Newton, Natalie v Geelong Ethnic Communities Council

[2009] VCC 989

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

SERIOUS INJURY

Case No. CI-07-01973

NATALIE NEWTON	Plaintiff
v
GEELONG ETHNIC COMMUNITIES	Defendant
COUNCIL INC. & ANOR

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JUDGE:	Judge Howie
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 and 20 July 2009
DATE OF JUDGMENT:	19 August 2009
CASE MAY BE CITED AS:	Newton, Natalie v Geelong Ethnic Communities Council Inc.
MEDIUM NEUTRAL CITATION:	[2009] VCC 0989

REASONS FOR JUDGMENT

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Richards SC and Mr Ingram	Clark Toop & Taylor Lawyers
For the Defendant	Mr Elliot QC and Ms Tsikaris	Wisewoulds Lawyers
HIS HONOUR:

1          Natalie Newton, the plaintiff in this proceeding, is now 61 years of age, her date of birth being 26 January 1948. She was employed as an aged care program co-ordinator with Geelong Ethnic Communities Council Incorporated,

the defendant, from April 1994 to 24 October 2002, when she ceased her
employment. She has not worked since.

2 By an originating motion filed on 28 May 2007 Mrs Newton seeks leave pursuant to section 134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering and for pecuniary loss in respect of an injury sustained by her in the course of her employment by the defendant between 20 October 1999 and 24 October 2002. She relies upon paragraph (c) of the definition of serious injury and alleges that she has a permanent severe mental or permanent severe behavioural disturbance or disorder.

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proved to be of a continuing or chronic kind. The issue is whether it is a permanent severe mental disorder. Nor is it argued on behalf of the There is no dispute that the plaintiff suffers from a mental disorder which has due to the nature of her employment by the defendant after 20 October 1999 and before she stopped working on 24 October 2002. The plaintiff believes that her mental disorder has been caused by bullying at work, particularly by another employee Michael Martinez. She deposes that her relationship with him had difficulties before 20 October 1999 and that in the period after that date Mr Martinez was the operations manager and bullied and intimidated her. The bullying complained of was verbal, consisting of statements about such matters as a review to be carried out on the program the plaintiff co-ordinated, which she thought insinuated that the days of her employment were numbered, and that he was going to take over her program.

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subject to a barrage of criticism from Mr Martinez and from Jordan Mavros,

A meeting was held in May 2002 and the plaintiff deposes that she was she returned in mid October she found another employee occupying her office. At a meeting with Mr Martinez and Mr Mavros on 24 October 2002, the plaintiff felt that she was verbally attacked and accused of bullying other staff. She recorded what was said on a tape recorder. She was deeply distressed after the meeting and went to the doctor. She has not worked since.

5          It is not necessary for me to make any findings about the rights and wrongs of the parties conduct, or whether bullying occurred, and I do not do so. Mr Elliot QC, on behalf of the defendant, conceded that he could not argue that the

plaintiff’s mental disorder did not arise out of or in the course of her
employment by the defendant after 20 October 1999.

6          There are several difficulties in this application. One is the basic nature of the plaintiff’s case. The impugned events, at their highest, involved verbal criticism of the plaintiff and occurred seven years ago. Another difficulty is the role played in the plaintiff’s condition by the psychologist to whom she was referred, Ms Field. The reports of Ms Field reveal her to consider herself to have an expertise in workplace bullying and to having an approach to the plaintiff’s condition that fell a long way short of appropriate professional objectivity. There is also the antagonistic attitude of the treating psychiatrist, Dr Black, as a witness. He was required to attend for cross examination. He manifested resentment about being in the witness stand, and was openly distracted from his professional responsibilities by the presence of his two children, aged 10 and 12, outside the court.

7          These observations should not be a distraction from consideration of the central issue in this case, namely, whether the plaintiff’s mental disorder is properly adjudged to be permanent and severe.

8          When Mrs Newton left the meeting on 24 October 2002 she was distressed and attended the Belmont Medical Clinic. She saw Dr Mary Johnston, who immediately referred her to Ms Evelyn Field, a psychologist in Armadale. In her letter of reference to Ms Field dated 24 October 2002, Dr Johnston stated

that she had seen Mrs Newton “for the first time today” and wrote, “She was in
a state, having been intimidated and harassed at work for the last 6 months. I
think it could be very helpful for Natalie to debrief with you, with your
experience in this area.” Save for this brief letter of referral there is no report
from Dr Johnston in evidence. It appears that thereafter Dr Eid at the same
clinic, who saw Mrs Newton on 4 November 2002, was her general
practitioner. There are only two brief reports from him, one undated and the
other dated 6 May 2009. When he saw Mrs Newton on 4 November 2002 she
was “distressed, weepy and emotional.”

10 questions about her professional competence and the reliability of her opinions. Mrs Newton continued to attend her and her victim’s groups until 15 October 2003, travelling from her home at Gherang, halfway between Anglesea and Winchelsea, to Armadale. Three further reports by Ms Field have been tendered in evidence on behalf of the plaintiff – the first bearing the date “26.03.02” but including a reference to an attendance on 29 September 2003, and the others dated 28 November 2003 and 15 September 2008. Ms Field diagnosed Mrs Newton as being depressed, extremely anxious and suffering a post traumatic stress disorder. In her “Workcover Report” dated 15 The lack of objectivity displayed in Ms Field’s report to Dr Eid raises serious October 2003, although it is apparent that she had attended for the purposes of an updated report. The reports reveal Ms Field’s methodology to have been to form categorical opinions on the basis of what Mrs Newton told her and reinforced by what she called “international research.” It is not a methodology that provides a reliable basis for a professional opinion and I do not accept the opinions expressed by her. The treatment provided by Ms Field appears to have been counselling and attendance at group sessions. Mrs Newton deposed that she found the counselling “very beneficial” to her mental well being.

9          Two months later, on 13 January 2003, the psychologist Ms Field wrote to Dr Eid. She had seen Mrs Newton “on a few occasions.” Despite having heard only Mrs Newton’s account of what had happened at the workplace, Ms Field reported categorically to Dr Eid that Mrs Newton was the victim of workplace bullying, that Mr Martinez had bullied her and other workers over a period of time, that he had got other employees to lie, that government funding to the employer was not being used appropriately, that Mr Mavros wanted the

financial irregularities and had therefore tried to bully her out of work. Ms

records to be fabricated, that they were scared of Mrs Newton revealing bullying.

11        I understand that during this time in 2003 Mrs Newton may have been attending Dr Eid. However, there is no report from Dr Eid dealing with any treatment given by him.

12        In early 2004 Dr Eid referred Mrs Newton to a psychiatrist in Geelong, Dr Black. He reported to Dr Eid on 24 April 2004 that Mrs Newton remained “plagued with low mood, bouts of anxiety and a general sense of things not

being right.” He commenced her on the anti-depressant medication continued to meet with Mrs Newton and he thought that she had “made a lot of headway in that time.” The Citalopram had seemed to help, but caused sweatiness and he had suggested a switch to another anti-depressant medication Sertraline. He proposed continuing “to meet every few weeks for a while yet.”

13        Mrs Newton had 20 appointments of approximately one hour duration with Dr Black between 20 April 2004 and 9 August 2005. He expected that treatment to continue for another 6 to 12 months, but it ceased on 25 August 2005. He had been unable to persuade her to take Sertraline. In his report to Mrs

Newton’s solicitors dated 28 November 2005 Dr Black properly acknowledged which have arisen in the context of alleged workplace bullying.” He reported that Mrs Newton was living a socially isolated life, that her self esteem was fragile, and that although she had applied for work without success, she believed that she had little prospect of returning to the work force as an older worker, with a substantial break in employment, and living in a rural area. Dr Black noted that the Workcover claim had been “a source of distress in its own right” and expressed the opinion that “Mrs Newton’s symptomatic and social recovery .. may .. be influenced to some degree by both the resolution of her legal action and the opportunities that she is able to create for herself which occur serendipitously.”
that it was not within his experience or the limits of his discipline to make a
judgment about whether bullying did or did not take place, but he diagnosed

14        Mrs Newton did not attend upon Dr Black between 25 August 2005 and 11 March 2008. In that period of more than 2 years and 6 months it is unclear whether she had any treatment for anxiety and depression. In her affidavit sworn on 10 September 2008 she deposed that she had continued attending

Dr Eid every two to three months, and that he wrote prescriptions for the medication which she used, namely an anti-anxiety medication Oxazepam and an anti-depressant medication Mirtazapine. It is not clear with what frequency Mrs Newton was taking these medications, or what dosage she took. Her evidence was that Dr Black disapproved of her taking Oxazepam and she took it infrequently at times of particular stress. She deposed that “reliving the bullying and victimisation”, as when attending a medico-legal examination, caused her to suffer increased anxiety and depression.

15 arts course at the Gordon Institute of Technology in Geelong and attended the

In that period of 2006, 2007 and early 2008 Mrs Newton enrolled in a visual and she successfully completed the course in 2008. In 2006 she had an overseas trip to Ireland and Venice. In that year she also made a number of applications for jobs, but without success. She told Dr Duke on 20 April 2007 that she had decided not to seek work, and that had possibly allowed her to move forward.

16        The reports of Dr Black were relied upon by the plaintiff and were tendered in evidence. Dr Black attended court as a witness for cross examination. He clearly did not want to be there. He appeared resentful and angry and was so distracted from giving evidence by having brought with him his two children aged 10 and 12, who he said were too frightened to come into court, that twice he had to leave the witness box to check on them in order to be able to give his attention to the questions he was being asked. His state of mind is revealed in the concluding part of his cross examination

Is it the situation that having to recall those anxiety provoking

incidents is a stressor that leads to the condition that she is

suffering?---No I'm not sure I can answer that.

In other words, if she doesn't have to relive what happened

at work and the more she gets away from thinking about the

work dispute and the more that time goes on, then there's a

likelihood that there will be an improvement in her anxiety

and depressive state?---I'm not sure I can answer that.

You don't think you can?---No I don't.

So it is difficult for you to say that this condition at this level that you have seen with the waxing and waning, will remain to be permanent?---This is where I have trouble answering questions like this because you and I think in different ways and the way that I think doesn't fit well in rooms like this.

You're trying to get me to draw conclusions that I feel I can't

answer in the way that you want them answered. That's

why I shouldn't be a medico-legal psychiatrist because

I can't answer these questions I don't think, like that.

HIS HONOUR: Are you not able to form an opinion as

to - - -?---It's a very complicated question, I don't think it has

a simple answer.

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the plaintiff’s treating psychiatrist and his evidence requires careful

consideration. No explanation has been given as to why the plaintiff did not

attend Dr Black for treatment for some two and a half years, or why she

commenced with him again on 11 March 2008. He noted that when he saw

her on 25 August 2005 she was brighter, more positive, sleeping better and

contemplating some social activities. He did not know why she stopped

coming to see him and had not come for treatment in the preceding two and a

half years. When she came again on 11 March 2008, he noted that she was

not having treatment at that time, but was anxious and felt avoidance creeping

A lot of questions are complicated and don't have simple

answers?---It's too complicated for me.

Too complicated?---Yes. I'm worried about my kids, I'm

feeling anxious in this situation and I can't actually get my

head around a question like that particularly when it's you

know, answered with – asked with – yeah, I can't do it.

You don’t regard that as an unprofessional attitude, you are here as a professional psychiatrist?- - - I’m doing my best. I understand that it’s not good enough but this is not

something I’m - - -

You come to court in what appears to me to be a fairly

angry and resentful state of mind and you are distracted by

the presence of your children outside?---Yes.

Yet you sit in the witness box as a professional psychiatrist

appearing to give evidence with respect to a patient that you

have?---I'm doing my best.

But your best in the circumstances as I have just described

them, that is, that you display a resentment about being

here?---Certainly.

And you are distracted by your children outside the court. Is

that what a professional psychiatrist does?---Maybe there's

a better one.

Despite Dr Black’s unhelpful attitude it remains the position that he has been March 2008, 3 April 2008, 8 May 2008, 22 May 2008, 5 June 2008 and 26 June 2008 reveal continuing anxiety and depression, for which the medication was changed to Fluoxetine and then to Mirtazapine, but also positive improvement such as cheerfulness, a sense of “reclaiming lost life territory” and busyness.

Mrs Newton is likely to require continuing supportive significant impact upon her employment capacity. It is difficult to assess the extent of her incapacity, however, given her emotional fragility, loss of confidence and residual panic attacks and Agoraphobia, she is probably not realistically capable of returning to the workforce.

18        In July 2008 the plaintiff had two medico legal appointments, one with Dr Kaplan on 10 July 2008 and the other with Dr Epstein on 28 July 2008. They were each fairly positive about her condition at that time.

19        Dr Kaplan, who had seen the plaintiff on two previous occasions on 17 November 2003 and 31 May 2003, made the following assessment on 10 July 2008:

Mrs Newton’s psychiatric condition has continued to improve over

the past 3 years, however, it has not resolved. She remains

emotionally fragile and prone to depression at times. Her intrusive

thoughts and recurring nightmares regarding her former place of

employment have diminished in intensity, although they have not

resolved. Furthermore, she continues to experience phobic

anxiety with regard to having contact with her former manager and

returning to work in her former place of employment, and this

symptom has not altered. Her condition can probably be best

characterised as a mild Adjustment Disorder with Mixed Anxiety

and Depressed Mood. Her condition is likely to continue to slowly

subside with the passage of time, although she is likely to

experience residual symptoms and, in particular, her phobic

symptoms for the foreseeable future. This condition would prevent

her from returning to work at her former place of employment and

any attempt to do so is likely to aggravate her psychiatric

condition.

Mrs Newton’s Panic Disorder has also subsided in severity, although it has not resolved. She continues to experience mild panic attacks and some residual agoraphobic symptoms. This condition is likely to slowly subside with the passage of time, although it is likely to persist for a prolonged period of time and any future significant stresses are likely to lead to a relapse and exacerbation of this condition.

psychotherapy from her treating psychiatrist as long as she

suffers from significant symptoms. Her psychiatric conditions

continue to have a substantial impact upon her capacity to engage

on a full range of her pre-injury social and recreational activities.

20        Dr Epstein had seen the plaintiff on one previous occasion on 11 May 2005. His assessment of her on 28 July 2008 was in the following terms:

When I last saw Natalie Newton I considered that she had

developed a form of Stress Breakdown associated with Panic

Disorder with Agoraphobia and a Major Depressive Disorder. She

had not worked since 24 October 2002 and in my view it was

unlikely that she could return to the workforce in any capacity in

the foreseeable future. Since then there has been a very marked

improvement and she no longer suffers from a Major Depressive

Disorder and her Panic Disorder with Agoraphobia has

substantially settled. Her capacity for coping has improved and

she has been able to do tertiary studies with success. She still has

significant areas of vulnerability however. She does not cope with

pressure and is still uncomfortable in strange situations and

avoids contact with her former employment.

She has not fully regained her capacity to engage in her pre-injury social, recreational and domestic activities but there has been marked improvement in this area.

On the balance of probabilities her employment capacity remains impaired by her psychiatric condition to some extent. She continues to have problems with energy and copes poorly with pressure and should not work in a situation where she is under pressure or where she is required to deal with the public. She could not go back to work in any full-time capacity either now or in the foreseeable future.

Her prognosis has improved a good deal but her condition is now stable and she is likely to continue to have ongoing symptoms indefinitely with a continuing effect on her capacity to work and her enjoyment of life.

Her condition is stable.

21        Although Mrs Newton attributes these accounts of her improvement to having taken the anti-anxiety medication Oxazepam, the reports of Dr Kaplan and Dr Epstein are consistent with what Dr Black had observed in the previous five

months.

22        In October 2008 it was necessary for the plaintiff to attend court in connection with this proceeding. Apparently the hearing was adjourned to January 2009. The intrusion of the legal proceedings into the plaintiff’s life appears to have

caused her high levels of stress and a consequential deterioration of her
mental disorder. When she attended Dr Black in November 2008 he noted
that she was distressed and miserable and “filled with angry, vengeful, self
destructive thoughts,” including “vague thoughts of suicide.” She has
continued to see Dr Black since then with attendances on 17 November 2008,
18 December 2008, 24 January 2009 (probably), 24 April 2009, 12 May 2009,
1 June 2009 and 24 June 2009. She has continued to be treated with the
anti-depressant medication Duloxetine. Her symptoms have included
depression, anxiety, panic attacks, suicidal ideation and avoidance of other
people.

23        Following the deterioration in the plaintiff’s condition she was referred again to Dr Epstein who assessed her on 11 December 2008. His report following this assessment was more pessimistic. He wrote:

On this occasion Natalie Newton appeared much as she had when I saw her in 2005. She seemed much more disturbed than when she was last seen and the original view I had formed that she had developed a form of stress breakdown associated with Panic Disorder with Agoraphobia and a Major Depressive Disorder now seems a much more likely diagnosis.

Her current work capacity is nil and is unlikely to improve in the foreseeable future on the basis of her presentation at this interview. Her psychiatric state does not appear to have settled as I thought when I last saw her. Her capacity for coping remains very limited. It does appear that she has been able to do tertiary studies but has been able to do little else apart from that.

Compared with when she was last seen her prognosis for improvement now seems limited. Her condition does appear to be stable and she is likely to have disabling symptoms indefinitely.

24        Having regard to the period in 2006, 2007 and early 2008 when the plaintiff had little or no treatment, undertook and successfully completed a tertiary course, and enjoyed an overseas trip, and to the improvements in her condition recorded by Dr Black in 2008 up until October, when the court hearing took place, it is apparent that the state of the plaintiff’s mental health fluctuates and that the present litigation is a cause of significant stress to her.

25        Dr Eid, the plaintiff’s general practitioner, expressed a firm and clear opinion in his brief report of 6 May 2009, when he wrote, “She continues to experience anxiety, distress and panic attacks relating to her past history of workplace bullying. It is my view that she will continue to experience anxiety, depression and panic attacks relating to this matter until it is all settled and only then will she be able to move forward.” This was a succinct assessment from the doctor who has been seeing Mrs Newton from time to time over six and a half years since November 2002. It is consistent with the assessments of Dr Kaplan and Dr Epstein in July 2008.

26        In the course of his evidence Dr Black described, somewhat dramatically, the impact of the legal proceedings:

“…somebody living with an anxiety disorder who is immersed in an inherently anxiety provoking process to wit, proceedings like this and everything associated with them, it’s not going to be really

particularly helped by ongoing legal proceedings and more

medical legal examinations, more conversations with people like

you in this kind of context. It’s not very soothing. I’m finding it

anxiety provoking and I don’t have an anxiety disorder, and I

certainly wouldn’t wish to be party to proceedings like this,

receiving letters, not knowing quite what the legal system is going

to do next. It’s a very unpleasant anxiety provoking forum;

perhaps not for you, but for just about everyone else who

becomes involved in it.”[1]

It’s not just the court appearance, it’s the whole process. It’s everything. These litigations are not just about court appearances, they’re about letters arriving, they’re about lawyers saying things that you don’t understand, they’re about things being adjourned and postponed and cancelled and changed, they’re about processes that people don’t understand.[2]

[1]             t 110

[2]             t 112

27        Although later reluctant to answer whether it would be likely that there would be improvement in the plaintiff’s anxiety and depressive state if she did not have to think about the work dispute,[3] earlier in his evidence Dr Black acknowledged “there often is an improvement”[4] and expected her condition to “wax and wane.”[5] In his opinion the plaintiff has a mental disorder in the form of “periods of significant depression .. and an anxiety disorder characterised by frequent panic attacks and associated behavioural avoidance.” He characterised the disorder as “moderate to severe”, and “at times having a profound restricting influence on her life,” and considered that “it will probably continue to wax and wane in the foreseeable future.”[6]

[3]             t 131

[4]             t 110

[5]             t 113, also 125.

[6]             t 130

28        I am satisfied that the plaintiff has a mental disorder arising out of or in the course of her employment by the defendant between 20 October 1999 and 24 October 2002. I do not understand there to be conflict in the description of the nature of the mental disorder given by the psychiatrists who have examined the plaintiff – depression and an anxiety disorder with panic attacks and associated behavioural avoidance (Dr Black); a mild adjustment disorder with mixed anxiety and depressed mood (Dr Kaplan); a form of stress breakdown associated with panic disorder and agoraphobia, and a major depressive disorder (Dr Epstein); a serious psychiatric disorder being an adjustment disorder (Dr Duke); a chronic adjustment disorder (Dr Shan).

29        For the plaintiff’s mental disorder to be adjudged to be a serious injury, she must establish that it is a permanent severe mental disorder. In order to be severe, the consequences of the disorder to her, whether the pain and

suffering consequence or the loss of earning capacity consequence, must be fairly described as being more than serious, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or

disorders. Consequences that are serious are described as being more than significant or marked, and as being at least very considerable. It is apparent that the word ‘severe’ is a word of stronger force than the word ‘serious’. For the severe disorder to be permanent, it must be likely to persist as a severe

disorder in the foreseeable future.

30 of fact, degree and value judgment are involved. The value judgment does

It is not easy to form a judgment about a mental disorder of this kind. Matters where another type of injury is being considered. It is difficult to remove the sense that the plaintiff’s continuing response is out of proportion to the alleged acts of bullying, while accepting that a disproportionate response may be a characteristic of the mental disorder.

31        While accepting that the plaintiff has experienced significant periods of depression, anxiety, panic, agoraphobia, emotional fragility and distress since leaving her place of employment following the confrontation on 24 October 2002, there are four matters of fact which lead me to conclude that the mental disorder from which she suffers is not a permanent severe mental disorder.

32        First, there is no evidence that the plaintiff’s general practitioner Dr Eid, who has been involved in her treatment over the period of almost seven years, considers that she has a mental disorder which is both severe and permanent. On the contrary, the evidence contained in his brief reports, particularly that of 6 May 2009, suggests that the plaintiff will be able to move forward with respect to her anxiety, depression and panic attacks when the litigation is settled.

33        Secondly, there have been substantial periods within the period of almost seven years when the plaintiff has had little or no treatment for the mental disorder. She attended Ms Field for counselling and group sessions for

approximately one year until October 2003. She commenced with Dr Black in
early 2004 and attended him for counselling until August 2005. She took
some anti-depressant medication, namely Citalopram, but ceased taking it
due to sweating and Dr Black was unable to persuade her to take an
alternative medication. She ceased attending Dr Black in August 2005 and
did not resume treatment with him until March 2008. When she saw Dr Duke
on 20 April 2007 he reported that she had not seen Dr Black for 18 months
and was taking Serepax, which he described as a mild tranquiliser, the
dosage being 20mgms 1 prn (perhaps 1 per night). Since recommencing
treatment with Dr Black in March 2008 she has been taking anti-depressant
medication, initially Sertraline, then Fluoxetine, then Mirtazapine, and later
Duloxetine.

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anxiety condition has persisted to the present time, it also reveals that her

condition has fluctuated in severity, or waxed and waned, over that period.

There have been periods when the depression and anxiety, and associated

emotional fragility, panic attacks, agoraphobia, fearfulness and isolation, have

been severe. There have been other periods when the consequences of the

disorder have not been severe, and some when little or no treatment has been

required. In August 2005 Dr Black considered the plaintiff brighter, more

positive, sleeping better and contemplating social activities. In the following

period of two and a half years between August 2005 and March 2008, she

had an overseas trip with her husband, successfully completed a tertiary

visual arts course, and made twenty job applications before deciding to give

up seeking work any more. In June 2008 Dr Black considered there had been

Thirdly, while the evidence establishes that the plaintiff’s depressive and psychiatric condition had continued to improve over the past three years, but had not resolved. He described her adjustment disorder as mild and her panic disorder as having subsided in severity. He expected her panic attacks and agoraphobic symptoms to slowly subside with the passage of time. Dr Epstein also reported improvement at that time. In October and November 2008 the plaintiff experienced a significant increase in her symptoms.

35        Fourthly, the evidence suggests that the process of litigation, and the associated intrusion into the plaintiff’s life, has been a cause of significant stress to her and has, from time to time, caused deterioration of her condition. That appears to be the explanation for the increase in the seriousness of her symptoms in October 2008, at a time when her case was listed for hearing. Following his assessment of the plaintiff on 3 October 2003 Dr Shan considered that the plaintiff’s emotions and symptoms were “an effect of the ongoing litigation and disputation” and that she would “rapidly feel better following resolution”. While he found the plaintiff’s adjustment disorder to be chronic by his next examination in July 2009, of course the litigation had been a continuing factor. The likelihood of improvement with the end of litigation accords with Dr Black’s evidence of the stressful impact of litigation and Dr Eid’s opinion that the plaintiff will be able to move forward when the matter is settled. In my view it is more probable than not that an end to the litigation will bring improvement to the plaintiff’s mental disorder.

36        I am not satisfied that the plaintiff’s mental disorder is a permanent severe mental disorder. Leave is not granted to bring proceedings to recover damages for pain and suffering.

37        Insofar as the plaintiff seeks leave on the basis of a loss of earning capacity, she must establish that the consequence to her of the mental disorder with respect to loss of earning capacity is severe when judged by comparison with other cases in the range of mental or behavioural disturbances or disorders. She must also prove the matters required by paragraphs (e), (f) and (g) of subsection (38). Leave shall not be granted on the basis of loss of earning capacity unless the plaintiff establishes that (1) she has a loss of earning capacity of 40 per centum or more, and (2) she will after the date of the hearing continue to permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more. To measure the plaintiff’s loss of earning capacity it is necessary to compare:

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Kaplan was of the opinion that the plaintiff’s condition was likely to continue to

have a significant impact on her employment capacity. He acknowledged that

it was difficult to assess the extent of her incapacity, but thought that her

symptoms meant that she was “probably not realistically capable of returning

to the workforce.” In July 2008 it was the opinion of Dr Epstein that the

plaintiff’s employment capacity remained “impaired by her psychiatric

• the amount of the plaintiff’s annual gross income from personal exertion which she is earning or capable of earning in suitable employment at the present time (her after injury earning capacity) with

• the amount of the plaintiff’s annual gross income from personal exertion that she was earning or was capable of earning or would have earned or would have been capable of earning during that part of the period within 3 years before and 3 years after the injury as most fairly reflects her earning capacity had the injury not occurred (her without injury income).

In both cases the income is limited to gross income from personal exertion and is to be annualised.[7]

[7] Hayhill Pty Ltd v Hodge [2006] VSCA 194 [2]

The plaintiff’s case is that she has no earning capacity. In July 2008 Dr time capacity either now or in the foreseeable future.” In December 2008, following a period of deterioration in the plaintiff’s condition, he regarded her “current work capacity” as “nil” and “unlikely to improve in the foreseeable future on the basis of her presentation at this interview.” In March 2009 Dr Black reported that “[a]t the time of writing Ms Newton appears to have little capacity for employment.” In July 2009 Dr Shan concluded on the basis of the plaintiff’s description of her ongoing symptoms that she had “no capacity for work of any kind.”

39        I am satisfied that as a consequence of the plaintiff’s mental disorder she has an impaired earning capacity, but I am unable to conclude that she has no earning capacity. For the reasons already outlined I consider that her symptoms fluctuate in seriousness and are likely to reduce with the cessation of litigation. She has a number of employable skills, having worked in responsible organisational and administrative roles, and having tertiary qualifications with a Bachelor of Arts degree, some training in computer science, and a diploma in visual arts. I understand that having made twenty applications for jobs in 2006 and not achieved an interview, she decided to make no further applications, but that is something quite different to a loss of capacity to earn income in suitable employment.

40        No material has been placed before me that establishes that the plaintiff has a loss of earning capacity of 40 per centum or more, and will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more. I am not satisfied that the plaintiff does not have a capacity for any employment, including alternative employment or further additional employment which, if exercised, would result in her earning more than 60 per centum of the annual gross salary she was capable of earning had the injury not occurred.

41        Accordingly, leave is not granted to bring proceedings for the recovery of damages with respect to pecuniary loss.