Marriott v Victorian WorkCover Authority
[2022] VCC 660
•20 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00026
| CRAIG ALEXANDER MARRIOTT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 10 and 14 February 2022 | |
DATE OF JUDGMENT: | 20 May 2022 | |
CASE MAY BE CITED AS: | Marriott v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 660 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – psychiatric injury – pre-existing injury – aggravation or exacerbation – pecuniary loss
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398; St Mary’s School v Askwith [2011] VSCA 90; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Dordev v Cowan [2006] VSCA 254; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR; Rowe v Transport Accident Commission [2017] VSCA 377; Lexa v Transport Accident Commission [2019] VSCA 123; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms C Willshire | Zaparas Lawyers |
| For the Defendant | Ms B A Myers SC with Mr S Scully | Hall & Wilcox |
Table of Contents
Summary
Background
The Plaintiff’s evidence
The Defendant’s evidence
Mr Stewart
Mr Jack
Credibility and reliability of the Plaintiff’s evidence
Contemporaneous notes of incidents during employment
Cessation of attendance on Ms Perrett-Abrahams in 2010
Interruption of consultations with Ms Perrett-Abrahams
Work history prior to the Plaintiff’s employment at the Council
The Plaintiff’s mental state prior to his employment at the Council
Credibility and reliability of the Defendant’s evidence
Did the alleged conduct occur?
Findings in relation to the alleged conduct
Did the Plaintiff suffer an aggravation of his pre-existing injury prior to April 2013 that was caused by the employment?
Findings in relation to aggravation prior to April 2013
Did the Plaintiff suffer an aggravation of his pre-existing injury after April 2013?
Findings in relation to aggravation after April 2013
Was the employment a significant contributing factor in the exacerbation or aggravation of the injury?
Subsequent events
Summary of medical evidence
Ms Dianne Perrett-Abrahams
Dr Janet Maxwell
Dr Chris Grant, reports dated 18 June 2013 and 9 May 2016
Dr Michael Epstein, report dated 22 April 2016
Dr Albert Kaplan, report dated 21 November 2018
Dr Lev Botvinik, treating psychiatrist, reports dated 13 June 2013 and 2 May 2019
Dr Judith Riseley, report dated 13 May 2019
Dr Brendan Hayman, reports dated 7 May 2019 and 24 January 2020
Dr Nicholas Ingram, report dated 28 September 2021
Dr George Mendelson, reports dated 2 April 2019 and 21 October 2021
Findings in relation to medical evidence
Comparison of pre-existing injuries with current condition
Conclusion
HER HONOUR:
Summary
1The plaintiff, Mr Craig Alexander Marriott, makes application pursuant to s134AB of the Accident Compensation Act 1985 (Vic) for leave to bring common law proceedings for pain and suffering and pecuniary loss.
2Mr Marriott pleads an aggravation of a pre-existing psychiatric injury arising from his employment with the Yarra Ranges Shire Council (“the Council”) between 7 November 2011 and 5 April 2013 (“the employment”).
3The legal principles are well known and are not in dispute in this case. Mr Marriott must show that he has sustained an injury that amounts to a permanent severe mental or permanent severe behavioural disturbance or disorder and that the consequences of that disturbance or disorder, when compared with other cases in the range of possible mental or behavioural disturbances or disorders, can be fairly described as being more than “serious” to the extent of being “severe”.
4There is no dispute that Mr Marriott has a psychiatric disorder and that, prior to his employment with the Council, he had such a disorder. The issue in this case is whether Mr Marriott has established that the employment was a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury that meets the relevant test.
5In order to determine this issue, it will be necessary to consider the following matters:
(a) the extent of any pre-existing psychiatric condition;
(b) whether the employment caused an aggravation or exacerbation; if so:
(c) whether that aggravation or exacerbation is a significant contributing factor to his current condition; if so:
(d) whether, when compared to other cases in the range of possible outcomes and having regard to what he has lost and what he has retained, the consequences are “severe”.
6In assessing these questions, it will be necessary to consider:
(a) Mr Marriott’s credibility and reliability;
(b) the consequences for Mr Marriott of his claimed injury: and
(c) whether Mr Marriott has disentangled the consequences of the claimed injury from any aggravation or exacerbation caused by other factors.
7The plaintiff submits:
(a) his pre-existing injury was substantially in remission prior to the employment;
(b) he has an aggravation of his pre-existing psychiatric injury which was a compensable injury sustained during the course of his employment;
(c) he ceased work as a result of his compensable injury and recommenced psychiatric treatment;
(d) he is unable to work due to his injury; and
(e) accordingly his consequences are “severe”.
8The defendant, the Victorian Workcover Authority, submits:
(a) the plaintiff was not a reliable witness and his evidence ought not be accepted;
(b) the plaintiff’s pre-existing condition was not substantially in remission prior to the employment;
(c) the employment did not cause an aggravation of his pre-existing psychiatric injury and hence the plaintiff did not suffer a compensable injury;
(d) if the plaintiff did suffer a compensable injury, any current psychological condition no longer results from such an injury; and
(e) alternatively, the current consequences of any compensable injury are not “severe”.
9This was a particularly complicated case, involving more than a thousand pages of documents and three days of oral evidence from the plaintiff. All the material put before the Court has been carefully considered but will be referenced only to the extent necessary to set out the basis for these reasons.
10However, because of the particular complexities of this case and because of the particular findings I have made, particularly in relation to credit issues, it is necessary to go into greater detail than might otherwise be warranted.
11For the reasons set out below the plaintiff’s application is dismissed.
Background
12Mr Marriott was born in January 1970 and was adopted as an infant. He says his adoptive father was physically and sexually abusive towards him and other family members. His accounts of that abuse differ throughout the many documents before the Court. For present purposes it is not necessary to determine the extent of that abuse other than to say that it is the likely cause of his underlying Post-Traumatic Stress Disorder (“PTSD”). Mr Marriott says he was also abused outside of the family home, including at both primary and secondary school and by people he lived with after leaving home at sixteen.
13According to his affidavit sworn 2 August 2018, he left school after Year 10 and worked for a short period at a hardware store before commencing with the Public Transport Corporation (“PTC”) as a station assistant in 1986. He “took a package” in mid-1994. He subsequently worked as a labourer and then ran his own business as a carpenter and builder. He moved into roof plumbing for a period and then obtained work as a carpenter/joiner at William Russell Doors in 2002, where he worked for about six months. He says that whilst at William Russell Doors, he suffered an aggravation of his pre-existing PTSD and was unable to work for a period.
14He then obtained work as a maintenance officer at an Ibis Care nursing home in December 2006. He ceased that work in May 2007 after a further aggravation of his pre-existing condition, and was unable to work until 2010.
15He had a number of positions before commencing with the Council in November 2011 as a graffiti removal officer.
16He says he informed the Council about his pre-existing diagnosis of “severe PTSD” at the job interview. The Council had a program to employ people with various challenges which might present an obstacle to employment, including people with disabilities and mental health disorders.
17His work at the Council required him to work in a team with another officer, a Mr Mark Maunder. Mr Maunder apparently has a diagnosis of dyslexia. Mr Marriott and Mr Maunder were required to drive a Council vehicle to various sites within the local government area and remove graffiti.
18During 2012, the Council received three complaints about Mr Marriott’s driving from members of the public (“the driving complaints”). This resulted in a meeting between Mr Grant William Jack and Mr Marriott’s treating psychologist, Ms Dianne Perrett-Abrahams, on 5 December 2012. As a result of these complaints, Mr Marriott was given a verbal warning in relation to dangerous driving.
19On 24 March 2013, Mr Marriott sent an abusive text message to Mr Maunder. He says Mr Maunder was not the intended recipient of this text message and he has no recollection of having sent it as he had been drinking heavily at the time.
20Mr Marriott was informed that he was suspended on full pay pending an investigation into the text message.
21There were a number of meetings arranged between Mr Marriott and the Council which will be dealt with in greater detail below.
22Mr Marriott ceased work with the Council on 5 April 2013. He has not worked since. He lodged a WorkCover Claim Form on 4 June 2013 in which he claimed that his injury occurred on approximately 21 January 2013 “but over the course of employment” and said that he reported the injury on 7 or 8 February 2013 to Mr Craig Stewart. His claimed injury was an aggravation of a psychological condition due to: “BULLYING, HARRASSMENT (sic) AND DISCRIMINATION BY WORK COLLEAGUE AND MANAGEMENT FAILURE TO ADEQUATELY RESPOND TO COMPLAINTS”.[1]
[1]Defendant’s Court Book (“DCB”) 24. Emphasis in original
23The plaintiff’s counsel submits that the employment terminated on 4 June 2013, although the plaintiff had not attended work since 5 April 2013.
The Plaintiff’s evidence
24Mr Marriott says shortly after he commenced employment at the Council, he was the victim of bullying and harassment,[2] in particular, because of the conduct of Mr Maunder and the response to his alleged complaints about that conduct by his supervisors.
[2]See for example the plaintiff’s medico-legal report by Dr Brendan Hayman at Plaintiff’s Court Book (“PCB”) 155, reporting that bullying started approximately six weeks after Mr Marriott started work
25In his affidavits, he makes the following allegations of bullying and harassment (“the alleged conduct”):
(a) On one occasion shortly after he commenced work at the Council, he informed Mr Maunder that he was not in contact with his adoptive family due to abuse he suffered from his father. He says Mr Maunder said words to the effect that he should stay in contact with his father as family is important. He says he told Mr Maunder that he had received medical advice that this was not the best thing for him to do;
(b) On another occasion, he told Mr Maunder that he had been diagnosed with PTSD and Mr Maunder said that there was nothing wrong with him except that he was listening to his doctors. Mr Marriott says the conversation “got very heated”, that he was very angry and upset and told Mr Maunder that he would call their supervisor to report Mr Maunder’s comments. After this conversation, the relationship between the two men deteriorated significantly;
(c) Mr Maunder asked questions of Mr Marriott such as, “Have you had your medication today?”, “Were you licking the window when you thought of that?” and, “You like it up the arse don’t you?”. Mr Marriott found these comments offensive and upsetting;
(d) Mr Maunder told other workers about Mr Marriott’s childhood abuse;
(e) In about early 2013, two members of another work team, the “tree crew”, who had previously been friendly, began to ignore Mr Marriott, and he felt he was being ostracised;
(f) Mr Maunder was deliberately rude to Mr Marriott in front of members of the public and other staff;
(g) On a number of occasions following a disagreement between them, Mr Maunder would slam the door vehicle very hard and drive off aggressively;
(h) Mr Maunder was “trying to undermine” Mr Marriott in the workplace and was going out of his way to make life at work hard.
26In addition to these allegations, Mr Marriott also gave oral evidence of the following:
(a) In about March 2013, he had painted some engine plates. The paintwork was damaged by a chemical agent which he believed Mr Maunder had deliberately applied;[3]
(b) He believed that Mr Maunder cut him off when he was liaising with the public;[4]
(c) Mr Maunder told him to “get over” his illness.[5]
[3] Transcript (“T”) 143
[4] T143
[5] T143
27Mr Marriott has given histories to doctors that include other allegations, including that Mr Maunder pointed out other people who had applied for Mr Marriott’s job and told him that those people were “pissed off” with Mr Marriott for “stealing their job”[6], that he was “denigrated and bullied” by Mr Maunder,[7] that as a result of “bullying and victimisation to which he was subjected by Mark, he became increasingly anxious and depressed, he suffered from insomnia and his work stresses would dominate his thoughts. He would dread going to work and having contact with Mark. He began to self-medicate using alcohol …”.[8]
[6] Report of Dr Judith Riseley at PCB 39
[7] Report of Dr Lev Botvinik at PCB 132
[8] Report of Dr Albert Kaplan at PCB 137
28Mr Marriott says he raised the difficulties Mr Maunder was causing with management at the Council during 2012. He says the alleged conduct started at the latest by the beginning of 2012 and continued “on an escalating scale” thereafter.
29He says he made complaints to Mr Stewart on four occasions, at least some of which were between January 2012 and November 2012. He says he made those complaints at the office located at Lilydale Lake and in Mr Stewart’s office.
30He says, as a result of the alleged conduct, he became anxious and stressed and began drinking heavily.
31In addition to his stress and anxiety caused by the alleged conduct, from about October 2012, he was concerned about his physical health and believed that he was about to die due to a diagnosis of adrenal adenoma.
32During 2012, the Council received the driving complaints. Mr Marriott believed that in each of the instances complained of, he had done nothing wrong. In November 2012, he requested his psychologist, Ms Perrett-Abrahams, intervene on his behalf with his supervisors. This occurred and no disciplinary action was taken, other than a verbal warning in relation to his driving.
33He has no recollection of sending a text message to Mr Maunder on 24 March 2013. He believes that this message was sent while he was “black out drunk”. He says the message was not intended for Mr Maunder. In a document he claims to be a summary of contemporaneous notes he took during the course of his employment,[9] which is dealt with in greater detail below, he provides a lengthy explanation for its unusual content, structure and spelling.[10] His explanation is that it was a series of “in jokes” intended for former colleagues from the PTC.
[9] Exhibit (“Ex”) P2
[10] Ex P2 at at pages 26-31
34Sending this text message resulted in his suspension on full pay, pending an enquiry. After his suspension he did not return to work and ultimately filed a claim for compensation.
35He says, as a result of the alleged conduct and the Council management’s failure to address his multiple complaints (“alleged management response”), his condition significantly declined.
36Mr Marriott claims he has suffered a significant aggravation of his pre-existing PTSD. He says, “Although I had been incapacitated by my PTSD in the past, I had gone off treatment until November 2012 when I started to get a lot worse”.[11]
[11] PCB 14
37He says he had not required treatment from his psychologist for two-and-a-half years prior to the employment. He says that “with all the stresses at work I started seeing her again in November 2012”.[12] He currently sees her fortnightly or weekly, depending on how he is progressing.
[12] PCB 19
38He says, prior to the employment, he last saw his psychiatrist, Dr Lev Botvinik, in February 2010. He recommenced seeing Dr Botvinik in June 2013. He was prescribed Cymbalta for depression, Diazepam for anxiety, Zyprexa as a mood stabiliser, Pramin for nausea and Stilnox for insomnia.[13] He is no longer taking any psychotropic medication. He took Zoloft for a period in 2019 but does not like the effect of medication.
[13] PCB 19
39He says, since the employment, he has started having chronic night sweats and terrors and ruminates on “everything that was happening at work with Mark”. He has also had “severe trembling which is something that I had not ever experienced before with my PTSD symptoms”.[14] He says he is now a lot more anxious and nervous with crowds and avoids crowds. He does not want to sit on public transport with anyone touching him or being too close to him. He says he has always been able to drive, but now there are some days and even whole weeks where he knows he cannot drive. He has a much shorter fuse in traffic and feels he may have an altercation with other drivers, so he avoids driving to make sure such altercations do not occur.
[14] PCB 15
40After the end of his long-term relationship in 2010, he says he had commenced online dating. However, he no longer engages in this, except as a purely platonic means of social interaction “due to the psychiatric compromise I now live with in my life”.[15]
[15] PCB 16
41He says he experiences headaches and pain in the back of his head and his left eye which can affect his vision. When he has these headaches, he only feels like resting.
42He has poor sleep and usually has a daytime nap for one to two hours. He finds it hard to function when he has had poor sleep. He now takes Prazosin each night for traumatic nightmares and Circadin “when I really need it if I have not had a good night[’]s sleep in a while”.[16] He says the traumatic nightmares have caused bruxism and, as a result, he has lost most of his upper teeth. He has also developed a frozen shoulder and bursitis which he believes may be caused by his traumatic nightmares.
[16] PCB 19
43He lacks energy and has a complete loss of libido.
44He has great difficulty trusting people and his social circle has shrunk.
45He has had suicidal thoughts and feels a compulsion to jump when he is in high places, so he stays away from high places at all times.
46He finds reports on television relating to childhood abuse extremely upsetting. Such reports cause him to be more depressed, agitated and ruminant for many days thereafter. He used to be able to cope with such issues but “since the stresses” with the Council he cannot cope as easily with these kinds of things.
47He says whilst he would like to be able to work, he has been “drained” by his experience and cannot see himself being able to work again. He is depressed and has negative thoughts.
48His use of drugs and alcohol varies, though it has significantly declined, and he now mostly abstains. He occasionally “self-medicates” with alcohol to the point of “black outs” and this happens more when he is stressed. Most recently, this happened after attending a medical appointment related to this case.
The Defendant’s evidence
Mr Stewart
49The defendant relies on the affidavit affirmed 21 September 2021 of Mr Craig Stewart, a supervisor at the Council. Mr Stewart says he first became aware of concerns regarding Mr Marriott when complaints were made to the Council about Mr Marriott’s driving. There were three incidents where it was alleged that Mr Marriott had been driving his Council vehicle in an aggressive and unsafe manner.
50Mr Stewart believes he had informal discussions with Mr Marriott about the complaints. He says Mr Jack gave Mr Marriott a verbal warning after the third complaint.
51He made diary entries relevant to Mr Marriott. The first of these is dated 20 November 2012 and notes:
“Psychiatrist not happy with the way last week was handled.
References to suicide then stated wasn’t going to do it
Felt unwanted
Laughing at him
More appointments next Monday
21 days of mental health leave enquiry?
is their assistance with Drs. expenses?
Offered support- contact when comfortable, keep in touch.”[17]
[17] DCB 223
52On 21 February 2013, Mr Stewart has recorded in his diary:
“Health concerns tests next Tuesday.
Depot treatment
Equal banana
Mobile phone use excess
Nashy Union not required for unfair dismissal $$$$$$$.”[18]
[18] DCB 223
53Mr Stewart says Mr Marriott had raised an issue regarding two members of the tree crew, Steven and Glen, who Mr Marriott believed were not talking to him. After the discussion, on 21 February 2013, Mr Marriott emailed Mr Stewart as follows:
“I have been thinking about what we discussed today regarding Steve and Glen, and have given thought to your own experience, and particularly how you dealt with it. I think given the immediate health issues I have to deal with that I’d prefer to not add possible additional stress before me right now. I am happy to leave the matter be, at me having spoken to you but not asking you to escalate the matter. I’ve got to focus on the health priorities we discussed, I really appreciated your perspective and understanding today thanks heaps.”[19]
[19] DCB 227
54On 8 March 2013, Mr Stewart has recorded:
“Feels as if he is being undermined by Mark.
Painted engine covers, alleged Mark tried to remove
UMS red ute David
Cut off when talking to public.
Alleged ‘get over illness’.”[20]
[20] DCB 223
55Mr Stewart says this note refers to the incident in relation to the painting of engine covers. He says Mr Marriott had told him that he had painted the pressure cleaner exhaust with fireproof paint that he used on his toy models. Mr Stewart told him that he ought not put paint on the Council car. Mr Maunder denied taking the paint off. Mr Stewart says he tried to talk about the incident with Mr Marriott and Mr Maunder informally but was unable to resolve it.
56Mr Stewart says Mr Maunder denied telling Mr Marriot to “get over it” in relation to his illness.
57Mr Stewart says he formed the view that it would be better if Mr Maunder and Mr Marriott did not work together and so he arranged for them to work separately after that time.
58Mr Stewart says if Mr Marriott had alleged he was being bullied by Mr Maunder, he would have made a note of it in his diary.
59On 18 March 2013, Mr Stewart has recorded:
“Talked about anxiety close to limit regularly and doesn’t take much to peak.
Not get involved in minor work issues
Harder some days for him to do standard stuff that others do. Has to work harder to achieve same result.
Negative domino effect on surrounding people.”[21]
(sic)
[21] DCB 223-224
60On 20 March 2013, Mr Stewart has recorded:
“Didn’t attend training course
Feeling isolated
Tried to talk through engine painting accusations. Disintegrated quickly.
Not rewarded
Mark used vehicle in so he kept using it.”[22]
[22] DCB 224
61On 2 April 2013, Mr Stewart has recorded:
“Update from Grant on text message.”[23]
[23] DCB 224
62On 3 April 2013, Mr Stewart has recorded:
“Yarra Junction skate park RIP tags
Police involved to settle kids down
Stated family requested removal not true.”[24]
[24] DCB 224
63On 5 April 2013, Mr Stewart has noted:
“Drove him home very abusive and threatening lawyers etc.”[25]
[25] DCB 224
64Mr Stewart says these notes represent the entirety of his notes in relation to Mr Marriott.
65Mr Stewart was present at the meeting with Mr Marriott on 30 April 2013 at which Mr Marriott says Mr Jack called him a “psycho”. Mr Stewart says he cannot recall Mr Jack using those words, that Mr Jack was “very professional” and that to say this would be completely out of character for Mr Jack as he was extremely respectful.
Mr Jack
66Mr Grant Jack has also affirmed an affidavit dated 2 September 2021. Mr Jack was the Manager of Parks and Facilities at the Council. He says the first problem that came to his attention concerning the plaintiff was in relation to the driving complaints. The first complaint was an allegation of tailgating and the second came from a bus driver who had taken a video of Mr Marriott driving recklessly in Silvan. The police had called the Council to say they had pulled the plaintiff over for driving dangerously. There is no information about the third complaint.
67In November 2012, Mr Jack says he met with the plaintiff to discuss the traffic complaints and that either Mr Paul Wilson or Mr Stewart was present. Mr Jack believes that it was around this time that Mr Marriott first told him that he had been sexually abused as a child, and he explained to Mr Jack that one of the driving complaints had occurred when he had heard Prime Minister Julia Gillard talking about the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) and this had “triggered his PTSD”.
68Mr Jack says that at the plaintiff’s urging, he contacted Ms Perrett-Abrahams and had a discussion with her about Mr Marriott’s anxiety triggers. He says he “took on board” the strategies she suggested and was empathetic to Mr Marriott’s situation. However, he says he still had to deal with the driving complaints which he did by giving him a verbal warning and telling him that a written warning would be given if he continued to drive dangerously. He reminded Mr Marriott that an employee assistance program was available.
69He says he first became aware of any problems between Mr Marriott and Mr Maunder in February or March 2013. The painted engine issue was brought to his attention by Mr Stewart. Mr Stewart told him that he had spoken with both men, Mr Stewart’s view was the engine had not needed painting and the plaintiff was not authorised to paint it, and Mr Maunder had denied removing the paint, either accidentally or deliberately.
70Mr Jack says, around this time, he reviewed the work mobile phone bills and noted that Mr Marriott’s phone bill was “exceedingly high”. He spoke with Mr Marriott, who understood that he would have to reimburse the Council for non-work related calls.
71On 26 March 2013, Mr Jack says Mr Maunder came to him with a concern about an abusive text message he had received in the middle of the night on 24 March 2013 from Mr Marriott. Mr Maunder told Mr Jack that he believed Mr Marriott was teasing him about his dyslexia and “picking on his racial background”. Mr Jack discussed the complaint with Mr Wilson and, in light of the serious nature of the complaint, decided to suspend Mr Marriott on full pay, pending an investigation of the allegation.
72On or about 5 April 2013, he met with Mr Marriott to advise him of the allegation and informed him that the allegation would be investigated and, pending that investigation, Mr Marriott would be suspended on full pay. Mr Marriott denied sending any message, said someone had “morphed” his phone, that he was being victimised and discriminated against because of his PTSD, and reported that he had been told by the union representative on staff, Mr Jim Stewart, that Mr Maunder had been making “inappropriate comments about him and spreading rumours about him”.
73Mr Jack offered to make a record of Mr Marriott’s allegations about Mr Maunder and look into them, but Mr Marriott said he did not know the details.
74Later that day, Mr Jack received a call from an employee in the “Youth Services Team” advising that Mr Marriott had visited her and “said something about getting a gun”. Mr Jack called Mr Marriott to check on his welfare. Mr Marriott said he was not going to hurt himself or anyone else.
75At about 8.00pm on that day, Mr Marriott texted Mr Jack to say he was not doing well, was worried about his mental stability and questioning his sanity. Mr Jack called the Crisis Assessment and Treatment Team (“the CAT team”) who suggested that he ask Mr Marriott to call them.
76At about 8.40pm that day, Mr Jack called Mr Marriott and informed him that he had called Eastern Mental Health Service.
77Mr Jack then spoke with Mr Wilson from the Council human resources department and was informed that Mr Wilson had arranged to meet with Mr Marriott on the Monday. Mr Wilson asked Mr Jack to also attend that meeting.
78On 6 April 2013, Mr Jack spoke again with Eastern Mental Health Service who informed him that Mr Marriott was “doing ok”, had admitted sending the text message and had a plan to see his regular doctor.
79On Monday, 8 April 2013, Mr Jack and Mr Wilson met but Mr Marriott said he did not feel well enough to drive, so a phone conference was held. Mr Marriott said he did not know that he had sent the text message but that he had “discovered things about himself that suggested that he probably had sent it” and that he wanted to “be a man about it and face up to the consequences”. He spoke about a number of allegations he wanted to make concerning Mr Maunder and Mr Maunder’s work performance but said he did not want to go ahead with that.
80Mr Jack informed Mr Wilson that the suspension would be put on hold and Mr Marriott would be placed on sick leave pending medical verification that he was fit to respond to the allegation against him.
81On 9 April 2013, Mr Jack wrote to Mr Marriott informing him that the Council had serious concerns about his ability to attend work or participate in any investigation, advising him that he was being placed on special sick leave rather than being suspended and that during this time he must not visit the Council’s depots, offices or facilities not accessible to the public without written permission. Mr Jack sought Mr Marriott’s consent to obtain information from his treating practitioner as to his ability to return to work and participate in an investigation.
82Having received confirmation from Dr Judith Riseley and Ms Perrett-Abrahams that Mr Marriott was fit for work and could participate in an investigation into the allegation, a meeting took place between Mr Jack, Mr Marriott, Mr Stewart, Mr Wilson, staff union representative Mr Jim Stewart, and the union delegate, Ms Michelle Jackson. Ms Jackson raised a concern about Mr Jack’s role in decision making as he had already been involved in the matter. Mr Jack discussed this with Mr Wilson and agreed to appoint an independent investigator. Mr Marriott was informed that his suspension was lifted, and he was placed on discretionary leave on full pay, pending the outcome of the investigation.
83During the meeting, the union representative informed Mr Jack that Mr Marriott had been subjected to bullying and harassment. Mr Jack says he asked for details, but they were not provided, other than that the tree crew were not talking to Mr Marriott. Mr Jack denies that he called Mr Marriott a “psycho” at that meeting.
84Over the subsequent months, Mr Jack arranged for an investigator to be appointed and set up a meeting for Mr Marriott to report his allegations about Mr Maunder to the investigator.
85On 3 June 2013, Mr Marriott informed the Council by email that he was unfit to attend the proposed meeting. The following day, he submitted a worker’s compensation Claim Form.
Credibility and reliability of the Plaintiff’s evidence
86Mr Marriott’s counsel submitted that his psychiatric injury impacts on the manner in which he responds to questions, and results in him giving overly long answers, and that the impact of his psychiatric condition ought to be taken into account when assessing his credibility.
87From his presentation in court, Mr Marriott is clearly an intelligent man who carefully considered his evidence and ensured he understood the question before providing answers.
88He was careful not to give evidence that he was uncertain about, and was careful to qualify his answers if he did not have a specific recollection. On a number of occasions, he noted that he was being asked about dates and events about which he did not have a specific recollection and that he would be misleading the Court if he “just said yes or no” when he was unable to be certain of the truth.[26] He was loathe to speculate because “that would not be telling the truth”[27] and was at pains to ensure that he kept his oath. He repeated on a number of occasions “I don’t tell lies”.[28]
[26] See for example T36, T39, T42, T97
[27] T97
[28] See for example T79, T91
89As a result of the careful manner in which he answered questions and his qualifications when he was not sure, it is not possible to dismiss inconsistent or implausible answers as the result of a failure to understand what was being put to him, or a consequence of his psychiatric injury that otherwise does not impact his credibility.
90The impression obtained after a number of days of hearing his evidence was that he had a strong tendency to recount and interpret events in a way that supported his claim and the narrative he has constructed around the circumstances of his claim. When presented with evidence that did not support or contradicted that narrative, he did not make appropriate concessions but either maintained his position or said he could not recall.
91Below, I set out a handful of examples that illustrate the plaintiff’s construction of a self-serving narrative that is not plausible.
Contemporaneous notes of incidents during employment
92Mr Marriott said he made contemporaneous notes about both the alleged conduct and the alleged management response. He says the notes he took “would’ve been on a note pad”,[29] they were detailed and from those written notes he then compiled summaries immediately after he left the workplace. When pressed about this evidence, he said:
“… I am sure the contemporaneous notes were there but you described what the format of them and the degree of detail or whatever and I’m unable to say. All I know is that the summaries that were ultimately compiled were compiled directly off the notes that I’d made.”[30]
[29] T135
[30] T136
93When asked where those notes were, he said:
“I don’t think I ever – I have them any longer. I probably burnt them like all the other paper that I – waste paper in my house I use them to light a fire in my backyard when I’m burning off waste, green waste.”[31]
[31] T137
94Mr Marriott said at the time he burned the notes, there was no legal case pending and he saw no reason to keep the contemporaneous notes. He compiled the notes into a summary because:
“… I wanted to have what had occurred, a record put into what was then going on, the investigation process and the processes that were underway at the time to determine what had occurred and the reasons why it occurred. … .”[32]
[32] T137
95He was called on to produce the contemporaneous notes and the summaries. The notes were not in existence but the summaries were provided. These consisted of three densely written documents of 33 pages, 13 pages and five pages respectively.[33] The first document, exhibit P2, is dated 30 April 2013, although it includes references to later dates including 2 May 2013. The other two documents are not dated but the third, exhibit P4, refers to events that occurred on 1 June 2013.
[33] Ex P2, P3 and P4
96From the most cursory reading of those documents, it is evident they are not a compilation of contemporaneous notes or a summary of such notes.
97For example, exhibit P2 has various headings such as, “GRAFFITI REMOVAL VEHICLE: UNROADWORTHY, UNSAFE, AND A DEVELOPMENT MARRED BY HISTORICAL DISPUTES AND REVENGE ATTITUDES” which, merely on the face of the heading, does not reflect a summary of contemporaneous notes.
98Under the heading, “YARRA RANGES COUNCIL- INTERVIEW PROCESS AND FIRST VEHICULAR INCIDENT”, Mr Marriott details an event that allegedly occurred prior to the employment involving an interaction he had with a Council vehicle. In his “summary”, he noted that this incident represented a “chalk and cheese” contrast with how the Council dealt with the driving complaints.
99He uses phrases such as “perhaps six months after I commenced”; “I particularly remember”; “About a week after my interview”; “The incident that I believe began this whole affair”, and “A couple of months ago”. All these phrases are inconsistent with a summary of contemporaneous notes which one would expect would be dated and would not require a retrospective examination.
100In fact, these “summaries” are clearly Mr Marriott’s recollection of events that he says occurred during his employment, written over a number of days or weeks, after he had been informed that a complaint had been made against him by Mr Maunder, that the Council was investigating the complaint and after meetings between Mr Marriott, union representatives and Council management had taken place.
101It is entirely implausible that Mr Marriott, who by the time of the employment had been involved in three other claims for compensation arising from alleged bullying and harassment, would have destroyed contemporaneous evidence of the very bullying and harassment he says occurred, as well as his contemporaneous evidence of his complaints to management about the conduct.
102Mr Marriott’s explanation that he was not anticipating legal action at the time he wrote the summaries is difficult to reconcile with his conduct in pursuing matters through the legal system over many years. It is also difficult to reconcile with the fact that he has headed each document “LEGALLY PRIVILEGED” and that he concluded exhibit P2 by saying:
“… I have made resolution now to prosecute them both [Mark Maunder and Grant Jack] to the absolute and full extent of the law if possible. For me this is now about a lot more than workplace bitchiness. … .”
103Mr Marriott explained that his treaters have encouraged him to write things down so that he can “then force it out of my mind”[34] and he compiled his “summaries” at the “instruction of my clinical people in order for me to reduce the clinical impact that I was under at the time in regards to the rumination of those events”.[35] This may be a useful technique for Mr Marriott to employ and is consistent with the presentation of the documents themselves, which read like an outpouring of his memories and perspectives on events as he looks back on them. It does not explain why the contemporaneous notes themselves were destroyed, nor why the summaries are clearly not a compilation of such notes.
[34] T164.
[35] T180
104Had such contemporaneous notes been taken, I do not accept that Mr Marriott would have disposed of them. Accordingly, I do not accept that any contemporaneous notes were taken and Mr Marriott’s account of having made them is a fabrication.
105His counsel submits that, nevertheless, the summaries were written close in time to the events and therefore retain value as a relatively contemporaneous account of what happened. To some extent this is correct, in that it provides Mr Marriott’s version of events as he recorded them in about mid-2013. They therefore retain some evidentiary value. However, I cannot accept that because they were written closer to the time of the events, they contain a reliable summation of the facts. They are self-serving documents that reflect Mr Marriott’s account of events, after he has become the subject of an investigation arising from his own conduct. They must be viewed in this light.
106His insistence that they were a summary of contemporaneous notes, even after he had the opportunity to re-read the documents, suggests a man unwilling or unable to accept evidence that does not accord with his narrative.
Cessation of attendance on Ms Perrett-Abrahams in 2010
107Mr Marriott ceased seeing his treating psychologist, Ms Perrett-Abrahams, in April 2010. In his affidavit material and in counsel’s submissions, this cessation of treatment prior to resumption in November 2012 is relied on as evidence that, prior to the employment, he did not require psychological treatment. Counsel submitted that in November 2011, his pre-existing PTSD was “quite substantially in remission, if not completely in remission”.[36]
[36] T2
108In Ms Perrett-Abrahams’ clinical record of 30 April 2010, however, it is clear that the reason he ceased treatment with her was that his sessions were no longer being paid for by the workers’ compensation insurer.
109Mr Marriott’s own evidence was that, at the time he ceased seeing Ms Perrett-Abrahams in 2010, he was psychologically not able to work and was taking psychotropic medications which he said “caused me significant additional compromises with regards to my cognitive – my capacity and cognitive function”.[37]
[37] T39
110He believed he had no capacity to work at that time but because of his relationship breakdown, he had no choice financially other than to try to work. He believed that he would not be able to pay his mortgage unless he obtained work. In his words:
“… I either went back to work or the results of not going back to work would’ve meant that I would’ve been in a far worse and potentially catastrophic situation, so it was the devil or the deep blue sea.”[38]
[38] T39
111Mr Marriott submitted a statement to the Knox Special Crimes Unit (“SCU”) in 2010 in which he says:
“… I have remained in intensive therapy until last month when all Psychological and Medical services were withdrawn. In short this illness has caused or been largely contributory to all of the behavioural and other issues that I am outlining here, and it is because these services have been withdrawn and the immediate subsequent degeneration that I am aware of in my condition in a very short period of time that has also prompted me to make this statement whilst I still am in a sufficiently stable state of mind, health and determination to do so.”[39]
[39] Ex D4; Defendant’s Further Supplementary Court Book (“DFSCB”) 22
112This supports a conclusion that his psychological counselling ceased due to the withdrawal of services, rather than a remission of his symptoms, and that the cessation of that counselling caused an immediate degeneration of his condition.
113In February 2010, Mr Marriott was assessed for medico-legal purposes by Dr Michael Epstein, psychiatrist, who reported that Mr Marriott said he felt depressed all day, feels suicidal and had developed an active plan, had panic attacks and felt panicky most of the time, with recurrent intrusive thoughts. He was taking Sertraline and Buspar daily.
114Mr Marriott gave evidence that directly after the collapse of his relationship with his former partner in March 2010, he was “not at all in a good psychiatric condition, due to the fact of [his] ongoing WorkCover matter as well as the compounding effect of the collapse of [his] relationship”. The WorkCover matter he is referring to is his claim arising from his employment with Ibis Care.
115Despite this evidence of his psychiatric state in 2010, he maintained that he ceased seeing Ms Perrett-Abrahams because he no longer needed treatment.
116He did not accept that he stopped seeing Ms Perrett-Abrahams because funding from WorkCover ceased. He said that “there’s never been an issue with funding that’s resulted in me ceasing treatment” and said that when he ceased treatment, “It’s been because I’ve been in a situation or a position where I haven’t needed treatment”. He suggested funding was not an issue due to the availability of mental health treatment plans through Medicare. There was no evidence before the Court as to when mental health treatment plans funded by Medicare first became available.
117I do not accept this explanation and consider the stated reason in Ms Perrett-Abrahams’ notes and his own contemporaneous statement to Knox SCU represent the true reason why his treatment stopped in April 2010 despite his ongoing psychiatric needs. The report of Dr Epstein shows that shortly before the date he ceased treatment, he was depressed, suicidal, had an active plan to take his own life and was feeling panicky most of the time. His own evidence was that he was “not at all in a good psychiatric condition” in March 2010. It is not plausible that only one month later, in April 2010, he no longer required psychological services or was in a “position where [I] haven’t needed treatment”.
118His statements reflect his unwillingness to consider information that does not fit within the narrative that he has adopted, such narrative being that, between April 2010 and November 2011 he did not require psychological support and was “doing the best I’d ever done”[40] and was “in the best health I’d ever been in”.[41]
[40] PCB 154
[41] PCB 154
Interruption of consultations with Ms Perrett-Abrahams
119Between late 2015 and June 2017, Mr Marriott again ceased seeing Ms Perrett-Abrahams.
120In her clinical notes, Ms Perrett-Abrahams has given a detailed account of the circumstances that gave rise to this gap in consultation. On 26 October 2015, she records the following:
“C pres with massive anger and rage against the issues pursuant to his Crimes Comp and his matter against the police. He is also angry at me after a discussion two weeks ago when he rang me in a state to say he had sent over documents to a journalist who his GP had mentioned who writes for the Western? He did not check on this journalist prior and handed over a file of docs for him to write about his matters re police and other abuses he has suffered, from his adoption, and private school education at Scotch. The Journalist assured him he would take on the story. After getting the docs he refused to answer C calls and he has refused to send the docs back to him. C wanted me to give him some answers, and I said ‘what (sic) on earth did you give him the docs’. I thought it might have been suggested to him by someone- however, it was just spontaneously handed over on the basis that C thought he should be able to trust him. The journalist just so happened to have been a police media representative in his previous employ. C googled him after this incident and not before. C felt I was blaming him and he has harboured a significant anger towards me for asking the question- why he did this. Session focus for half of the time was to sort out C feelings of rage towards me and others- the therapy dogs became upset and I had them taken out of the room. Mood stabilised before session end. C adamant that he wants the media to write about his injustice issue- which I agree would be valuable, however, he has been awarded 12 VOCAT sessions and he does not want to use them because VOCAT has not decided whether they will take on his case because his statement to police has been watered down so much it does not present him as a primary victim. C is now out of sessions re Medicare and treatment is now disrupted for the remainder of the year. I have suggested that C return to Lev Botvinik for psychiatric attention. It is clear that C is not taking medication. He was in no mood to hear this from me today. He has agreed to see Lev.”[42]
[42] DCB 780
121Ms Perrett-Abrahams then recorded, on 2 December 2015:
“C rang to say he would be 10 minutes late which turned out to be nearly half an hour late. He did not explain why or apologise. He rep he had been chasing his barrister Whitchurch around who he rep did not know what PTSD was and how it impacted on him. His demeanour was agitated and on edge. He commenced to obsess about Rosie Batty and I intervened to say that he was obsessed about her and we needed to talk about relevant issues to him. He then perseverated over ‘genderism’ and how his legal contact was keen to know more about this and expressed a desire to learn more about it. When C saw him last, he rep he did not want to talk about this - Cs take on this was skewed and paranoid in it’s (sic) theme. I let this go and C went on about how he knew he was badgering people with his views and I suggested that he stop talking about these issues when dealing with people he was seeking help from. C agreed and then went on to say that he had been losing his temper very rapidly lately- I agreed with this insight and reminded him that I had felt the full force of his anger last session, he went on to blame the system for his not being treated and I agreed that we had not been able to commence his treatment over his sexual abuse issues. I pointed out though that he had his sessions from VOCAT that he had elected not to use. C went over the justification about this and he said that he had been told by a VOCAT person that he could use his allocated 12 sessions for psych though if his case was not accepted ultimately by VOCAT, that they may get him to pay if his case [was] not accepted by VOCAT. I informed him that this was not true and immediately Craig said that I was calling him a liar. I said no, I was suggesting that the VOCAT clerk was mistaken. Craig continued on that this was him being ‘hooked’ and he began to make exaggerated fishing arm gestures, th[r]ough violently jabbing his hand through the air. Oscar became stressed and I said to C that he needed to ‘calm down’ as he was upsetting the dogs. C said something about him being upset, and I responded that they had not done anything to him in an attempt to refocus his attention of himself. He immediately jumped up and said that he was going. I asked him to sit down and ‘let[’]s talk about this’ and he did not need to leave. He was furious in his appearance - his face red and raising his voice- he said he was going and he stormed out of my room thru the waiting room, ignoring Anne and slammed his car door shut. He did not sign for the session and therefore it could not be reimbursed by VOCAT. I rang JR to see if she had seen him in recent times. She said he had indicated that he was on his meds. I advised her that he wasn’t and that he needed to behave in treatment sessions and to be on medication if I was to see him again. J said she would call him in again. I also discussed with JR his taking Prosasin (scil Prazosin) and J was intrigued, about the anti anxiety aspect to this drug which is designed for BP. I have said that I will not see him without him taking his medication as prescribed.”[43]
[43] DCB 781
122Ms Perrett-Abrahams had a phone conversation with Mr Marriott on 7 December 2015 in which she instructed him to return and to remain for the full session and to “sign” for the session he had left. However, he did not return for further sessions and he refused to speak to Ms Perrett-Abrahams when she attempted to call him to make welfare checks.
123In mid-2016, Mr Marriott requested his file from Ms Perrett-Abrahams. In August 2016, he requested to see her, but she was unable to accommodate him due to the demands of her practice and referred him to Janet Maxwell. By this time, he had obtained further funding for psychological support from the Victims of Crime Assistance Tribunal (“VOCAT”) after making a claim as a victim of crime relating to the abuse by his father. Ms Maxwell agreed to see him under VOCAT funding.
124In December 2016, he sought support from Ms Perrett-Abrahams in his bid to persuade VOCAT to allow him to allocate the money VOCAT had made available to him for treatment to instead be allocated to “fund his case” against Victoria Police for damages arising from their “treatment of him” and for “not prosecuting his father”. Ms Maxwell was not supportive of him using his treatment funding for this purpose.
125In mid-2017, Mr Marriott returned to Ms Perrett-Abrahams for treatment. On 7 June 2017, she notes that he presented with:
“… continuing issues relevant to his claim and fight for justice about his adoption and subsequent physical and sexual abuse issue as an adopted child by his adoptive father. Focus of session to catch up with claims and forensic issues pending and noting many of the difficulties C has had in having these matter[s] taken on and where they are at currently. … .”[44]
[44] DCB 782
126From December 2015 to at least August 2016, Mr Marriott had not attended any appointments or sought to make any appointments with Ms Perrett-Abraham. Mr Marriott gave evidence that “I was seeking appointments with her, and she just didn’t have space on her - her weekly roster of people that she was seeing”.[45]
[45] T229
127It was put to him that he “fell out” with Ms Perrett-Abrahams. Mr Marriott said “No, I’ve never fallen out with – with – Ms Perrett-Abrahams, because I – you know, I know my place and that she’s in charge of that relationship. I’ve never fallen out with her, ever.”[46] The defendant submits that this is an example of the plaintiff doggedly maintaining his perspective despite objective evidence to the contrary, a submission I accept.
[46] T229
128Whilst there might be a semantic argument about the meaning of “fell out”, it is clear from the evidence that Mr Marriott ceased seeing Ms Perrett-Abrahams after becoming angry with her and forming a view that she had blamed him or failed to support him in relation to a particular event. This led him to leave a session, refuse to attend a subsequent planned session and seek to obtain his file from her. It was only in August 2016 that he sought to return to her, and she did not have a vacancy at that time. It is clear that he did not stop seeing Ms Perrett-Abrahams because he did not require psychological treatment at that time.
129The above examples demonstrate that Mr Marriott will not accept an explanation, even when supported by other evidence, that is not consistent with the narrative he has established. They are just a few of many examples where Mr Marriott’s evidence was implausible. Others include:
(a) his unwillingness in cross-examination to accept that the announcement of the Royal Commission caused him any anxiety, despite his repeatedly having given that history to doctors and saying in his own document, exhibit P3, that “At this time I was also trying to deal with the major issues that the Royal Commission announcement had suddenly presented”;[47]
(b) his evidence in relation to his work history and his mental state prior to the employment, which will be dealt with in greater detail below.
[47] Ex P3, page 2
130It is clear that, whether or not the announcement of the Royal Commission caused him great stress at the time, he told people, even many years later, that it had caused him great stress but was entirely unwilling to accept this in cross-examination.
131Apart from the instances where Mr Marriott maintained implausible explanations contrary to available objective evidence, his evidence was misleading about two significant issues; namely, his employment history and his mental health at the time of the employment.
Work history prior to the Plaintiff’s employment at the Council
132In his affidavit material, Mr Marriott says he worked at William Russell Doors as a carpenter for approximately eighteen months. In fact, he worked at William Russell Doors from 31 October 2002 to 3 May 2003 before making a WorkCover claim for stress, anxiety and depression.
133After 3 May 2003, he did not work again until 8 December 2006 when he obtained work as a maintenance officer. In his affidavit, he says that he worked at Ibis Care for approximately eighteen months. In fact he stopped work on 16 May 2007 after less than six months.
134Mr Marriott filed a WorkCover claim in July 2007 claiming he had suffered PTSD, depression, sleeplessness, hypervigilance, stress and loss of appetite. He claimed that a cleaner at the workplace had “repeatedly harassed, vilified, abused and attempted to intimidate me since the first time we met”. He said in his Claim Form that the injury was caused or contributed to by “managements refusal to stop this behaviour”.
135Following this incident, he remained off work until his long-term relationship ended in March 2010. He says, after the end of this relationship, he was faced with “the invidious choice” of having his “mortgage foreclose and becoming homeless, or going back and trying to find some sort of work with which I could secure the adequate remuneration in order to meet the – the mortgage, as well as the living expenses”.[48] He says at that time, he did not believe he had any capacity to work,[49] which is why he was not working.
[48] T37
[49] T39
136In his affidavit, he says he worked at the Ringwood Square Shopping Centre as a maintenance officer for approximately one year and then Fisher Roofing for about six months.
137This is a misleading characterisation of his work history in the two years immediately prior to the employment.
138In July 2010, he worked with Asteroid Plumbing for a few weeks, finishing in August 2010. When asked why he had worked for such a short period, he said that, apart from the travel –
“I found that I didn’t really want to work for the manager of the company who was – he took some significant personal insult from the fact that, you know, that I hadn’t disclosed my circumstances of my childhood to him and, you know, the psychiatric treatment that I’d undergone at the time that I was employed.”[50]
[50] T46
139He then worked with a company called Caravan Industry Management for a few weeks. He says, when he started working there:
“… a number of people themselves come to me and say I don’t know why you’d want to work here, this place is a mad house, and over the, you know, because I know some people have axes to grind, personally in circumstances like that, giving advice to people like that. I then saw for myself over the following weeks what was going on, and eventually pretty shortly after I started, I left.”[51]
[51] T52
140In January 2011, he started working for Demi Unit Trust which had the management contract for Ringwood Square Shopping Centre and two other shopping centres. Mr Marriott said he performed maintenance at all three shopping centres. He finished working there in August 2011. He left that employment because he found the owner of the company “a very difficult person to work for”. He said that he was “the meat in the sandwich” between unhappy tenants and an unreasonable boss. He said “I simply can’t work with somebody who has just a malevolence towards people simply for the sake of lining his own pockets, as he did”.[52] He said he was expected to get up on the roof each week to clean the leaves off the roof of the building, he failed to do that and that led to “us having a very direct discussion with each other, and deciding that I should leave, which I did”.[53]
[52] T56
[53] T59
141In September 2011, he then worked for the Fisher Family Trust for a few weeks, not the six months he stated in his affidavit.
142In the ten years from October 2002 to November 2012, he worked a total of less than two years.
143Whilst there is no expectation that a worker will meticulously recall the dates and circumstances of more than a decade’s worth of employment, the affidavit in this case goes beyond the minor inaccuracies that can be expected in any memory of dates over a long period.
144The vice is not simply that the period spent in employment is significantly overstated. The affidavit material creates an impression that, although Mr Marriott had a pre-existing condition of PTSD caused by childhood trauma, and had experienced exacerbations of this condition from time to time, he was nevertheless a person who was able to undertake full-time work on a long-term basis, and, by extension, his mental health was sufficiently robust to enable him to maintain work relationships on a long-term basis.
145In fact, his time at the Council was his single longest period of employment aside from his employment with the PTC as a young man which preceded his diagnosis with PTSD.
146Mr Marriott’s affidavit is misleading in relation to his work history in the decade prior to his employment.
The Plaintiff’s mental state prior to his employment at the Council
147Mr Marriott said that prior to his employment at the Council, he had not needed psychological treatment for two-and-a-half years.
148The plaintiff’s counsel submitted that Mr Marriott had been “honest and upfront in his previous Work[C]over claims, his childhood abuse issues etc and has not sought to conceal them in any way”.[54]
[54] Plaintiff’s submissions at paragraph 10
149Dr Brendan Hayman, psychiatrist, notes in his report dated 7 May 2019, that Mr Marriott reported that at the time of his commencement with the Council, he was “doing the best I’ve ever done”. He says within four months of commencement, he had significantly escalated his alcohol and cannabis use as his depressive and anxiety symptoms developed arising from his difficulties with Mr Maunder.[55]
[55] PCB 154
150I have dealt above with the circumstances that led to the cessation of his treatment with Ms Perrett-Abrahams in 2010.
151In March 2011, Dr Riseley prepared a report that noted the consequences of his childhood abuse included:
“1. Reduced ability to form meaningful and intimate relationships due to a lack of trust. Craig was is (sic) an abusive relationship for 10 years and was not able to leave due to fear and an inability to rely on himself.
2. Inability to trust authority figures leading to minor trouble with [the] law.
3. Poor work history as he mistrusts his colleagues and supervisors and this leads to recurrent workplace issues.
4. Anger outbursts which have had a negative impact upon his social, intimate and work life.
5. Depression, nightmares, sleep disturbances, panic attacks self medicated by alcohol and marijuana use.
6. Physical manifestations of emotional distress including irritable bowel disease, proctalgia fugax, eczema, blepharitis and migraine.
7. Financial losses due to prolonged periods of enemployment (sic) and underemployment. Craig is a very capable person who has been forced to accept a string of meanial (sic) jobs as they are, by nature, less stressful.
8. General underachievement in all aspects of his life due to a poor self esteem as Craig has a deeply held, irrational belief that he deserves all the woe that has befallen him.
9. Social isolation and estrangement from all of his adoptive family as Craig is the only family member who has spoken out about his abusive father. He is also cut off from any financial support from his wealthy family.
I expect these issues to trouble Craig for the remainder of his life. He has an ongoing need for psychological support and treatments. … .”[56]
[56] PCB 37
152On 3 August 2011, Mr Marriott attended Maroondah Hospital. The hospital record notes that he had threatened to hang himself during a phone call with his disability insurer. As a consequence, the police were called and attended at his house, and he was taken to Maroondah Hospital for assessment. He was noted to have a history of suicide attempt and was diagnosed with suicidal ideation. After assessment by the CAT team, he was discharged home with a referral to social work.[57]
[57] Defendant’s Supplementary Court book (“DSCB”) 3
153That attendance is recorded in his general practitioner clinical notes on 4 August 2011, where Dr Riseley notes:
“phone call yest from S/C ?? at Monbulk. had been alerted by workcover that Craig was threatening to hang himself.
refusing to give guarantee he won’tpolice will have to take him to hospital for assessment. spoke with Craig
spoke with craig again today
work issues, separation issues. wanting to hang onto job but feeling targeted.
not in dang[e]r, will [co]me to see me.”[58]
(sic)
[58] DCB 729
154It is apparent from these records that, whilst Mr Marriott was not receiving ongoing psychological support at the time of his employment by the Council, he was still taking medication, and experiencing significant impacts from his pre-existing condition, including on occasion feeling suicidal. Those impacts included recurrent workplace issues, due to his mistrust of colleagues and supervisors. His condition was not in remission.
155I have already set out the consequences Mr Marriott claims arise from his injury. An examination of his medical records shows that these impacts predated the employment. Prior to the employment, he had:
(a) Long-term use of medication including Cymbalta, Zoloft and Diazepam;
(b) poor sleep, requiring Stilnox;
(c) nightmares;
(d) tooth grinding, requiring referral to a dentist;
(e) night sweats;
(f) suicidal threats and ideation;
(g) social isolation;
(h) physical manifestations of stress;
(i) depression;
(j) anxiety;
(k) panic attacks;
(l) hypervigilance;
(m) avoidance behaviour including avoiding crowds;
(n) low mood;
(o) reduced libido;
(p) poor memory; and
(q) poor concentration.
156Prior to the employment, Mr Marriott had persistent psychological symptoms that are substantially the same as his current psychological symptoms. His various symptoms waxed and waned in response to different treatments, different medications, and the particular stressors working upon his mind at any time. However, based on all the evidence, it is abundantly clear that in the period prior to the employment, his symptoms were not completely or substantially in remission.
157I conclude that Mr Marriott was not a reliable witness. At times, his evidence was implausible and misleading.
158My findings about Mr Marriott’s reliability as a witness extends to his evidence about the events that occurred during the employment and the history that he has given to the various doctors he saw subsequent to the employment and the doctors that he saw for medico-legal purposes.
159My findings about his unreliability also impact on his evidence about the effect of the employment on his current condition. Because of his tendency to view events through a self-serving narrative, and to recount the past in a way that supports that narrative, his assertions about the consequences of the employment to him, and his attribution of those consequences to the employment, are of little weight. They must be tested against his clinical records and evidence about the consequences of his pre-existing injury.
Credibility and reliability of the Defendant’s evidence
160The plaintiff submits that the Court ought to draw a Jones v Dunkel[59] inference in relation to the defendant’s failure to call Mr Maunder as a witness. He is a current employee of the Council and could have given evidence to rebut the plaintiff’s allegations. The inference is that his evidence would not have assisted the defendant’s case. The defendant filed an affidavit that sought to provide an explanation for Mr Maunder’s non-attendance, essentially that he was loathe to attend due to his own psychological condition and concerns about Mr Marriott. In the absence of medical evidence, I give this evidence no weight.
[59] (1959) 101 CLR 298
161However, I am not persuaded that it is appropriate for me to draw an adverse inference arising from the lack of evidence by Mr Maunder. It is the plaintiff’s case to establish that the alleged conduct occurred and that he sustained an injury arising from it. If he cannot meet that burden on his own evidence, he ought not be assisted by an inference drawn from the way the defendant has sought to present its case.
162The plaintiff further submits that the affidavit from Mr Stewart is “very brief” and fails to address whether he received any complaints about Mr Maunder from the plaintiff prior to March 2013, other than to say that if he had received a complaint, he would have made a diary entry about it. However, Mr Stewart stating that he would have made a diary entry of any complaint is addressing the question of whether he received any complaints about Mr Maunder from the plaintiff.
163The plaintiff did not take the opportunity to cross-examine Mr Stewart on his affidavit. In the absence of it being put to Mr Stewart that he had failed to record complaints made by the plaintiff, I accept Mr Stewart’s diary entries as a satisfactory record of issues relating to Mr Marriott.
164In any event, as will be dealt with in greater detail below, the plaintiff’s own evidence ultimately supports a finding that he did not make any complaints about Mr Maunder prior to February 2013.
Did the alleged conduct occur?
165Counsel for the defendant submits the Court ought not accept the specific incidents alleged by Mr Marriott occurred but that if they did, they did not constitute bullying, harassment or discrimination, and none was a cause of any psychological injury.
166The plaintiff’s case is that the alleged conduct and the alleged management response caused a severe exacerbation of his psychiatric condition that renders him to unfit for work until the present day.
167It is not the function of the Court in an application of this kind to determine whether the alleged conduct constitutes bullying, harassment or discrimination. Nor is it the role of the Court at this stage to determine liability.
168The sole concern of the Court is whether the employment caused or contributed to an exacerbation of Mr Marriott’s injury that meets the test.
169However, to determine whether the employment caused or contributed to Mr Marriott’s injury it is necessary to be satisfied that there was some event or conduct that was capable of causing the injury alleged. For example the stress and anxiety that may have been caused by the complaints about his driving cannot be the foundation for the exacerbation of his injury, though the alleged management response to the driving complaints could be. Similarly, the fact that he may have suffered stress and anxiety when he realised that he had sent an abusive text message to Mr Maunder which was subject to an investigation cannot be the foundation for the exacerbation, although an unfair or unreasonable management response could be.
170In any event, the plaintiff does not submit that the driving complaints or his sending the text message caused him an injury. The plaintiff’s case is that the alleged conduct and the alleged management response to the conduct is the cause of his injuries, though Counsel submitted that this extended to all conduct by management both before and after 5 April 2013 when he ceased attending work.
Findings in relation to the alleged conduct
171I have set out above why I consider that Mr Marriott’s evidence must be treated with caution.
172I am satisfied that at some point there was a discussion between Mr Marriott and Mr Maunder about Mr Marriott’s diagnosis of PTSD and that Mr Maunder expressed some views about that diagnosis and/or the importance of maintaining relationships with family, to which Mr Marriott took exception.
173I am satisfied that this event took place, because it is plausible, and has been a consistent part of his recounting of his history, even though specific details may have changed from time to time. It is also recorded in Mr Stewart’s diary entries that Mr Marriott complained that Mr Maunder had told him to “get over” his illness. Whether or not this was said by Mr Maunder, this diary entry supports a finding that Mr Maunder was aware of Mr Marriott’s diagnosis.
174I am satisfied that Mr Marriott believed that Mr Maunder had deliberately attempted to remove paint from the engine plates he had painted. This has been recorded by both Mr Stewart and Mr Jack.
175I am satisfied that in around February 2013, Mr Marriott believed that two people, Steven and Glen, on the tree crew were ignoring him. This complaint has been recorded by Mr Stewart.
176I am satisfied that Mr Marriott felt that Mr Maunder “cut him off” when he was speaking to members of the public. This complaint has been recorded by Mr Stewart.
177Collectively these events comprise the “found conduct”. To the extent that Mr Marriott otherwise alleges that he was bullied and harassed, I do not accept that evidence. This is because, having carefully observed Mr Marriott and read the voluminous material, I am confident that he would have made complaints to his supervisors and his clinicians if he was being bullied and harassed as alleged.
Did the Plaintiff suffer an aggravation of his pre-existing injury prior to April 2013 that was caused by the employment?
178Mr Marriott says that, during the course of the employment, he experienced increasing depression and anxiety as well as exacerbation of his PTSD because of the alleged conduct and the alleged management response.
179He says the alleged conduct started about a month, and certainly no more than two months, after his employment commenced in November 2011.
180His first medical attendance at Waverley General Practice after commencing at the Council was on 16 April 2012. On that occasion, he saw Dr Pramita Banerjee, who records:
“things have turned around, in a much better place
things settling with separation, now working for Shire Yarra Ranges, happier at work, employer is supportive
needs scripts, systems review negative.”[60]
[60] DCB 728
181He attended Dr Riseley in July for a salivary gland obstruction and in August for epigastric pain. On neither occasion is there any record of the alleged conduct. On neither occasion is any complaint of stress or anxiety recorded.
182On 18 October 2012, he attended for ongoing diarrhoea. He was noted to be “not depressed as much as melancholy – stuck in the Marnie situation”. Marnie is his former partner. Again, no complaints of any exacerbation of psychological symptoms or complaints of the alleged conduct are recorded.
183On 14 November 2012, he saw Dr Riseley, who prepared a mental health treatment plan. She notes:
“Craig has a long history of PTSD. He is currently in a job he likes but has been reported on 3 occasions for driving unsafely in a work vehicle. Craig admits to difficulty with impulse control and is wanting to deal with this before he ‘kills himself or someone else’.
These incidents have likely been not as serious as reported which may trigger Craig’s sensitive spot - fairness and justice.”[61]
[61] DCB 653
184He next attended Waverley General Practice in February on two occasions, once for cracked penile skin and once because he was concerned and anxious about the adrenal tumours. Tests were ordered and he returned to get those test results on 19 March 2013. At none of these consultations were complaints of the alleged conduct recorded nor is there any record of an exacerbation or increase in his psychological symptoms, other than the record of anxiety in relation to adrenal tumours.
185Mr Marriott says he does not recall whether he raised the alleged conduct with Dr Riseley during his consultation with her in November 2012.[62] He says the fact that it is not recorded in her notes does not establish that he did not complain about it. Further, he says he may not have complained about the alleged conduct because:
“… People who have the background and experience that I have – a lot of people ignorantly assume that we have lower thresholds when it comes to these things when in actual fact we have consistently, you know, not consistently all people or a majority but a large number of people actually have an elevated threshold as with anything else in life. You know, as I found when I was working as a carpenter and I’d have callouses on my hands, it soon toughened my hands up. It’s the same principle at play here.”[63]
[62]T96
[63]T96-97
186He said he could not speculate as to when he first raised the alleged conduct with Dr Riseley but that it “perhaps” took him longer than it might have taken another person to reach the point where he felt he needed to raise it.[64]
[64]T97
187Dr Riseley has been Mr Marriott’s treating general practitioner for many years and is aware of his psychological condition and the stressors that might trigger it. For example she notes that his “sensitive spot” is around “justice issues” and his perception of fairness. Whilst her notes are not overly detailed, she does make consistent records of stress-related incidents in Mr Marriott’s medical record, as well as his mental health status. It is difficult to accept that a diligent doctor such as Dr Riseley would not have reported the significant and ongoing bullying and harassment Mr Marriott alleges, had he raised it with her.
188Had Mr Marriott been experiencing an exacerbation of symptoms caused by the alleged conduct, he would most likely have sought medical treatment, and his medical practitioner would have recorded those symptoms.
189Accordingly, I conclude that Mr Marriott did not complain of the alleged conduct or of any exacerbation of his symptoms to Dr Riseley prior to April 2013.
190On 15 November 2012, he returned to see Ms Perrett-Abrahams for the first time since ceasing treatment with her in March 2010. She notes that he returned “due to issue at work”. She notes that he had been diagnosed with bilateral adrenal adenoma and had undergone exhaustive tests to ascertain possible malignancies. He had reported that he “has been very stressed and he has been very scared about the outcome”. She then goes on to note the following:
“… He rep to add to his distress he has been bullied by his co worker in Graffiti removal, who has disparaged him over his PTSD, making numerous judgments about C and how he should be. C rep he is trying to cope with this issue on his own however he had reported the bullying to Craig Stewart in February 2013. … .”[65]
[65] DCB 773
191This is supposedly a note recorded on 15 November 2012, yet it refers to a date of February 2013. It is possible that Ms Perrett-Abrahams recorded the year wrongly and intended to write “February 2012”; however, nowhere in his evidence does Mr Marriott allege that he made such a complaint to Mr Stewart in February 2012. A complaint was made to Mr Stewart in February 2013, as recorded in Mr Stewart’s contemporaneous note, albeit that Mr Stewart recalls that the complaint was in relation to the tree crew.
192Ms Perrett-Abrahams’ note continues:
“… He rep he has been rep for driving aggressively. He rep 3 incidents where he had been subjected to road rage. He had been spoken to by police over one complaint who on hearing the circumstances did not blame C. He acknowledged he could temper his driving but felt he was not in the wrong on these occasions. I have suggested he has a meeting with manager with me to debrief. They do not want him to drive unless he is cleared by me. Debrief and symptom relief. C rep he has not seen Lev and needs to have meds review.”[66]
.. his prognosis is likely to be unfavourable and he is likely to remain prone to depression and anxiety in the future and any significant stresses are likely to aggravate his psychiatric conditions.”[140]
[140] PCB 145-146
331Dr Kaplan notes Mr Marriott’s engagement with the Royal Commission. He notes Mr Marriott’s report that although he found the Royal Commission process anxiety provoking, he viewed it as a positive experience. Dr Kaplan notes “from the enclosures that Mr Marriott has in the past approached the police wanting to have his father charged in relation to his early experiences of abuse”. He further notes Mr Marriott “stated that he has continued to pursue this matter and recently he was informed by the police that his father would be prosecuted”.
332Dr Kaplan was made aware of Mr Marriott’s efforts to have his adoptive father prosecuted in the briefing material; however, from the cursory mention in his report, it appears that Mr Marriott significantly downplayed the role that his attempts to have his father prosecuted has played in his life since the employment. The conclusions Dr Kaplan reaches as to the impact of the employment are necessarily impugned by the history provided.
Dr Lev Botvinik, treating psychiatrist, reports dated 13 June 2013 and 2 May 2019
333Dr Botvinik saw Mr Marriott on six occasions between 2009 and 2014. In his 2019 report, he makes a diagnosis of:
“… complex trauma/PTSD, chronic adjustment disorder with mixed anxiety and depressed mood, possible organic brain injury, and a mixed substance use disorder.”[141]
[141] PCB 133
334He notes:
“While Mr Marriott’s psychiatric condition is probably multifactorial in nature, I believe that his employment with the Yarra [R]anges Council has been a contributing factor to the recurrence or aggravation of his pre-existing psychiatric condition.
…
With my relatively limited knowledge of Mr Marriott, it is virtually impossible to tease out to what extent his employment with the Yarra [R]anges Council contributed to his psychiatric condition. … .”[142]
[142] PCB 133
335He records Mr Marriott’s history in relation to the employment as one in which he had increasing conflict with his partner which made him very angry and frustrated and, over six months or so, became untenable. He notes that Mr Marriott claimed to have been “denigrated and bullied” by this person and to have complained to his supervisor a number of times without result.
336At his last meeting with Mr Botvinik in 2014, Mr Marriott reported that he was suffering a lot of stress and anxiety and self-medicating with alcohol and cannabis.
337In June 2013, at the time that Mr Marriott lodged his claim for compensation, Dr Botvinik reported to Dr Riseley:
“He seems to have been relatively stable on duloxetine and olanzapine until a recent string of incidents at work, which have again triggered/re-ignited his PTSD/anxiety symptoms.
Unfortunately, Craig has been using excessive quantities of alcohol at times to cope with stress. He also occasionally smokes THC.
The other notable development has been the ending of his long-term relationship with his de facto partner, who he claims ended up being unfaithful to him.
Today, I note an increase in stress and anxiety levels, with poor sleep, and increased levels of anger and frustration. However, Craig does not present as being profoundly depressed, and is coping with the stress better than previously.”[143]
[143] PCB 129
338Mr Botvinik had not seen Mr Marriott since 2014 and therefore could not provide any opinion in relation to the impact of more recent stressors on Mr Marriott’s condition. Nevertheless, he was unable to say to what extent the employment had contributed to his condition as at the date he was last examined. He did note that his “ongoing dispute with his WorkCover insurers continues to be a source of significant frustration and anxiety for Mr Marriott and resolving this would certainly aid his mental state”. It is obvious that the stress and anxiety arising from Mr Marriott’s involvement in an insurance claim are not matters that can be considered in assessing the significance of the aggravation caused by his employment.
Dr Judith Riseley, report dated 13 May 2019
339Dr Riseley notes Mr Marriott’s “marked sense of right and wrong” and his belief that he has been treated unjustly over many issues. She notes that it is likely that he will only recover if he succeeds in obtaining “justice” for the initial trauma of childhood abuse and also for his treatment at the Council. She notes that “he is on a crusade to obtain that”. He has been unable to commit to long term psychotherapy “which is likely the only treatment which will help him significantly”.
340She opines that the situation at the Council was “the straw which broke the camel’s back” and that the work related injury “in isolation” does not prevent him from performing his work-related duties or alternative duties. She notes that:
“Craig has been unable to participate in social activities or form friendships. This is due to accumulated burden of his recent exacerbations of his PTSD, not just his experiences at Yarra Ranges”.[144]
[144] PCB 47
341Although she appears to be a supportive and responsive general practitioner, and has accepted his narrative about events at the Council, it is clear from her records that there are many factors that have contributed to Mr Marriott’s injury.
342Her clinical notes record the various concerns he raised with her, including:
(a) his issues with VOCAT and being treated “without respect”;
(b) his “pursuit of justice” through the Royal Commission;
(c) his anger in relation to Victoria Police and his attempts to have his father charged;
(d) the loss of his licence due to speeding in February 2014 and his need to attend court over driving offences in December 2014;
(e) his hunger strike in December 2017, motivated by his desire to achieve justice for victims of sexual abuse;
(f) a further motor vehicle accident in 2020; and
(g) his adoption.
343An analysis of his current condition and her record of his injury prior to the employment is almost identical. It is not apparent from Dr Riseley’s clinical notes that the employment is responsible for any and what aspects of his current condition.
Dr Brendan Hayman, reports dated 7 May 2019 and 24 January 2020
344In his report of 24 January 2020, Dr Hayman notes:
“There has been a significant improvement in his condition since recommencement of antidepressant medication. He has also continued with his psychologist Dianne Perret[t]-Abrahams. By his own acknowledgement, his depressive syndrome is much improved. He similarly has had some diminution in the traumatisation symptoms. He is functioning more adaptively. However, he does remain effected and has some ongoing symptomology. He remains in his words, ‘exhausted’ and has to have an afternoon sleep every day. His concentration remains limited. … .”[145]
[145] PCB 167
345Dr Hayman considered Mr Marriott met the criteria for a diagnosis of a Chronic Adjustment Disorder with Depressed and Anxious Mood with no traumatisation features, and that he remained incapacitated for pre-injury duties.
346In his earlier report dated 7 May 2019, he details the extensive history given to him by Mr Marriott. He notes:
“Following his suspension, he engaged with his psychologist Diane Perrett-Abrahams and they tried to work out a return-to-work plan. He said at that stage he wished to return to work however this was stymied by ‘people higher up at council’ that would not allow him to return. He thus has never returned to work since.”[146]
[146] PCB 150
347He notes subsequent events reported by Mr Marriott, including:
(a) Mr Marriott reporting two Council members, including Mr Maunder, to IBAC;
(b) his application to the Equal Opportunity Board regarding being wrongly treated because of his disability;
(c) his allegation that he was “targeted” by various people at the Council, including by having Council workers come to his home under the pretext of inspecting a tree for removal, which he felt was intrusive and unwarranted;
(d) receiving a death threat in 2017 which he believes came from a Council worker;
(e) his anger over having Council workers turn up at the end of his driveway and simulate sexual acts, which he found very upsetting; and
(f) his concern after installing a pool at his home but subsequently receiving a notification from the Council to decommission the pool, which he believes was “harassment”.
348Dr Hayman says:
“It appears very clear that Mr Marriott is more vulnerable than most and more sensitive to interpersonal reactions. That being said, they nonetheless occurred in the workplace and continue to preoccupy him to the current day. He remains greatly preoccupied with gaining ‘justice’. He leads a more circumscribed life and is somewhat ‘stuck’ in his predicament.”[147]
[147] PCB 158
349Dr Hayman notes Mr Marriott’s involvement in other matters, including the criminal justice system in relation to charges against his adoptive father and submissions to the “Disability Royal Commission”. It is not clear whether Dr Hayman intended to refer to the Royal Commission into Institutional Responses to Childhood Sexual Abuse, or whether Mr Marriott has also been involved in making submissions to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. Dr Hayman notes that Mr Marriott continues to pursue “justice” regarding all these issues; however, beyond noting Mr Marriott’s involvement in other issues, there is no attempt to consider or to disentangle the psychiatric impact of these other events on Mr Marriott’s current condition.
350Apart from being impugned by the inaccurate history provided, there is no attempt by Dr Hayman to grapple with the extent to which Mr Marriott’s current condition relates to the employment as opposed to his pre-existing injury and aggravation from subsequent events.
Dr Nicholas Ingram, report dated 28 September 2021
351The plaintiff was seen by Dr Nicholas Ingram, psychiatrist, who prepared a report dated 28 September 2021.[148] Dr Ingram notes:
“These previous experiences therefore colour the issue of how much of the anxiety and depression he developed while working at Yarra Ranges Council was pre-existing and how much was related to his perceived abuse while working for the council. However, if his history is to be believed, then, despite these vulnerabilities and his problems at other workplaces, he was functioning reasonably well prior to his job with Yarra Ranges Council, without significant anxiety and depression. I therefore think that it was his perception of how he was treated at Yarra Ranges Council that led to his developing the depression and anxiety that prevented him from continuing to work there.
In regard to treatment, he is now in the process of trying to seek justice for what he perceived to be bad treatment at the hands of the Police and I think it is reasonable that he continue to see a psychologist while this goes on. Whether this is still related to his employment at Yarra City Ranges, however, is less clear and I feel that his current need for help is more likely to be related to the abuse he had as a child and his sense of having been harassed by the Police rather than his employment.
…
… Mr Marriott is suffering from a complex post-traumatic stress disorder, currently in remission.” [149]
[148] PCB 171
[149] PCB 177-178
352However, Dr Ingram goes on to note that Mr Marriott’s employment led to a “significant exacerbation and aggravation of this pre-existing psychiatric condition” but that, at the current time, he has no significant psychiatric symptoms, though this is because he remains relatively secluded and isolated. He then opines:
“I think it is reasonable that he continue to see his psychologist on an ongoing basis, though I think this is more to do with his long-term PTSD and his current struggle to get justice against the Victorian Police, rather than his employment with Yarra Ranges Council.”[150]
[150] PCB 178
353He considers Mr Marriott has no current work capacity. He says that if he did return to work he would likely have a “resurgence of his anxiety and depressive symptoms” which is:
“… partly because of his experiences as a child, but I think it is also related to his work with Yarra Ranges Council, where his sense of abuse there has left him feeling that it is not possible to trust any prospective employer. This feeling was further consolidated by his sense that the police did not help him in his case against his father, but to the contrary he felt that they actively obstructed and harassed him.”
354Dr Ingram’s report is premised on the basis that Mr Marriott was functioning reasonably well prior to the employment, without significant anxiety or depression. I have already made findings that this is not an accurate reflection of Mr Marriott’s pre-injury state. Dr Ingram notes that Mr Marriott’s pre-existing injury has “led to his having a need to obtain justice” which is “probably also tied up with his quest to claim compensation for what he has perceived to be unfair treatment at work” and also contributes to his complaint in relation to Victoria Police.
355The report assigns the employment a significant role in the exacerbation and aggravation of the pre-existing injury, but given that it is based on the premise that the plaintiff was functioning reasonably well prior to the employment, the conclusion carries little weight.
Dr George Mendelson, reports dated 2 April 2019 and 21 October 2021
356Dr Mendelson reports:
“Based on the history given to me by Mr Marriott and my observations on mental status examination, as well as information in the documents and reports to which I referred above, it is my opinion that there is no indication that as the result of his employment with Yarra Ranges Shire Council he had developed any diagnosable mental illness or that there has been any aggravation of the pre-existing Post-traumatic stress disorder, which he had developed as the consequence of childhood sexual abuse. Whatever emotional symptoms Mr Marriott might have experienced as the result of conflict with his co-worker, or inappropriate remarks by Mark Maunder, had not led to the development of any specific diagnosable psychiatric disorder, and also had not led to loss of work capacity. The information available to me indicates that Mr Marriott ceased work because he was suspended and not because of any psychiatric symptoms or condition.”[151]
[151] DCB 130
357In his 2021 report, Dr Mendelson notes the email that Mr Marriott sent to various people on 19 June 2018 headed, “Final Communication, Will and Testament” in which he declared that he was ending his life. The concerns addressed in this email revolve around the failure by Victoria Police to prosecute his adoptive father and there is no mention of any emotional symptoms attributable to the employment.
358Dr Mendelson does not consider that the employment is the cause of any exacerbation of Mr Marriott’s injury.
359Dr Mendelson is clearly aware of the full extent of the subsequent events that have caused or contributed to Mr Marriott’s injury and gives no weight at all to the employment. The other medical experts have not appeared to fully grapple with the subsequent events and have based their opinion largely on Mr Marriott’s reported history. Dr Mendelson, provided with the same history, has reached a conclusion that is an outlier in terms of the medical opinions. It is not clear how or why he has reached the conclusion that Mr Marriott had developed no diagnosable mental illness or any aggravation of the pre-existing illness as a result of the employment.
Findings in relation to medical evidence
360It is generally accepted by the experts that Mr Marriott has experienced an exacerbation of his injury, though the cause of that exacerbation is disputed. Dr Mendelson considers that the events at the Council played no role but the other experts consider that the events at the Council have played a role to varying degrees.
361The medical opinions are based on Mr Marriott’s reported history of the alleged conduct and the alleged management response. However, Mr Marriott is an unreliable historian. The authorities establish that the opinions of medical practitioners are dependent on the reliability of the account of the history of the injury with which they are provided. Where that history is not reliable, those opinions may be given less weight.[152]
[152] Dordev v Cowan [2006] VSCA 254 at paragraph [14]
362I have already made findings that had he been bullied and harassed as alleged and had he suffered an exacerbation of his symptoms as alleged prior to April 2013, he would have sought medical treatment.
363Even after his suspension in April 2013, he did not allege that he had sustained a significant exacerbation of his injury and both his general practitioner and psychologist declared him fit for full-time work and fit to undertake a disciplinary investigation.
364I have found that he did suffer an exacerbation of his pre-existing injury after April 2013. At that time, there were a number of factors that contributed to the exacerbation, including the text message, his suspension pending investigation, and his concern about his adrenal adenomas. The alleged conduct and the alleged management response were not the sole cause of the exacerbation.
365Even with the history of unremitting bullying and abuse provided by Mr Marriott, most of the experts determined that the role of the employment in any exacerbation or aggravation was modest:[153]
(a) Dr Grant says the employment has played “some role” and likens the employment to “the straw that broke the camel’s back”, but that even without those events, he would have significant ongoing diagnoses and disabilities;
(b) Dr Epstein notes that the employment is “only a small part of a much larger picture”;
(c) Dr Riseley notes in 2019 that his current condition is caused by “recent exacerbations” to his PTSD and is not limited to the employment. She says “in isolation” the employment does not prevent him performing his work-related duties;
(d) Dr Botvinik, the only psychiatrist Mr Marriott has seen for treatment, and who has had the benefit of having seen him on several occasions prior to the employment, says it is “virtually impossible to tease out to what extent his employment with the Yarra Ranges Council contributed to his psychiatric condition”;
(e) Dr Kaplan opines that “[i]t is difficult to assess whether the work related aggravation of his pre-existing psychiatric condition taken in isolation would prevent him from performing alternative duties, although that aggravation would probably have a significant impact in this regard”;
(f) Dr Ingram says, “Whether [the need for ongoing psychological treatment] is still related to his employment at Yarra City Ranges, however, is less clear and I feel that his current need for help is more likely to be related to the abuse he had as a child and his sense of having been harassed by the Police rather than his employment”.
[153]For the reasons set out at paragraphs [303]-[307], I discount Ms Perrett-Abrahams’ assessment in relation to the role of the employment in Mr Marriott’s injury
366Particularly persuasive are the opinions of his treating general practitioner, who does not think that the employment “in isolation” would prevent him from working, and his treating psychiatrist, who says it is “virtually impossible” to tease out to what extent the employment has contributed to his psychiatric condition.
367Both these practitioners saw Mr Marriott prior to the employment, as well as after the employment. They have made these findings, even in the face of the history provided by Mr Marriott.
Comparison of pre-existing injuries with current condition
368As the plaintiff correctly submits, I do not need to find that the employment is the only cause, or even the primary cause, of the exacerbation of his injury, provided that it caused a significant exacerbation that meets the test of “severe”.
369It is for the plaintiff to “disentangle” the exacerbation of his injury arising from his employment from his pre-existing injury and any subsequent exacerbation. It is also for the plaintiff to disentangle the exacerbation of injury arising from his employment, from any exacerbation that coincided with his employment but had other causes, for example the driving complaints, the adrenal adenomas or the announcement of the Royal Commission.
370Of the “new” consequences submitted by the plaintiff, the only ones that appear not to have pre-dated the employment are the requirement for prescription of Prazosin and the onset of severe trembling.
371Though he may not have been prescribed Prazosin prior to the employment, his nightmares were well documented for many years, as are his night sweats. In 2009, Dr Riseley notes he is “waking drenched in sweat”.[154]
[154] See for example DCB 757, DCB 101, DCB 81, DCB 731 and DCB 733
372To the extent that the prescription of Prazosin and the development of “trembling” represent new consequences of his PTSD which can be attributed to his employment, he has not established that these new consequences are a significant contributing factor to his current condition or his loss of earning capacity.
373There is no evidence that taking Prazosin has any impact on his life.
374The fact that his trembling was not reported to his treating doctors, that he does not mention it in his second affidavit, and it was not included in the symptoms that Counsel submitted were “new” consequences arising from the employment lead to a conclusion that this symptom does not persist, or, if it does, does not have a significant impact on his life.
375The plaintiff has not established that these limited new symptoms are significant contributing factors to his current condition.
376For the sake of completeness, Mr Marriott has also not established that taking Prazosin or the apparent trembling could fairly be considered to be “severe”.
377It is not necessary for him to establish “new” consequences arising from the employment if he is nevertheless able to show that existing symptoms were exacerbated by the employment to an extent that meets the test. He has not done so. He has not disentangled the multiple contributing causes to enable a finding that the employment is a significant contributor to his current condition. When comparing his pre-existing symptoms with his current symptoms, I am simply unable to identify what can be said to arise from the employment.
378Nor has he established that the employment is a significant contributing factor to his current work capacity. His current work capacity is impaired by his current psychiatric condition. The employment is not a significant contributing factor to his current psychiatric condition and therefore I cannot be satisfied that it is a significant contributing factor to his work incapacity. His psychiatric condition has caused significant impediments to his ability to work well prior to the employment.
Conclusion
379Mr Marriott had a significant pre-existing psychiatric condition. That condition was not completely or substantially in remission at the time of his employment at the Council.
380Mr Marriott was not a reliable witness. I do not accept his evidence that he was bullied from within six weeks of his commencement with the Council until his departure. I do not accept his evidence that he made complaints about bullying and harassment to the Council’s management at any time prior to February 2013.
381He has not established that the employment caused an aggravation or exacerbation of his injury prior to April 2013. After April 2013 and before the termination of his employment, he may have suffered an exacerbation or aggravation of his injury. He has not established that any exacerbation or aggravation of his injury was significant or is a significant contributing cause of his current condition of his current work incapacity.
382The plaintiff’s application is dismissed.
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