Moebus v State of Victoria
[2020] VCC 1022
•16 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05488
| RACHEL MAREE MOEBUS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 June 2020 | |
DATE OF JUDGMENT: | 16 July 2020 | |
CASE MAY BE CITED AS: | Moebus v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1022 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – long-term severe mental or behavioural disturbance or disorder – Post-Traumatic Stress Disorder – Depressive Disorder – loss of earning capacity – paragraph (c) of the definition of “serious injury” – whether consequences of mental or behavioural disturbance or disorder are serious in nature – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Humphries & Anor v Poljak [1992] 2 VR 129; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski with Ms J E Clark | Shine Lawyers |
| For the Defendant | Mr J Ruskin QC with Ms K M Manning | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff while employed by the defendant on 30 June 2015, while she was working as a prison guard at the Metropolitan Remand Centre in Ravenhall (“the incident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering as well as loss of earning capacity.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to paragraph (c) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
...
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The mental disturbance or disorder relied upon is Post-Traumatic Stress Disorder (“PTSD”) and/or a Major Depressive Disorder.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the defendant on or after 1 July 2014. As set out in s325(1) of the Act, the mental or behavioural disturbance or disorder must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 By s325(2)(d) of the Act, it is the “consequences” of the mental or behavioural disturbance or disorder which produce the “pain and suffering” or “loss of earning capacity,” which must be “severe”. That is, the plaintiff must prove, on the balance of probabilities, that the mental or behavioural disturbance or disorder results in relevant “consequences” that “when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders ... [may be] fairly described as being more than serious to the extent of being severe”. This has been referred to as the “narrative” test. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 The meaning of the word “severe” was resolved by the Court of Appeal in Mobilio v Balliotis.[2]In that case, without suggesting the use of any particular adjective to mark the distinction between the two words, Brooking JA held that the word “severe” as used in the definition under the Act, is stronger than the word “serious”.[3] Winneke P agreed with Brooking JA’s reasons and agreed that the word “severe,” where relevantly used, was a word of stronger force than the word “serious”.[4] Phillips JA[5] and Charles JA[6] made comments to similar effect.
[2][1998] 3 VR 833
[3]Mobilio v Balliotis [1998] 3 VR 833 (“Mobilio”) at 846
[4]Mobilio (ibid) at 834-5
[5] Mobilio (ibid) at 858
[6]Mobilio (ibid) at 860-861
9 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder is “severe,” I must conclude that those consequences are more than “very considerable” to the plaintiff.[7] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[8]
[7]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (ibid); Katanas v Transport Accident Commission [2016] VSCA 140
[8][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
10 Sections 325(e) and (f) set out the statutory formula by which the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
11 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[9]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[10]
[9]Section 325(2)(j) of the Act
[10]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
12 Section 325(2)(i) permits me to take into account the physical consequences of a mental or behavioural disturbance or disorder for the purposes of assessing whether or not that mental or behavioural disturbance or disorder is “severe” for the purposes of the Act.
13 By s325(2)(b), in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the mental or behavioural disturbance or disorder arising from the injury the subject of this application and the range of possible mental or behavioural disturbances or disorders.
14 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[11] and Grech v Orica Australia Pty Ltd & Anor.[12]
[11](2005) 14 VR 622
[12](2006) 14 VR 602
15 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon two affidavits from her husband, Brenden Moebus. The plaintiff’s husband was not required to attend for cross-examination.
16 In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[13] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[13]the Plaintiff’s Court Book was marked as exhibit (“Ex”) P1. The Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
17 The plaintiff was born in February 1979. She is presently forty-one years of age. She is married. She has a son aged twenty and daughter aged sixteen from her present marriage. She has a twenty-one‑year-old son from a previous relationship. She lives with her husband and her two youngest children.[14]
[14]Ex P1, p14
18 The plaintiff grew up in Victoria. She completed Year 10 at secondary school. She completed a certificate course in professional writing and editing. She spent some years out of the paid workforce bringing up her children. From about 2004 to 2014 she ran her own printing business.[15]
[15]Ex P1, p15
19 The plaintiff commenced employment with the defendant as a full-time prison officer in September 2014, at the Metropolitan Remand Centre in Ravenhall. She worked in the Burnside Unit. She was required to attend to the needs of prisoners, facilitate medical visits, and generally manage the safety and security of prisoners. She was paid $23.27 per hour.[16]
[16]Ex P1, p15
Prior injuries
20 The plaintiff has suffered from asthma over the years. In the past she has had some low back pain from time to time. She had a CT scan of her lower back in 2004. She believes she may have seen a counsellor after her brother died when she was eight years of age.[17]
[17]Ex P1, p15
The Incident
21 The plaintiff suffered psychiatric injury as a consequence of a prisoner riot (“the riot”) on 30 June 2015 in the course of her employment. During the riot and in the days that followed, she was subjected to significant threats and abuse from prisoners, including threats of sexual assault to herself and harm to her children.[18]
[18]Ex P1, p15
22 She continued working, but became increasingly unable to cope.[19]
[19]Ex P1, p15
23 On 14 July 2015, the plaintiff ceased working. On this day she woke up and was unable to stop crying. She attended her general practitioner, Dr Roushdy, at Sydenham Medical Centre.
24 She was referred to see a psychologist in Essendon. She attended on four or five occasions.[20]
[20]Ex P1, pp15-16
25 On 16 July 2015 the plaintiff lodged a WorkCover claim with the defendant. Her claim was accepted.[21]
[21]Ex P1, p16
26 In August 2015, the plaintiff attempted to return to work with the defendant. She continued working until October 2015. Throughout this period she was very anxious. She was continuing to experience flashbacks and nightmares in relation to the riot and the aftermath of the riot.[22]
[22]Ex P1, p16
27 In November 2015 she moved to Perth with her family, as she no longer felt safe living in Melbourne. She was very concerned for her welfare, and in particular for the welfare of her daughter.[23]
[23]Ex P1, p16
28 In January 2016, she commenced working at Acacia Prison (“Acacia”) in Western Australia as a prison officer. Her husband also worked at the prison, which gave her some level of comfort.[24]
[24]Ex P1, p16
29 In December 2016, her mental health deteriorated when she was subpoenaed to attend a court case in relation to the riot. She was unable to cope. She ceased work and has not returned to work since then. In March 2017 she formally resigned from her employment at Acacia.[25]
[25]Ex P1, p16
30 In January 2017, she commenced attending a psychologist, Ms Julie E’Silva. On 27 January 2017 she commenced attending her current general practitioner, Dr Johannes Meyer, in South Guildford.[26]
[26]Ex P1, pp16-17
31 In December 2017, she was prescribed fluoxetine, as she was feeling suicidal.[27]
[27]Ex P1, p17
Evidence concerning the consequences of the injury
32 The plaintiff swore two affidavits, the first 5 June 2019 and the second on 15 May 2020. She also gave a small amount of viva voce evidence at the commencement of the hearing.
33 In summary, her evidence as to the pain and suffering consequences which she presently experiences is as follows:
Mental disturbance as a result of the incident and treatment
(a)she continues to feel constantly anxious and alert. She experiences panic episodes where she has shortness of breath, her heart races, and she feels “shaky;”[28]
[28]Ex P1, p17
(b)she feels down and useless most of the time. She gets teary every day. She lacks energy. She has reduced ability to concentrate and focus;
(c)her memory has worsened significantly since the incident. She has lost confidence. She has low self-esteem. She feels like a burden to her husband and her family;[29]
[29]Ex P1, p17
(d)she has gained a lot of weight since the incident;[30]
[30]Ex P1, p17
(e)she sees her general practitioner, Dr Meyer, once per month. She has not seen her treating psychologist, Ms E’Silva, since about June 2018. She takes Pristiq medication on a daily basis;[31]
[31]Ex P1, p17
(f)at around Christmas 2019 she began seeing Dr Tom Parker, treating psychologist. Her mood remains low. She continues to suffer from Anxiety, Depression and PTSD. She feels sad and despondent about her future. She is irritable and usually becomes anxious when she has to leave the house. She has panic attacks four to five times a week on average;[32]
[32]Ex P1, pp21-22
(g)she remains hypervigilant and constantly scans her environment when she is out of the house. She is unable to tolerate crowded places. She is hypersensitive to sounds. At times she wears headphones at home, to have “time out” from all of the background household noise;[33]
[33]Ex P1, p22
(h)she still has flashbacks a few times a week. They usually last only a few seconds. She has lost self-confidence and belief. She is disappointed in herself. She feels hopeless and helpless;[34]
[34]Ex P1, p22
(i)she was previously a problem solver. She has lost those skills and the belief to back herself. She feels like a completely different person now. She feels guilty about the changes in her personality and their effect upon her husband, who has been very supportive towards her. Because of this she feels insecure about the state of her marriage and has offered her husband the option to divorce her as she does not feel like an equal participant or contributor in the marriage. She would be devastated if her marriage ended. Her husband has been her rock;[35]
[35]Ex P1, p22
(j)on 22 January 2020, she attempted suicide. She took 6 x 30-milligram escitalopram tablets, 6 x 2-milligram clonazepam tablets, and 5 x 15-miligram mirtazapine tablets. This is approximately one week’s worth of her usual medication. She was admitted to the emergency department at the St John of God Hospital. Her suicide attempt was subsequent to an argument which she had had with her daughter-in‑law. She adores her daughter-in‑law, and she was not the cause of the plaintiff’s suicide attempt. Rather, the argument was simply the straw that broke the camel’s back. She had been feeling particularly low for approximately one year beforehand and had begun to experience suicidal thoughts for approximately two weeks before the suicide attempt. She recalls that her antidepressant medication had been changed at around that time. She recalls that she was taken off Pristiq and put on escitalopram;[36]
[36]Ex P1, p22
(k)she was referred by Dr Meyer, her general practitioner, to The Hollywood Clinic, for treatment of her Depression and PTSD;[37]
[37]Ex P1, p22
(l)she was admitted as an inpatient to The Hollywood Clinic for a fortnight on or around 25 February 2020. She was under the care of Dr Chinar Goel, treating psychiatrist;[38]
[38]Ex P1, p23
(m)at that time she was diagnosed as suffering from Severe Depression and PTSD. Dr Goel continued her antidepressant medication Pristiq, and increased her dosage. The clonazepam was tapered off, due to risk of addiction. Dr Goel also put the plaintiff on Seroquel, to help with her sleep and anxiety. She continued to see Dr Goel at the outpatient clinic at Hollywood Medical Centre;[39]
[39]Ex P1, p23
(n)she continues to see Dr Goel, treating psychiatrist, every two months, Dr Tom Parker, psychologist, every fortnight, and her general practitioner, Dr Meyer, on an “as-needs” basis;[40]
[40]Ex P1, p23
Medication
(o)she currently takes 150 milligrams of Pristiq and 50 milligrams of Seroquel daily. She takes Paxam when required, for anxiety attacks. She takes the Paxam four to five days per week on average;[41]
[41]Ex P1, p23
Sleep
(p)her sleep continues to be affected by her injuries. Most nights she has broken and interrupted sleep. Some nights she cannot get to sleep until 6.00am because her mind is constantly racing; [42]
[42]Ex P1, p23
(q)she wakes up approximately four times a night on average, due to stress and worry. At best she has about four hours of uninterrupted sleep in a row. She continues to have very distressing nightmares a couple of times a week;[43]
[43]Ex P1, p23
Activities of daily living
(r)she now drinks considerably more alcohol than she did in the past. She drinks three to four times per week. She finds that drinking relieves the pressure and helps her to sleep. She is worried about her increased drinking;[44]
(s)in the past she used to love writing. She completed a Diploma in Professional Writing and Editing in 2013. Prior to the incident she was involved with a writing group in Melbourne. They had studied together at university. There were four of them who would regularly keep in touch with each other in relation to their writing. They used to send drafts to each other to critique. They once went on a writing retreat to Alexandra;[45]
(t)after the incident, she struggled to do any writing for about 18 months. She has returned to writing but struggles with it and does not get the same level of enjoyment out of it that she used to;[46]
(u)she was previously a sociable and outgoing person. She is considerably less sociable now. She actively avoids socialising. She has become isolated;[47]
(v)she does occasionally mix with some people who she writes with. This occurs every few weeks or so. She meets with a small group of people. She does not always go along. She gets anxious in large groups;[48]
(w)she has noticed that she has become more irritable and moody since suffering the injuries at work. This has put a strain on her relationship with her husband and her children; [49]
(x)her psychiatric condition has affected her intimate relationship with her husband, as she has experienced a significant loss of libido;[50]
(y)her family had planned to return to Melbourne in mid-2017, but she became too anxious after the flights were booked and could not go through with it. She would feel too unsafe living in Melbourne now;[51]
(z)she travelled to Brazil for two-and-a-half weeks in 2017 to visit friends. She enjoyed this trip and felt safe, as the family she was staying with was affluent and lived in a secure environment. She was away from her usual stressors and found this trip to be beneficial;[52]
(aa)she continues to have low energy, motivation and drive. Her husband continues to perform most of the domestic duties. She only showers three to four times per week. She spends approximately four days a week in her pyjamas as she cannot be bothered getting dressed. She constantly feels tired.[53] It upsets her that she is reliant on others to do things for her that she could previously do with ease;[54]
[44]Ex P1, p17
[45]Ex P1, p18
[46]Ex P1, p18
[47]Ex P1, p19
[48]Ex P1, p19
[49]Ex P1, p19
[50]Ex P1, p19
[51]Ex P1, p20
[52]Ex P1, pp20-21
[53]Ex P1, p21
[54]Ex P1, p19
Economic loss
(bb)as a consequence of her psychiatric condition, she has not worked since 8 December 2016; [55]
[55]Ex P1, p18
(cc)when she worked at Acacia, there were overtime shifts available to her on most days of the week. Between January and December 2016, she did between five and ten 12-hour shifts of over time. She believes that if she was still working at Acacia, she would be doing on average one 12-hour shift per fortnight of overtime;[56]
[56]Transcript (“T’) 14-15
(dd)she has been applying for jobs with the assistance of IPAR (an Occupational and Return to Work service provider). She completed a cabin-crew diploma. She has applied for work as an air hostess. The diploma involved an online module with no face-to-face contact. She worries about her ability to work as an air hostess;[57]
[57]Ex P1, p18
(ee)she managed to find a casual job with Wormall Civil Pty Ltd (“Wormall”). She started on 13 March 2019, driving a water sprayer and doing manual work like shovelling and compacting. Manual work like this is not what she has done in the past or what she wants to do in the future, but, since her weekly payments were stopped, she had no choice but to get some work. Her hours per week were variable. [58] She worked with Wormall for approximately two months all up;[59]
[58]Ex P1, p18
[59]Ex P1, p23
(ff)toward the end of May 2019, she started full-time as a fly-in, fly-out employee with MPC Kinetic (“Kinetic”) as a trainee wireline. This involved truck driving and operating a beam. She would work 14 days on and 7 days off. She ceased this work in October 2019 as she was struggling being away from her family and her mind and mood were declining. She was physically and mentally exhausted at the end of a workday;[60]
[60]Ex P1, pp23-24
(gg)in early 2019, she commenced a four-year Bachelor Degree in online digital design through Swinburne University. She gave this up some time prior to the end of the first semester, as she struggled due to her ongoing poor concentration;[61]
(hh)in late 2019, she commenced an online Certificate III in Education Support through Open Colleges. Once again she struggled with concentration, memory and focus and found that she was unable to retain the information that she had read. She stopped approximately three weeks into the certificate course;[62]
(ii)she worked for one week as a baggage handler for Swissport. That position was three hours per day, five days per week, from 4.00am until 7.00am. She found that those hours “messed with” her sleeping patterns and she was unable to cope;[63]
(jj)in 2004, she set up her own business called “Rachel’s Keepsakes”. It was a specialised funeral printing business. She printed orders of service, mass books, thank you cards, postcards, bookmarks, and arranged DVD presentations. She ceased working in this business in August 2014 and deregistered the business;[64]
(kk)in late October 2019, she re-registered the business in the hope that she could get it up and running. She spoke to a number of funeral homes, mostly by email, and a couple face-to-face. To date she has not received any jobs for Rachel’s Keepsakes;[65]
(ll)she has not worked since October 2019. While she has tried to return to work in various different capacities, she has found working to be an ongoing struggle, but has pushed and pushed herself to her limit because of financial pressures and pressure that she has put upon herself. Her husband works substantial overtime to supplement the family income; [66]
(mm)she is petrified that her husband will leave her as she is unable to contribute financially. She does not want him to feel that she is useless and not an equal contributor. Her husband is amazing and does not hold her accountable in this way, but she does not want to let him down. Not working and contributing like she used to causes her very real stress, Anxiety and Depression;[67]
(nn)she is thinking about trying to volunteer with animals in some way but she is not sure how that will go;[68]
(oo)she is worried about what the future holds for her. She is saddened that she is no longer able to work. She has always been a hard worker and is very proud of her solid work history and work ethic which she believes is demonstrated by the fact that she has unsuccessfully applied for more than 80 positions since her injuries occurred. She has tried studying, but was unable to complete that, due to issues with focus, memory and concentration. She has also tried working in various jobs, but ultimately has been unable to cope. She does not know what work she could realistically do in the future.[69]
[61]Ex P1, p21
[62]Ex P1, p21
[63]Ex P1, p23
[64]Ex P1, p24
[65]Ex P1, p24
[66]Ex P1, p24
[67]Ex P1, p24
[68]Ex P1, p24
[69]Ex P1, p24-25
34 Under cross-examination the plaintiff gave the following evidence:
(a)her second-eldest son lives at home. He works part-time and also studies;[70]
[70]T16, line (“L”) 1-5
(b)her youngest child, a daughter, is a full-time student;[71]
[71]T16, L8
(c)her husband works full-time about 55 minutes’ drive from home;[72]
[72]T16, L9-12
(d)the CBD is a 45‑minute to one‑hour drive away from her home. There is an IGA supermarket that is five minutes down the road from her house, and there is a shopping centre 20 minutes down the road;[73]
[73]T16, L13-18
(e)she confirmed that from 2004 to 2014 she worked in her own printing business;[74]
[74]T16, L23‑25
(f)from 2012 she had consecutive annual earnings of $38,000, $44,000, and $50,000 per annum;[75]
[75]T16, L30-31
(g)she got into the printing business because of family circumstances which showed her that there was a niche in the market;[76]
[76]T17, L2-7
(h)she agreed that the business successfully developed and in the financial years to which she was taken, the income went up each year. She agreed that on this basis, it was a growing business;[77]
[77]T17, L8-11
(i)she qualified this answer by pointing out that as the printing business went on, technology was catching up and she found that people were preferring to do their own printing at home. In the end, the business died out, and that was why it ended up being closed;[78]
[78]T17, L11-16
(j)she confirmed that she holds a heavy rigid truck driving licence which she obtained in 2018 or 2019;[79]
[79]T17, L20-25
(k)to get that qualification she had to do a series of driving lessons and then get tested. She had to take the tests twice. She was never able to obtain the unrestricted licence, despite several attempts;[80]
[80]TT17-18
(l)she was a gaming attendant when she was eighteen;[81]
[81]T18, L23‑24
(m)she used to work for her uncle who owned a metal-polishing business. She had to do deliveries for him every now and again when he needed it. She thought she had that job in about 2000;[82]
[82]TT18-19
(n)she confirmed that for a time she worked with a company called Swissport Australia. That company does baggage handling for a number of different plane carriers, both international and domestic. She explained that she was receiving training on what to do when she was working for Swissport. They wanted her to start at 4.00am and finish at 7.00am, five days per week. She said that with her medication and her abnormal sleeping patterns, she struggled to drive the 45 minutes to work, work three hours, and drive back again;[83]
[83]T19, L19-30
(o)she said that while the job was not hard in that “it’s not hard to pick a bag up,” she also had to learn relevant labelling abbreviations for the job. When she was asked whether it was the hours that they wanted her to work which was the problem, she said “My concentration wasn’t helping me put the bags in the right spot ... the concentration just wasn’t there;”[84]
[84]T20, L8-13
(p)when pressed on this matter she said that one of the problems was the 4am start, but there were also problems “with the medication as well, and the focus”;[85]
[85]T20, L14-16
(q)she conceded that she does not know what the job would have been like if she had been working during the day, because she did not get that opportunity;[86]
[86]T20, L17-19
(r)she was asked whether or not she had available the CV that she used for her application for Wormall. She said that she did not have it. She agreed that if one was to look at the CV at the time that she applied for that job in 2018, it would recite her experience with the printing business, her prison experience, and things of that kind. She added that she did some voluntary work which was with a funeral director to help out before she started with the Metropolitan Remand Centre. She said: “I wasn’t just looking for a job, I wanted a career ... And I looked at the mortuary work because it was the next step from the funeral business I was doing, which wasn’t going so well, so they’d started a new funeral home and I decided that if I could help I would, but unfortunately there’s not a lot of jobs for ... embalmers at that time;” [87]
[87]T21, L6-25
(s)her husband was already working at Ravenhall and she applied when a job became available. She said she saw that as her career: “… I actually loved my job”;[88]
[88]T21, L6-25
(t)she said that the types of qualities which she thought would make her a useful employee were that she was honest, reliable, that at that time she had good conflict resolution skills, that she can use a computer and had her various driving licences, that she can read and write English and that she has a diploma in professional writing;[89]
[89]T22, L7-21
(u)she said that her duties at Wormall involved checking over the tanker truck to make sure the tyres were fine, the oil was fine, and to make sure there was no problem with the truck. Then she would go and fill it with water and spray whatever needed to be sprayed. Sometimes there was no use for the truck at all so she would go and shovel or compact - whatever needed to be done. She said that being a female in that position was hard at times, because the boss did not want a female on site. She thought that he did not want her to work there. She said that she experienced a lot of conflict with people speaking down to her. She was told that she was moody. She said that she had problems with filling the truck sometimes, because she was so tired that she would overfill it, so “I did have some issues in that job”;[90]
[90]T23, L1-24
(v)she agreed that she then got another job as a trainee with Kinetic. She obtained that job in 2019. That job was a two‑hour plane ride from her home and it was a 14 days on, 7 days off, fly in, fly out position. She said that she spent most of the time in her accommodation which is called a donga, which is a single room with an ensuite. She said she struggled to be around people at dinner, so basically she just went in, ate, and left. She said that she was constantly being asked to go to the pub and play pool but she just stayed in her room and spoke to her family on the phone;[91]
[91]T24, L1-28
(w)she agreed that she is still wanting to work and contribute financially to her family. She qualified this by saying: “Well, I struggle with it. I don’t know how I will though ... I’ve always been an efficient worker, so it’s not something I want to lose ... But with all this that’s going on, I’m gonna put myself or somebody else in danger ...;”[92]
[92]T25, L6-15
(x)it was put to her that when she made a reference to “all this going on,” what she was really referring to, amongst other things, was the court case, that she has been going to lots of doctors and she has had the strain of all that. She said that this was correct, but it was all “because of the riot”;[93]
[93]T25, L16-20
(y)she agreed that she had told Dr Albert Kaplan that the litigation process has been stressful for her, as it acts as a reminder of her traumatic experiences;[94]
[94]T26, L2-12
(z)she qualified this evidence by saying that while the litigation is a reminder, “the reminder’s there no matter what, but it is a part of it, of course”;[95]
[95]T26, L13-15
(aa)it was put to her that going to see various doctors where they ask her lots of questions about her history and the trauma that she went through causes stress to her and brings back those memories. She replied: “It’s in the foreground, yeah, but so are the dreams.” She said that she has had dreams when she has not been seeing doctors;[96]
[96]T26, L16-28
(bb)she said that her symptoms seemed to get worse toward the end of last year, when she was not seeing anybody. She said it was in that context that she attempted suicide by taking tablets;[97]
[97]TT26-27
(cc)she said that she started seeing Dr Goel because of the suicide attempt and went into care because of everything that had been happening, which she described as being “the dreams and the … hypervigilance”;[98]
[98]T27, L3-12
(dd)she still sees Dr Goel every two months. She said Dr Goel also said that she could speak to her at any time, although she had not done that;[99]
[99]TT27-28
(ee)she said that she is seeing Dr Parker from Headway on a fortnightly basis. She said that he teaches her how to breathe and tells her that she should take “baby-steps”. He gives her some little things to do to see how she goes. She agreed that it is his hope that she could one day get back to part-time work;[100]
(ff)she agreed that she had applied for about eighty jobs. She said that this included trying to obtain a diploma in air hostessing. She had tried truck driving. She had tried digital printing. She had applied for a job as a counter assistant at the airport. She said she was unsuccessful for all of these positions. She said the only jobs she had been successful for were the three that she had already answered questions in relation to;[101]
(gg)she said that she would hope that if she could actually do a job it would be good for her self-esteem and her confidence. She qualified her answer to this line of questioning by saying “Yes, but I can’t, I’ve tried...I have tried at [Wormall], I have tried at Swissport, I have tried at MPC Kinetic, it’s not like I haven’t tried ... I just find it difficult to concentrate.” When asked if the concentration difficulties were due to her medication she said “I’m not a doctor, I don’t know”;[102]
(hh)she said she had tried a digital design course in 2019 because she thought that it would help to keep her busy when she was not working and to learn something different. When it was put to her that she could have worked in this field she replied: “Well, I didn’t think that far ahead but, you know, being around people is not something I’m comfortable with ... I don’t know whether I ever will be;”[103]
(ii)it was put to her that she would take advice from those treating her about what would be a sensible thing in relation to returning to work. To this she replied: “Well, advice is one thing, it’s how my body reacts. I mean...I don’t even like going into the shopping centre, I’m probably the only person in the whole world that was happy with COVID ... I don’t know how I will be tomorrow let alone how I will be in six months, 12 months, 24 months. At this point I struggle with getting up in the morning and getting dressed;”[104]
(jj)it was put to her again that one of the reasons why she was feeling so poor at the moment was that she was in the middle of the litigation and that trying to forecast how she was going to be in the months ahead was difficult. To this she replied “... if I follow the way I’ve been since the riot, unfortunately I’ve gotten worse, not better”. She said that she would follow any sensible recommendation by her doctor “but they’re not always right”;[105]
(kk)she was asked about the course that she did in relation to becoming an educational aide. In response she replied: “On thinking about that further ...which didn’t take me long obviously because I finished within three weeks of it starting, was ... being around … any large groups, I struggle, I have anxiety attacks, it’s not something that I want children to see. I don’t even want my own children to see so why would I put that on somebody else’s children.”[106]
(ll)she agreed that she did not last very long at the course because of her concentration difficulties. She said she would not contemplate trying that course again;[107]
(mm)when asked why she would not try those sorts of courses again her response was “I just don’t have the motivation to do it.” When pressed on this matter she said “that’s part of the reason. I mean .. .it all goes back to the riot ... .”[108]
[100]T28, L5-15
[101]TT29-31
[102]T31, L9-27
[103]T32, L13-31
[104]T33, L1-14
[105]T33, L15-25
[106]TT33-34
[107]T34, L10-16
[108]T34, L13-23
35 In re‑examination, the plaintiff gave the following evidence:
(a)in relation to the job with Swissport baggage, in addition to the start time, the other problems she had with that job were to do with her lack of concentration and the abbreviations on the baggage. She said that if she got the abbreviations wrong the plane would have to be delayed, which costs a lot of money. She also experienced anxiety with the area she was working in due to a lot of beeping and the little golf buggies coming in and out. Also there was a lot of yelling, so her anxiety went up. Because of the poor sleep that she was getting and the medication which sometimes made her drowsy, if she had an anxiety attack she could not focus on the letters in the abbreviations, which looked basically the same to her, so she would put the bags in the wrong areas. She said that if she had been working during the day, she believes that she would have still experienced the same problems;[109]
[109]TT36-37
(b)she was asked questions about why it was that she loved her job as a prison guard. To this she replied that she loved the fact that “... I was able to help people ... it wasn’t just a job, it was a career for me and it was something that I enjoyed doing ... I didn’t want to go to work and feel like [it was] a chore, I actually enjoyed helping people and placing them in certain areas and helping them to get jobs within the prison. Case management, all that, I guess;”[110]
[110]T37, L8-17
(c)when asked about her reliability and conflict skills now, she replied: “I’m not reliable anymore. I struggle to get up in the mornings and sleep through the night. If there’s a loud bang or a sound I’m pretty much out of there, I have a meltdown. My emotions are raw a lot of the time. [My conflict resolution skills are] non-existent due to the fact that I don’t like conflict at all anymore. Even with the kids ... I just let it go because I don’t like the anxiety and the stress that it causes;”[111]
[111]T37, L18-29
(d)she said when she was working with Wormall, she spent a lot of the time in the truck on her own crying, which made it unsafe for her to drive;[112]
[112]TT37-38
(e)she said that prior to the incident she was never a moody person. She was a happy-go-lucky person;[113]
[113]T38, L5-8
(f)she was asked why she would make the mistake with overfilling the water truck at Wormall, and in particular why she was tired. To this she replied: “Because of the nightmares that I’d had throughout the night;”[114]
(g)she was asked questions about her unwillingness to socialise while she was working for Kinetic. To this she responded “... On the mining area there’s a lot of people so there’s a lot happening and I struggle with being around a lot of people, my heart rate goes up, I start sweating, I get anxious and it was just better for me to be on my own. I struggled to cope.” When asked why it was that she did not want to go out to the pub she said: “Because there were a lot of loud people there and I jump ...even though they’re laughing and having fun I was not, it was like torture, I couldn’t deal with the people yelling and I just struggled, the anxiety, the heart rate, everything just went through the roof;”[115]
(h)she was asked questions about her evidence that she felt that she may put others in danger when she was working. When asked to explain what this meant she said: “Well, with the PTSD and the depression and the anxiety my [emotional] state is not settled in any manner and I struggle with the simplest of tasks so I would put people in danger and I would not mean it and...I couldn’t deal with that;”[116]
(i)when asked questions about the fact that she had told Dr Kaplan that the court case is a reminder of the traumatic experiences she had had, she replied: “Well, the court case is due to the actual riot, the riot is the cause. I was fine until I went to work that day;”[117]
(j)she was asked about the nature of the dreams that she had referred to under cross-examination to which she replied: “The dreams [are] of the riot, what happened, the days … after the riot I was working and they would threaten myself and my daughter, they found out I had a daughter and they threatened to rape her and slit her throat in front of me. They told me that they knew where I lived, what suburb they told me ... I dream of them actually doing it;”[118]
(k)when asked questions about whether she could work either full-time or part-time as a flight attendant she replied “No.” She followed this up by saying “I don’t think in an emergency I would be able to do anything to help. I would struggle being around people, my anxiety level would go up. I have no conflict resolution skills any more, so if there was an issue, I wouldn’t be able to help the other people;”[119]
(l)when asked how she would go with truck driving on a full-time or part-time basis she replied that she thought she would be a danger, “Due to the sleep and the medication I’m on, due to the anxiety that I have and being around other people. I wouldn’t want to cause an accident;”[120]
(m)she was asked whether she could work as a digital printer on either a full-time or part-time basis to which she replied “No.” She said that this was because “Digital printing is very specific … mistakes can be made, and the clientele are generally not happy with that, and they would…think that you’re wasting their time, and they will crack it ... the anxiety and the conflict that would [come] of me messing up would be horrendous ... just thinking about making mistakes would make me make mistakes. And it’s just upsetting that it was something that I could do and I can’t now;”[121]
(n)she was asked about how she thought she would go being a full-time or part-time airport counter assistant to which she replied: “No, there’s too many people. I would ... struggle around being around crowds ... my heart rate would go up, I would sweat, my anxiety would hit the roof. I avoid crowds;”[122]
(o)when asked if there was any job that she could think of that she could do on a full-time or part-time basis she said “No.” She said that this is because “... I struggle to get up, I struggle with motivation ... I struggle being around people. The dreams keep me up at night.”[123]
[114]T38, L9-11
[115]T38, L21-27
[116]TT38-39
[117]T39, L7-13
[118]T39, L14-27
[119]T39-40
[120]T40, L6-10
[121]T40, L11-22
[122]T40, L23‑28
[123]TT40-41
The Lay witness
Brenden Moebus
36 The plaintiff’s husband, Mr Brenden Moebus, provided the following relevant evidence in his affidavits sworn on 12 May 2020 and 9 June 2020:
(a)he is aware that his wife suffered a severe psychiatric reaction after being involved in the prisoner riot of 30 June 2015;[124]
[124]Ex P1, p26
(b)prior to being injured, his wife was responsible for the vast majority of the domestic duties. She would cook and clean and do the washing. If she was not at work there would always be a meal on the table when he would come home from work. She would also do the washing and have their uniforms clean and ready each day;[125]
[125]Ex P1, p26
(c)since the riot, his wife appears to have lost the motivation to undertake domestic chores. He comes home from work and there will be dishes piled up in the sink, and the house will be a mess. His wife no longer eats normal meals. She will graze during the day rather than eat dinner. He estimates that she eats one proper meal per week. She spends much of her day watching television;[126]
[126]Ex P1, p26
(d)prior to the incident, his wife led a very full and active life. She shared an active interest in horses with their daughter. They would often go out riding for an entire day. Now the plaintiff is either reluctant to leave the house or if she does go, she will spend a very short period of time with the horses. The plaintiff’s relationship with her daughter has suffered as a result of this;[127]
[127]Ex P1, p27
(e)the plaintiff has always had a lot of guilt associated with financially contributing to the household. Her husband is aware that she feels guilty if she is not working. She has made a number of attempts to return to work but he has never viewed those as being sustainable for her in the long term. Her husband witnesses her struggle to deal with people and to leave the house each day. He witnesses her psychiatric state decompensating as she continues to attempt to work;[128]
[128]Ex P1, p27
(f)his wife has offered to divorce him on a number of occasions because she feels so guilty about her lack of contribution to the family. He wants to assist her through this and to offer her support. He does not resent the plaintiff not working because he knows that her psychiatric situation is such that she cannot contribute financially;[129]
[129]Ex P1, p27
(g)their family uprooted their lives to move to Western Australia. They had a mortgage in Melbourne. Since moving to Perth, they have rented a house. He understands that his wife now fears returning to Melbourne and no longer feels safe there. In February 2020, they attended the plaintiff’s son’s wedding. It was a flying two-day visit, because the plaintiff did not want to spend any significant period of time in Melbourne. This worries him and upsets him because much of the plaintiff’s support network resides in Melbourne such as her Mum, her elder son, and many of her good friends;[130]
[130]Ex P1, p27
(h)he is often woken at night because the plaintiff has very disrupted sleeping patterns since her injury. He has woken to her crying at night or from her sitting up in shock. He worries about the plaintiff driving their daughter to school in the mornings, because he knows how little sleep she gets;[131]
[131]Ex P1, p27
(i)the plaintiff’s only social outlet is her writing group, but her attendance there is sporadic and she has not formed any long-lasting, deeper connections with anyone in Western Australia;[132]
[132]Ex P1, p27
(j)the plaintiff has enjoyed the isolation required of their family during the COVID‑19 pandemic, as it has meant that she has not been required to interact with others on a regular basis;[133]
[133]Ex P1, p27
(k)prior to the incident, the plaintiff used to be a bubbly, social person who enjoyed being out and about. Since the plaintiff suffered her injuries, Mr Moebus is always “walking on eggshells” around her. She is quick to anger and rarely wants to leave the house. He will often have to tell the kids to give their mother space and avoid her when she is in a dark mood. He sees the plaintiff as being a shadow of her former self. She is not the same person since the riot;[134]
[134]Ex P1, p27
(l)he has approximately nine years’ experience as a prison officer having commenced late in 2011;[135]
[135]Ex P1, p113
(m)he has been employed as a prison officer at Acacia since January 2016. This is the same prison where the plaintiff worked in 2016;[136]
[136]Ex P1, p113
(n)between January 2016 and April 2016, he undertook a three-month trainee course and then became a prison officer at Acacia. He commenced at a base rate of approximately $80,525 per annum gross;[137]
[137]Ex P1, p113
(o)his base rate has incrementally increased each year in accordance with the “Serco Acacia Prison Enterprise Agreement 2014” and the “Serco CPSU Acacia Prison General Enterprise Agreement 2017” on the following basis:
(i) 2015-2016: $80,525.00
(ii) 2016-2017: $83,948.00
(iii) 2017-2018: $85,207.00
(iv) 2018-2019: $86,485.00;
(p)since 2016 he has undertaken a significant amount of overtime. Overtime is readily available to all prison officers and is paid at the rate of ordinary time plus 50 per cent of the hourly rate for Monday to Friday shifts, ordinary time plus 75 per cent of the hourly rate for Saturday shifts, and ordinary time plus 100 per cent of the hourly rate for Sunday shifts;[138]
(q)by way of example, due to the significant amount of overtime he undertook, his annual salary in 2019 was $101,128 gross. He has no source of income other than the prison.[139]
[138]Ex P1, p114
[139]Ex P1, p114
The Medical evidence
37 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A précis of the relevant medical materials is set out below.
The Plaintiff’s medical evidence
38 The plaintiff’s treating general practitioner, Dr Johannes Meyer, provided three reports in relation to his treatment of the plaintiff over a number of years. In the most recent report, dated 21 April 2020, Dr Meyer diagnosed the plaintiff as suffering from PTSD. He expressed the opinion that the plaintiff would not ever have the capacity to return to pre-injury duties within the prison. He thought she would have a capacity to complete alternative employment, without providing any opinion as to what such employment might entail. I note that in an earlier report dated 21 November 2019,[140] he observed that the plaintiff was then “struggling to work” in her alternative employment. He concluded his report with the following comment:
“[The plaintiff’s] … activities of daily living, domestic, leisure and social activities has been greatly impacted with [the plaintiff] showing signs of social withdrawal. [The plaintiff] is experiencing marriage problems and has no drive or energy to engage in any social activities. She is also experiencing difficulty sleeping due to nightmares.”[141]
[140]Ex P1, p60
[141]Ex P1, p61
39 Ms Julie E’Silva, clinical psychologist, treated the plaintiff between January 2016 and about June 2018. Ms E’Silva provided two reports in respect of her treatment of the plaintiff. In the most recent report, dated 11 February 2018, at which time the treatment was continuing, Ms E’Silva expressed the opinion that the plaintiff was suffering from PTSD. She commented that the plaintiff presents with:
“... persistent symptoms of increased arousal (not present before the trauma), such as emotional dysregulation, as well as:
1) Difficulty falling or staying asleep;
2) Nightmares and bad dreams with recurring themes;
3) Irritability and increased outbursts of anger;
4) Generalized and irrational anxiety;
5) Apathy and loss of motivation;
6) Tearfulness;
7) Social withdrawal;
8) She also reported feelings of helplessness, worthlessness and hopelessness. In addition, she has persistent memories of the riot and re-experiences significant emotional overwhelm as she relives certain parts of the events of that period. These are referred to as flashbacks;
9) The meaning of her life has been turned upside down with not only the traumatic experiences, but also due to the relocation, loss of income, feelings of frustration and inadequacy at not having the psychological capacity to be able to return to her former work role, loss of family connection as well as social connections, due to having lived most of her life in Melbourne;
10) Avoidance of the scene of the crime at all costs (her place of work and the scene of the crime have now fused and are one and the same place).”[142]
[142]Ex P1, p51
40 The plaintiff was referred to Dr Gothami Madadeniya, consultant psychiatrist, by Dr Meyer. In a report dated 4 January 2020, Dr Madadeniya said that the plaintiff presents with “ongoing symptoms of a post traumatic stress disorder with depressive and anxiety features”. Dr Madadeniya stated that:
“[The plaintiff]…reports…ongoing distressing symptoms. She reports…nightmares where she and her daughter are subjected to rape and her husband and son are murdered. During the day time, she gets triggered into revisiting the riot and especially the threats made post riot. She is constantly hypervigilant, scanning for danger and ready to defend herself. She is easily startled by noises and is unable to tolerate crowded places. She is anxious which gives rise to panic attacks at times. Her mood is low, there is anhedonia and poor self care. Her sleep is very poor. At times she would feel suicidal but has no intention to carry this out, the protective factor being her family.”[143]
[143]Ex P1, p57
41 The plaintiff’s treating consultant psychiatrist, Dr Goel, began seeing the plaintiff on 25 February 2020, after she was admitted to The Hollywood Clinic for a fortnight following a suicide attempt in January 2020. Dr Goel provided two reports in the plaintiff’s court book. In the most recent report, dated 4 June 2020, Dr Goel expressed the opinion that the plaintiff’s current presentation is:
“... suggestive of [a] diagnosis of moderate to severe depressive episode with comorbid post-traumatic stress disorder related to [the] incident in June 2015. Since then she has been unable to function normally in [an] occupational, social and personal setting ...
I feel [the plaintiff] cannot return to working in the prison system as it will remind her of her trauma and she would struggle with flashbacks, nightmares, heightened anxiety levels which would directly affect her mood and performance in that role and possibly escalate the risks to self. Also the incident in the past has affected her self-confidence and self-esteem which has lead (sic) to avoidance and hence buildup of social anxiety. This will further interfere with returning back to working in a pressured and responsible role in the prison system.
[The plaintiff] possibly needs occupational rehabilitation involving slow introduction back in to occupational settings for example voluntary working to help [her] build up some self-confidence and overcome anxiety which can then gradually [increase] to working part-time in a more supported environment ... .”[144]
[144]Ex P1, p65
42 In a further report also dated 4 June 2020, Dr Goel commented on the plaintiff’s present work capacity. In that report Dr Goel said that the plaintiff is “currently thinking about a trial of volunteering with ... working with animals but is not confident whether she will be able to enter a job with full roles and responsibilities”. Dr Goel thought that if the plaintiff was to start voluntary work, she would be able to perform a “maximum of up to 10 hours per week with support”.[145] Dr Goel commented that if the initial work trial was successful, then the plaintiff “… might be able to return to employment in an supportive environment, with flexibility of taking time off during [a] crisis if needed, working up to 10-12 hours per week a few months down the line …”[146]
[145]Ex P1, p68
[146]Ex P1, p68
43 In about December 2019, the plaintiff underwent a clinical psychology assessment initiated by the defendant and conducted by Mr Tom Parker, clinical psychologist and director of “Headway”. In the report dated 19December 2019 which was produced as a result of that assessment,[147] Mr Parker diagnosed the plaintiff as suffering from severe intensity PTSD and a Major Depressive Disorder. He thought that the plaintiff’s condition was a “direct result of the riot at the Metropolitan Remand Centre in Melbourne in 2015”.[148]
[147]Ex P1, pp71-75
[148]Ex P1, p75 (and confirmed at p76)
44 In a second report dated 19 May 2020, requested by the plaintiff’s solicitors, Mr Parker expressed the following opinions:
“... Unfortunately, [the plaintiff’s] mental health and wellbeing has been severely compromised as a result of the riot. She has suffered from PTSD and MDD and her symptoms have prevented her from being able to return to work and lead a life free from depressed mood, anxiety and stress. Given the length of time since the incident and the fact she has continued to be affected, one must be guarded about a positive prognosis. Whilst I believe she still has the potential to return to some form of work in the future, I do believe this is at least 12-24 months away and unfortunately I do not believe she will be fit for full time work in the foreseeable future. I base this opinion on the fact [that the plaintiff] has lacked mood and symptom stability for the past five (5) years and she has not been able to demonstrate a consistent ability to sustain permanent employment for an extended period following the riot ...
In my opinion, [the plaintiff] will not be able to return to her pre-injury duties as a prison officer. If she did return to this type of work, the risk for re‑injury and further psychological harm is extremely high ...
I do believe that … [the plaintiff] is employable but I do not believe she will be fit for full-time work in the foreseeable future. I believe in the right industry and in the right role, she could perform between 20-25 hours per week. However, her ability to work for 20-25 hours per week is dependent on finding a suitable role and I think it could take at least 12‑24 months to achieve this ...
It is my professional opinion that … [the plaintiff’s] condition does impact her ability to perform ... domestic and recreational activities.
[The plaintiff’s] PTSD and Major Depression have compromised her ability to engage with previously enjoyed pleasurable activities such as creative writing and socialising. She continues to be severely impaired in this regard ... .”[149]
[149]Ex P1, pp76-77
45 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Matthew Tagkalidis, consultant psychiatrist, on 18 June 2018. In a report of the same date relied upon by the plaintiff, Dr Tagkalidis expressed the view that the plaintiff was suffering from PTSD “relevant to the accepted injuries ... The criteria for Post-Traumatic Stress Disorder are clearly satisfied with multiple traumatic events associated with re‑experiencing phenomena, avoidance phenomena and symptoms of increased arousal. ... .”[150]
[150]Ex P1, pp86-87
46 The plaintiff was also examined for medico-legal purposes by Dr Albert Kaplan, consultant psychiatrist, on 28 April 2020. In a report dated 5 May 2020, Dr Kaplan said:
“As a result of the incident of 20 June 2015 and the subsequent abuse and threats to which she was subjected, she developed a Post-Traumatic Stress Disorder. She had struggled as a result of this condition, eventually decompensated in late 2019 leaving a job she had held for seven months and in January of this year she made a suicide attempt which resulted in her admission to a psychiatric hospital.
… [The plaintiff] continues to struggle psychologically. She described intrusive thoughts, flashbacks and recurring nightmares regarding her traumatic experiences, avoidance features and increased arousal. She has developed a heightened sense of vulnerability, has become distrustful of people and she dreads returning to work as a prison officer and dreads moving back to Melbourne. She describes symptoms of depression and anxiety, she suffers from panic attacks, she experiences sleep and appetite disturbance and she has gained a substantial amount of weight. Her libido has diminished, she has developed a low frustration tolerance, she is socially withdrawn, she has difficulties with her memory and concentration, her self-esteem has been undermined and she still experiences thoughts of suicide.
It is difficult to predict the long-term prognosis of [the plaintiff’s] psychiatric condition, however her condition has been present for some five years. Her prognosis is therefore likely to be unfavourable and her condition is likely to persist for a prolonged and to some extent indefinite period of time. Any future experience where her life or the lives of those close her is threatened is likely to lead to an aggravation of her psychiatric condition.”[151]
[151]Ex P1, pp104-105
47 Dr Kaplan was asked to comment on the plaintiff’s current work capacity. In response to that question Dr Kaplan expressed the following opinion:
“... In my opinion, despite [the plaintiff] indicating that she would be willing to attempt to return to work on a part-time basis in some capacity where she has little contact with other people, she has no realistic current capacity for work.”[152]
[152]Ex P1, p105
The Defendant’s medical evidence
48 The plaintiff was assessed for medico-legal purposes by Associate Professor Shashjit Varma, consultant psychiatrist, on 27 April 2017 and again on 16 January 2019. In a report dated 21 January 2019, Associate Professor Varma expressed the opinion that the plaintiff was suffering from “PTSD, which is in partial remission, and has reached a stable state”.[153]
[153]Ex D1, p30
49 Associate Professor Varma expressed the view that the plaintiff could not return to her pre-injury duties and hours at her previous workplace or even at an alternative workplace. He thought that she could return to modified pre-injury duties and hours. He thought that she had a capacity to work in alternative jobs on a part-time or perhaps a full-time basis. He thought that a review of the plaintiff’s capacity needed to take place in a year or so from the date of his report.[154]
[154]Ex D1, pp31-32
50 The plaintiff was assessed for medico-legal purposes by Associate Professor Peter Doherty, consultant psychiatrist, on 12 May 2020 via Zoom due to the COVID‑19 crisis. As a result of his examination of the plaintiff, Associate Professor Doherty noted that the plaintiff had consistently been diagnosed with having PTSD. He expressed the opinion that the plaintiff does meet the criteria for that disorder. He noted that the plaintiff is “easily distressed, emotional and unsettled”[155] and that there has been “mood instability, and a sensitivity to deteriorate emotionally under stressful life circumstances”.[156] Associate Professor Doherty also expressed the opinion that the plaintiff had a “diagnosable major depressive disorder ... There is mood instability, maladaptive coping strategies, a pessimism and unhappiness. There is the use of antidepressant medication. The diagnostic criteria for a depressive disorder is currently present.”[157]
[155]Ex D1, p47
[156]Ex D1, p47
[157]Ex D1, p47
51 In Associate Professor Doherty’s opinion, the plaintiff’s overall psychiatric outlook “is guarded”.[158] He thought that the completion of legal proceedings would allow the plaintiff to “move on from the June 2015 incident, and leave it behind her.”[159] He did not explain how he reached this conclusion, but added the opinion that “It is likely she will continue to need ongoing psychological and psychiatric support and treatment and the use of medication. There are psychological vulnerabilities, and there is likely a continued sensitivity to deteriorate mentally when stressed.”[160]
[158]Ex D1, p47
[159]Ex D1, p47
[160]Ex D1, p47
52 Associate Professor Doherty was asked to comment on the plaintiff’s work capacity and gave the following opinion:
“At the present time there is no capacity for suitable employment. There has been in the past. She is easily distressed, emotional and unsettled. The legal [proceedings ]relevant to the riot are a significant stressor for her, and it is not likely that her mental state will settle till after the completion of the legal proceedings...
She cannot currently undertake all the duties of the listed employment options at any hours. She would be likely unreliable and inconsistent, sensitive to any tension and difficulties that might arise ...
The incapacity for work is very likely to improve on completion of the legal proceedings, and there is likely to be a capacity for work, that is suitable for her, at full hours, at completion of the legal proceedings.”[161]
[161]Ex D1, pp47-48
53 Associate Professor Doherty expressed a similar opinion in a report dated 3 June 2020, when his attention was specifically drawn to the employment options set out in the labour market analysis report by Konekt Workcare (“Konekt”), undated but completed in May 2020. He noted that the options included in that report were printer, private tutor, education aide, and digital designer. He noted that he had been informed about the duties and physical requirements of each of the positions.[162] He expressed the opinion in relation to these positions that “there is no current work capacity for the reasons outlined in my report to you. I have reviewed the functional requirements of the positions listed in the [Konket] workcare report which was undated. In my opinion, the claimant cannot undertake all the duties of the listed employment options considered suitable, at the present time ... .”[163]
[162]Ex D1, p50
[163]Ex D1, pp51
54 Associate Professor Doherty again expressed the opinion that the plaintiff’s work capacity would improve at the conclusion of the legal proceedings. He did not express an opinion about what work she may be able to undertake, if any, at that time.[164]
[164]Ex D1, p51
Expert evidence in relation to suitable employment
55 The plaintiff relied upon a report from Flexi Personnel dated 5 June 2020.[165] In that report, Flexi Personnel employee Ms Louise Meilak was asked to provide information in relation to the current earnings for a qualified Prison Officer. Ms Meilak noted that in order to provide the information requested, she had accessed the “Ravenhall Correctional Centre Enterprise Agreement 2017” which advised the following current annual base rates of pay:
[165]Ex P1, pp108-109
(a) Correctional Officer 1: $70,210.07
(b) Correctional Officer 2: $74,400.45
(c) Correctional Supervisor 1: $84,129.19
(d) Correctional Supervisor 2: $91,569.19[166]
[166]Ex P1, p108
56 Ms Meilak noted that progression from a Correctional Officer Year One to Correctional Officer Year Two is based on completion of a year of service as a Correctional Officer Year One and satisfactory performance appraisals. She also noted that progression to a Correctional Supervisor is not automatic.[167]
[167]Ex P1, p108
57 Ms Meilak was not required to attend for cross-examination.
58 In relation to the plaintiff’s current work capacity, at the hearing of this matter the defendant relied entirely on a report from Konekt, in relation to a labour market analysis of suitable employment options for the plaintiff (“the Konekt report”). The date of referral for assessment was 18 May 2020.
59 The suitable employment options, said to have been identified by IPAR in a 130‑week vocational assessment report dated 19 September 2018,[168] were as follows:
[168]I note that a report of that date from IPAR was not included in the defendant’s court book. Nothing was made of this issue.
(a) printer - $1,132 per week;
(b) tutor - $1,122 per week;
(c) education aide - $1,094 per week; and
(d) digital designer - $1,346 per week.
60 No person from Konekt or IPAR was required to attend for cross-examination.
The Issues
The Plaintiff’s credit
61 No serious attempt was made to discredit the plaintiff during cross-examination. It was conceded that a total of 13 hours and 55 minutes of surveillance of the plaintiff’s activities were undertaken on 18 and 19 February 2020. No video surveillance was either produced to the Court for viewing or tendered by the defendant.
62 Although the defendant did not concede that the pain and suffering consequences of the plaintiff’s workplace injuries were “severe,” the plaintiff was not cross-examined to any extent about the effect of those consequences on her activities of daily living, sleep and recreational activities. As set out above, the cross-examination was limited to the plaintiff’s present work capacity.
63 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest and cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. She made concessions where necessary, many of which were adverse to her own interests.
64 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
65 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of her husband, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or to exaggerate her symptoms in any way.
Stoic plaintiff
66 I also formed the view that the plaintiff is extremely stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered severe symptoms of PTSD and a Major Depressive Disorder since at least July 2015. In addition, she has endured extensive medical consultations and treatment and has been hospitalised following a suicide attempt, all of which have caused her ongoing distress and trauma. Despite this, in an effort to remain a contributor financially to her family and to her marriage, she has persistently continued trying to retrain and to obtain work.
Compensable injury
67 The details and occurrence of the injury are not in dispute.
68 Having considered all of the medical evidence from the plaintiff’s treating doctors as well as the medico-legal experts on both sides, I am satisfied that as a result of the incident, the plaintiff suffers from the consequences of a mental disturbance or disorder in the form of:
(a)PTSD; and
(b)a Major Depressive Disorder; and
(c)Anxiety.
Is the compensable injury permanent for the purposes of the Act?
69 Having considered the relevant reports, in particular the reports from Dr Meyer,[169] Dr Madadeniya,[170] Dr Parker,[171] Associate Professor Varma,[172] and Associate Professor Doherty,[173] I find that the plaintiff is likely to suffer from the injuries that she sustained in the incident, for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[169] Ex P1, p59
[170]Ex P1, p57
[171]Ex P1, p76
[172]Ex D1, p30
[173]Ex D1, p47
Arguments concerning economic loss
70 It was the plaintiff’s submission that for the purposes of the calculation under s325(2)(e), the figure which most fairly reflects the plaintiff’s “without injury” earnings is $1,617.87 gross per week, or $84,129.19 gross per annum, based on the relevant base salary for a Correctional Supervisor 1. In that case, 60 per cent of the plaintiff’s “without injury” earnings would amount to $970.72 per week or $50,477.44 per annum.
71 By contrast, the defendant argued:
(a) at the time of the accident, the plaintiff was in her first year of employment as a Correctional Officer;
(b) in 2015, the plaintiff was employed at the base rate for Correctional Officers. Promotion to Supervisor was not automatic;
(c) there is no evidence before the Court which would allow it to conclude that the plaintiff would have been promoted to the level of a Correctional Supervisor;
(d) but for the work-related injury in June 2015, the plaintiff would never have contemplated moving to Perth. Therefore, any argument based on the experience of either the plaintiff or her husband at Acacia (including the availability of overtime), is irrelevant;
(e) in the circumstances, the figure which ought be taken by the Court as best reflecting the plaintiff’s without injury earning capacity, is $75,000, being the approximate level of a Correctional Officer 2;
(f) in that case, 60 per cent of the plaintiff’s “without injury” earnings would amount to $865 per week or $45,000 per annum.
72 I accept the defendant’s argument in relation to the appropriate without injury earnings figure. In particular, I accept that there was no evidence before the Court either that the plaintiff would, but for her injuries have been promoted beyond the level of a Correctional Officer 2, or that the plaintiff would have been in receipt of significant overtime, such that an additional amount ought be factored into the assessment of her without injury earning capacity.
73 As to the plaintiff’s residual work capacity, I note the following:
(a) the medical experts all agreed that the plaintiff could not return to her pre-injury duties;
(b) the plaintiff’s general practitioner thought that the plaintiff had some capacity for alternative employment but did not suggest any parameters within which such employment might be conducted. In 2019, he noted that the plaintiff was then “struggling” with her alternative employment;
(c) Dr Goel thought that the plaintiff may be able to perform up to 10-12 hours of work in a supportive environment “with the flexibility to take time off during [a] crisis”;
(d) Mr Parker thought that given the length of time since the incident and the fact that the plaintiff has continued to be affected, one must be “guarded about a positive prognosis”. He said that the plaintiff “might” be able to work for 20 to 25 hours per week, dependant upon finding a suitable role. He expressed the opinion that it might take at least twelve to twenty-four months for the plaintiff to build up to this work capacity;
(e) Dr Kaplan thought that the plaintiff had no realistic current capacity for work;
(f) in 2019, Associate Professor Varma was doubtful about the plaintiff’s future work capacity and thought she should be reassessed in a year;
(g) in 2020, Associate Professor Doherty thought that the plaintiff presently had no capacity for “suitable employment”. In particular, he said that upon a review of the functional requirements of the positions proffered by the defendant as constituting “suitable employment,” he had formed the opinion that the plaintiff could not undertake all of the duties listed for any of the proposed positions. He thought that the plaintiff’s work capacity would improve at the conclusion of the legal proceedings. He did not explain how he reached this conclusion, but added the opinion that “It is likely she will continue to need ongoing psychological and psychiatric support and treatment and the use of medication. There are psychological vulnerabilities, and there is likely a continued sensitivity to deteriorate mentally when stressed.” He also noted that the plaintiff is “easily distressed, emotional and unsettled”. He did not express any opinion as to what work, if any, the plaintiff may be able to undertake when the legal proceedings concluded.
74 The overwhelming weight of the medical evidence is that the plaintiff presently has very little, if any capacity for “suitable employment”. Notwithstanding this, Senior Counsel for the defendant urged the Court to take note of the opinion of Mr Parker that the plaintiff “might” in “12-24 months” time have a capacity for 20-25 hours of work. Similarly, the defendant pointed to the opinion of Associate Professor Doherty that the plaintiff’s present incapacity for “suitable employment” would “very likely to improve on completion of the legal proceedings, and there is [then] likely to be a capacity for work … at full hours …”
75 In response, Senior Counsel for the plaintiff referred the Court to the judgment of the Court of Appeal in Richter v Driscoll.[174] In that case, the Court held that in assessing whether a plaintiff is fit to engage in “suitable employment,” the Court is –
“… required to consider whether the entirety of the [plaintiff’s] relevant personal circumstances—that is, her injury-caused incapacity and other relevant personal circumstances … meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
[174][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
76 As to the medical opinions that the plaintiff “might” be able to perform part time employment some time in the future, or that it was “very likely” that the plaintiff would improve such that she could perform full time duties at the conclusion of the legal proceedings, Senior Counsel for the plaintiff referred to the decision of the Court of Appeal in Harris v DJD Earthmoving.[175] In the judgment in that case, the Court observed:
“… it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible…It was insufficient that, in the relevant section of the reasons, the judge said only (in this regard) that several medical practitioners had commented on the need for Mr Harris to attend a pain management specialist in order to ameliorate his ‘position’; that all he (the judge) could infer was that referrals for drug treatment and for pain management ‘may ameliorate the plaintiff’s capacity for work to some extent’; and that there was ‘evidence’ before him that the plaintiff was capable of a wide range of alternative light duties. Given the evidence … we consider that his Honour needed to identify at least one particular full time job which could be regarded as ‘suitable employment’ for Mr Harris and which Mr Harris had failed to show would be beyond him for the foreseeable future.”
[175][2016] VSCA 188 at paragraph [49]
77 As to these issues, first, I note that each of the medical experts who have expressed an opinion that the plaintiff may have a capacity for “suitable employment” in the future, make no reference to the personal circumstances which impact on the plaintiff’s ability to find “suitable employment,” such as her difficulties with concentration brought about by the impact which her injuries have on her sleep and the effects of the medication which she takes. Neither was any reference made to the adverse impact which the plaintiff’s injuries have upon her emotional state, and in particular, her ability to tolerate groups of people, noisy environments, stressful situations or any tension in the workplace. As Associate Professor Doherty noted, the plaintiff is “easily distressed, emotional and unsettled”.
78 As to her reliability as a prospective employee, the plaintiff’s own experience of the effects of her injuries and the fact that “at this point, [she struggles] with getting up in the morning and getting dressed,” was not taken into account by those who have concluded that she has some capacity for “suitable employment”. Taking these matters into account, I accept that by reason of her personal circumstances, the plaintiff is not presently “merchantable” as a prospective employee. I have already found that the injuries from which the plaintiff suffers (and therefore the ongoing effect of those injuries), are permanent for the purposes of the Act.
79 Second, it would be contrary to the case law if I were to be persuaded by the opinion of a medical expert that the plaintiff has a capacity for “suitable employment,” without also being satisfied that there is a particular job which could be described as “suitable employment” for the plaintiff and which she has failed to show would be beyond her for the foreseeable future. No such job has been identified by the relevant experts. I am not satisfied that any such job exists.
80 Having regard to all of the evidence, I prefer the opinion of Dr Kaplan that, despite the plaintiff’s own willingness to attempt to return to work “on a part-time basis in some capacity where she has little contact with people,” in fact she presently has no realistic capacity for “suitable employment”.
81 I note that Dr Kaplan’s opinion is consistent with the observations made by Associate Professor Doherty as to the plaintiff’s present ability to undertake “suitable employment” in the roles suggested by the defendant. These two opinions accord with the plaintiff’s own assessment of her capacity to undertake the suggested roles. I have already made observations concerning my assessment of the plaintiff’s honesty and credibility.
82 Taking into account each of the matters set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s mental disturbance or disorder have resulted in the plaintiff being unfit for both her pre-injury duties and indeed, for any alternative employment.
83 I am also required to consider issues of retraining and rehabilitation pursuant to s325(2)(g) of the Act.
84 In light of my findings as to the plaintiff’s impairment and her present incapacity for employment, and taking into account the evidence of the outcome of the extensive retraining attempts already undertaken by her, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g) of the Act.
85 In light of the foregoing, I am satisfied that the consequences of the mental disturbance or disorder from which the plaintiff suffers as a result of the incident, are “severe” for the purposes of the Act.
Conclusion
86 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of the severe mental disturbance or disorder that she suffered as a result of the incident on 30 June 2015.
87 I will hear the parties on the question of costs.
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