Newton v State of Victoria (Department of Education and Training)
[2020] VCC 1153
•7 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05808
| LENDA ADELYN NEWTON | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 July 2020 | |
DATE OF JUDGMENT: | 7 August 2020 | |
CASE MAY BE CITED AS: | Newton v State of Victoria (Department of Education and Training) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1153 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – long-term severe mental or behavioural disturbance or disorder – adjustment disorder – anxiety – depression – paragraph (c) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
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; Transport Accident CommissionvKatanas [2017] HCA 32; Humphries & Anor vPoljak [1992] 2 VR 129; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A C Ryan | Adviceline Injury Lawyers |
| For the Defendant | Mr S Scully | Minter Ellison |
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 State of Victoria (“the employer”), in the course of her employment, while she was working as a teacher (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
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 an Adjustment Disorder with Anxiety and Depression.
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 employer, on or after 1 July 2014. As set out in s325(1), 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); Transport Accident Commission v Katanas [2017] HCA 32
[8][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
10 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]
11 Section 325(2)(i) of the Act 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.
12 By s325(2)(b) of the Act, 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.
13 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
14 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from her partner, Mr John McTaggart. Mr McTaggart was not required to attend for cross-examination.
15 In addition, both parties relied upon medical reports and other materials which were contained in the Joint Court Book.[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 Joint Court Book was marked as exhibit (“Ex”) 1.
The Plaintiff’s background
16 The plaintiff was born in September 1952 in Rainbow. She is presently sixty-seven years of age. She completed her schooling in Rainbow in 1971. In the same year, she married her now ex-husband. They had three children together, who are now adults.[14]
[14]Ex 1, pp9-10
17 In 1982, the plaintiff and her husband amicably divorced. After the divorce, she lived in a de facto relationship with another man for about twenty-four years. She has been in a relationship with her present partner, Mr John McTaggart, since 2008.[15]
[15]Ex 1, p10
18 In 1994, the plaintiff commenced work as a graduate teacher at Horsham College at McKenzie Creek Campus for students at risk. After four years, she transferred to the main campus of Horsham College. She continued teaching at that campus until her retirement in February 2018.[16]
[16]Ex 1, p11
19 In 2004, the plaintiff achieved the qualification of “Expert Teacher” and focused primarily on teaching VCE subjects and senior students. She thoroughly enjoyed her work at Horsham College and had excellent relationships with her peers, the students and the broader school community.[17]
[17]Ex 1, p11
Pre-existing Health Issues
20 In her early twenties, the plaintiff was diagnosed with mild Bipolar Disorder. She was initially prescribed Lithium, but subsequently stopped taking this medication, once she learned to recognise her symptoms and manage her triggers. As the condition was only mild, it did not interfere with her capacity to work or manage her household.[18]
[18]Ex 1, p10
21 The plaintiff has had a number of stressful experiences during her life. These include:
(a)her former de facto partner had issues with alcohol and could be volatile when he had been drinking. They now have an amicable relationship;[19]
(b)approximately twenty years ago, the plaintiff’s stepson lived with her and her then de facto partner for a period of time. Her stepson was involved with drugs and his presence in the plaintiff’s house made life stressful at times;[20]
(c)approximately fourteen years ago, her son came to live with her and her then de factor partner. He brought the plaintiff’s grandson with him when he came to live with them. The plaintiff assisted in her grandson’s care, including collecting him from school and other tasks.[21]
[19]Ex 1, p10
[20]Ex 1, p10
[21]Ex 1, p11
22 Despite these challenges, the plaintiff has consistently worked hard and has rarely required time away from the workforce because of these problems.[22]
[22]Ex 1, p11
Circumstances in which the injury arose
23 At the end of 2009, a new principal commenced working at Horsham College. The plaintiff found this new principal to have a very intimidating manner. In one incident at the end of Term 4 in 2009, the plaintiff recalls the principal speaking very loudly and aggressively to her in front of other staff members, when the plaintiff asked him a question about a new computer program that was being implemented.
24 In another incident during 2010, when the plaintiff raised some issues with the principal, he was very critical of her, describing her as a “negative person” and saying that he “had no time for negative people”. He was aggressive and derogatory in his manner.[23]
[23]Ex 1, p11
25 These incidents were typical of the principal’s behaviour towards the plaintiff and other staff at Horsham College. Many of the staff were afraid to speak up or contribute in meetings, for fear of being targeted or isolated by him. The plaintiff lost her confidence in being able to freely discuss ways of improving the school and the curriculum. On occasions when she was required to attend meetings with the principal, she found herself trembling as she left, shaken by the way he had behaved.[24]
[24]Ex 1, p12
26 In addition to what the plaintiff perceived as the principal’s dislike for her, she found that he also overloaded her with additional duties and responsibilities. These duties started to weigh heavily on the plaintiff and she found herself feeling constantly tired. She was frequently starting early, finishing late, and working Sundays, just to prepare for the week, as she did not have enough time to prepare adequately for her teaching load during her working hours. These extra hours meant that she did not feel that she had sufficient time to relax and re-energise outside of work.[25]
[25]Ex 1, pp12-13
27 The plaintiff’s office area was also moved into an area with colleagues who did not teach the same subjects as the plaintiff did. She found this to be very isolating. She attempted to speak to the principal about the excessive duties that had been allocated to her, but he was dismissive and aggressive. The plaintiff felt trapped and unsupported.[26]
[26]Ex 1, pp13-14
28 By 2013, the plaintiff was “really struggling”. She was experiencing trembling, headaches, a clenched jaw, vertigo and fibromyalgia, which she attributed to feeling exhausted and constantly burnt out from her duties and stress at work.[27]
[27]Ex 1, p14
29 At the end of 2013, the principal left Horsham for a twelve-month sabbatical. A new principal, who took over in April 2014, recognised that the plaintiff had been overloaded with work and tried to assist the plaintiff by changing some timetabling decisions. However, it was very difficult to implement an alternative school timetable after the commencement of the school year and there was not much he could do about it.
30 Although the absence of the previous principal meant the culture of the workplace had improved, the plaintiff was already emotionally and physically exhausted. Her continuing heavy workload took its toll, and by July 2014, she was no longer able to cope.
31 On 24 July 2014, the plaintiff ceased work and took the remainder of the school year off to recuperate.[28]
[28]Ex 1, p14
32 In August 2014, the plaintiff started receiving treatment from Dr Yvonne Cymbalist, general practitioner. As Dr Cymbalist did not manage WorkCover clients, the plaintiff changed doctors and has since received treatment from Dr Thadi Ashubabu (“Dr Thadi”) and Dr Kazi Md Aminul Haque (“Dr Amin”), at Tristar in Horsham.[29]
[29]Ex 1, p14
33 In August 2014, the plaintiff was referred by her general practitioner for six counselling sessions with Vynka-lee Neighbour, a psychotherapist.[30]
[30]EX 1, p14
34 At the beginning of 2015, the plaintiff returned to work, working three days per week.[31]
[31]Ex 1, p14
Significant post-injury events
35 On 17 May 2016, the plaintiff’s son was killed in a motorcycle accident in Bali. She was devastated by the loss of her son and was unable to work for a period of time while she came to terms with her grief.[32]
[32]Ex 1, p15
Evidence concerning the consequences of the Plaintiff’s injuries
36 The plaintiff swore two affidavits, the first dated 3 July 2019 and the second dated 6 July 2020.
37 In summary, her evidence as to the pain and suffering consequences which she presently experiences, is as follows:
Day-to-day effects of the injury
(a)she continues to struggle psychologically. She is often anxious and tearful;[33]
[33]Ex 1, p15
(b)when she is feeling anxious, she frequently clenches her jaw and teeth;[34]
[34]Ex 1, p15
(c)she feels that she is “slow in my brain”. She does not feel right. Sometimes her mind goes blank and she has no idea what she is saying;[35]
[35]Ex 1, p21
(d)on a regular basis she feels as though there is a vice on her head and like she is about to explode. She often wakes with headaches;[36]
[36]Ex 1, pp 15 and 21
(e)she sometimes gasps for breath because she feels she cannot get enough air into her lungs. She feels like she has a boot on her chest and it is applying pressure. She feels like there is “white noise” in her brain;[37]
[37]Ex 1, p15
(f)she continues to suffer from anxiety on a regular basis. This becomes worse at night.[38] On a typical day, her anxiety is usually heightened by around 3.00pm or 4.00pm.[39] She tends to swear a lot when she is anxious, which she later regrets, because she worries that it is not appropriate behaviour;[40]
[38]Ex 1, p20
[39]Ex 1, p15
[40]Ex 1, p15
(g)she is trying to get back into external activities. She tries to walk regularly, which is her meditation and mindfulness time. She used to enjoy it. However, she often lacks the motivation she once had; [41]
[41]Ex 1, p17
(h)now she goes to bed earlier and stays in bed for much longer periods of time. She dreads getting out of bed. She does it, but she no longer enjoys it. Most of the time, she can monitor what she does to ensure that she stays within her limitations;[42]
[42]Ex 1, p17
(i)she feels relentlessly tired and as if she is operating on “empty” all the time. She has little energy or motivation for anything;[43]
[43]Ex 1 pp16-17
(j)she has recurring cold sores;[44]
[44]Ex 1 pp16-17
(k)she has lost interest in her garden and gardening. She still does a little bit occasionally, but tires quickly;[45]
[45]Ex 1, p17
(l)she no longer has any interest in the intimate side of her relationship;[46]
[46]Ex 1, p23
(m)she feels like her life has become a rollercoaster.[47] She really only has the energy to go to work. She cannot cope with doing many other activities at home;[48]
[47]Ex 1, p23
[48]Ex 1, p23
(n)she has help from cleaners to do her housework, due to chronic tiredness. She has to rest a lot; [49]
[49]Ex 1, p16
Memory and Concentration
(o)she feels like her brain “floats out [of] my head”. Remembering basic things is very difficult.[50] She is easily disoriented and has to take time to reorient herself as to where she is. She has recurrent dizziness and vertigo which affects her balance and she finds herself “going sideways” rather than in the direction she intended to go. Consequently, she bumps into walls and doorways; [51]
[50]Ex 1, p15
[51]Ex 1, p15
(p)her memory has been significantly affected, and she cannot recall the simplest of things. She finds herself repeatedly asking the same questions, even though she is aware that she has been told the answer. She cannot remember what that answer is. She writes or records things because she knows that she will not remember in ten minutes (or even two minutes, on a bad day), what has just been said to her. She gets very paranoid that she is going to confuse what she has been told and repeatedly asks for confirmation that she has got things correct, such as dates, times, places and names. She checks these things repeatedly to reassure herself, as she has lost confidence in her ability to remember and her capacity to do things. Her partner is very supportive and assists her when she gets overwhelmed;[52]
[52]Ex 1, pp15-16
(q)when reading the newspaper, listening to the radio, or watching TV, she cannot follow what is being written or said. Sometimes she has absolutely no idea. It feels as though it is “white noise”. If she is being instructed on how to do something, she relies on basic instructions and often breaks things down into small steps, in order to comprehend what is being communicated. If instructions are complicated, she feels like she is dyslexic and cannot make sense of them. She finds this embarrassing and she feels “dumb”. If she tackles a particular problem and manages to work out the answer, she cannot explain or remember how she did it. This frustrates her, as she knows she can do it, but has immediately forgotten how she did it;[53]
[53]Ex 1, p16
(r)her short-term memory is “hopeless”. Often when at work she cannot remember the rooms she needs to be in. She has to check these details repeatedly. She has to record everything in her phone diary so she can remember where she needs to go;[54]
[54]Ex 1, p22
(s)she finds that she can perform basic tasks, but has problems with more complex tasks;[55]
[55]Ex 1, p22
Alcohol consumption
(t)when her symptoms are aggravated, she turns to alcohol, which helps her to relax. Prior to suffering her injuries, she only drank rarely and when she did, it was usually in small quantities. She now drinks on a daily basis. She can go without alcohol, but this has become a rare occurrence;[56]
[56]Ex 1, p17
Sleep
(u)she drinks several glasses of gin at night to help her sleep;[57] If she does not take her medication and drink alcohol, she has great difficulty sleeping and will be awake all night;[58]
[57]Ex 1, p21
[58]Ex 1, p21
Personal hygiene and grooming
(v)she showers each day, but wants to go straight back to bed after showering because it tires her. She still makes an effort with her appearance and hygiene, but she does not pay as much attention as she used to;[59]
[59]Ex 1, p16
Ability to socialise
(w)she has always considered herself to be a fit, energetic, positive and happy person, who loved being with people. Since suffering the injuries, she is a lot more subdued, with a more suppressed mood. She can put on a façade of coping, but happiness is now a rare emotion for her;[60]
[60]Ex 1 pp16-17
(x)she is continually monitoring how much exposure to people she has, as she does not enjoy company in the way that she used to. Her partner is part of a Freemasons group, and she will sometimes attend functions with him, as she finds the Freemasons community very supportive. However, she often has to withdraw from situations that she feels are starting to overwhelm her;[61]
(y)her social life has been reduced. She does not feel like she has the energy to socialise. She does not feel like she has the motivation. She used to be an extrovert. She has become very quiet and often becomes withdrawn. She continuously monitors how she is feeling;[62]
Medication and treatment
(z)she currently takes quetiapine and escitalopram, as well as Lipitor for her cholesterol. She has become reliant on alcohol and her medication to calm her down;[63]
(aa)on occasion she forgets to take her medication. When she does this, she has incredible difficulty coping;[64]
(bb)she consults with her doctor on a monthly or two-monthly basis.[65] She has recently been advised that she should be trialled on a higher dose of antidepressant, and she is considering this. She is concerned about her ability to manage work on the increased dose of medication;
(cc)she has had counselling in the past, but now that therapy just “makes things worse”;[66]
[61]Ex 1 pp16-17
[62]Ex 1, pp22-23
[63]Ex 1, p15
[64]Ex 1, p23
[65]Ex 1, p17
[66]Ex 1, p23
Ability to work
(dd)due to her financial circumstances, at the beginning of 2018, she returned to work as a casual relief teacher. She feels that as a teacher, she has become a poor substitute of who she once was. If she encounters confronting behaviour from students or a day when things do not go well, she regresses and the symptoms flare up. She was once patient and had a sense of humour with students, but now she gets angry with their behaviour. She does not have the tolerance that she once had. She finds herself trembling and saying “I can’t do this”. She used to love her work but now realises that work is not helping her. It only serves to aggravate her symptoms. Sometimes she thinks she can cope and then she realises that she is not coping. She has lost her identity and self-respect because she can no longer teach in an ongoing capacity;[67]
(ee)at work she becomes withdrawn, especially when she suffers anxiety. She suffers panic attacks at work on a regular basis, where she develops lockjaw, shortness of breath and trembling. On occasion while at work, she feels the sensation of a heavy pressure on her chest;[68]
(ff)she has now become a casual relief teacher. She is exhausted at the end of the day and struggles to get through the day. She often feels that she is overwhelmed in the workplace. This is why she could not go back to the classroom, teaching on a permanent basis. She feels that casual relief teaching is the only type of position that she could cope with, as she is not involved in the planning and organisation of lessons that her previous position involved. In working as a relief teacher, she does not have to prepare lessons or correct work. The role is much less demanding;[69]
(gg)she misses the role that she had as a senior teacher. She worked hard to achieve the level that she had obtained and derived a lot of job satisfaction from teaching. She feels that there is a stigma attached to casual relief teachers by students and staff. She feels less respected because she is no longer a permanent staff member. It feels degrading;[70]
(hh)she imagined working for a long time into the future. She had intended to work well into her seventies, especially as she lives in a rural area where there is a shortage of teaching staff. She has not been able to perform at work to the level that she previously did. She has suffered significant financial detriment as a result of her change in employment status. Working five days a week causes her to be exhausted. She is unsure of her ability to manage this over a sustained period of time.[71]
[67]Ex 1, p17
[68]Ex 1, p21
[69]Ex 1, pp21-22
[70]Ex 1, p22
[71]Ex 1, p23
38 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)in early 2015, she started working about three days per week. The hours varied because she was a casual relief teacher. She was just called in when another teacher was away;[72]
[72]T31, L15-20
(b)the figure of three days a week is an average. In some weeks she worked more days.[73] In July 2019, she was often anxious and tearful;[74]
[73]T31, L21-26
[74]T32, L1-5
(c)each of the matters set out in paragraphs 27 to 29 of her affidavit sworn in July 2019, are still consequences from which she presently suffers;[75]
[75]TT32-33
(d)she did her best to ensure the affidavit was accurate, and she knew what it would be used for in relation to the serious injury application. She said that the matters in it were set out “To the best of my ability … It’s difficult to take a moment in time … and try and capture a picture because it’s a bit of a rollercoaster ride;”[76]
[76]T34, L1-27
(e)she still continues to suffer anxiety on a regular basis and that it is worse at night. She suffers panic attacks at work. In relation to this, she said that she does not feel like she is going to die when she is having the panic attack, but “I feel like I’m going to fall apart”;[77]
[77]TT35-36
(f)sometimes she feels “normal,” but she gets a shock when that happens because her present state, including experiencing lockjaw, “has almost become my new normal, my default position”;[78]
[78]T37, L1-9
(g)when she works more than three days per week, she gets exhausted and it takes a lot of time for her to recover;[79]
[79]TT38-39
(h)while she could not recall a consultation with Dr Amin in March 2019 which indicated that she was doing well at that time, “I do know that sometimes I feel like I’m getting better, and then I go backwards again … So it’s not a consistent situation;”[80]
[80]T47, L13-25
(i)she agreed that in March 2019, it may well have been accurate for Dr Amin to record that she was experiencing “‘Normal sleep. No early morning wakening. Normal mood. Normal self-esteem. No irrational fears. No compulsive behaviours. No panic attacks. No hallucinations. No suicidal thoughts. No substance abuse’;”[81]
[81]TT47-48
(j)in about July 2019, she travelled to Russia for about two weeks. She said that the trip was “an impulse thing … I just got the idea, I wanted to go to Russia … I’d seen something on Facebook … and I thought, I want to do that;”[82]
[82]TT49-50
(k)she said that in relation to the Russia trip, her partner and her brother-in-law made all the arrangements. She agreed that she had enjoyed the trip;[83]
[83]T50, L2-11
(l)she could not say whether, when she swore her first affidavit, the planning for the trip was already underway, or whether it was something that came up after the swearing of that affidavit;[84]
[84]T50, L14-18
(m)she could not recall whether or not she told Dr Triggs about the trip to Russia. She said that in that consultation “I just answered the questions that she asked me”;[85]
[85]T51, L20-26
(n)in her early twenties she had mild Bipolar, the symptoms of which were manic episodes followed by depression. She said that her general practitioner alerted her to the fact she may have Bipolar Disorder. She found the diagnosis “really helpful because, once I understood it, it helped me to cope with it … to recognise what was going on …”;[86]
[86]T53, L2-21
(o)she was prescribed Lithium for about six months for this condition;[87]
[87]T53, L22-24
(p)she could not recall whether or not she had sought any psychological or psychiatric treatment after experiencing issues with her former partner of twenty-six years, who had alcohol issues;[88]
[88]TT53-54
(q)she did not recall having to receive any treatment or take any medication after her stepson came to live with her approximately twenty years ago;[89]
[89]T54, L5-20
(r)she could not recall having to receive any treatment or take any medication following her son and grandson coming to live with her approximately fourteen years ago;[90]
[90]TT54-55
(s)she did not deny that she had been prescribed Temazepam in 2005. She said she recalled it being prescribed, but she did not recall taking it;[91]
[91]T55, L19-25
(t)she agreed that she had suffered insomnia in about 2009;[92]
[92]T56, L1-26
(u)she agreed that she may have had some problems with insomnia prior to the arrival of the principal who had caused her problems at Horsham College in 2009;[93]
[93]T57, L6-30
(v)she agreed that in about 2014, she was first prescribed antidepressant medication. She recalled that at that time, her symptoms were similar to what she has now, namely tension in her body, lockjaw, trembling, gasping for breath, pressure in her chest and fibromyalgia;[94]
[94]T58, L8-30
(w)she said that her fibromyalgia was diagnosed by her general practitioner, Dr Cymbalist. This condition seems to be another one of the symptoms which goes with the stress she suffers from;[95]
[95]T59, L1-18
(x)the antidepressants helped to improve her symptoms;[96]
[96]TT59-60
(y)in 2015, when she returned to work, she was struggling to cope with three days per week. She said that she felt as time went on that “I wasn’t coping and I felt like I was falling in a hole again”;[97]
[97]T62, L17-23
(z)she said that it took her longer to do things at this time. She felt like she was working full time just to manage a 0.6 load;[98]
[98]T62, L19-28
(aa)she agreed that her workplace was a supportive one and the people “are lovely”;[99]
[99]T63, L18-25
(bb)she agreed that her sleep had improved with the prescription of Seroquel: “Yes. The Seroquel has been amazing … I have never slept so well since I’ve been on that;”[100]
[100]T65, L15-21
(cc)she agreed that in March 2016, it was right to describe her condition as including “‘Poor sleep. Early morning wakening. Depressed mood …’;”[101]
[101]T67, L13-30
(dd)she agreed with a note made on 12 May 2016, just prior to her son’s death, that she was at that time coping well with her work situation but did not want to take on any extra pressure. She said that at that time she was completing a 0.6 load. She said that she recalled that before her son’s death, she felt like she was “burning out again … and I was just working a 0.6 load”;[102]
[102]TT68-69
(ee)she agreed that she can still do the shopping:
“… but when I’m doing it I feel … like .. everything’s clenched … and I just want to get it done, get out of there, I don’t want to see anyone I know because I just can’t be bothered talking to them … my body’s very tense when I’m doing those things, and I think that makes me tired; I’m starting to recognise why I’m getting so tired because last night at half past seven I was going to sleep because I was so tense all day, so I’m recognising that tension in my body, it’s exhausting me.”[103]
[103]T71, L1-12
(ff)there are long periods of time where she can go without doing any gardening “because I don’t feel like doing anything”;[104]
[104]T71, L16-22
(gg)she said that in relation to various activities, it is not that she cannot do them, it is just that she finds them very difficult and she does not enjoy them as much: “I force myself to because … somebody needs to do it I suppose … So, it is a chore for me now, yeah;”[105]
[105]T72, L10-17
(hh)at the end of 2017 she decided to wean herself off antidepressant medication. She said that this is because she does not like being on medication. She also said that at that time she thought she was feeling better and she “always [prides] myself on not having medications, not being a pill-popper”;[106]
[106]TT72-73
(ii)her anxiety and tearfulness comes and goes. She said that it would be accurate to describe those symptoms as “intermittent”;[107]
[107]T74, L24-25
(jj)she agreed that in the past she had experienced Vertigo “In relation to stress”;[108]
[108]T75, L14, 24
(kk)she agreed that an entry from 16 June 2014, which recorded that she was then experiencing “vertigo – positional” would be accurate. She acknowledged that this was in the context of her experiencing a lot of stress at that time at work;[109]
[109]T75, L14-24
(ll)the vertigo that she presently experiences has been much worse recently. She said that in the past it used to come “on and off”, but not like it is now. In the past, she might go for a year or six months without experiencing it. She said now the vertigo is “just always present … after a session like this I will have two days of the feeling … spaced out … lack of balance … feel like I’m walking … on an angle;”[110]
[110]T76, L7-29
(mm)it was suggested to her that she had refused further psychological treatment because she felt like she could cope with her situation by herself. In response to this she said “I feel when I go to counsellors or psychologists it opens old wounds up and it’s very exhausting … I know what I need to do, so going to counsellors, it’s something else you have to get up and do and it’s exhausting. That’s how I feel about it;”[111]
(nn)working as a casual relief teacher is much less stressful than teaching in her previous role, in that there is no preparation and she does not have to do any of the correction, both of which were quite big workloads;[112]
(oo)she agreed that in some ways being a relief teacher can be more stressful, in that the “casual relief teacher is fair game … if you get classes with students who see you as fair game, it can be stressful … they don’t see you as a real teacher … I’m finding it a little bit better now because I’ve been doing so much relief teaching, so I’ve established a bit of a rapport with students … but the stress is more on classroom management rather than the preparation and the correction;”[113]
(pp)prior to suffering her injury she saw herself as an extrovert. She said that she can still be extroverted, but she is now mainly withdrawn. She said that “… the lockdown … feels great because I can lockdown, so it suited me.” She agreed that the reason she enjoyed lockdown is because the pressure is off her to catch up with people: “Yes. I’ve enjoyed it … I understand you have to invest in friendships, but it’s hard … the extra effort when you don’t feel like you want to go.” She said that lockdown gives her a readymade explanation that nobody is going to question if she does not want to attend a function. She is not going to offend anybody;[114]
(qq)she feels exhausted if she does five days per week at work. She said that she feels then that she is “on less than empty … I try to contribute at home … I can still cook meals, I can still shop … but … at a reduced capacity;”[115]
(rr)she said that she did not establish the charity in her son’s name, it was her son that set it up. She said that she does not have any involvement in it, other than that she was invited to attend the launch and received a commendation from the chief fire officer in relation to the work her son had done;[116]
(ss)she confirmed that she and her partner used to go dancing. She was unable to say when she had ceased dancing, but said “I don’t feel like doing it any more … not interested anymore”. It was the stress in relation to work that had made her stop dancing;[117]
(tt)she confirmed that she had participated in her local church group prior to suffering her injury, but not since;[118]
(uu)the only times she had been overseas since suffering her injury (apart from the Russia trip), was to go to Bali and Thailand to spread some of her son’s ashes;[119]
(vv)she agreed that she can look after her grandchildren and that she loves them.[120]
[111]T78, L9-24
[112]T79, L2-14
[113]TT79-80
[114]TT80-81
[115]T81, L18-30
[116]TT82-83
[117]T84, L1-20
[118]T84, L21-31
[119]T85, L3-13
[120]TT85-86
The lay witness
Mr John McTaggart
39 The plaintiff’s partner, John Andrew McTaggart, gave the following relevant evidence in an affidavit sworn on 6 July 2020:
(a)he is the plaintiff’s partner. They have been in a relationship for approximately twelve years. They live together in Horsham;[121]
[121]Ex 1 P 25
(b)when he first met the plaintiff in around 2008, she was a teacher at Horsham College. She loved teaching and from his observations, appeared to like her colleagues and had a good relationship with the principal at the time. He was not aware of any issues that she had in her job;[122]
[122]Ex 1, p26
(c)at that time, the plaintiff was happy, bubbly and he would describe her character as “an extrovert”;[123]
[123]Ex 1, p26
(d)in the early years of their relationship, the plaintiff was planning to go overseas to Uganda with her church volunteer group. She had been involved in many fundraising activities to fund a project to build units for children in Uganda. She was very enthusiastic about her involvement in this project;[124]
[124]Ex 1, p26
(e)the plaintiff also loved partying and dancing. On their first date, the couple had planned to learn salsa dancing. The plaintiff also shared Mr McTaggart’s passion for rock-and-roll dancing and they had gone to classes together;[125]
[125]Ex 1, p26
(f)when the new principal commenced at Horsham College, the plaintiff became a changed person. She came home from work feeling anxious, she was worried about her future at the school and concerned that the principal would try and move her out of her job;[126]
[126]Ex 1, p26
(g)the plaintiff would complain about her workload and tell Mr McTaggart that she had been given tasks she was not capable of doing. She felt she did not have the skills to perform the jobs that she was given. On one occasion she was given a coordinator role and Mr McTaggart was aware that she did not feel comfortable with this job as she was asked to manage a group of students that she did not know. The plaintiff felt that she did not have the appropriate skills and training for that role;[127]
(h)the anxiety of her role at Horsham College under the new principal caused the plaintiff to have an emotional breakdown. Mr McTaggart cannot recall exactly the date when this occurred;[128]
(i)Mr McTaggart has accompanied the plaintiff to her general practitioner visits on occasions, particularly after the breakdown. He has observed that the plaintiff’s work pressure, mental health and breakdown have significantly impacted her life;[129]
(j)the couple have not danced in years as the plaintiff has lost all interest. When the plaintiff returns home from work she is anxious and is apparently too tired to do anything;[130]
(k)the couple share the household duties of cleaning, cooking and washing, but Mr McTaggart notices that the plaintiff often struggles to do these things and cannot cope. The plaintiff relies on medication to help her cope with day-to-day life;[131]
(l)Mr McTaggart has to repeatedly remind the plaintiff of her appointments, as she now suffers from poor memory and tends to forget things. She was not like this before suffering her breakdown;[132]
(m)the plaintiff now does casual relief teaching. She often expresses worry that she will go to the wrong school and Mr McTaggart notices that she will repeatedly check where she has to go, to reassure herself. She has lost all confidence in herself and in her ability to do her job well. She says that she feels that she is no longer respected as a casual relief teacher;[133]
(n)Mr McTaggart has observed that the plaintiff finds it difficult to take part in social interactions. She is no longer a volunteer with her church group, which he knows that she loved to do;[134]
(o)Mr McTaggart often attends Masonic Lodge Freemasons for meetings and has taken the plaintiff with him on occasions. The plaintiff now finds it difficult to interact with people like she used to at these meetings;[135]
(p)Mr McTaggart is aware that every night the plaintiff takes medication to sleep. He has noticed that if she does not medicate herself, she will not sleep well. He has noticed that if there are any abnormalities or changes to her routine, the plaintiff becomes very anxious very quickly.[136]
[127]Ex 1, p26
[128]Ex 1, p26
[129]Ex 1, pp26-27
[130]Ex 1, p27
[131]Ex 1, p27
[132]Ex 1, p27
[133]Ex 1, p27
[134]Ex 1, p27
[135]Ex 1, p27
[136]Ex 1, pp27-28
The medical evidence
40 There were numerous medical reports contained in the tendered material. Both sides provided reports from medico-legal experts. A precis of the medical materials is set out below.
The Plaintiff’s medical evidence
41 There was one medical report from the plaintiff’s treating general practitioner, Dr Amin, dated 4 October 2018. In that report, Dr Amin noted that he had been the plaintiff’s regular treating doctor since 2016. He said that the plaintiff had a history of poor sleep, persistent low mood with a loss of interest and lack of attention. He said that her current diagnosis is depression with anxiety. He noted that while the plaintiff is improving, overall her prognosis is “uncertain”. Dr Amin stated that according to the clinical notes and history given, the plaintiff’s condition is related to her employment.[137]
[137]Ex 1, pp47-48
42 The plaintiff’s solicitor requested that Dr Amin provide an up-to-date medical report in respect of the plaintiff’s condition. No report was provided, however, it was apparent from the notes of the clinic, that Dr Amin has been on leave for some time and was unable to provide the report as requested. This was despite the plaintiff’s solicitors following him up on numerous occasions.[138]
[138]Ex 1, p161
43 The following relevant notes were contained within the medical record from the plaintiff’s general practitioner, Dr Thadi:
“Monday June 16 2014 …
Dr Thadi Ashubabu
History:
Patient came in with vertigo-positional. Has past h/o vertigo. She also seems to have lot of stress from work …
Prescriptions printed: …
VALIUM TABLET 5mg 1 nocte m.d.u …”[139]
“Friday July 25 2014 …
Dr Thadi Ashubabu
Patient has been to Dr [Yvonne] Cymbalist and prescribed antidepressant and Valium.
History:
Psych: Poor sleep. Early morning wakening. Depressed mood. Low self esteem … .
Patient has also issues of anxiety and feels exhausted from her work. Patient is not enjoying what she has enjoyed in the past. No work place bullying in the recent times. Has [a lot] of work … .”[140]
[139]Ex 1, p154-155
[140]Ex 1, p 154
44 Contained within the plaintiff’s general practitioner medical record, was a note made by mental health nurse, Alistair Mason, on 13 August 2014. That note recorded a mental health assessment undertaken by Nurse Mason on behalf of Dr Thadi. The note reads, relevantly, as follows:
“HOPC:
- Lenda reports that she has been experiencing significant stress related to her position as a teacher in Horsham. She reports this has been sustained for the last 4 years and in recent months she has felt that she was not coping with many aspects of her life. Lenda has recently applied for workcover and is currently on leave from her position.
- Lenda describes >6/12 of lowered mood, emotional sensitivity, insomnia, fatigue, withdrawal and poor self esteem. She saw her GP and was prescribed Escitalopram which has recently been increased to 20mg/day. Notes that it is starting to improve her mood.
- Lenda has also been seeing Wendy Barton (Counsellor).
Identified Stressors:
- work related stress.
Past psychiatric history:
- Lenda states that she was diagnosed with Bipolar Disorder >30 years ago. She was treated with LiCo3 for some time. She reports that she has not had any symptoms of BAD nor has she taken any treatment for about 15 years. Lenda describes her symptoms as being periods of depression with episodic hypomania. She has never had any hospitalisation nor has she self harmed.
Developmental/social Hx:
- Is in a relationship with John for the past 5 years
- has 3 adult children to a previous relationship.
- has been teaching since her 30’s.
Drug & Alcohol Hx:
- Denies problematic alcohol use
- No illicit drug use…
Mental State Examination:
… Affect was anxious and on edge but did display reactivity. Mood subjectively described as low … Content related to work issues and how she feels that this has [affected] her … Reports some ST memory impairment. Judgment unimpaired. Insight displayed …
Management:
- Psychoeducation provided Escitalopram.
DASS 21 completed:
Depression – 38 (extremely severe range)
Anxiety – 28 (extremely severe range)
Stress – 32 (extremely severe range)
Provisional Impression:
Lenda presents with symptoms consistent with a depressive illness. She has commenced Escitalopram and is feeling that it is starting to improve her mood. Lenda has applied for workcover and is awaiting an outcome of her application. She has been seeing a counsellor and [is finding] this helpful … .”[141]
[141]Ex 1, pp153-154
45 On 6 August 2015, the plaintiff saw Dr Dominic Green, consultant psychiatrist, on referral from her general practitioner. In a report dated 12 November 2018, Dr Green noted that the history he obtained from the plaintiff included:
“Breakdown middle last year because of work load. Feel do not have resilience I used to have.
Fibromyalgia particularly my arms but my legs too ... .”[142]
[142]Ex 1, p68
46 Dr Green said that the plaintiff further reported a past psychiatric history going back to thirty years of age, with Bipolar Disorder being diagnosed at that time. His diagnosis of the plaintiff in 2015 was Adjustment Disorder with a differential diagnosis of Depressive Disorder.[143]
[143]Ex 1, p68
47 The plaintiff was examined for medico-legal purposes by Dr Brendan Hayman, consultant psychiatrist, on 9 November 2018 and 7 May 2020. Dr Hayman provided two reports in the Joint Court Book, the most recent of which is dated 7 May 2020. In that report, Dr Hayman diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood, partially resolved. He thought that the plaintiff’s condition had now stabilised. He noted that the plaintiff’s lifestyle had been affected by her illness. He said that the plaintiff had returned to teaching as a relief teacher, but had never got back to her former role as a classroom teacher. He noted that she had viewed herself as a very capable Year 12 teacher, and that this had been an important part of her persona. He said that she “laments the loss of this”. She also “laments the loss of her friendships that were inherent in being a regular teacher”.[144]
[144]Ex 1, p65
48 Dr Hayman noted that the plaintiff’s ongoing symptomatology included the fact that her libido is absent and this is causing difficulties in her relationship. He said that she remains somewhat fragile and lacking in confidence. She is more forgetful. He said that there remain “quasi panic symptoms” and that the plaintiff is “somewhat overwhelmed”. That being said, Dr Hayman noted that the plaintiff is doing her best to “move on”. He said that the plaintiff continues to socialise with her partner and they attend Freemasons functions together. He said that she is otherwise less inclined to socialise. She can no longer attend the gym. She continues with some gardening. She continues to self-care.
49 Under a heading “Prognosis,” Dr Hayman expressed the following opinion:
“… [The plaintiff’s] condition has improved somewhat since last being seen. She herself acknowledges this and is thankful for the recommendations to recommence antidepressant medication. There however do remain the aforementioned ongoing low grade depressive and anxiety symptoms and a tendency to become overwhelmed.
Potentially she could further benefit from an adjustment of antidepressant medication. Trials at a higher dose of 20mg mane would be appropriate. She is on Seroquel 50mg nocte and this helps with sleep. It is likely also helping in its role as a mood stabiliser …
She did not find great benefit from psychologists or psychiatrists in the past, and at present is disinclined to such …”[145]
“She could not return to her pre-injury employment. To her credit, she has pushed herself and has got back to relief teaching five days per week. However, she fully recognises the limitations she has. She is only able to do this current job given the lesser requirements and responsibilities. She remains easily overwhelmed. She has a degree of impaired concentration and has quasi panic symptoms when stressed. She would not be able to return to the responsibilities and stressors of her pre-injury role. Indeed she finds herself exhausted after five days. Ideally she would be best doing three to four days per week of relief teaching … .”[146]
[145]Ex 1, p65
[146]Ex 1, pp65-66
50 In his first report, dated 9 November 2018, Dr Hayman said, in relation to the death of the plaintiff’s son, that the plaintiff had appropriately worked through her grief. He said that the plaintiff explained that she continues to miss her son, but does not feel she has any ongoing abnormal grief or traumatisation symptoms: “No re-experiencing phenomena regarding such were described.”[147]
[147]Ex 1, p52
The Defendant’s medical evidence
51 The plaintiff was examined by an independent medical examiner on behalf of CGU Worker’s Compensation (Vic) Ltd on 1 September 2014. The identity of that independent medical examiner was Dr Richard Prytula, consultant psychiatrist. In a report dated 1 September 2014, Dr Prytula concluded that the plaintiff showed symptoms of Mild Adjustment Disorder with Anxious Mood. He said that based on the available information, her condition appeared to be work related. He said that the plaintiff stated that her workload was not excessive. He thought, at that time, that the plaintiff appeared to have no current work capacity due to her symptoms. He thought that her prognosis appeared unclear at that stage and that she was showing a physical expression of some of the emotional symptoms, from which she was suffering.[148]
[148]Ex 1, p76
52 The plaintiff was examined for medico-legal purposes on behalf of the defendant on numerous occasions by Dr Wendy Triggs, consultant psychiatrist. Five reports authored by Dr Triggs were included in the Joint Court Book. In a report dated 11 December 2015, which records the plaintiff’s state prior to the death of her son in 2016, Dr Triggs stated that the plaintiff had at that time been working three days per week, but had now increased this to five days per week, with the same workload, spread over five days for “reduced intensity”. Dr Triggs noted that the plaintiff’s sleep had improved, particularly with the taking of Seroquel. She said that the plaintiff described the Seroquel as providing her with the “best sleep that she had ever had” and that she “‘loves it’”.[149] The plaintiff reported only having occasional shortness of breath and panic at that time, but that she continued to feel flat. Dr Triggs said that the plaintiff described occasionally feeling weepy, but is not crying to the point of sobbing. She reported that her jaw was “chronically tense” and that she notices this particularly in the evenings. The plaintiff reported that her interest in her work and her concentration and memory were reasonable at that time.
[149]Ex 1, p87
53 Dr Triggs thought that the plaintiff was currently working at her “upper level of capacity”. Dr Triggs thought that the plaintiff continued to be “relatively symptomatic with her lowered mood,” despite the fact the medication was being adjusted accordingly. Dr Triggs thought that the plaintiff presented as being genuine and forthright, with a desire to improve. She diagnosed the plaintiff as suffering from an Adjustment Disorder.
54 In her most recent report dated 29 June 2020, Dr Triggs noted that in early 2016, the plaintiff’s forty-two-year-old son had died while he was on holiday in Bali. She said that at this time, the plaintiff had a quite normal and expected grief reaction and had six months off work. She noted that the plaintiff returned to her relief teaching, but has generally continued to only work around the 0.6 of an equivalent full-time employee (FTE) per week.[150]
[150]Ex 1, p112
55 In a section headed “Review of Clinical Progress Since Last Seen,” Dr Triggs stated:
“She states that, generally, her mood has been somewhat the same and that she has had the same sort of problems.
These have included feeling nauseated and headachy and dizzy at times.
In addition to this, she has times that she feels like crying and weeping.
She states, at times, she has intermittent anxiety symptoms, but … [has] no suicidal ideas …
She has been continuing to go to work at generally casual hours, fulfilling a relief teaching role.
She finds that if she works a number of consecutive days in a row, she becomes quite exhausted and is not really able to work the following week.
Her thoughts are returning to memories of how she was treated by the principal in her job, and her feeling of how this changed the trajectory of her life.
Her sleep continues to be disturbed, however is more regular when she is on the Seroquel medication.
She says, at times, she has experience of lock jaw, where her jaw becomes very stiff and sore, and she can have times when she trembles.
At times, her symptoms of shortness of breath can be acute, and she … [finds] that she can gasp due to anxiety symptoms.
She tends to scratch at her legs and stomach due to her [symptoms] of anxiety.
She finds, cognitively, that she can feel quite foggy in her thinking, and she feels that she has had a sense of loss of identity due to her working as a substitute teacher rather than a real teacher.
She feels that she has lost her connection and allegiance with her various co-workers and peers, and she said, often, her head feels quite confused and muddled.
She states that she has to keep going to work for financial reasons, even though she feels her concentration and memory are impaired.
She has had no symptoms of Bipolar Affective Disorder … .”[151]
[151]Ex 1, p113-114
56 In relation to the symptoms of grief from which the plaintiff was then suffering, Dr Triggs said that she was of the clinical opinion that the plaintiff’s acute grief reaction had resolved. She said that the plaintiff was able to think back to her son with some symptoms of sadness, but overall with a feeling of gratitude for having had him as her son. In addition to this, Dr Triggs noted that most times when she does talk and think about her son, the plaintiff is not reduced to weeping or sobbing, and she is able to think of the positive things that he was able to impart on this world.[152]
[152]Ex 1, p114
57 Dr Triggs noted that whilst the plaintiff’s grief was more raw for her in the first twelve months after her son passed away, since that time “there is every indication that, clinically, this has become a case of resolved grief”.[153]
[153]Ex 1, p115
58 Dr Triggs noted that during the interview, the plaintiff at times did appear acutely distressed. She noted that the plaintiff had somewhat reduced eye contact, that she appeared quite tired, looked pale and had messy hair.[154] Dr Triggs noted that the plaintiff’s affect was flat, that she was tearful intermittently throughout the interview and that she appeared very anxious. She thought that the plaintiff’s intelligence, insight and cognition were normal, but that her cognition was “somewhat slowed”.[155] Dr Triggs’ diagnosis of the plaintiff was as follows:
“(1) Adjustment Disorder, work-related condition
(2) Grief, resolved.”[156]
[154]Ex 1, p115
[155]Ex 1, p116
[156]Ex 1, p117
59 Dr Triggs was of the opinion that the plaintiff would need to continue with her current treatment for an indefinite period of time. She said that it was extremely admirable that the plaintiff had been able to return to her 0.6 duties after the onset of her work-related injury in 2015. She noted that her work continues to take a toll on her in terms of her injury, but says that she has no other option but to undertake her work due to her financial situation.[157] In Dr Trigg’s opinion, the plaintiff has no other work capacity than her current work capacity, which is 0.6 FTE. She said that that is all that could be expected for a prolonged period of time.
[157]Ex 1, p117
60 Dr Triggs noted that the plaintiff had an initial improvement in her symptoms with treatment, however this had plateaued even before her son passed away. She commented:
“In my opinion, it has been many years since she had the onset of these concerns regarding her workload and the treatment in the workplace.
Despite the treatment she has received, it continues to be a background symptom for her and has effects on her functioning.
At this stage, I would prognosticate that her current level of symptomatology is … chronic and is unlikely to progressively improve to much of a degree.”[158]
[158]Ex 1, p118
61 The plaintiff was examined by medico-legal purposes on behalf of the defendant by Dr Alan Jager, forensic psychiatrist, on 26 April 2017. In a report dated 12 May 2017, Dr Jager diagnosed the plaintiff as suffering from a Chronic Major Depressive Disorder with Anxiety and alcohol abuse. He did not identify any pre-existing component of her condition. He said that the plaintiff’s employment contributed to her condition whilst she was working, in the sense that she found the work stressful. He thought that she was unfit for all employment due to her moderately severe depressive illness. He noted that at that time, the plaintiff was yet to come to terms with her grief relating to the loss of her son in May 2016. He expressed the opinion that if not for the bereavement, the plaintiff would still have a work capacity. He did not set out any reasoning behind this opinion.[159]
[159]Ex 1, pp123-124
The issues
The Plaintiff’s credit
62 No serious attempt was made to discredit the plaintiff during cross-examination.
63 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a co-operative and honest witness who appeared at all times to be doing her best to provide accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. She made concessions where necessary, even where those concessions were adverse to her interests.
64 Furthermore, it is evident from the medical records, and I find, that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating 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 and the content of the medical records, I consider that she was a credible witness in the sense of being an absolutely truthful person. At no time did I gain the impression that she was attempting to mislead the Court or 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 in association with her injuries, since at least 24 July 2014. Further, she has consulted with psychologists and a psychiatrist for treatment, which at times has caused her additional distress. For this reason she has abandoned this type of treatment in favour of managing her condition with mindfulness and meditation and taking the medication which she is prescribed.
67 Further, in an effort to remain a contributor financially to her relationship and her partner, she has continued working on a 0.6 FTE basis at Horsham College and other associated campuses, as a relief teacher. This is despite the fact that her work at times causes her significant distress in the form of panic attacks and other anxiety symptoms. She also finds that she is exhausted by her work and struggles to get through to the end of the day. She often feels overwhelmed in the workplace.
Compensable injury
68 The details and occurrence of the injury are not dispute.
69 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 in the course of her employment, the plaintiff suffered a mental disturbance or disorder in the form of:
(a) Chronic Adjustment Disorder;
(b) Depression; and
(c) Anxiety.
Is the compensable injury permanent for the purposes of the Act?
70 Having considered the relevant reports, and in particular the reports from Dr Amin,[160] Dr Hayman[161] and Dr Triggs,[162] I find that the plaintiff is likely to suffer from the injuries that she sustained in the course of her employment for the foreseeable future. Given this, I find that those injuries are permanent for the purposes of the Act.
[160]Ex 1, p47
[161]Ex 1, p65
[162]Ex 1, p118
Are the consequences of the Plaintiff’s workplace injuries “severe”?
71 On the basis of all of the evidence before me, I find that the mental disturbance or disorder from which the plaintiff suffers, has produced the following consequences to her:
(a)frequent anxiety and tearfulness. Her anxiety is worse at night;
(b)daily panic attacks in the form of lockjaw, shortness of breath and trembling, including while at work. She frequently feels as if there is a weight compressing her chest;
(b)constant jaw clenching;
(c)a frequent feeling that her head is in a vice and is going to explode;
(d)often waking with headaches;
(e)sometimes gasping for breath because she feels she cannot get enough air into her lungs;
(f)a feeling like there is “white noise” in her brain or that her brain “floats out [of] my head”;
(g)constant difficulties with concentration and memory. She feels that she is “slow” in her brain. She does not feel right. Sometimes her mind goes blank and she has no idea what she is saying;
(h)the development of a reliance on alcohol and the need to take daily medication in the form of quetiapine and escitalopram, to manage her symptoms and to help her sleep;
(i)recurrent dizziness and vertigo which affects her balance;
(j)daily fatigue which interferes with her ability to attend to activities of daily living, including her domestic chores, gardening and attending to her personal hygiene. She feels relentlessly tired and as if she is operating on “empty” all the time. She has little energy or motivation for anything. She has recurring cold sores;
(k)a feeling of having become more subdued, with a more suppressed mood. She does not enjoy socialising in the way that she used to. She does not feel like she has the energy to socialise. She can put on a façade of coping, but happiness is now a rare emotion for her;[163]
(l)a lack of desire to engage in previous external activities. She tries to walk regularly, which is her meditation and mindfulness time. She used to be a social person and enjoy these activities;
(m)a desire to sleep and stay in bed for much longer periods of time. She dreads getting out of bed. She does it, but she no longer enjoys it;
(n)a loss of interest in her garden and gardening. She still does a little bit occasionally, but tires quickly;
(o)a loss of libido;
(j)a permanent change in the nature of her work. She used to be a full-time senior teacher at Horsham College but now works only part time as a casual relief teacher. The role is much less demanding. She misses the role that she had as a senior teacher. She worked hard to achieve the level that she had obtained and derived a lot of job satisfaction from teaching. She feels that there is a stigma attached to casual relief teachers by students and staff. She feels less respected because she is no longer a permanent staff member. She feels that as a teacher, she has become a poor substitute of who she once was. She used to love her work, but now she often feels that she is overwhelmed in the workplace. She is exhausted at the end of the day and struggles to get through the day. She has lost her identity and self-respect because she can no longer teach in an ongoing capacity. She imagined working for a long time into the future. She had intended to work well into her seventies, especially as she lives in a rural area where there is a shortage of teaching staff. She has suffered significant financial detriment as a result of her change in employment status.
[163]Ex 1 pp16-17
72 In Haden Engineering Pty Ltd v McKinnon,[164] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[165] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[166] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject her ongoing descriptions of the pain suffered by her.[167]
[164](2010) 31 VR 1
[165]Haden (ibid) at paragraph [9]
[166]Haden (ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[167]ibid
73 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in her presentation and attitude to managing her injuries.
74 An analysis of the evidence clearly demonstrates that by reason of the consequences of her mental disturbance or disorder, many aspects of the plaintiff’s life have been adversely affected, including her ability to manage her domestic chores and activities of daily living, her ability to socialise, her ability to remember basic things and to concentrate, her ability to engage in activities which she previously used to enjoy and her ability to sleep without the need for medication. In addition, her injury has adversely impacted on her relationship with her partner.
75 Because of her mental disturbance or disorder, her ability to work has been adversely impacted on a daily and continuing basis. She has had to change the nature of her job with a significant decrease in salary. Even in this job, which consists of duties much less taxing than that which she was performing prior to suffering her injury, she endures panic attacks and anxiety and experiences extreme tiredness at the end of the working day. All of the medical experts agree that the plaintiff can never again perform the work which she engaged in prior to suffering her injury. Thus, her employment prospects and the enjoyment which she used to derive from her work, have been permanently and adversely affected. She had intended to continue working well into her seventies.
76 The fact that after suffering her injury, the plaintiff has been prepared to keep working, is not a matter that tells against the granting of her application. To use the words of Nettle J A in Dwyer v Calco Timbers Pty Ltd (No 2):[168]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[168][2008] VSCA 260
77 In Ellis Management Services Pty Ltd v Taylor:[169]
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”
[169][2013] VSCA 326 at paragraph [35]
78 I find that the consequences referred to above are permanent and are consequences that are more than “very considerable” to the plaintiff. Therefore, I find that the consequences of the mental disturbance or disorder suffered by the plaintiff as a result of the accident, are “severe” within the meaning of the Act.
Conclusion
79 For the reasons set out above, I am satisfied that while employed by the defendant, the plaintiff suffered a permanent, severe mental disturbance or disorder and therefore, has suffered a “serious injury” as that term is defined in the Act. The application is granted.
80 I will hear the parties on the question of costs.
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