Leslie v Anglicare Victoria
[2019] VCC 1007
•5 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CI-18-04593
| PAULA CARMEN LESLIE | Plaintiff |
| v | |
| ANGLICARE VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2019 | |
DATE OF JUDGMENT: | 5 July 2019 | |
CASE MAY BE CITED AS: | Leslie v Anglicare Victoria | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1007 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – application in respect of a loss of earning capacity and pain and suffering – reliance upon subparagraph (c) of the definition – earning capacity of the plaintiff – prior to injury the plaintiff a residential carer looking after children and adolescents – plaintiff’s mental condition after dealing with particularly difficult children and a parent in a specific injury – ultimate cessation of employment – capacity of plaintiff – pain and suffering – whether statutory tests satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Ms B Myers | Thomson Geer |
HIS HONOUR:
(a)General background
1 This matter comes before by way of an application pursuant to s335(2)(b) of the Workplace Injury Rehabilitation Compensation Act 2013 (hereinafter referred to “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity. In so doing, she relies upon paragraph (c) of the definition of “serious injury” contained in s325 of the Act. The injury is alleged to have occurred throughout the course of the plaintiff’s employment with the defendant, but also in a specific incident on 2 April 2015 (hereinafter called “the incident”). The plaintiff was employed by the defendant as a residential carer and this involved her in dealing with a particular family of very difficult children and with their difficult and allegedly violent father. There is no dispute but that the plaintiff suffered a compensable injury, particularly as a result of the incident, which involved those children and their father. She had an accepted WorkCover claim in this regard – see Transcript (hereinafter referred to as “T”) 10. Whilst, as stated, there was also referral to injury suffered throughout the course of the plaintiff’s employment with the defendant, in fact the presentation of the application effectively focussed solely upon the incident and its sequelae.
2 As was stated at the outset, the issues, from the viewpoint of the defendant, were the extent to which the plaintiff’s symptoms have remitted; whether other circumstances of life were causing psychological symptoms; what current consequences referrable to the incident are permanent within the meaning of the Act; the plaintiff’s work capacity; and “range” – whether the consequences satisfy the statutory test of severity. Again, I would refer to T10.
3 Mr G Chancellor of Counsel appeared on behalf of the plaintiff. Ms B Myers of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits and a detailed statement of 10 June 2015 as being true and correct. The remainder of the evidence was documentary in nature and was tendered either by consent or without opposition. In addition, counsel provided detailed and helpful written submissions as a substitute for closing addresses.
(b)The plaintiff’s background, education and employment prior to the incident
4 The plaintiff is aged 50 years, she having been born in May 1969. She is separated from her partner. She has two daughters, one of whom is an adult and the other, who is aged approximately 14 years, lives with her. She was educated to Year 11 level and then attended a TAFE, where she studied art and design.
5 Initially the plaintiff was employed in a belt factory, but commenced nursing in 1991 and subsequently undertook a Diploma of Aromatherapy. She then worked as a Division 2 Nurse, the previous title of this occupation being a State Enrolled Nurse, at Villa Maria Nursing Home and later worked in residential care at Oz Child. During that period of employment, she undertook a Certificate IV in Protective Care.
6 The plaintiff commenced employment with the defendant in 2004. She was a residential carer looking after children and adolescents. These were usually from very vulnerable backgrounds and often there were such matters as homelessness, substance abuse, misuse and truancy in those backgrounds. The plaintiff worked approximately 70 hours per fortnight, including overtime shifts. It was whilst she was engaged in this employment that the incident occurred.
(c)The state of the plaintiff’s health prior to the incident
7 Prior to the incident, the plaintiff had suffered a number of physical injuries. She had suffered from low back and left hip pain from time to time. In April 2012, she fell whilst working, playing basketball with children. She injured her upper back. She had osteopathic treatment for several months following the injury, which eventually settled. In January 2014, she fractured her right radius when kicked by a horse. This resulted in surgery, including the insertion of a plate and screw. She continues to suffer from occasional right forearm pain.
8 In relation to her prior mental health, the plaintiff had some problems with her former partner. She received counselling in April 2009 and April 2010. The counselling continued until custody orders were made in mid-2011. Thereafter her mental state was more settled, although there were custody issues from time to time.
9 It should also be said at the outset that the plaintiff is a strong believer in natural medicine and does not like taking drugs for any reason. In her earlier affidavit, she gave the example that, after she broke her arm and required surgery, she refused to take medication following her release from hospital. She does at times take some herbal remedies.
(d)The plaintiff as a witness
10 I am of the opinion that the plaintiff did her best to give honest and accurate evidence. At times she became tearful, but at no stage did I gain the impression that she was being evasive or not doing her best to give proper and honest responses. I note that Dr Anthony Sheehan, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described her as being polite and cooperative, both after seeing her on 9 February 2016 and after a further examination on 6 March 2018. Dr George Wilson, occupational health physician, who also examined the plaintiff at the request of the defendant, referred to her as being pleasant and tearful. Associate Professor Saji Damodaran, consultant psychiatrist, also examining the plaintiff upon referral from the defendant, described her as cooperative, tearful and emotional. He pointed out that she was apologetic in relation to her emotional state. Associate Professor Peter Doherty, consultant psychiatrist, also examining at the request of the defendant, described the plaintiff as being engaged, cooperative and attentive. The above remarks coincide with the impression which the plaintiff made upon me. As indicated, I am of the opinion that she is a witness of truth and reliability.
(e)The injury, its treatment and diagnosis
11 As stated, essentially the injury occurred on 2 April 2015. The incident, involving some teenage children who were out of control and their father, who also behaved badly, was a most unpleasant one. At least for the purposes of the present application, the defendant does not challenge the plaintiff’s description of it and previously liability for statutory benefits has been admitted.
12 On the following day, the plaintiff was suffering from pain in her upper back, shoulders and neck area, where she had been pushed or assaulted. She also felt very anxious and stressed. She saw a general practitioner, whom I understand to be Dr Sarah Zack of the Mooroolbark Super Clinic. Dr Zack has provided a very brief certificate indicating that she had been seeing the plaintiff in relation to her work-related injury and anxiety. However, the plaintiff was not comfortable using medication and possible benefit from a naturopath was suggested. In fact, the plaintiff did see a naturopath. In any event, she had some two to three months away from work.
13 The plaintiff commenced to see a psychologist, Mr Derek Poupard, first seeing him on 21 April 2015. This was originally pursuant to an Employee Assistance Program, but subsequently there was a referral from Dr Zack. It would appear that the plaintiff saw Mr Poupard on a number of occasions. In his report of 16 October 2017, Mr Poupard stated that the plaintiff’s initial symptoms were consistent with the diagnosis of post-traumatic stress reaction. When he last saw her, on a date which is unclear but may have been 22 May 2017, Mr Poupard was of the view that her condition had eased. Accordingly, the revised diagnosis was of an adjustment disorder with mixed anxiety and depression. However, her depression, when assessed on the Depression Anxiety Stress Scale, produced a reading which fell into the category “Extremely Severe”, whilst her anxiety was “Moderate” and her stress “Mild”. In his report of 16 October 2017, Mr Poupard described the plaintiff’s prognosis as being fair to good, also stating that it would be aided by a suitable return to working life (as shall be discussed, the plaintiff has in fact returned to non-stressful part-time work). Mr Poupard was of the view that the plaintiff did not have a capacity to work with clients who would pose a psychological or physical risk to her safety, as this was likely to trigger her post-trauma stress. His concluding observations were that the plaintiff’s pre‑injury job had provided her with a sense of satisfaction in line with her human values. Following the incident, she had presented with symptoms associated with the experience of a traumatic threat to her safety. These included hyper-arousal, anxiety, irritability, poor sleep, depressed mood and the like. At least initially she had withdrawn from some friends associated with her workplace. Financial pressures had resulted in her feeling compelled to move to a caravan on her parents’ property. This moved her further away from some employment opportunities. Mr Poupard also stated that the plaintiff’s quality and satisfaction of life had suffered as she battled depression and the loss of self-esteem. She had lost confidence in herself and become fearful and distrusting about future employment. Her depressive symptoms were described as persisting.
14 On 21 November 2016, the plaintiff commenced seeing Dr Pik Ki Kwok at the Mooroolbark Super Clinic. As stated, she had initially seen Dr Zack at that clinic and it is apparent from the report of Dr Kwok that the plaintiff had also been seen by Dr Anhelette Lamb, also at that clinic. Indeed, a type of questionnaire had been completed by Dr Lamb on 12 June 2016 in which, without any comment, she circled a number of suggested employment options as being suitable. This is a topic to which I shall return. Dr Kwok completed a similar, but briefer, document, also in the affirmative in relation to employment proposals, on 27 March 2017.
15 Dr Kwok reported to the plaintiff’s solicitors on 20 June 2017. Dr Kwok regarded the plaintiff’s condition as being stable, noting that she was not on any medication. Dr Kwok felt that the prognosis was good, although medication might be necessary if there was a flare up in the level of anxiety and depression. This was not considered to be particularly likely. However, Dr Kwok also stated that a psychiatrist’s assessment may provide a better prediction on the prognosis. Dr Kwok expressed the opinion that the plaintiff did have a capacity for employment. However, she was unlikely ever to be able to perform any pre‑injury duties as a Residential Youth Worker. She could work in some alternative role at a workplace which she perceived to be secure and supportive. Dr Kwok considered the plaintiff’s condition to be stable, noting that there was no pain, suffering distress or anxiety currently observed from her. There is the added observation “considering she has been away from the place that she was traumatised for more than 1 year”. It is apparent that Dr Kwok had a copy of the medico-legal report of Dr Anthony Sheehan of 24 November 2015.
16 On 9 January 2019, the plaintiff commenced seeing Ms Lucy Rogers, psychologist. This would appear to have been on referral from Dr Kwok. Ms Rogers reported to the plaintiff’s solicitors on 28 March 2019. Ms Rogers diagnosed Chronic Adjustment Disorder with depressed mood and anxiety. She stated that there could be some reduction in these conditions if the plaintiff found alternative accommodation, away from her parents (with whom there seems to have been something of a falling out) and, if possible, suitable employment. Upon testing, the plaintiff’s level of depression was in the extremely severe range, whilst that of anxiety in the severe range and stress in the severe to moderate range. Ms Rogers thought that the plaintiff would benefit from ongoing psychological support until the intensity of the symptoms subsided. She considered it unlikely that the plaintiff’s condition would worsen over time, although there was to be expected fluctuation in her functioning and mood dependent upon immediate environmental stressors. The plaintiff did not require assessment by another specialist in the areas of psychology or psychiatry. A return to work similar to that which she had performed was likely to exacerbate her symptoms. When seen by Ms Rogers, the plaintiff was working as a volunteer at the Salvation Army opportunity shop for some 5-7 hours per week and was doing face painting once a week. In the opinion of Ms Rogers, if the plaintiff’s living situation changed, she might be able to undertake more regular employment, although her preference was to work on her own in an artistic field. Apart from some physical symptoms, the plaintiff reported symptoms of low mood, sadness, lack of interest or pleasure in activities, tearfulness, feelings of guilt and worthlessness, reduced concentration and indecisiveness. Further, she had symptoms of anxiety, including rumination, restlessness, irritability and muscle tension. Reference was also made to the difficulties encountered by the plaintiff in living in a caravan on her parents’ property and the fact that relationships had become strained. Environmental stressors significantly exacerbated her symptoms.
17 The plaintiff has also been seen for medico-legal purposes. Prior to that, I shall summarise the reports of those who saw the plaintiff at the request of her solicitors. Whilst the reports of Dr Anthony Sheehan were in fact put in evidence by the plaintiff, they are reports arranged by the defendant and I shall deal with them subsequently.
18 Dr Justin Lewis, consultant psychiatrist, has seen the plaintiff at the request of her solicitors on two occasions. The earlier was on 14 September 2017. Dr Lewis noted at the outset that the plaintiff had been undertaking limited and irregular work as a self-employed face painter for the preceding 12 months. Dr Lewis took a detailed and appropriate history.
19 The diagnosis of Dr Lewis was of an Adjustment Disorder with Mixed Anxiety, Depressive and Traumatisation Features. The plaintiff had clinically significant lowered mood, poor motivation, sleep disturbance, lowered confidence and impacted self-esteem. All of this contributes to significant social and occupational difficulties. Dr Lewis was of the view that the primary and significant precipitating factor of the adjustment disorder was what occurred on 2 April 2015. He was of the opinion that, whilst the initial traumatisation symptoms had settled, the plaintiff’s psychological condition had plateaued and the adjustment disorder had stabilised. The plaintiff presented with lowered mood, poor motivation, sleep disturbance, cognitive difficulties, impacted self-esteem and a lack of confidence. He noted that the plaintiff was philosophically opposed to psychotropic medication and medication generally.
20 Dr Lewis was also of the view that the plaintiff was completely incapacitated for pre‑injury duties as a residential care worker. He considered her to be highly vulnerable, as well as having significantly poor motivation and ongoing sleep disturbance, which she described. She is precluded from returning to her previous line of work. In the opinion of Dr Lewis, the plaintiff had a capacity for suitable alternative duties. He noted what she was currently working as a self-employed face painter. He considered that the plaintiff would be able to increase her hours, possibly to 15 hours per week, in the event that she was able to secure more work. He thought that she may be able to return to other suitable duties, such as working in a refuge, with adequate support. She has a fear of re-traumatisation and low stress tolerance. Dr Lewis reported that the plaintiff is completely incapacitated for pre‑injury duties. Her symptoms have contributed to significant occupational incapacity. She presents as a person with significant lack of confidence and poor self-esteem. Her symptoms impact upon her in a social, occupational and recreational sense. He considered the prognosis to be uncertain. Whilst there appeared to have been a reduction in overall traumatisation symptoms, the plaintiff’s psychiatric condition now appeared to have plateaued. A supported return to a line of work which closely approximated her pre‑injury duties would assist in the rebuilding of her self‑esteem and confidence. However, at this point of time, she did not require assessment by another specialist.
21 Dr Lewis reported for a second time on 21 January 2019. On this occasion, he noted that the plaintiff continued to work as a self‑employed face painter, with consistent work of 2-3 hour shifts on Friday and Saturday nights. She gave a history that things had worsened in the psychological sense, with a significant breakdown in the relationship with her parents and in the family situation. She had given up previously enjoyable recreational interests, such as horse riding. The plaintiff described how she had lost control over various things. She described poor sleep, with frequent waking. She also described how she had been working for the Salvation Army in Kilsyth one day per week for seven hours. She remained resistant to the consideration of anti-depressant medication, stating that she did not like taking drugs. Overall, she believed she could increase her working hours to possibly three days per week, but was not sure what she would like to do in the future. She was absolutely sure that she did not want to return to nursing or care work.
22 In the opinion of Dr Lewis, the plaintiff appeared tired, distant and overwhelmed. Her affect was predominantly restricted to the depressed range and her mood was mildly to moderately depressed. Dr Lewis was of the view that the plaintiff continued to meet the criteria for a Chronic Adjustment Disorder with mixed anxiety and depressive features. She had ongoing lowered mood, motivational difficulties, feelings of demoralisation and despondency, lack of confidence and impaired self‑esteem. There had been no substantial change in her overall psychological condition and her adjustment disorder could be regarded as having stabilised. She had a constellation of depressive symptoms and, in addition, some ongoing anxiety features, such as poor stress tolerance and a lowered resilience. She would benefit from ongoing counselling. Dr Lewis expressed the opinion that the plaintiff was completely incapacitated for pre‑injury duties, stating that returning to any type of direct care work would invariably lead to an unacceptably high risk of reactivation of anxiety and traumatisation symptoms. In relation to the work which she was currently performing, face painting and with the Salvation Army, Dr Lewis stated that the plaintiff could gradually increase her hours to three full days per week. She would not be able to exceed such hours because of ongoing depression, poor motivation, sleep disturbance, cognitive difficulties and poor stress tolerance. She has intermittent suicidal ideation. Dr Lewis noted that it was encouraging that she has recommenced psychological therapy as she requires additional psychological support. The psychiatric prognosis remains somewhat guarded and uncertain. The plaintiff continues to suffer from significant depressive and anxiety symptoms. Dr Lewis thought that the plaintiff’s psychiatric prognosis would be improved with the initiation of anti-depressant medication, although noting her philosophical beliefs, whilst also recording that the plaintiff might be more open minded to the possibility of anti-depressant medication if her state did not improve.
23 The defendant has also had the plaintiff examined for medico-legal purposes.
24 As stated, the four reports of Dr Anthony Sheehan, consultant psychiatrist, were in fact introduced into evidence by the plaintiff, although obtained at the request of the defendant. The earliest of these is dated 17 June 2015. The plaintiff described to Dr Sheehan her present condition, which included her being anxious, weary and vigilant. Her mood was low and she was crying nearly every day. She felt scared to go back to her job, which she had loved. She was taking St John’s Wort and herbal teas. She had attended Dr Zack and had five consultations with a counsellor through the Employment Assistance Program. Dr Sheehan was of the view that the plaintiff had developed a moderately severe adjustment disorder with features of traumatisation. At the time, he thought that she had no work capacity and required ongoing treatment, including referral to a consultant psychiatrist. He recommended a review after three months in order to assess her capacity to return to suitable duties. His formal diagnosis was of an adjustment disorder with depressed and anxious mood and features of traumatisation, moderately severe. The plaintiff had no current work capacity. Her employment was a significant contributing factor to the claimed injury. There was no aggravation, acceleration or exacerbation of any underlying pre‑existing injury or disease. Dr Sheehan thought that the plaintiff may require the addition of antidepressant medication, in conjunction with trauma-focussed psychotherapy.
25 Dr Sheehan reported again on 24 November 2015, having reassessed the plaintiff on the previous day. By this time, the plaintiff had returned to work with the defendant, having been placed in a women’s refuge in Thornbury. She had been progressing well, until told that she would be returning to residential care. She was frightened to do this, had consulted her treating general practitioner, and the advice received had been that she should not go back to such residential care work. She had then undertaken part-time work with the defendant, working with Christmas cards and gifts. She was then told that she would be returning to work at a refuge for homeless youth in Burwood. After further discussions, the requirement to do this was altered to part-time, 10.00am to 4.45pm, two days per week, with one day ongoing working with the Christmas cards and gifts. The plaintiff was looking for other work and was considering going back to school and improving her qualifications. She did not want to return to residential care work. She was attending Mr Poupard every four weeks. She was taking naturopathic medications. Overall, Dr Sheehan was of the view that there had been some initial improvement in the plaintiff’s condition, but there had also been a setback as part of the return to work process, this occurring when the plaintiff was told that she would be returning to residential care. Ultimately she had been able to return to alternative duties working at a refuge for homeless youth in Burwood two days per week and one day per week performing the work with Christmas cards and the like in Hoddle Street, Collingwood. The diagnosis of Dr Sheehan was that the plaintiff was suffering from a Chronic Adjustment Disorder with depressed and anxious mood, with features of traumatisation. She was capable of undertaking alternative or modified duties. Dr Sheehan thought that her working hours could be slowly increased to full-time. It was unlikely that she would return to pre‑injury duties.
26 Dr Sheehan saw the plaintiff for the third time on 9 February 2016, reporting on the following day. Since the last assessment, the plaintiff had commenced a further return to work at the defendant’s Box Hill office, which is adjacent to the Department of Human Services office. She became upset and after one shift had not returned to work. She was unhappy, upset and anxious about going back to residential care. She did not want to work for the defendant again or have anything to do with it. Her sleeping pattern was a little better, but she still woke up a lot. She was anxious if she had to go to the Box Hill or Forest Hill area, it being possible that she would see the children involved in the incident. She was often upset, and tearful at least twice a week. She was always tired. Dr Sheehan noted that the plaintiff was certified by her general practitioner as being totally incapacitated because of anxiety. He thought that she continued to suffer from a Chronic Adjustment Disorder with depressed and anxious mood and features of traumatisation. There appeared to have been an exacerbation or heightened effect of the original adjustment disorder condition. This appeared to be due to a number of incidents, but particularly a meeting at which she was instructed to return to residential care. He considered that she did have a capacity for suitable alternative duties, probably with a different employer. She should not return to pre‑injury duties, as she was describing continuing phobic anxiety. Her capacity would be for alternative duties with a different employer. She may require a vocational assessment and retraining, as well as psychological therapy. Her psychiatric condition had not resolved. A successful return to work with a different employer should result in resolution.
27 Dr Sheehan reported for the fourth time on 9 March 2018. The plaintiff said that she had looked for work such as in reception, driving, and outdoor work in a nursery, but there had been no interest, as she had no qualifications. She said that she had applied for a couple of hundred jobs. She had commenced the face painting work in July 2016 at the Lilydale International Function Centre, doing this for approximately three hours per week. She was not seeing Mr Poupard and was not in contact with any general practitioners. She was contemplating trying to find a casual job for one shift a week or a fortnight, in sales. She described how she was not coping. She regarded the defendant as having destroyed her life. She had completed a short computer course and was doing volunteer work at a local community garden twice a week, on each occasion for two hours. She was not sleeping well, waking every couple of hours. She thinks about what had happened when employed by the defendant. Dr Sheehan was of the view that the plaintiff continued to suffer from a Chronic Adjustment Disorder with depressed and anxious mood of moderate severity. Features of traumatisation now appeared to have settled. Dr Sheehan regarded it as unfortunate that the plaintiff was no longer undertaking psychological treatment. He considered her to have at least a partial capacity for employment, possibly up to 10 hours per week. However, she did not appear capable of working full-time in any of the job options identified (Dr Sheehan had been forwarded reports from IPAR in relation to vocational assessment and the like). She would require a graduated return to work with a supportive employer and re-engagement with a psychologist. She was not capable of returning to her previous employment. The diagnosis remained the same. If she was able to obtain a supported return to work and she re-engaged with a psychologist, it was hoped that her symptoms would gradually resolve and her confidence be returned. She was not fit for her pre‑injury employment in any capacity and this a permanent state of affairs. She does not have the capacity for full-time hours in the various roles suggested in the vocational assessment report. Dr Sheehan obviously had reservations about whether there would be any improvement in the plaintiff’s condition with the completion of the litigation process.
28 The defendant organised for the plaintiff to be seen by Dr George Wilson, occupational health physician, on 17 June 2015. In a report, which is now somewhat dated and which has been overtaken by events, Dr Wilson took an appropriate history and noted that the plaintiff was physically relatively asymptomatic.
29 Dr David Barton, consultant occupational physician, saw the plaintiff at the request of the defendant on 19 May 2017, reporting on 23 May. The attention of Dr Barton seems to have been largely directed to some physical symptoms suffered by the plaintiff, these symptoms being centred on the mid-thoracic area and on both shoulders. Dr Barton had been requested to focus on physical injuries and felt that there may have been a very mild soft tissue injury which had resolved. From a physical point of view, she could return to her pre‑injury duties.
30 Associate Professor Saji Damodaran, consultant psychiatrist, reported to the defendant on 23 May 2017, following an examination some five days previously. He took a detailed history, particularly of what had occurred on the day of the injury. In relation to her present symptoms, the plaintiff complained of a loss of energy, enjoyment and the like. Her sleep was affected, as she woke quite often and could not sleep for more than four or five hours. She did not want to take any medication and did not see any psychologist. She was unhappy and miserable. She suffered from occasional panic attacks. The diagnosis of Associate Professor Damordaran was of an adjustment disorder with mixed anxiety and depressed mood. He expressed the view that the plaintiff did not have a capacity for pre‑injury duties and hours with the current employer or an alternative employer. He considered that the plaintiff would benefit from seeing a psychologist with expertise in the management of a significant anxiety disorder. Associate Professor Damodaran expressed the opinion that the plaintiff’s condition and incapacity were materially contributed to by the injury. She had a capacity for suitable modified or alternative employment up to 20 hours per week. On this basis, she had the capacity to perform some of the identified options (pharmacy assistant, sales assistant, call centre operator, typist, keyboard operator), with the proviso that such work be within her physical limitations and be up to 20 hours per week.
31 Associate Professor Peter Doherty, consultant psychiatrist, reported to the defendant on 6 March 2019. He also took a detailed history, including recent and current symptoms. The plaintiff had looked for work, but was no longer doing this, referring to a loss of confidence. Associate Professor Doherty expressed the view that the plaintiff had suffered an adjustment disorder with features of traumatisation in the context of deteriorating mental health and when subject to a range of stressful circumstances in the workplace. There appeared to be no diagnosable Major Depressive Disorder or PTSD condition. He felt that the psychiatric symptoms hard largely remitted, but were being maintained by her difficult life circumstances. There had been an adjustment disorder with anxious and depressed mood and some features of traumatisation, but that psychiatric condition was now mild in relation to severity. There is no diagnosable pain-related psychiatric condition. Whilst the psychiatric condition is mild in severity, the prognosis for individual outcome is not so favourable. Associate Professor Doherty referred to the plaintiff’s current social situation. He described what occurred in April 2015 as leaving a lasting impression on the plaintiff and being the significant contributor to the development of the adjustment disorder. He did not believe that there was a permanent incapacity for work, but also stated that the plaintiff was not fit for pre‑injury employment. She is sensitised to violence, threats and the like in a residential facility caring for children and adolescents. She has a current capacity for full hours in suitable work, and this includes the employment options set out in a vocational assessment report of March 2017 (the IPAR report).
32 In relation to diagnosis, I accept the opinion of Dr Anthony Sheehan, consultant psychiatrist, who examined the plaintiff at the request of the defendant on four occasions over almost three years. That diagnosis is of a Chronic Adjustment Disorder with depressed and anxious mood. This is a similar diagnosis to that of Dr Justin Lewis, also a psychiatrist. Dr Lewis diagnosed a Chronic Adjustment Disorder with mixed anxiety and depressive features. The original treating psychologist, Mr Derek Poupard, diagnosed an adjustment disorder with mixed anxiety and depression, whilst Ms Lucy Rogers, psychologist, who has treated the plaintiff more recently, also diagnosed a Chronic Adjustment Disorder with depressed mood and anxiety. Associate Professor Damodaran, examining on behalf of the defendant, diagnosed an adjustment disorder with mixed anxiety and depressed mood. The diagnosis of Associate Professor Doherty is more complicated, although he does refer to an adjustment disorder. It seems to me that the rest of these diagnoses essentially overlap and perhaps that of Dr Sheehan best summarises them. I accept it.
33 I am also satisfied that the plaintiff has consequences of the injury which are permanent within the meaning of the Act, in that they will persist for the foreseeable future. That is particularly so in relation to her capacity for employment. Dr Sheehan has stated that the plaintiff has a permanent incapacity to return to her pre‑injury work and duties as a care worker. Dr Lewis has referred to the plaintiff’s psychiatric prognosis as being somewhat guarded and uncertain. In his more recent report of 21 January 2019, he stated that there had been no substantive change in her overall psychological condition and on that basis the adjustment disorder can be regarded as having stabilised. He also stated that returning to any type of care work would invariably lead to an unacceptably high risk of reactivation of anxiety and traumatisation symptoms.
34 It is now in excess of four years since the incident. The diagnosis has remained much the same throughout. Whilst there has been some improvement enabling the plaintiff to return to a limited amount of work, this has been on a part-time basis and in what could be described as restricted circumstances. Particularly in the last few years, there has been no change of any substance in relation to her symptoms and I accept the opinion of Dr Lewis that the plaintiff’s adjustment disorder has stabilised, although the psychiatric prognosis remains somewhat guarded.
35 Whilst there have been some other domestic stresses in the plaintiff’s life, to a considerable degree these appear to have emanated from her precarious financial situation as a result of her inability to work, or to work on a full-time basis. As stated by Dr Sheehan in his most recent report, the plaintiff’s Chronic Adjustment Disorder was related to the injury of 2 April 2015 and remains so. It has persisted ever since. He described the contribution of employment as significant and major. I accept this.
36 I am not of the view that the injury represents an aggravation of a pre‑existing condition. When she had problems with her former partner, the plaintiff did have some counselling between April 2009 and mid-2011. She has given a reasonably detailed history of this, particularly to Associate Professor Doherty who certainly placed no great emphasis upon it. I am satisfied that the plaintiff’s mental health condition does not represent the aggravation or acceleration of a pre‑existing condition of the type from which she now suffers.
(f)Other developments since the injury
37 Some of these developments have already been referred to above. After the incident, the plaintiff was absent from her employment until 30 August 2015, when she returned to work at the defendant’s refuge in Thornbury, such work being on a part-time basis, four hours per day and two days per week. In early November 2015, the plaintiff worked sorting Christmas cards and gifts for the defendant at its Hoddle Street premises, this apparently being for two days a week and 4½ half hours per day. The direction for her to return to residential-type work and to attend at the Box Hill establishment seems to have occurred later in November 2015, culminating in the plaintiff working a shift at Box Hill, but breaking down shortly after the completion of this.
38 The plaintiff remained, technically, an employee of the defendant, although not attending at work. Various suggestions about her return to work seem to have emanated from Nabenet. In mid-2016, IPAR became involved. In July 2016, the plaintiff commenced doing the face painting one night per week at Lilydale and occasionally doing the same work at parties. In October 2016, IPAR arranged for her to complete a computer course. The plaintiff remained upon the list of casual employees of the defendant. She was contacted in early 2017 about the possibility of doing casual work at the defendant’s Thornbury establishment. However, ultimately on 22 May 2017, the defendant wrote to the plaintiff. It pointed out that she had done no work for it since December 2015. The letter referred to a report from Dr Kwok, stating that the employee would be unlikely ever to be able to perform any pre-injury duties as a Residential Youth Worker, also referring to aggressive behaviour. The defendant stated that the position of a Residential Youth Worker cannot be altered to accommodate the type of medical restrictions and impairments referred to by Dr Kwok. Before a final decision was made in respect of termination of employment, the plaintiff was invited to provide further information. In a further letter of 19 June 2017, the defendant acknowledged receipt of a letter from the plaintiff referring to her preference to work at the defendant’s women’s refuge. That could not be accommodated because the plaintiff could not perform the inherent requirements of her pre-injury role, the defendant decided to end her employment as at 19 June 2017.
39 In mid-2018, the plaintiff increased her work at the Lilydale International Function Centre. She commenced doing one night per week as a balloon artist and one night of face painting, apart from occasional parties. In May 2019, due to the illness of her former teacher, she did some teaching of pottery classes one day per week. She has also done some volunteer work with the Salvation Army and in a community garden.
40 The plaintiff and her daughter moved into a caravan on her parents property in approximately April 2016. Matters have not worked out so well and there has been a falling out between the parties. The plaintiff is anxious to move into different accommodation.
Ruling
(a) Loss of earning capacity
41 I am satisfied that the plaintiff has discharged the burden of proof in relation to loss of earning capacity. I have come to that conclusion for the following reasons.
42 I am quite satisfied that the plaintiff has no capacity to perform her pre-injury duties. In relation to “without injury” earnings, helpfully the parties have agreed that the appropriate figure is $67,124 per annum. For the purposes of s325(2)(e) and s325(2)(f), 60 per cent of the agreed figure is $40,274 gross per annum. Whilst, pursuant to ss(2)(f), the figures are to be assessed on the basis of an annual rate, it is sometimes helpful to be aware of gross weekly earnings when making comparisons and calculations. An annual gross income of $40,274 converts into $774.50 per week.
43 I turn now to “after injury” earnings. This requires consideration of not only what the plaintiff is in fact earning, but what she is capable of earning in suitable employment. I accept the calculations of Mr Chancellor as to what the plaintiff is actually earning. As a face painter at Lilydale International, she is working on Saturday evenings for three hours at $60 per hour gross. On Friday evenings, she is working at the same establishment for three hours, but earning $90, a total of $270 gross per week. That is for the work as a balloon artist. As she said in cross-examination, she also does parties at the Lilydale International Function Centre. She described herself as doing “possibly” one party a week. If that is accepted as accurate, although the impression given was that it was an optimum, the amount received would be $120 per week, the attendance at the party going for two hours. Thus, the total amount payable for what could be described as her regular work would be $570 per week. I agree with the proposition that it would be fair to allow four weeks per year when she had a break, was unwell, had to attend to family matters or the like. Thus, her gross annual income, before the deduction of expenses, from her regular work would be $27,360. That is before the deduction of any expenses. In this regard, Mr Chancellor referred me to the decision of his Honour Judge Coish in Guthrie v Campion Education [2009] VCC 1141 in relation to the deduction of expenses in a situation where a person is conducting his or her own business. In the present case, the plaintiff gave evidence as to the annual costs of purchasing special balloons, face paint and the like. The figures estimated in this regard by Mr Chancellor seemed to me, if anything, to err marginally on the side of an underestimate, but, in any event, I accept that an amount in the order of $3,000 for purchases, travel expenses and the like is reasonable. That would reduce the plaintiff’s gross income from face painting, balloons and parties to $22,320 gross per annum.
44 The plaintiff has earned a modest amount from teaching pottery to a class of which she had been a member. She has no particular qualification in relation to such teaching and is filling in for a friend who is undergoing treatment for cancer. It would appear that, when she does this, she teaches for four hours, one day per week, at $30 per hour per class. She in fact gets paid by the pottery teacher whose place she is taking. Those classes are for children. There have also been a few occasions when she has taught the adult class of which she is a member when the regular teacher has been absent for chemotherapy. The plaintiff believes that she has only done this twice. I did not get the impression that this was necessarily going to be a regular source of income. If the plaintiff performed teaching pottery to children for 48 weeks of the year, the amount of income would be $5,760 gross. She has only stood in as teacher to the adult class on a couple of occasions and has received $90 gross for each. It seems to me that an overall allowance of $1,000 for this would be sufficient. The teaching is a temporary arrangement for which she is unqualified, but a total amount of $6,760 gross per annum seems to me to be a reasonable allowance in relation to it. For how long this will last is another matter.
45 These figures add up to a gross annual income of $29,080. Of course, that is well within the figure of $40,274 which represents 60 per cent of the agreed “without injury” earnings.
46 What has been discussed is the plaintiff’s gross actual earnings. I turn now to the amount which she might be capable of earning in suitable employment. In this regard, I would point out the following. There seems to be little dispute between the various medical examiners concerning the plaintiff’s lack of capacity to perform her pre‑injury duties. Associate Professor Doherty, whilst stating that the plaintiff had a current capacity for full hours in suitable work, stated that she is not fit for her previous employment. Associate Professor Damodaran, also examining on behalf of the defendant, has expressed the opinion that the plaintiff cannot return to work on pre‑injury duties and hours, even if this be at an alternative workplace. He was aware of her face painting work and thought she had the ability to take additional duties up to 20 hours per week. He also thought that there were some jobs such as a pharmacy assistant and the like which, from a psychiatric point of view and within her physical limitations, she could perform up to 20 hours per week. Dr Sheehan, another psychiatrist examining on behalf of the defendant, in his most recent report has stated that the plaintiff does not have a psychiatric capacity for full-time hours in various jobs that have been suggested. He also expressed the opinion that, based on her presentation, she appeared to have at least a partial incapacity for employment, possibly up to 10 hours a week, but did not appear capable of working full time in any of the job options identified in the IPAR report. Dr Lewis, examining the plaintiff at the request of her solicitors and also a psychiatrist, mentioned the plaintiff’s face painting activities and the like. He also stated the opinion the plaintiff could gradually increase her hours to three full days per week.
47 The plaintiff has applied for a number of part-time jobs without success. As stated, I regard her as a witness of truth and I accept her evidence in this regard.
48 Thus, it seems to me that the outer limit of her capacity in terms of gross annual income is in the order of what she is now earning from her part-time activities. Various positions have been suggested by Recovre but, as argued by Mr Chancellor, the highest average weekly gross wage of those jobs is $1,150. If the maximum that the plaintiff can work, as stated by Dr Lewis and, effectively, Associate Professor Damodaran (although he puts an upper limit of 20 hours per week), the plaintiff would earn $35,880 gross per annum. This is below the figure of $40,274, being the agreed amount of 60 per cent of “without injury” earnings.
49 Of course, as concluded by Ms Mandy Morgan of Flexi Personnel in her report of 9 April 2019 to the plaintiff’s solicitors, if the plaintiff becomes unable to maintain her current situation of self-employment, “she will have great difficulty in efficiently and consistently performing other suitable alternative employment …”.
50 My conclusion is that the plaintiff has satisfied the requirements of s325(2)(e) and (f) of the Act. She is entitled to leave to bring proceedings in respect of loss of earning capacity.
(b) Pain and suffering
51 The plaintiff having discharged the burden of proof in respect of leave to bring proceedings for pecuniary loss, there is no need for me to go in any great depth into pain and suffering. Suffice to say that I am of the view that she would have discharged the burden of proof in this regard in any event. I am of the opinion that she has suffered permanent severe mental or permanent severe behavioural disturbance or disorder. She has lost her occupation of a residential carer or to work in that industry. She suffers from anxiety and an inability to cope. As opined by Dr Sheehan, she has a Chronic Adjustment Disorder with depressed and anxious mood. Dr Lewis has referred to significant depressive and anxiety symptoms, a lack of control and direction over her life, grieving the loss of her career, and struggling with feelings of demoralisation and despondency. Associate Professor Damodaran has referred to persistent lowered mood, lack of energy, lack of motivation, ongoing anxiety symptoms, panic attacks and difficulties in managing her overall sense of confidence and wellbeing. The plaintiff’s domestic life has fallen apart. In short, and without going through further details, it seems to me that, were it necessary, she would have discharged the burden of proof in relation to pain and suffering.
Conclusion
52 The plaintiff is successful. She has discharged the burden of proof. I shall hear the parties as to any ancillary orders that are required.