Maulday v Victorian WorkCover Authority
[2023] VCC 1918
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-04020
| TRUDI MAULDAY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 May 2023 | |
DATE OF JUDGMENT: | 26 October 2023 | |
CASE MAY BE CITED AS: | Maulday v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1918 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – causation – pain and suffering – loss of earnings – effect of admission by conduct – range case
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Johns v Oaktech Pty Ltd [2020] VSCA 10; Kavanagh v The Commonwealth (1960) 103 CLR 547; Pearson v Fremantle Harbour Trust (1929) 42 CLR 320; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Popovski v Ericsson Aust Pty Ltd [1998] VSC 61; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141
Judgment: Leave granted to commence proceedings for pain and suffering and loss of earnings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Ms J Ryan | Angela Sdrinis Legal |
| For the Defendant | Mr T Storey | Wisewould Mahoney |
HIS HONOUR:
1The plaintiff, Trudi Maulday, was employed full-time with Victoria Police as an administrative officer at various locations for the period from 1999 through to her reluctant resignation in December 2009. Prior to her employment with Victoria Police, she was a part-time administrative officer with Queensland Police stationed at Kirwan Police Station in Townsville for five years.
2On her account, the primary contributing factor to her resignation was the psychological impact of predatory, intimidating and harassing behaviour within, and stemming from, her workplace.
3Ms Maulday seeks leave to bring proceedings to recover common law damages under s134AB of the Accident Compensation Act 1985 (Vic) (“the Act”), for both pain and suffering and loss of earning capacity damages in respect of a psychiatric injury under paragraph (c) of the relevant definition of “serious injury”.
4The issues for determination in this application are as follows:
(a) what is the medical diagnosis of the plaintiff?
(b) is the plaintiff’s current medical condition one which arose out of her employment?
(c) if the plaintiff’s medical condition is compensable, is her injury serious?
Principles
5The general principles in an application of this type are not in dispute.
6Ms Maulday bears the onus of demonstrating her mental impairment or behavioural disturbance is permanent and severe. She must establish that the consequences to her, with respect to pain and suffering or the loss of earning capacity, when judged in comparison with other cases in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe in accordance with the narrative test as set out in s134AB of the Act.
7In so far as the claim relates to economic loss, Ms Maulday must satisfy the Court that, at the date of the hearing of this application, she has a permanent loss of earning capacity of 40 per cent or more as set out in sub-section 134AB(38)(e) of the Act.
8The claim for loss of earning capacity is measured by comparing:
(a) the plaintiff’s gross income from personal exertion which she is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[1]
[1]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at paragraph [70]; s134AB(38)(f)
9Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd[2] that s134AB of the Accident Compensation Act 1985 is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”
[2][2009] VSC 454 at paragraph [171]
10In terms of causation, a plaintiff must prove on the balance of probabilities that a causal connexion exists between the employment and the injury.[3]
[3]Kavanagh v The Commonwealth (1960) 103 CLR 547
11The “arising out of” employment test will be satisfied if the employment is shown to have been a cause of the injury. Although not the only cause, it must be the real, effective or proximate cause. This is a question of fact, and is to be approached, like any other causation question, as a matter of common sense.[4]
[4]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141, [76], [82]; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61, [33]
12The credibility of the plaintiff is often critical to the success or otherwise of the plaintiff's proceeding, and this is particularly so in cases involving psychiatric injuries.[5]
[5]Johns v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Factual findings
13Now aged 55 years, Ms Maulday completed year 12 at Mentone Girls’ Secondary College. She met her ex-husband whilst travelling in Queensland, and started a family with him. She has three non-dependent male children.
14Following completion of a part-time administration and office skills TAFE course, she passed the Queensland public service exam and commenced work with Queensland Police as an administrative officer in 1994. Her full-time employment with Victoria Police as an administrative officer commenced in April 1999, which coincided with difficulties Ms Maulday was having coping with family life in the context of her ex-husband being away for long periods of time in connection with his employment as a long-distance cattle truck driver. It is not in dispute that she has taken prescribed antidepressants for depression on a regular basis since that time.
15Her marriage breakdown in the early 2000s, which involved legal proceedings including to determine custody arrangements for her children, left her with low self-esteem. During this period she experienced various interpersonal difficulties at different stations while working with Victoria Police, including periods of time during which she was certified as unfit for work. As at September 2003, she had essentially returned to full-time duties.
16In or about 2008, Ms Maulday met Sergeant Dean Isles (“Isles”), who was a senior police officer at Oakleigh Police Station Criminal Investigation Unit.
17At the time, Ms Maulday was in full-time employment, a single parent who was coping with the challenges of life, and who enjoyed a full social and recreational life.
18Isles initially approached Ms Maulday at work after a night shift. He was drunk at the time. Ms Maulday began to receive attention from Isles at work. Flattered, she eventually agreed Isles could visit her at her home. Upon arrival, Isles wanted intercourse, but she declined. During the course of an affair which lasted two or three months, Ms Maulday engaged in consensual oral/digital sex acts with Isles on four or five occasions. A feature of the affair was the demeaning nature of the sexual acts and the manner in which Isles requested she perform them. This included displaying a video of Isles having sex with another co‑worker, and never kissing Ms Maulday.
19Ms Maulday always felt there was something not right, and when Isles turned up at her house one night unannounced wanting intercourse, she refused him entry. She ceased the relationship shortly afterwards when she found out he was engaged to be married to another woman, which he had concealed from her.
20Thereafter, rumours swirled at Oakleigh Police Station, and Ms Maulday was the subject of harassment and bullying in connection with the conduct of Isles and her relationship with him.[6] Although Senior Sergeant Ogden refutes these allegations, he was “aware that [Ms Maulday] had a physical relationship with Dean Isles at the time.”[7] I accept Ms Maulday’s evidence that she did not disclose her relationship with Isles to him.[8]
[6]See September 2009, clinical note, “bullied by a more senior member, embarrassed by working with him… needs time out”: Defendant’s Court Book (“DCB”) 274; and Transcript (“T”) 67
[7]Affidavit of Gary Ogden sworn 26 April 2023
[8]T111, Line (“L”) 14
21The relationship was intimately connected with Ms Maulday’s employment. She was a relatively junior administrative officer, and Isles used his position of authority to take advantage of her. There was a gross imbalance in power. His conduct, in grooming the plaintiff to perform sexual acts, took place at work, as did various email exchanges and other interactions at the police station. On one occasion Isles exposed his erect penis to Ms Maulday at Oakleigh Police Station.
22Ms Maulday was vulnerable to this type of behaviour; and Isles was calculating in his exploitation of that vulnerability.
23She resigned from Victoria Police in or about December 2009.
24In or about 2015, Victoria Police set up “Taskforce Salus” to investigate allegations of unprofessional and sexual predatory behaviour by Isles. Investigators with Taskforce Salus approached and interviewed Ms Maulday in June 2015. She provided an 8-page written statement.[9]
[9]T93, L22-24; Plaintiff’s Court Book (“PCB”) 42
25Taskforce Salus identified a total of fifteen junior female staff members at various police stations as victims of inappropriate behaviour by Isles. A further ten female victims were interviewed but declined to cooperate with the investigation. On 20 October 2015, Taskforce Salus determined the allegation of “disgraceful conduct” against Isles as substantiated.[10]
[10]PCB 18-40
26Between 2011 and 2013, she worked as a speed camera operator for 3 months with Serco Asia Pacific, and undertook administrative positions with Fantastic Furniture for two months, and Griffith Panel Works, Monet Press, and Fildes Food Safety, each for a period of only about one month.[11]
[11]Affidavit of the plaintiff, PCB 12-13 [10] and [13]
27Following a diploma course as a youth and residential care giver, she found employment with Menzies Residential Care for approximately four months; then for a period of about two years from 2013 to 2015, she worked at Dandenong Neighbouring Community and Learning Centre. She enjoyed her role helping disadvantaged youths who had disengaged from school and were living in dislocated circumstances.
28Then she was employed with Essential Recruitment and Personal Solutions as a youth worker for a short period. In late 2015, she worked for a few months as a factory hand with Integrated Communications and Distribution before she started an online diploma counselling course through Australis College. She found she was not able to properly concentrate, and discontinued her studies.
29Other than working as a pizza driver for a few months in 2017 and again in 2019, Ms Maulday has not worked in paid employment since December 2015. I accept Ms Maulday’s evidence that before ceasing her employment with Victoria Police, save for a period coinciding with the breakdown of the marriage, she was a reliable, steady and hard-working employee.
30In November 2022, Ms Maulday commenced a voluntary position at a small local charity shop which also has a food bank. She worked hard to attend the shop every Monday morning for two to three hours in a supportive environment. Working at the shop made her realise how bad her concentration is: she found she was easily distracted, walking away from tasks and leaving them unfinished. Her memory is an issue and she found herself getting confused. She only worked on the Monday morning when the food bank was not open because she was not comfortable working with customers. She was not able to handle any pressure.
31Unfortunately, her symptoms – including anxiety and anger – were triggered at work one Monday, and Ms Maulday ceased this voluntary work in April 2023.[12]
[12]T104
Credit
32Ms Maulday impressed me as a witness. She frankly conceded the nature of the sexual conduct at the time and her apparent consent, and did her best to answer questions in a candid manner. She was courageous in overcoming the humiliation she has felt for well over a decade to give evidence in relation to the circumstances of her relationship with Isles. Any deficiency in the history recorded in the report of her treating psychiatrist[13] did not rise to the level of impugning the opinions based upon the history as a whole.
[13]Dr Sangeeta Raghav: see PCB and T134
33Whilst she was at times focussed in attributing blame on Victoria Police, I have given no weight to any evidence of Ms Maulday, as a lay person, on the central issue of medical causation, and in particular whether non-employment factors may have contributed to her current condition.
34Any equivocation or uncertainty in her answers during cross-examination was minor in nature, particularly in the context of Ms Maulday’s severe psychological condition.
35I accept her evidence.
What is Ms Maulday’s diagnosis?
36For the reasons set out below, I find that Ms Maulday suffers from a major depressive disorder. Although Ms Maulday has an underlying depressive condition, this was essentially in remission for a period of many years prior to the relationship with Isles.
Treating doctors
Dr Premjeet Singh, general practitioner
37Dr Premjeet Singh has been Ms Maulday’s treating general practitioner since 23 October 2014. Dr Singh diagnosed Ms Maulday with a major depressive disorder with generalised anxiety disorder; and post-traumatic stress disorder.[14] In her opinion:
“… the harassment has scarred her for life and contributed to her depressive disorder with anxious distress, depressed mood, anxiety, agoraphobia, panic attacks and suicidal thoughts. It has also affected her activities of daily living where she remains most of the time home bound with no socialisation activities.”[15]
[14]PCB 93
[15]PCB 94
Dr Paul Grech, psychologist
38Dr Paul Grech has been treating Ms Maulday since December 2014. Noting her history of anxiety, he diagnosed employment-related severe complex PTSD, bipolar disorder, anxiety, depression and trauma-related sequelae, connected with multiple traumas, including multiple episodes of childhood abuse and assaults against her as an adult working with Victoria Police.[16]
[16]Report dated 17 December 2017, PCB 67
Dr Sangeeta Raghav, psychiatrist
39Dr Sangeeta Raghav is Ms Maulday’s treating psychiatrist, following a referral in August 2021 from Dr Singh.[17] Ms Maulday remains under her care. As her treater, I give significant weight to her opinion as to causation.
[17]PCB 95
40Dr Raghav diagnosed a post-traumatic stress disorder linked to the workplace incident. Based on the history that “she was sexually assaulted, harassed and groomed by a police officer when she was working at Oakleigh Police Station as an administrative officer”, Dr Raghav believes “her current psychiatric condition is directly related to her exposure to harassment and sexual assault at her previous work with the Victoria Police.”[18]
[18]PCB 97, 98 and 100
41Dr Raghav also reported that:
“In my opinion, Ms Maulday’s psychiatric condition is more likely permanent as she is less likely to have huge improvement in her psychiatric condition even with ongoing long-term treatment.”[19]
[19]PCB 101
Medico-legal opinion
Dr Alan Jager, forensic psychiatrist
42Forensic psychiatrist Dr Alan Jager examined Ms Maulday on multiple occasions at the request of the defendant. He first examined the plaintiff on 26 April 2021 (via Skype), and in total has produced five reports between this date and April 2023.
43Dr Jager diagnosed a borderline personality disorder which does not arise out of her employment, but as a result of:
“The history of emotional trauma in childhood, her patchy relationship history, chronic low self-esteem, parasuicidal behaviour and family history of likely personality dysfunction in the mother…”[20]
[20]DCB 12
Dr Ash Takyar, consultant psychiatrist
44Dr Ash Takyar, consultant psychiatrist, examined Ms Maulday three times at the request of her solicitors between 2021 and 2023.
45In his first report, dated 29 April 2021, Dr Takyar recorded his findings on examination:
“… She was engageable and polite but quite highly anxious, particularly in the latter stages of the review, and wept intermittently when describing her symptoms, and the history of her injury. Her mood was low and her affect was restricted in range, teary, anxious but not guarded or irritable. Her speech was of increased rate and normal volume. Her thought form was often circumstantial and tangential, requiring redirection and she appeared to lose focus intermittently during the review. Ms Maulday described memory difficulties and presented in a manner congruent with this, with difficulty recalling dates and needing prompting at times…”[21]
[21]PCB 107
46Dr Takyar diagnosed Ms Maulday as suffering from major depressive disorder and a generalised anxiety disorder, and relates this back to the harassment and grooming that she fell victim to in her previous workplace.[22] In his opinion:
“The grooming and harassment over the course of her employment led to the formation of her current psychiatric condition… While she may have had challenges in her early life as noted by Dr Jager, her mental state had recovered before the injury at Victoria Police set in.”[23]
and:
“Ms Maulday does not present with features reflective of borderline personality disorder upon assessment, nor is there any credible or real evidence in the documentation of her treaters that reports this in the consistent manner across records one would expect, nor a history of crisis admissions in the context of suicidality or self-harm, nor a history of any such features long term since earlier in her life. She does not meet DSM-5 criteria for this condition, nor even to a sufficient grade to diagnose traits.”[24]
[22]PCB 108
[23]PCB 115
[24]PCB 127
47Dr Takyar reported that Ms Maulday’s prognosis is poor:
“… [Ms Maulday’s symptoms] are entrenched, of a significant grade and impact on her functioning quite significantly. She has not been able to sustain employment over repeated attempts because of her symptoms, leaves her house generally once a week and has withdrawn socially and in terms of her hobbies.”[25]
[25]PCB 108
Dr Rasanjali Rathnayake, consultant psychiatrist
48Dr Rathnayake examined Ms Maulday on 2 February 2022 at the request of the defendant. In his opinion:
“Ms Maulday suffers from a recurrent depressive disorder with anxious distress. Following the claimed injury, she had a relapse of depressive disorder with anxiety.”[26]
[26]PCB 157
49In terms of causation, Dr Rathnayake says:
“Assuming that the information provided by Ms Maulday is correct, the harassment from a detective at Victoria Police contributed to a relapse of depressive disorder. Ms Maulday was functioning well at work until 2009 when she developed a relapse of depressive disorder with anxious distress and presented with depressed mood, anxiety, agoraphobia, panic attacks, fatigue, irritability, and some suicidal thoughts.”[27]
[27]PCB 159
Dr Justin Lewis, psychiatrist
50Psychiatrist Dr Justin Lewis examined Ms Maulday and produced a report to her solicitors dated 14 March 2023. Consistent with the opinions of Drs Takyar, Rathnayake and Singh, Dr Lewis diagnosed a recurrent major depressive disorder with traumatisation features.[28] His opinions include that:
“Whilst Ms Maulday presents as an individual with significant psychiatric vulnerabilities on a background of a prejudicial developmental history, the primary material contributing factor to her current psychiatric state however concerns workplace sexual harassment.
…
On the history available… Ms Maulday was reportedly psychologically stable prior to her workplace harassment.”[29]
[28]PCB 139
[29]Ibid
51The overwhelming medical evidence from both medico-legal experts and treating doctors supports a finding that Ms Maulday is suffering from a major depressive disorder causally connected to her employment with Victoria Police. I accept these opinions.
52I reject the opinion of Mr Alan Jager as to his diagnosis of a borderline personality disorder, unconnected with Ms Maulday’s employment, being solely responsible for her current impairment. A diagnosis of bipolar disorder is not supported by history, or her treating doctors.
53Dr Jager does not address:
(a) the fact that the condition was essentially quiescent between the end of the relationship difficulties Ms Maulday experienced in around 2003; and
(b) Ms Maulday’s unrestricted capacity through to mid-2008 and into 2009.
54He also fails to express a view about the consequence of the harassment and grooming upon Ms Maulday in terms of her current presentation.
Is the injury compensable?
55I find that Ms Maulday’s medical condition arose prior to the June 2015 interview; and that the confrontation and realisation of the extent of her humiliation during that interview provided the occasion for her to seek and receive treatment for the true and material cause of her condition. The interview did not break the chain of causation and was not on any sensible account the sole or dominant cause of her condition. In any event, that is not the test.
56I must determine whether Ms Maulday suffered an injury “arising out of” employment.
57The meaning of “an injury” in s134AB(21) commences with an examination of certain provisions of the Act, and necessarily the interpretation of it by the courts.
58The Act provides, relevantly, as follows:
“82 Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
(6)Subject to subsections (2B) and (2C), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.
...
where—
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
...
134AB Actions for damages
(1)A worker who is … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 ...—
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
…
(iii) ... as permitted by and in accordance with this section; and
(b)shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—
…
(ii) ... as permitted by and in accordance with this section.
(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999 ...”
59The Court in Georgopoulos v Silaforts Painting Pty Ltd[30] considered the meaning of “compensable injury” at paragraphs [49]ff:
[30](2012) 37 VR 232
“49The potential breadth of the notion of ‘an injury’ under s 82 is controlled by the causal connection stipulated. It is relevantly any physical or mental injury caused to a worker arising out of or in the course of any employment.
50In Barwon Spinners Pty Ltd v Podolak, the Court of Appeal stated of s 134AB(1):
[10] In short, in subs (1) we see no reason at all to conclude that ‘injury’ is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.
51As such, ‘an injury’ is a compendious term. Thus, if a worker has both his hands crushed at work he suffers ‘an injury’ within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or ‘injuries’ to particular bones, joints, tendons, nerves, vascular components, skin and nails of each hand.
52An injury in this comprehensive sense is commonly described as the ‘compensable injury’ as it was in Barwon Spinners and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB.”
60The meaning of these phrases has received attention throughout the history of judicial interpretation of workers’ compensation legislation:
(a) “the words ‘arising in the course of the employment’ describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service”: Pearson v Fremantle Harbour Trust (1929) 42 CLR 320 at 329, 330; see Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556–7; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; per Walsh J at 154;
(b) Ashley J in Popovski v Ericsson Aust Pty Ltd [1998] VSC 61 stated that the proper test as to whether injury “arises out of an employment” is that “the employment needed to be the real, the effective or the proximate cause of the injury”;
(c) the “arising out of” test will be satisfied if the employment is shown to have been a cause of the injury. It is not necessary to show that the employment was either the sole or the dominant cause of the injury: Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141.
61I reject Mr Storey’s submission that there was no connection between the affair and work at all. Despite the consensual nature of the sexual acts, the nature and course of the relationship and the subsequent harassment and bullying that occurred in Ms Maulday’s workplace satisfies me that her employment was the real, effective and/or proximate cause of her injury.
62Mr Storey submitted that the psychiatric injury occurred after the investigation by Taskforce Salus in 2015 and is non-compensable. In support of this submission, he pointed to the following evidence:
(a) the plaintiff did not lodge a WorkCover claim in the period of 2008 and 2009, only doing so after Taskforce Salus made contact with her in June 2015;[31]
(b) the contact with the taskforce is what brought memories of the incident with Isles to the forefront of the plaintiff’s mind;[32]
(c) the number of courses, study and employment activities that Ms Maulday engaged in between resigning from Victoria Police in 2009 and the interview by Taskforce Salus detectives in June 2015; and
(d) that Ms Maulday attended doctors on no less than 83 occasions in this period, at a time when she was under active mental health treatment for various stated causes, without mentioning Isles.
[31]T63, L12-14
[32]T93, L25-30
63I accept her evidence that it was not until she was interviewed by the detectives from Taskforce Salus in June 2015 that she realised she had not only been used by Isles, but that she had been groomed and abused.
64There are a number of indicators to support my finding that Ms Maulday suffered a work-related injury, notwithstanding she was embarrassed to tell anybody, including her doctors, about the effects upon her of the affair with Sergeant Isles. These factors include:
(a) her unstable employment after she resigned from Victoria Police. Ms Maulday had a series of short-term jobs lasting a number of weeks, in the context of her otherwise previously stable work history;
(b) the failure of intimate relationships after she had left Victoria Police. In about November 2008, she commenced a new relationship.[33] Ms Maulday squarely attributes the failure of this relationship[34] to the psychological injury she sustained at work. During cross-examination, she said:
“… I pushed him away, after what had happened with Dean, I didn’t believe him”;[35]
(c) she has not formed any substantial relationship since then, and is still unable to have normal intimate relations;[36]
(d) her inability to cope with the issues she confronted in life after she left Victoria Police:
(i)in September 2009, she started having issues with crowds and has avoided answering phones.[37] In March 2015, this escalated to the point that she did not leave the house for three days;[38]
(ii)in February 2013, she experienced difficulties with respect to access to her children and she was unable to cope. She had “never cracked like this before”.[39] She has previously experienced family issues prior to working with Victoria Police yet was able to overcome them;[40]
[33]T73, L3-7
[34]T72, L20-31; see clinical notes of Dr David Christiansen dated 13 March 2010, DCB 274-275
[35]T73, L8-11
[36]T103, L4-11; PCB 53 [20]
[37]T66, L6-9; see clinical notes of Dr Ryszard Szymanski dated 29 September 2009, DCB 274
[38]T88, L28-31, and T89 L1-3
[39]T80, L8-12
[40]T91, L4-6; PCB 15 [25]
(e) the overwhelming opinion of her treating and examining medico-legal doctors as to the link between the conduct of Isles and her current presentation;
(f) her worker’s claim form stating that she realised in late 2014 she had suffered an injury, even though she was unable to connect the conduct of Isles at the time to her then presentation.
65The difficulties she was experiencing in the period from 2009 to 2015 are entirely consistent with her diagnosis of major depressive disorder. A realisation of a lay plaintiff of the cause of mental health difficulties does not equate with suffering an injury. In the same way, the date of diagnosis of a condition does not equate with the date of the underlying injury. None of the psychiatrists seem to have any problem with the fact that the injury is what might be described as delayed onset.
66Whilst Ms Maulday may have consented to the acts at the time, I find that this consent was invalidated by the predatory and grooming behaviour of Isles, in the context of the significant imbalance of power in the relationship. There are also elements of the affair consistent with sexual abuse, including the lack of any affection.
67True it is that perhaps for some, even many, a workplace is fertile ground for relationships to form. There are many contexts in which such affairs occur, and are unexceptional, but they are not this case.
Admission by conduct
68Ms Maulday lodged a claim with Victoria Police for “mental injury” in early 2020.[41] In her claim form she specified that:
(a) her injury arose due to “inappropriate sexual behaviour by Detective Senior Constable Dean Isles towards me”;
(b) the date the injury occurred was “over the months of August + Sept 2008”; and
(c) she first noticed the injury “towards the end of 2014”.
[41]PCB 162
69It is not in dispute that the claims agent, Gallagher Bassett, accepted the claim in relation to weekly payments, and medical and like expenses.
70On 15 August 2022, Gallagher Bassett notified Ms Maulday that her weekly payments would cease from 19 November 2022; but that she remained entitled to payment of the reasonable costs of medical and like expenses.[42] Ms Maulday submitted that this is a significant admission by conduct of compensable injury.
[42]DCB 211, 212
71In Sepe v Club Italia Sporting Club Inc (Ruling),[43] Tsalamandris J considered two questions:
(a) whether the continued payment of workers compensation by WorkCover amounted to an admission against the defendant employer that the plaintiff was totally incapacitated as a result of her injuries; and
(b) whether the evidence of this admission should be excluded pursuant to s135 of the Evidence Act.
[43][2023] VSC 191
72In her view:
“47.In considering whether such conduct is admissible evidence in a trial, on the authorities as they stand, there is no logical basis to distinguish between a serious injury application, and a common law damages trial. The threshold question, in either type of trial, is whether the admission is relevant to a fact in issue.
…
50. In Patras, the failure by the Commonwealth to exercise a right of appeal to terminate payments was a sufficient basis to support an admission by conduct. In both Cairns and Sednaoui, ongoing weekly payments paid on behalf [of] the employer amounted to an admission by conduct. Applying the same logical reasoning to what has occurred here, I am satisfied that the receipt of ongoing weekly payments to Ms Sepe was capable of constituting an admission by conduct.
…
60. Having considered the relevant principles in the cases referred to above, I was not satisfied that the admission should be excluded under s 135 of the Evidence Act. Unlike in Cairns or Mert, when the admission was sought towards the end of the plaintiff’s case, the admission here was sought and determined prior to Ms Sepe commencing her evidence. As such, it was open to Club Italia to cross-examine Ms Sepe in respect of it. Further, it was open to Club Italia to call evidence from its agent to rebut the admission, or contend that it should have been given limited weight. In view of those matters, I was not satisfied that the admission would be unfairly prejudicial to Club Italia.”
73There is no evidence as to the material before Gallagher Bassett at the time of making the admission, or that the agent ever reconsidered its acceptance of the claim. On the evidence before me, it is apparent that Gallagher Bassett:
(a) made weekly payments based on an incapacity for employment from an injury arising out of Ms Maulday’s employment; and
(b) continues to accept the compensable nature of the injury by making ongoing payments of medical and like expenses.
74On one view, in that Peter White states that the claims agent did not have any material before it which suggested that the claim should not be accepted, his affidavit[44] supports Ms Maulday’s claim.
[44]Affidavit of Peter White sworn 28 April 2023, at [4]
75I find that the payment of workers compensation amounts to an admission that Ms Maulday’s psychiatric condition arose out of her employment. I accept Mr Harrison’s submission that the evidence of Peter White that the claims agent simply usually accepts claims made by Victoria Police officers does not rebut it.
76Mr Storey did not submit that:
(a) Victoria Police was not bound by this admission; or
(b) the evidence relating to that admission be excluded; or it was otherwise inadmissible.
77This evidence is plainly relevant to a fact in issue in this application: whether or not the plaintiff has sustained a compensable injury.
78Accordingly, this admission forms part of the evidence I have relied upon in determining the question of compensable injury.
79The allegations that Sergeant Isles engaged in predatory conduct may need to be explored in detail at trial, but on the evidence before me, I am satisfied that the real, effective and proximate cause of Ms Maulday’s psychiatric injury is employment which provided the occasion for the abuse and other conduct which has resulted in her injury.
80I find that Ms Maulday suffered a psychiatric injury which arose out of the course of her employment.
81I also find that the harassment and bullying of Ms Maulday referred to in her affidavit also occurred at work and forms a component of her compensable injury.
Has Ms Maulday suffered a serious injury?
Loss of earnings
82As a consequence of her psychological injury, Ms Maulday has not worked in her pre-injury employment since December 2009. Although she has managed to work in various roles, in the main they only lasted for a few weeks. She found longer-term employment with Dandenong Neighbouring Community & Learning Centre in 2013, which lasted two years. She eventually left this job due to an inability to cope with the stress of her work, and began vomiting uncontrollably.[45]
[45]T84
83It is not in dispute that Ms Maulday is incapacitated for her pre-injury employment. The issue in contention is the extent to which Ms Maulday has capacity for “suitable employment”.
84Dr Grech, the psychologist who has been treating Ms Maulday for eight years, says she has no work capacity.
85Dr Raghav, the treating psychiatrist, is of the opinion:
“Ms Maulday does not have a current capacity to undertake any suitable employment at this stage. This may continue for the next 9 to 12 months or longer. It is difficult to comment at this stage whether it is going to be indefinite or not.”[46]
[46]PCB 100
86In her last report, dated 10 April 2023, treating general practitioner, Dr Singh, stated that Ms Maulday was not ready to take any form of salaried employment, but:
“As she is attempting to do voluntary work it is of my opinion that in months to come she may be suitable for salaried work on a part time basis if she manages to sustain the voluntary work she is attempting.”[47]
[47]PCB 94
87Dr Lewis, medico-legal psychiatrist, reported that Ms Maulday is not only completely incapacitated for pre-injury employment, but also completely incapacitated for all alternative employment:
“Total work incapacity is consequent to severe generalised anxiety, markedly reduced stress tolerance, avoidance behaviours, sleep disturbance and cognitive difficulties. With significant effort, Ms Maulday has been able to volunteer three hours per week in a highly supportive environment.
Ms Maulday endures volunteer work with significant anxiety. Ms Maulday has no realistic capacity for employment as a settled member of the workforce in the current labour market.”[48]
[48]PCB 139-140
88In February 2022, Dr Rathnayake reported that Ms Maulday has no capacity for her pre-injury duties with Victoria Police, but has retained capacity for suitable alternative duties, part-time, and would be able to gradually increase her hours.[49] This report is somewhat out of date, and Dr Rathnayake does not have the benefit of the history of the difficulties Ms Maulday experienced in her very limited part-time voluntary work later in 2022.
[49]PCB 157
89Dr Takyar in March 2023 was hopeful that over time Ms Maulday’s functioning would improve, leading to a return to work, albeit at a very low number of hours with simple duties. However, he concluded that this is not guaranteed and on balance she will remain without occupational capacity into the foreseeable future.[50]
[50]PCB 128
90Dr Jager has provided varying opinions on Ms Maulday’s capacity for work. In his report dated 20 July 2021:
“Her persisting anxiety and depression and dysfunctional personality render her unfit to undertake her pre-injury job.”[51]
[51]DCB 12
91In May 2022, Dr Jager assessed Ms Maulday as able to undertake her pre-injury role of administrative officer, and fit for full-time work.[52]
[52]DCB 18
92In his report of 27 March 2023, Dr Jager reverted to his original opinion on her capacity and functional limitations:
“She has a partial capacity for work. Her reduced energy requiring her to have naps precludes her from undertaking full-time employment currently. Her Borderline Personality Disorder makes it difficult for her to work in a team or in an emotionally demanding situation. I consider her fit to work five days a week, for six hours a day. Working in an isolated situation would be ideal, including working from home.”[53]
[53]DCB 26
93Further to this, in his supplementary report dated 20 April 2023, he concluded:
“… Of the four roles I only consider the virtual receptionist role is appropriate at this time, noting the interpersonal difficulties the plaintiff has. Even the role of virtual receptionist may be difficult for her to undertake if she is having a dip in her mood.[54]
…
“Her capacity for work is heavily dependent upon her exposure to current psychosocial stress. The conclusion of this litigation will result in a decline in psychosocial stress and an improvement in her capacity for work. She could currently work from home in a solitary capacity… Her personality dysfunction likely renders her prone to difficulties when working within a team.”[55]
[54]DCB 29
[55]DCB 12
94The opinion of Dr Jager that Ms Maulday has capacity to work close to full-time hours in suitable employment is an outlier in an otherwise overwhelming body of medical evidence to the contrary. He accepts she is unable to work within a team, and that a dip in her mood could pose difficulties, even working from home in a solitary capacity as a virtual receptionist. The reliability of her ability to work six hours a day in suitable employment is volatile and is an indicator of the realistic picture of the hours of work in a week that the plaintiff can perform.
95I prefer the opinions of Dr Lewis, Dr Takyar, and Ms Maulday’s treating GP and psychiatrist that she has at best only minimal residual capacity for suitable employment for the foreseeable future. Even though Dr Singh was hopeful that she would be able to return to part-time hours if she continued successfully with her volunteer work, Ms Maulday has now ceased at the community shop due to the consequences of her injury.
96Even if I accept the Victorian WorkCover Authority’s submission in relation to Ms Maulday’s capacity for suitable employment, the evidence of Dr Jager and Dr Rathnayake still only extends to part-time hours.
97It is a matter of judgment of the Court as to how many hours the plaintiff is fit to work in the context of an assessment required to apply a gateway provision. I must make a determination as to incapacity after a consideration of the whole of the evidence.[56]
[56]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, paragraph [89]
98I find that Ms Maulday has satisfied the requirements of the Act and has established the requisite permanent loss of earning capacity of at least 40 per cent.
Pain and suffering
99Having determined that the plaintiff is entitled to leave to claim loss of earning capacity damages, it is unnecessary to decide the issue of leave for pain and suffering damages.[57]
[57]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
100Should it be necessary to do so, I find that the compensable injury has resulted in severe consequences to Ms Maulday. Those consequences include:
·lethargy and a lack of motivation;
·disturbed sleep;
·personality changes, as she is now more easily upset or annoyed;
·attempts made to end her life;
·being now anxious, frustrated, and deeply depressed. Her evidence included, “I am nothing. I am nothing. I shouldn’t have been born”;[58]
·having difficulty driving long distances;
·having lost confidence in socialising and having lost friendships and relationships;
·her work prospects having become seriously restricted, at best. Even Dr Jager in his report concluded that it is “difficult for her to work in a team or in an emotionally demanding situation… Working in an isolated situation would be ideal, including working from home.”[59] To my mind, that is an indicator of the severity of her level of impairment;
·experiencing flashbacks and being unable to stop reliving the grooming and harassment that she suffered, which causes her to break down in uncontrollable tears and despair;
·reliving feelings of weakness and powerlessness to resist the grooming and harassment. When this happens, she goes into a state of severe depression which can last for days;
·her memory having become affected, particularly her short-term memory which has become fractured and disturbed; and
·no longer enjoying intimacy in relationships and having developed a profound sense of betrayal and loss of self-esteem. She now finds sexual relations irregular, difficult, and mentally painful. To a more than marked degree, she is no longer sexually active.
[58]T109
[59]DCB 26
101Prior to the workplace injury, Ms Maulday had a successful career of over ten years within the police force both in Queensland and in Victoria. She took pride in her abilities as an employee, and I accept her evidence she was “reliable, steady, and hardworking”.[60] I find that the loss of Ms Maulday’s capacity to perform her chosen occupation[61] as an unsworn officer within the police force is a very serious consequence.
[60]PCB 13
[61]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
102Mr Storey submitted that the consequences that Ms Maulday relies upon do not rise to the requisite level of “severe”. In support of this submission he relied upon the evidence that the plaintiff had some success studying and working in various jobs after leaving Victoria Police. Whilst conceding that there were some jobs that lasted only a few weeks, he submitted that she was able to maintain her employment at Dandenong Neighbouring Community & Learning Centre for two years; and that such a work capacity tends against a finding of serious injury.
103In relation to her loss of enjoyment of work, Mr Storey submitted that:
(a) the consideration must be that of the synthesis of the plaintiff’s inability to perform her pre-injury work duties and find other work that she enjoys.[62]
(b) Ms Maulday was indeed able to find work that she loved, working with children and families at the Dandenong Neighbouring Community & Learning Centre.
[62]T149, L3-7
104I reject this submission on the basis that eventually, Ms Maulday became overwhelmed and was unable to cope with this work. She began to experience physical symptoms such as vomiting. This employment was prior to Taskforce Salus contacting Ms Maulday, and the realisation that she had not only been used, but abused. Whatever enjoyment she did find in her employment with Dandenong Neighbouring Community & Learning Centre was short-lived and unsustainable due to the ongoing effects of her psychological injury; and she no longer enjoys any form of employment.
105I find that the medical evidence supports the consequences deposed to by Ms Maulday in her affidavits. Along with my findings as to her very limited residual capacity for employment as set out above, I reject the submission that the consequences of Ms Maulday’s injury do not rise to the requisite level of “severe”.
Conclusion
106For the reasons given, I grant leave to Ms Maulday to commence a proceeding for pain and suffering and pecuniary loss damages.
107I will hear the parties as to the question of costs.
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