very often suffers pain of various types and severity in her joints.  These would considerably impair her working ability and at present would prevent her from undertaking any form of employment.  I should point out that Fibromyalgia Syndrome tends to be a very chronic condition and can take several years to settle.  When there is an associated psychiatric condition such as moderately severe anxiety disorder or a major depressive illness, the resolution of the syndrome is considerably delayed until the psychiatric condition is fully under control."

8. Twelve months later, Professor Burvill says in his report of 15 October 1998 the plaintiff continues to be psychiatrically very disabled.  He says her depression is under reasonable control with a likely need for anti-depressant medication on a regular basis for a prolonged time.  By 9 June 2000, Professor Burvill expresses the opinion the plaintiff's psychiatric state has become "quite chronic".

9. In his last report of 4 October 2001, Professor Burvill was asked to comment on the suggestion the plaintiff is a "perfectionist" and "obsessive".  He observed by nature the plaintiff was always a very capable hard working, well organised person, who strove to gain higher standards in her work and took great pride in her work and her achievements.  As such Professor Burvill considered these personality characteristics were very positive traits which helped her to be such a good worker, as attested by her award.  He continued:

   "I agree the above personality traits would have predisposed her to psychiatric problems under those situations.  Her inability to complete her task to her usual high standards, the excessive work load and the accompanying time restraints did not allow her to perform her duties to her usual high exacting standards.  She did appear to have some rigidity in her approach to work, in striving to attain very high standards and in her particular method of working.  In her new part time position she felt that she was demoted and that her previous high standards and work achievement were not being appreciated.  She felt very strongly that she was being reemployed as her sales ability was very important to the company, but that the management ignored the major adverse work condition under which she was expected … to perform her increased duties."

10. Professor Burvill goes on to express the view the plaintiff's former marked depressive symptoms are under reasonably good control with high dosages of anti-depressant medication.  He records a number of continuing psychiatric symptoms, anxiety, tiredness, insomnia, diminished concentration and impaired short term memory.  The anti-depressant medication has contributed to an increase of her weight of approximately 30 kgs which itself has contributed to her poor confidence and loss of self esteem.

11. Professor Burvill expresses the opinion the plaintiff is completely incapable of working at present owing to her psychiatric condition.  He says it is very unlikely she will ever be able to work again owing to her psychiatric condition.  Interestingly, Professor Burvill comments the plaintiff's concentration is impaired and becomes markedly so when under any stress.

12. In evidence before me, Professor Burvill said he had seen the plaintiff about 60 times over four and a half years.  He said at present she has some residual symptoms of depression but not the full picture when he first saw her.  He says the plaintiff now has low self esteem, low confidence, is highly anxious, depressed with poor concentration and poor memory.  He said he thought the prognosis of her going back to work was not good at all over the next five years and unlikely over 10 years.  He said she has a chronic illness.  He said the plaintiff mentions her aches, pains and weaknesses but he focused on her anxiety and depressive symptoms.  He did not consider her disorder factitious or in remission, although he considered it in partial remission at present.

13. In cross‑examination, Professor Burvill agreed the plaintiff was devastated by her retrenchment and felt she had lost prestige.  He considered her perfectionist personality and her workload between 29 April and 2 October 1996 contributed to her depression and anxiety which he believed began in June 1996.  He said he had not formed the opinion from the history given to him the plaintiff or her husband experienced financial problems in 1996.

14. Professor Burvill was cross examined about the plaintiff's future capacity for work and said: (T82)

    "Her concentration was never very good.  She didn't tolerate interaction with other people very well.  She tended to protect herself very much by isolating herself in her own home and leading a fairly isolated homebound life.  If there was any interaction with other sort of people, as you would have when you work, she flares up very easily; takes offence very easily.  Doesn't take much stress at all to get her going."

15. Professor Burvill expressed the opinion the plaintiff's agoraphobia did not prevent her going out alone but she felt much more comfortable with her husband.

16. Professor Burvill subsequently had the opportunity to view the video Exhibit 45.  He did not consider the scenes in the video to be inconsistent with his diagnosis.  He said it is very characteristic of agoraphobia that those symptoms are worse when the person concerned is alone and the people feel more comfortable if they're in company.  He said a lot of the plaintiff's major depressive symptoms are under control with medication and have been for a while.  He observed she seldom smiles.

17. Professor Burvill agreed with Dr Skerritt's opinion the plaintiff's previous ability to work successfully and conscientiously contributed to her self esteem.  He did not accept the plaintiff attempted to compensate for loss of self‑esteem through retrenchment by satisfying work demands which she thought were unreasonable.  He considered the plaintiff's stress arose from the fact that she could not achieve what she was seeking to achieve under increased pressure.  He was asked if it was significant the plaintiff continued to work from 29 April to 2 October 1996 without succumbing to her physical symptoms and replied: (T27)

    "I don't know – I think when she eventually left, that was when the physical symptoms and everything else were at their peak and she couldn't carry on any longer.  The fact that she kept going, even though those symptoms were beginning to accumulate over time, both psychological and physical, is an index of her conscientiousness, wanting to work, she does the best thing, the sort of personality characteristics we've talked about before, the sort of personality characteristics that make her a good worker and the of personality characteristics which, as I understand, were a major contribution to being the sales representative of the year the year before.  She's a fairly conscientious – she just likes to work and to keep working to her is very important.  It's only when she finally couldn't go any further – boom."

18. The plaintiff was referred to Dr Paul Skerritt who saw her first on 24 and 29 March 1999.  He had seen the opinion of Professor Burvill.  Dr Skerritt acknowledged the diagnosis of major depressive disorder and fibromyalgia.  He believed it is also often possible to conceptualise the symptoms of fibromyalgia in terms of the physical symptoms of anxiety with particular emphasis on muscular pains and weakness.  He said there are factors of personality and culture contributing to the somewhat florid way in which the plaintiff's symptoms are presented.  He concluded:

    "I would have to agree that the prognosis after a period of good but unsuccessful treatment must now be regarded as quite poor and I think it quite likely that she will not achieve remission of her symptoms sufficiently to work again.  When anxiety and depressive symptoms prevent work they usually do it for all sorts of work as such symptoms as poor concentration and irritability and poor motivation are the major features intervening between the diagnosis and the inability to work."

19. Dr Skerritt saw the plaintiff again on 27 August 2001 and observed she continues to take anti-depressant treatment, Sertraline 225 milligrams and Dothiepin 50 milligrams.  He observed in general her condition did not seem a great deal different from when he saw her in 1999 despite this careful treatment.  At par 7 of his report of 19 September 2001, Dr Skerritt was asked whether the plaintiff's presentation, demeanour and treatment were still consistent in his opinion with a major depressive disorder complicated by symptoms of anxiety. He replied:

    "In my opinion this is the case.  When I saw her on 27 August 2001 she still described withdrawal and irritability, poor concentration and memory, lack of motivation to everyday activities such as cooking that she used to do in addition to her paid work, panic attacks in situations outside the house and continuing pain mixture of these symptoms."

20. He also expressed the opinion the plaintiff's symptoms of illness were entirely attributable to her work situation.  At question numbered four in this report, Dr Skerritt was asked about the factors of the plaintiff's personality which he referred to in his first report and which I have already mentioned.  I set out the question and Dr Skerritt's answer:

    "Our clients work colleagues and clients' describe her as "a perfectionist" and Dr Hayes' describes her as having and obsessional personality.  Did you find any of these personality traits in our client during your reviews and, would personality traits like this be likely to contribute to a perception by her of physical and mental overwork?  In other words, is it consistent with your assessment of our client's personality that she would find it stressful to be unable to complete her job satisfactorily in the time allotted to her?

    Concepts of personality and Personality Disorder are complicated.  The presence of characteristics or abnormality of personality is a different question from the classification of those characteristics.  Indeed a consensus of opinion in psychiatry is that the classification of personality at present is rather unsatisfactory.  Personality, by definition, refers to observations of continuous levels of functioning and it is always a serious mistake to observe the behaviour characteristic of mental or physical illness and draw conclusions about personality from it.  In psychiatry we use the term 'premorbid personality' to indicate the necessity to look at the level of personality and function before the onset of the illness.  In scrutiny of her life before this we note that she had a conscientious and ambitious attitude to work particularly in sales areas.  She achieved great pleasure from bonuses and prizes for her performance.  My assessment from the description of her activities before the incident include the characteristic of extraversion leading her, for example, to sales positions but a degree of drive and conscientiousness leading to the descriptions of perfectionism, which you mentioned.  In such people, without succumbing to the psychiatric temptation to speculate too much, there is often a great contribution to self-esteem from the ability to work successfully and conscientiously.  I would suggest that this put her in a vulnerable position to the deterioration in her work status and she attempted to compensate by satisfying the work demands that she never the less thought were unreasonable.  Her inability to satisfy these demands, in my view led both [to] the development of her psychiatric symptoms and to muscle pains.  There are different ways of viewing were (sic) the muscle pains fitted into it.  I would be quite happy to see them largely as a result of the muscle tension, which is a usual accompaniment of anxiety.  The diagnosis of fibromyalgia is an alternative way of looking at the situation.  Thus the personality that she brings into the situation, while an asset to her in many ways when her life was going well, became a liability to her in the face of difficulty at work.  Thus on the analogy of the 'egg shell skull principle' she was vulnerable to the development of symptoms although asymptomatic at the time of the onset of these stressors that provoked the symptoms.

    The concept Personality Disorder implies a continuous malfunction as a result of personality characteristics and I do not think scrutiny of her life history before the onset of these symptoms allows such a conclusion to be made."

21. At par 5 in the same report, Dr Skerritt was asked to explain his opinion regarding the conceptualisation of fibromyalgia to which I have referred and he replied:

    "This is a subject on which I am always interested to engage in discussion with my rheumatologist colleagues.  A diagnosis in medicine is ideally made with respect to the cause of the illness.  Thus nowadays a diagnosis of tuberculosis is made in terms of isolation of the organism mycobacterium tuberculosis.  Before the cause was known, the illness was still known to medicine but defined in terms of a group of symptoms such as pallor, weight loss, coughing of blood etc.  Unfortunately this is still the state of psychiatric diagnosis or nosology (the science of classification of disease).  A diagnosis of anxiety, for example, can be made very reliably by different psychiatrists by the description of symptoms and criteria for such descriptions are formalised in such manuals as the Diagnostic and Statistical Manual of the American Psychiatric Association or the International Classification of Disease.

    A diagnosis of fibromyalgia is one that is also made on the basis of a group of symptoms or syndrome rather than the demonstration of a cause.  When one looks at the group of symptoms described they are of a subjective nature including muscle aches and pains and weakness as the predominate features.  Less well-defined symptoms of anxiety and depression are added to the diagnosis.  A less reliable way of defining a diagnosis but never the less of significance, is by response to treatment and it always interests me that treatment with antidepressant medication is favoured by my colleagues who use the diagnosis of fibromyalgia.

    When I view patients who have been given this diagnosis, the principle of 'Occarn's Razor' leads me to think that it is not necessary to make a diagnosis other than anxiety, which also typically causes muscle pain and weakness as well as the other symptoms of anxiety and associated depression.  Thus a person with the same group of symptoms could be classified differently.  This does not affect the nature of the symptoms but simply the way the doctor classifies them.  Thus the unfortunate Mrs Koehler is still suffering from her muscle pains whether they are conceptualised by a doctor as part of an anxiety syndrome or the syndrome of fibromyalgia."

1. In Teubner v Humble (1963) 108 CLR 491 at 506, Windeyer J explained the approach to be taken to the assessment of "non‑economic" loss when he said:

   "The destruction or diminution of a faculty has another, and non‑economic result because of the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer.  This element is commonly and conveniently (but not, I think, very happily) called a 'loss of amenities'.  It results from the destruction of impairment of a faculty, just as does 'loss of wages'.  But a man's labour and skill have a market value.  He can sell them.  So that compensation for loss of capacity to earn money is susceptible of pecuniary assessment, although it is not precisely determinable because of the uncertainties of the future.  But a man cannot sell his capacity for enjoyment.  It has no calculable monetary value.  The destruction of the one is thus not, I think, to be compensated on the same principles as the destruction of the other."

2. The learned authors of "Tort Liability for Psychiatric Damage" expressed the following opinion in relation to the assessment of damages for psychiatric injury at 264:

   "All too often the question of damages for psychiatric harm is dealt with in a sentence of two with no indications given as to the reasoning which led to the figures decided on.  Guess work, unfortunately are not uncommon means by which sums are arrived at under various heads of compensable loss in the personal injuries sphere, is the primary tool of the court's disposal in psychiatric damage cases.  This has inevitably resulted in some instances in different judges taking radically differing views based on identical facts."

Findings of fact about the plaintiff's injuries, illness and disabilities relevant to the assessment of damages for non‑pecuniary loss

1. With some trepidation, therefore, I turn to the evidence of the plaintiff and her husband and the expert evidence to identify the facts pertinent to the assessment of damages for non‑pecuniary loss in this case.

2. I find on the evidence of the plaintiff and Dr Hayes that from October 1996 the plaintiff suffered musculo-skeletal pain in her neck, shoulders, wrists, fingers, upper and lower back, legs and feet.  I find this pain had substantially settled within two years of her employment by the defendant.  I accept the evidence of the plaintiff she still suffers pain at the top of her shoulders and weakness in her wrists.  She agreed this pain is a relatively small factor in her overall disability at the moment.  On this evidence, and the evidence of Dr Hayes and Professor Burvill the plaintiff now has only minor residual symptoms of fibromyalgia.

3. By January of 1997, Dr Hayes formed the opinion the plaintiff needed psychiatric help and referred her to Professor Burvill, who saw her first on 30 January 1997 when the plaintiff told him she was physically much better although she still became very tired quickly and still had a residue of widespread pain.

4. I shall return shortly to the evidence of the plaintiff and the medical evidence relevant to the assessment of damages in this case.  I shall also refer to the evidence of the plaintiff's husband.  The facts which I have found and the conclusions which I have expressed in relation to the liability of the defendant lead me to conclude in the assessment of damages the plaintiff would not have developed psychiatric illness absent the abnormal workload and conditions which the defendant imposed on the plaintiff.  In my opinion, it is very unlikely the plaintiff would have come to her present state if she had not been subjected to an excessive workload.

5. On the evidence of Professor Burvill and Dr Skerritt, I find the plaintiff was only susceptible to such psychiatric illness insofar as she wished to achieve the best results she could for her employer and enjoy the satisfaction of a job well done.  Otherwise, so far as it may be relevant, I find the plaintiff was a person of normal fortitude.  It follows from these conclusions there is no place on the evidence in this case to increase the award of damages by reference to the eggshell psyche principle or to discount the award because the plaintiff might have suffered such an illness in any event.

6. I find the plaintiff had no appreciation of her psychiatric illness until after she left the employ of the defendant in October 1996.  Her physical pain was then paramount.  On the plaintiff's evidence, I find after two weeks or so she started to notice mentally she was not the same as she had been previously.  She started to forget things, misplace things.  She noticed people became upset with her but did not know why.  She had considerable difficulty sleeping even with medication.  She became totally exhausted.

7. So far as it is necessary, the evidence of Dr Neil Hendry corroborates the evidence of the plaintiff about the early onset of her illness.  He referred her to Dr John Hayes who very quickly formed the opinion the plaintiff needed psychiatric help because many features of her anxiety and depression were clouding her clinical picture.

8. I have already observed Professor Burvill first saw the plaintiff on 30 January 1997.  Thereafter, he diagnosed a moderately severe major depressive illness.  While he considered the plaintiff suffered from two different medical conditions, complex fibromyalgia syndrome and major depressive illness, he was of the opinion, and I find, each condition was associated with the same psychological stress and has a common aetiology.  On the evidence of the plaintiff and Professor Burvill, I find by October 1998 the plaintiff continued to be psychiatrically very disabled.  I find her depression was under reasonable control with a likely need for anti‑depressant medication on a regular basis for a prolonged time.  Likewise, on the evidence of the plaintiff and Professor Burvill I find by 9 June 2000, almost two years later and four years after the plaintiff left the employ of the defendant, her psychiatric state had become "quite chronic".  On the evidence of the Professor, I find the plaintiff's former marked depressive symptoms were then and are now under reasonably good control with high dosages of anti‑depressant medication.

9. I have referred to the evidence of the plaintiff and that of Professor Burvill in relation to his observations in his report of 4 October 2001 at par 5, where the Professor describes the plaintiff's continuing symptoms of psychiatric illness.  His observations provide a concise summary, which the plaintiff adopted, of the effect which her illness has had upon her since 1996 and continues to have upon her.  Upon that evidence, I find as a fact the plaintiff continues to suffer those symptoms.  I also find the plaintiff continues to suffer from agoraphobia, the symptoms of which are worse when the plaintiff is alone.  I accept the evidence of the Professor the plaintiff seldom smiles, an observation which is consistent with her demeanour in the witness box.  She also exhibits a constant underlying aggressive demeanour.

10. I have given particular attention to the complaint of the plaintiff and the evidence of Professor Burvill she experiences poor concentration and poor short term memory.  Counsel for the defendant urged upon me this complaint is not consistent with the demeanour of the plaintiff in the witness box.  I do not accept that submission.  I find her symptoms are in part under control by medication.  More importantly, however, I am of the view the plaintiff has continued to re‑live the experience of the last six months of her employment with the defendant and the consequences which that employment has had for her since October 1996.  The result is the plaintiff is capable of repeating and dealing with those circumstances ad nauseam, owing to the very psychiatric illness from which she suffers.  Otherwise, I find, subject to medication, the plaintiff has suffered and continues to suffer from poor concentration and short term memory.

11. On the evidence of Professor Burvill and Dr Skerritt, I find the plaintiff's previous ability to work successfully and conscientiously contributed to her self‑esteem, which I find her illness has destroyed.

12. The evidence of the plaintiff's husband, Mr Kurt Koehler, confirmed the evidence of the plaintiff they were married in the United States in 1976 and have one son who was born in 1980.  Mr Koehler is an electrical engineer.  They came to Western Australia in 1988, where he continued to be employed full-time.  The plaintiff continued part-time employment and thereafter took full‑time employment.

13. He was asked to describe the plaintiff's general state of health, personality and outlook before October 1996.  He replied: (T242)

    "Yes, well, she had some excellent qualities.  She's a very outgoing‑type person, very capable, reliable, very responsible, certainly a high achiever in everything that she strives to do and, of course, she's the love of my life."

14. Mr Koehler went on to say the plaintiff enjoyed working and planned to continue working full‑time.  He said it was not essential for her to work from a financial point of view.  He continued: (T243)

    "She enjoyed sales.  She enjoyed going out and meeting people and communicating and she's a very sociable person and she enjoyed the challenge of being in the sales."

15. Mr Koehler was asked to describe the plaintiff's behaviour between April and October 1996 and he said: (T244)

    "She certainly was still a very eager person in wanting to do the best performance in sales, which she did.  However, I did see a big change in her own attitude and so on and physically she was looking to be exhausted."

16. A little later, Mr Koehler described the plaintiff's general behaviour and function at home from late 1996 to the present: (T244)

    "Well, basically she'd just become a different person altogether.  She's just not the same person that I knew when I met her …"

17. Mr Koehler agreed the plaintiff was unable to cope emotionally.

18. Mr Koehler confirmed prior to 1996 the plaintiff undertook general domestic duties.  He said since then he has had to look after her and all the housework is under his care.  He said this occupied some two to three hours a day which commitment he said continues although the plaintiff now makes some small contribution to the housework.

19. He said he has tried to encourage the plaintiff to leave the house which he said is her "haven".  He said the plaintiff is no longer capable of socialising and keeps to herself.  He said the plaintiff still has some contact with her mother but otherwise she has a strained relationship with her family.

20. Mr Koehler denied the allegation the plaintiff's concerns for his health and their financial commitments contributed to her illness.  I have rejected these allegations by the defendant and I entirely accept his evidence in this regard.

21. In cross‑examination Mr Koehler agreed the plaintiff is now able to undertake some domestic duties.  He said, however, he continues to carry out the bulk of the work today.  In re‑examination, Mr Koehler said he continues to take his wife shopping every fortnight and from time to time they go to a fast food outlet.  He confirmed the plaintiff has difficulty in coping with money in such situations.  She is slow and sometimes becomes frustrated.

22. The evidence of Professor Burvill and Dr Skerritt is that the plaintiff's illness is now chronic but subject to control by medication.  Their evidence is, and I find, the medication has contributed to the plaintiff's increase in weight by approximately 30 kilograms.  I accept their opinion the increase in weight itself has contributed to the plaintiff's poor confidence and loss of self‑esteem.  On the expert psychiatric evidence I conclude there is very little likelihood, if any, the plaintiff's psychiatric illness will resolve in the foreseeable future, if at all.

23. It seems to me not unreasonable to conclude under this head of damage the plaintiff has been deprived of the ability to participate in normal activities and thus to enjoy life to the full which, as Windeyer J observed, has commonly been called "loss of amenities".  She has become a prisoner in her own world, tormented at first by physical pain and severe depression and now by severe depression and its consequences.

24. As I have explained, the Court is required to determine the award of damages under this head as a proportion of "a most extreme case".  As has long been established capacity for enjoyment of life has no calculable monetary value but in my opinion anything less than 30 per cent would be too severe a comparison between the plaintiff's case and "a most extreme case".  The plaintiff is therefore entitled to an award under this head of 30 per cent of $264,903 or $79,470.90.

Pecuniary loss

1. The evidence of Professor Burvill and Dr Skerritt is the plaintiff has been completely incapable of working from the time she left the employ of the defendant and it is very unlikely she will ever be able to work again owing to her psychiatric condition.  I accept the opinion of Dr Skerritt when anxiety and depressive symptoms prevent work they usually do it for all sorts of work as such symptoms as poor concentration and irritability and poor motivation are the major features intervening between the diagnosis and the inability to work.  Their opinion of the diminution of the plaintiff's earning capacity is confirmed by the evidence of Dr Ding and Dr Tannenbaum.

2. On the evidence of the plaintiff and her husband and in accordance with the eminent psychiatric opinion, I find the plaintiff's earning capacity has been totally destroyed and her prognosis is extremely poor.  I find it is extremely unlikely the plaintiff will return to gainful employment.

3. On the evidence of the plaintiff and her husband, I find her pre‑accident capacity for employment to have been excellent.  I find it is likely the plaintiff would have remained in full time employment until age 60.  It is therefore necessary to assess the past and future economic loss which the destruction of the plaintiff's earning capacity has produced.

4. In relation to past loss, senior counsel put the assessment on two alternative bases.  Firstly, on the assumption the plaintiff would have returned to full‑time employment notwithstanding she was part‑time over the last six months of her employment with the defendant; secondly, on the basis that the plaintiff would have continued in part‑time employment.  I find on the evidence to which I have referred, the plaintiff wished at all times to work in full‑time employment and would have returned to full‑time employment.  Her past and future pecuniary loss is therefore to be assessed on the basis that from December 1996, the plaintiff would have returned to full‑time work with the defendant or with another merchandising company.  The plaintiff has therefore had 4 years and 10 months past pecuniary loss at the rate of $27,910.48 net per annum.  In relation to her past pecuniary loss, the plaintiff is therefore entitled to the following award:

   4 years x $27,910.48  =   $111,641.92

   10 months x $2,325.87  =  $23,758.73

   $134,900.65

   Interest at 3 per cent  $4,047.02

   Car package of $269.23 net per week or

   $14,000 per annum x 4 years  $56,000.00

   10 months x $1,166.66  =  $11,666.66

   $206,614.33

Future pecuniary loss

1. I have found it is likely the plaintiff would have remained in full‑time employment until age 60.  The plaintiff's full‑time net pay per week was $536.74.  Using the present value of future weekly earnings 6 per cent tables, the plaintiff is entitled to the following award:

   $536.74 x 475.7  =  $255,327.21

   Car package $269.30 x 475.7  =  $128,106.00

   $383,433.21

2. In accordance with the observations of Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541 at 544, I make no deduction for future adverse contingencies in this case on the evidence. I have found the plaintiff was of normal fortitude and any reduction could only be arbitrary.

3. The conclusion under this head demonstrates future pecuniary loss in this case exceeds the prescribed amount of $126,145, and the plaintiff has suffered a serious disability.

Superannuation benefits past and future

1. In the light of my finding that the plaintiff's earning capacity has been totally destroyed and she would have continued in full‑time employment until age 60, the plaintiff is entitled to an award of $44,178 to compensate her for the loss of full‑time superannuation benefits, in accordance with the actuarial evidence of Matthew Molloy in Exhibit 12.  Once again I make no deduction for future adverse contingencies.

Past gratuitous services

1. The evidence of the plaintiff's husband was that he spent two to three hours per day in home duties and shopping which the plaintiff performed prior to her illness.  I have formed the view that Mr Koehler would have spent some time helping the plaintiff in any event and that two hours per day would be a reasonable assessment of the time during which he has provided gratuitous services.  I accept the commercial rate of assistance is $12 per hour plus superannuation and insurance.  The plaintiff claims $12 per hour and makes no claim for interest which results in the following award:

   $12 per hour x 14 hours  =  $168 per week

   $168 x 52 x 5  =  $43,680.00

Future gratuitous services

1. In the light of the evidence of Mr Koehler the plaintiff is able to undertake increasing duties in the home, I have come to the conclusion the plaintiff will gradually require less assistance per week to a minimum of seven hours per week.  The plaintiff's claim is therefore to be assessed under this head as seven hours per week to age 60 years.

   $12 per hour x 7  = $84

   $84 x $457.7  =  $38,446.80

Past special damages

1. The parties have agreed past special damages in the sum of $22,070.

Future special damages

1. The psychiatric opinion is that the plaintiff will continue to require counselling and substantial medication to control her illness.  I accept in these circumstances the basis upon which the plaintiff's claim is calculated is a reasonable basis.  I therefore assess future special damages in accordance with the expenses incurred by the plaintiff to date.  The plaintiff is therefore entitled to the following award under this head:

   $22,070 ÷ 5= $4,414 per annum or $84.88 per week.

   $84.88 x 457.7  =  $38,849.57

Conclusion

1. The counterclaim will be dismissed.  There will be an award of damages in the sum of $856,742.81.  The award is made up as follows:

   Non‑pecuniary loss  $79,470.90

   Past pecuniary loss  $206,614.33

   Future pecuniary loss  $383,433.21

   Superannuation benefits past and future           $44,178.00

   Past gratuitious services  $43,680.00

   Future gratuitous services  $38,446.80

   Past special damages  $22,070.00

   Future special damages  $38,849.57

   $856,742.81

2. The plaintiff is entitled to judgment accordingly.