Murray v VWA
[2019] VCC 1595
•4 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04768
| HELEN KATHLEEN MURRAY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2019 | |
DATE OF JUDGMENT: | 4 October 2019 | |
CASE MAY BE CITED AS: | Murray v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1595 | |
REASONS FOR JUDGMENT
---
Subject: Accident compensation
Catchwords: Serious injury; mental or behavioural disorder;
causation; severity; permanency
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act
2013
Cases Cited: Mobilio v Balliotis & Ors [1998] 3 VR 833
Judgment: Leave granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti QC with Mr S. Scully | Maurice Blackburn |
| For the Defendant | Mr C. Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff in this application, Ms Helen Murray, seeks leave to bring proceedings for the recovery of damages for injuries sustained during the course of her employment with Victoria Police. She is now 56 years of age and had joined Victoria Police in 1986. She progressed through the ranks to the position of senior sergeant, until she ceased work in April 2016. She has not worked since that time.
2 Ms Murray identified “stress due to historic workplace sexual assault and current workplace management issues” as the basis for ceasing work.[1]
[1]Exhibit A, (Plaintiff’s Court Book ‘PCB’ 32)
3 Her application is in respect of both pecuniary loss and pain and suffering, and relies upon paragraph (c) of the definition of “serious injury” in section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
4 The defendant opposes the grant of leave essentially on two bases. First, it was indicated by Mr Miles, who appeared on behalf of the defendant, that any injury sustained by Ms Murray prior to 20 October 1999 would not entitle Ms Murray to any grant of leave. In the present case the medical evidence, and indeed the plaintiff’s own affidavit material, identified significant sexual assaults to which Ms Murray had been subjected in the 1980s. The plaintiff’s memories of these events had been re-enlivened following a workplace survey in 2015, but could not be relied upon to support the present application.
5 Secondly, Mr Miles identified matters concerning complaints made about Ms Murray in 2015 and 2016, which he submitted did not amount to bullying or harassment for the purposes of her application. Further issues concerning the permanency and severity of consequences were also identified by Mr Miles.
6 Ms Murray was the only witness required for cross-examination. Mr Monti QC, who appeared with Mr Scully on behalf of the plaintiff, tendered the entirety of both parties court books as evidence in support of his client’s application.[2]
[2]Exhibit A Plaintiff’s Court Book (‘PCB’) & (Defendant’s Court Book ‘DCB’)
The lay evidence
7 Ms Murray swore two affidavits dated 21 May 2018 and 25 September 2019.[3] Further affidavits were sworn by her mother, Barbara Price, on 25 September 2019,[4] and her partner, Ryan Burns, on 30 September 2019.[5]
[3]Exhibit A, PCB 15-23 & 26-31
[4]Exhibit A, PCB 93-95
[5]Exhibit A, PCB 96-98
8 In the plaintiff’s first affidavit she described three aspects of her employment giving rise to stress.[6] The broad allegation relied upon related to the course of her employment, both pre and post 1999. Ms Murray stated:
“Throughout the course of my employment with the Defendant, I was subject to sexual harassment and intimidation, including sexual abuse, and bullying and harassment.”[7]
[6]Exhibit A, PCB 17 [9] to [11]
[7]Exhibit A, PCB 17 [10]
9 When cross-examined about these matters Ms Murray was directed to a number of histories taken by medical practitioners principally related to sexual abuse and harassment from within the Police Force prior to 1999.[8]
[8]Dr Varna (Exhibit A, DCB 11); Ms Haertel (Exhibit A, PCB 40); Dr Tolat (Exhibit A, PCB 41-42); Dr MacBeth (Exhibit A, PCB 52-53) & Dr Strauss (Exhibit A, PCB 70)
10 Ms Murray agreed with the histories recorded in general terms noting that they had referred to serious allegations, including one of an attempted digital rape upon her in approximately 1988. She also agreed that participation in a workplace survey in approximately 2015 or 2016 had revived memories of these earlier events.
11 Ms Murray agreed in cross-examination that she had seen a psychologist briefly and may have taken antidepressant medication in 1992 and 2000. She had a further prescription for the drug Zoloft between 13 August 2004 and 31 January 2005.[9]
[9]Transcript (“T”) 7, Line (“L”) 16 to T 9, L 9
12 Ms Murray did not disagree that early in her police career she had been the victim of a reasonably serious sexual assault, although she had not taken any time off in relation to that.[10]
[10]T 9, L 24-29
13 When Ms Murray was cross-examined in relation to the various medical histories she had given, referring to the early sexual assault, she maintained that unsubstantiated complaints attacking her reputation had ultimately been the cause of her ceasing work and resigning.[11]
[11]T 11, L 7-15
14 She further agreed that after ceasing work in April 2016 she had received a letter advising that those complaints had been determined to be unsubstantiated on or about 29 August 2016. She had some prior verbal notification, but was off work at that time.
15 These events said to have occurred in late 2015 and early 2016 were also identified by Ms Murray in her affidavit as causative of her stress related condition.
16 The final causative factor to which she had referred was described as bullying and harassment occurring whilst she was employed in the operational safety unit at the Victoria Police Academy. In her affidavit she described the relevant period as “from approximately January 2015 to April 2016.”
17 It was clear from Ms Murray’s evidence, both when cross-examined and particularly in re-examination, that she regarded this work environment as toxic:
“It was the most toxic work environment I’ve ever been in.”[12]
[12]T 28, L 10 to T 29, L 14
18 Ms Murray was cross-examined to some extent in relation to her activities since ceasing employment with Victoria Police. She agreed that she had not sought employment, had taken overseas trips on two occasions in the past two years, and had not attended her psychiatrist since approximately March 2019.
19 The remaining lay evidence is set out in the affidavits sworn by the plaintiff’s mother and partner. Barbara Price, the plaintiff’s mother, has lived with her for the past two and a half years. In substance her affidavit deposes to her observations as to changes she has observed in Ms Murray in recent years. She referred in particular to her observation of her daughter’s emotions, memory and her apparent lack of interest in activities and general appearance. In particular she stated:
“I remember Helen used to take so much pride in her role as a Police Officer – it was such a part of her identity. I was able to go along to her farewell function following her retirement from Victoria Police. It was obvious to everyone there how devastated Helen was to be leaving her job – she couldn’t even get through her speech without breaking down and crying. She truly believes she is nothing since she left her job as a Police Officer. It is so sad to see.”[13]
[13]Exhibit A, PCB 94-95 [7]
20 Ryan Burns, the plaintiff’s partner, swore a similar affidavit commenting on matters such as his observations of Ms Murray’s apparent lack of confidence, organisational difficulties and obvious frustration. He also deposed to making observations of cuts around Ms Murray’s arms and legs which she had told him were self-inflicted.[14]
[14]Exhibit A, PCB 97 [7]
The medical evidence
21 Ms Murray relied on three reports from her treating general practitioner, Dr Jayawardena, dated 30 January 2018, 8 March 2019 and 4 June 2019. In his most recent report he diagnosed Ms Murray as suffering from an adjustment disorder with chronic depressed mood. He did not believe she had a current capacity to work and doubted that she would ever be able to start or sustain any gainful employment in the future. He noted that she was under the care of a psychiatrist and psychologist.[15]
[15]Exhibit A, PCB 39
22 Ms Murray saw a psychologist, Susan Haertel, for six session between April and June 2016. Ms Haertel’s short report dated 14 June 2016 was tendered in evidence.[16] Ms Haertel’s diagnosis was one of major depression and she recommended that Ms Murray have a further 10 sessions to assist with her psychological functioning.
[16]Exhibit A, PCB 40
23 It is also significant that whilst a history of sexual assault in 1987 was taken, there was a further history of bullying and harassment in recent times in her workplace. Significantly there is no history recorded of the unsubstantiated complaints which had been made against Ms Murray. This corroborates Ms Murray’s own evidence that she did not know of these complaints until she was orally informed some time shortly before she received the letter exonerating her in late August 2016.
24 Three reports from the plaintiff’s treating psychiatrist, Dr Minaakshi Tolat, dated 14 February 2018, 15 April 2019 and 4 June 2019 were also tendered in evidence.[17] He had last seen Ms Murray on 27 March 2019. His diagnosis was one of “adjustment disorder with depressed mood and anxiety symptoms in the background of significant trauma in her previous workplace.” He did not believe she had a capacity to return to work, and his opinion stated that he believed that her inability to work could continue indefinitely.[18]
[17]Exhibit A, PCB 41-48
[18]Exhibit A, PCB 48
25 In addition to the treating doctors’ material, Mr Monti QC tendered into evidence two medico-legal reports obtained by the plaintiff’s solicitors.[19]
[19]Dr Robyn MacBeth dated 18/02/19 (Exhibit A, PCB 49-66) & Dr Nigel Strauss 23/03/19 (Exhibit A, PCB 67-77)
26 Dr MacBeth’s history noted the allegations that had been made against the plaintiff in late 2015 and early 2016 in addition to the other matters which were noted by the treating practitioners. Dr MacBeth noted that her own speciality was that of occupational medicine and not psychiatry. She adopted Dr Tolat’s diagnosis of adjustment disorder. She also expressed her own opinion that Ms Murray would not have a realistic capacity for work on a consistent, reliable and permanent basis in the foreseeable future.[20]
[20]Exhibit A, PCB 60
27 Dr Strauss also recorded a very detailed history of Ms Murray’s experiences during the course of her employment with Victoria Police. Dr Strauss noted that the trigger for her to cease work occurred whilst working at the Police Academy when she had made a statement to a task force investigating sexist behaviour. Dr Strauss noted:
“However at the same time she said the task force began to receive anonymous letters about her accusing Ms Murray of sexist behaviour in the workplace. She said that as a consequence she was investigated and her staff were interviewed and she found this extremely distressing. Ultimately she said she was not charged with any inappropriate behaviour and she was completely cleared. Nevertheless she said that rumours began to spread about her behaviour and she felt that her reputation had been besmirched.
She said that it was extremely upsetting because her reputation had never been affected previously.
She said she was so upset because of all of these events that she eventually went to her doctor and she has not worked since 2016 as stated. She resigned last year.”[21]
[21]Exhibit A, PCB 70
28 Dr Strauss diagnosed Ms Murray as suffering from:
“… a chronic adjustment disorder with mixed anxiety and depressed mood as a result of her employment with the Victoria Police which remains a significant contributing factor.”[22]
[22]Exhibit A, PCB 73
29 He opined that she can no longer work as a police officer and has a permanent psychiatric incapacity as a result of that employment. He did offer some optimism as to her future, suggesting that she may be capable of some alternative work in the next year or two on a part-time basis.
30 Mr Monti QC also tendered into evidence all of the medical reports that were contained in the defendant’s court book.
31 The first report was from Professor Ivor Jones who examined Ms Murray on behalf of the insurer on 18 October 2016. In his report of that date he diagnosed Ms Murray as suffering from a major depressive disorder of moderate severity.[23]
[23]Exhibit A, DCB 6
32 The next report tendered was a single page report from Dr Tolat dated 16 December 2016. This stated:
“Ms Murray is reviewed by myself every 3-4 weekly(sic). In my assessment Ms Murray presents as preoccupied with all the trauma she has experienced whilst working as a police officer. She becomes anxious, agitated at the thought of returning to work in her current position. I do not believe that Ms Murray is able to return to work at this stage in any capacity.”[24]
[24]Exhibit A, DCB 9
33 Dr Shashjit Varma examined Ms Murray on 19 January 2017 and 3 May 2018 at the request of the insurer. His two reports dated 19 January 2017 and 10 May 2018 were also tendered as part of the plaintiff’s case. In his first report Dr Varma diagnosed Ms Murray as suffering from an adjustment disorder secondary to workplace bullying and harassment. At the time of the re‑examination this was slightly modified to describe the adjustment disorder as being secondary to “work-related stress and abuse.”[25] On neither occasion did Dr Varma (or Associate Professor Varma as he was at the time of his second report) believe Ms Murray had any work capacity. In his second report he believed that once the preoccupation with WorkCover and job cessation had passed, she may have some capacity to look for work or re-training.[26]
[25]Exhibit A, DCB 22
[26]Exhibit A, DCB 23
34 Dr Chris Grant reported to the defendant’s solicitors on 16 August 2018 and 5 September 2019. His two reports were also tendered as part of the plaintiff’s case.[27] Dr Grant diagnosed Ms Murray as suffering from an ongoing major depressive disorder with features of traumatisation but not full post traumatic stress disorder. In his second report he modified this diagnosis to:
“… an ongoing major depressive disorder with mild features of anxiety and traumatisation, but not full post-traumatic stress disorder. Her condition appears to be in partial remission with treatment.”
[27]Exhibit A, DCB 30-41
35 In his most recent report he believed that she had no current work capacity, nor any capacity for suitable employment. He could not say if or when she might improve so as to regain capacity, and described her current incapacity as indefinite.[28]
[28]Exhibit A, DCB 41
36 The totality of the medical evidence confirmed that Ms Murray suffers from a diagnosed psychiatric condition which presently precludes her from any capacity to return to suitable employment. Although there is some suggestion of symptomatic improvement in the future, these opinions appear to be little more than speculative.
Analysis
37 In order for leave to be granted, Ms Murray bears the onus of proving that she sustained compensable injury referrable to her employment subsequent to 20 October 1999 and that the consequences, both in respect of pain and suffering and loss of earning capacity, can be said to constitute a permanent severe mental or permanent severe behavioural disturbance or disorder.
38 In final address Mr Miles made reference to the serious sexual assault matters to which the plaintiff had been subjected many years prior to 20 October 1999. I accept that it would be impermissible to rely on such matters as being causative of compensable injury for the purposes of this application.
39 I also accept Mr Miles’ submissions that it is probable that the plaintiff’s participation in a sexual harassment survey in or about 2015 reignited her memories of those earlier events.
40 I am satisfied on the whole of the evidence that Ms Murray’s later employment, particularly in 2015 and 2016, when she was working at the Operational Safety Unit at the Victoria Police Academy, exposed her to bullying and harassment to the extent that she described her workplace as being “toxic” in evidence given in this application.
41 I regarded Ms Murray as a truthful and reliable witness.
42 While not discounting the impact of serious sexual assaults occurring many years earlier, I am satisfied that her employment with Victoria Police, particularly between January 2015 and April 2016 was causative to a significant extent of her diagnosed psychiatric condition.
43 I also accept, on the basis of all of the medical evidence, together with the evidence of the plaintiff and her supporting lay witnesses, that as a result of her diagnosed psychiatric condition she has been forced to permanently give up her police career and presently has no capacity for any suitable employment.
44 At the time she ceased her employment she was 53 years of age and had been a member of the Police Force for over 30 years. She gave evidence before me that as a senior sergeant she was earning approximately $110,000 per year. She also gave evidence that but for her injury it was her intention to continue working into her 60s and seek further promotion.[29]
[29]T 32, L 20 to T 33, L 15
45 In final address Mr Miles also submitted that the consequences suffered by Ms Murray needed to meet the statutory test of “severe” rather than “serious”. Such a distinction has been well recognised by appellate courts at least since Mobilio v Balliotis.[30]
[30][1998] 3 VR 833 esp at 846 per Brooking JA
46 The consequences for Ms Murray in the present case can be shortly described. She has lost her police career at a time when she could reasonably have expected to be promoted to the rank of inspector. She is now in receipt of an ESSSuper pension, additionally she is presently regarded as incapable of any suitable employment and has not sought any alternative employment since ceasing with Victoria Police in 2016. The lay affidavit material from her mother and her partner satisfy me that her emotional state is such that she is unlikely, in the foreseeable future, to regain any valuable capacity to return to the labour market. Such consequences in terms of pecuniary loss are extreme. In my view they can fairly be described as severe. They must be viewed as permanent given nothing more than speculation of some positive change in the future. In light of the observations of Ms Murray’s mother and partner. I am not satisfied that any amelioration of her symptoms in the foreseeable future would lead to any relevant change in Ms Murray’s capacity for suitable employment.
47 I accept the plaintiff is entitled to leave on the basis that she has suffered loss of earning capacity consequences which, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as more than serious to the extent of being severe.
48 In view of my findings in relation to the loss of earning capacity consequences, it is unnecessary to separately consider the pain and suffering consequences.[31]
[31]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63] to [64]
Conclusion
49 I am satisfied that the plaintiff has discharged her onus in relation to a grant of leave. I propose to grant leave pursuant to section 335(2)(d) of the Act to enable Ms Murray to bring proceedings to recover damages at common law, both in respect of pain and suffering and loss of earning capacity on the basis that she has suffered a serious injury.
50 I will hear the parties in relation to the formal orders sought and on the question of costs.
- - -
0