Oppelaar v Dept of Justice
[2012] VCC 1172
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00080
| LORETTA MAY OPPELAAR | Plaintiff |
| v | |
| DEPARTMENT OF JUSTICE | First Defendant |
| and | |
| ALLIANZ WORKERS COMPENSATION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 7, 8 and 9 August 2012 | |
DATE OF JUDGMENT: | 24 August 2012 | |
CASE MAY BE CITED AS: | Oppelaar v Dept of Justice & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1172 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering and loss of earnings consequences of mental or behavioural disturbance or disorder – whether the consequences of injury were more than “serious” to the extent of “severe”.
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendants | Mr P Elliott SC with Mr J Batten | Lander & Rogers |
HIS HONOUR:
1 Loretta Oppelaar alleges that she suffered injury, being a mental or behavioural disorder, in the course of her employment with the first defendant. She seeks the leave of this Court to issue proceedings to recover damages for pain and suffering and loss of earning capacity in respect of those injuries.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application as a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Lt v Podolak & Ors [2005] VSCA 33
5 The term “severe” is to be satisfied by reference to the consequences to Ms Oppelaar of any mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity, when judged by comparison with other cases in the range of mental and behavioural disturbances or disorders.[3]
[3]Section 134AB(38)(b)
6 A mental or behavioural disturbance or disorder shall not be held to be severe unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, are fairly described as being more than “serious” to the extent of being “severe”.[4]
[4]Section 134AB(38)(d)
7 The Court shall not grant leave on the basis that Ms Oppelaar has established the loss of earning capacity required by ss(38)(b) unless she establishes, in addition to the requirements of ss(38)(d), that at the date of hearing, she has a loss of earning capacity of 40 per cent or more, measured in accordance with sub-paragraphs (38)(f) and (38)(g).[5]
[5]Section 134AB(38)(e)
8 The issues to be determined in this case are:
(a)Has Ms Oppelaar suffered a mental or behavioural disturbance or disorder which can fairly be described as being more than serious to the extent of being severe?
(b)Is such disturbance or disorder permanent?
(c)Did such disturbance or disorder arise in the course of her employment with the first defendant?
(d)Has she established a loss of earning capacity of 40 per cent or more?
Background and Relevant History of Events
9 Ms Oppelaar is currently aged fifty. She resides at Mount Gambier in South Australia.
10 She was educated in Victoria and completed Year 12 at school. She completed a business studies course and commenced employment with the first defendant in about 1981 at the Warrnambool Court. Early in her career, she worked in other courts in Victoria. Between 1993 and 1997, she left the Department of Justice and worked for private law firms. She returned to the Department in 1997 as a deputy registrar.
11 She married in April 2001. She gave birth to two children - in October 2001 and January 2004 respectively. Following the birth of her two children, she took maternity leave of sixteen months and twelve months respectively.
12 From her return from her second period of maternity leave in February 2005, she worked part-time, three days per week, six hours per day.
13 Broadly speaking, there were three matters which Ms Oppelaar alleges occurred in connection with her work that caused or contributed to the injuries the subject of this application.
(a) Soon after her return from maternity leave in 2005, a new Officer in Charge (“OIC”) was appointed at the Warrnambool Court. Ms Oppelaar was disappointed that the previous deputy OIC, a Mr Langley, had not been given the job. Various changes were made to the running of the office. She considered that there was little communication, no direction and morale was low amongst staff. She described the office as having a stressful atmosphere. It is clear that Ms Oppelaar thought the new OIC did not run the Court well. Relations between the OIC and Ms Oppelaar were strained by the end of 2005 to the extent that Ms Oppelaar believed that her job might be in jeopardy.
(b) At the Court staff Christmas party on 21 December 2005, Ms Oppelaar took offence at comments made by a relieving staff member concerning her character and her work position.
(c) In late 2005, Ms Oppelaar was questioned concerning the manner in which a motor vehicle speeding charge against her had been handled at the Court. It was suggested by Department officers that she may have improperly arranged to have been given a good behaviour bond and no other penalty. A Department officer attended Warrnambool on 30 December 2005 and interviewed Ms Oppelaar about the matter. She vigorously denied any wrongdoing. She felt victimised. On that day, Ms Oppelaar attended her general practitioner. The doctor’s notes read:
“Feeling victimised at work. Left work today and came to practice. Stressed, teary, no suicidal ideation or plan.”[6]
The enquiry into the matter continued on into the new year. She was interviewed again by a department officer. The end result of the enquiry was that Ms Oppelaar was provided with counselling. In cross-examination, Ms Oppelaar stated that this incident was not an ongoing problem. She said it was finalised and dealt with.[7]
[6]Exhibit 3
[7]T 32
14 The above is merely a brief summary of the alleged events. They are the subject of many paragraphs in Ms Oppelaar’s affidavits and also affidavits sworn by a number of employees of the Department. The matters alleged by Ms Oppelaar are disputed. It is not necessary for me, in this application, to make any findings of fact regarding those disputed matters or whether the conduct of Department officers as alleged by Ms Oppelaar could amount to any breach of duty for which the Department would be liable.
15 She described the interview on 30 December 2005 with a Department officer, Mr Chirgwin, as very upsetting. When she left the interview, all she was thinking about was how miserable she had been since she returned from maternity leave and how the Court was not the same and that conditions had deteriorated.[8] She describes the interview as being the final straw in a very difficult year.[9]
[8]PCB 21
[9]PCB 20
16 Ms Oppelaar was absent from work from 30 December 2005 until 10 April 2006. During that time she attended upon various general practitioners at the Warrnambool Medical Centre. Clinical notes from the Centre indicate she complained of stress and anxiety.
17 In mid-January 2006, Ms Oppelaar commenced seeing a psychologist, Ms Garrison in Warrnambool. It appears that she has continued to see her reasonably regularly up until the present time. After returning to work in April 2006, she took some time off at various times when she felt that she could not handle the pressure and needed a rest.[10] She stopped attending social functions relating to her workplace. She felt that people were constantly checking her work and looking over her shoulder.
[10]PCB 25
18 When she returned to work in April 2006 the OIC with whom she had previously had problems had left the Warrnambool Court and region. Ms Oppelaar has had no further contact with her. She stated that the new OIC and other members of the Court staff were supportive of her.
19 From April 2006, she resumed working as a Deputy Registrar, performing the same duties she had previously performed.
20 In August 2007, Ms Oppelaar and her husband separated. He moved to Mount Gambier. She remained in Warrnambool with the two children, then aged about six and three. She continued working at the court and managing the home and her children.
21 In October 2007, about sixteen months after her return to work, Ms Oppelaar was diagnosed with breast cancer. She underwent a mastectomy and was absent from work for about eight months, returning to work in June 2008. She was treated with chemotherapy over some months.
22 On her return, she again worked on the same part time basis performing the same sort of duties as she had previously done.
23 She continued in that capacity for another seventeen months until 22 November 2009, when she ceased work in order to undergo hysterectomy surgery. She has never returned to work. It appears that she took eight weeks of sick leave and thereafter has been on unpaid leave. She has never formally resigned from her employment with the department.
24 At some time after the diagnosis of Ms Oppelaar’s cancer, her husband provided a good deal of support and assistance to her but continued to reside in Mount Gambier.
25 She alleges that the Court had a very stressful atmosphere. She believed that she was being treated somewhat differently because of her friendship with the former deputy OIC, Mr Langley. She says that she was made to feel inadequate and not worthy, notwithstanding that she considered herself to have demonstrated a good knowledge of all aspects of the Court and its jurisdictions.
26 She described it being very hard to concentrate and being tired at the end of the day. She was sleeping badly, was tense and anxious, and had a small attention span. She considered that her self-esteem had dropped and she felt that she could not cope. She believed that she was having panic attacks and her breathing was becoming irregular. She thought that she had become quite depressed. She did not want to answer the phone or see people. She felt that she was victimised and that she could not deal with everyday matters.[11] Nevertheless there was no evidence that the Department of Justice or any of its officers at the Warrnambool Court considered that Ms Oppelaar’s work was of an inadequate standard. There was no evidence of any reprimands or warnings about the quality of her work.
[11]PCB 23
27 She considered that she had not been offered the same opportunities at work as some other employees were. In particular, she considered that she should have been offered relief work at the Courts at Portland and Hamilton when such work was available. She said that she had not been encouraged to seek promotion.[12] By this, as I understood her evidence, she considered that she was capable of taking on higher duties at Hamilton and Portland and her competence was such that she ought to have been encouraged to seek promotion.
[12]PCB 26
28 She has been prescribed Cipramil, an anti-depressant. She takes a number of medications linked with her previous cancer, from which she appears to have fully recovered.
29 She continues to see her general practitioner, Dr Hall. She also has regular check ups with her oncologist and her surgeon, Mr Mooney. Ms Oppelaar does not allege that her cancer is related to her employment.
30 She stated that when Department officers visited at work, she made herself scarce as she found it difficult to be around when this occurred. She believed that she could not sit with certain Magistrates. She could not associate with certain management personnel. She said that she did not feel able to attend various education courses, as she would not be able to cope with mingling with others, as she would feel that they were talking about her.
31 In her affidavit sworn in July 2010, she deposed that her physical activity was limited, her motivation was poor, she felt tired and stressed on a constant basis.[13] She said that she avoided the limelight, crowds and noise. She described work as being her life, like a second home.[14]
[13]PCB 29
[14]PCB 30
32 In about November 2008 she, her husband and children travelled to Queensland for a two week holiday. In late November she had an MRI of her hip. The general practitioner’s notes indicate that, at that time, a reconstruction was on hold.[15]
[15]Exhibit 3
33 Ms Oppelaar states that, in November 2009, she had made a decision not to return to work at the court quite independent of her need for hysterectomy surgery. She stated that she had cleared out her desk but had not advised her OIC or anyone connected with the court or the department of this decision.
34 In January 2010, following her hysterectomy, Ms Oppelaar and her children moved to Mount Gambier to live with her husband. They have lived together since. In cross-examination, Ms Oppelaar said that at an earlier stage her husband had asked her to leave her job in Warrnambool and go to live with him in Mount Gambier.[16] At that time she had not done so and had continued working at the Court.
[16]T 31
35 In August 2011, Ms Oppelaar, her husband and children embarked upon a trip around much of Australia by car and caravan. They had no formal plan or itinerary. They travelled as far west as Perth, north to Broome and Darwin, to far north Queensland and various places in between. They stayed some weeks in both Perth and Darwin. They arrived back in Mount Gambier shortly before the commencement of this hearing. They had been away for about 12 months. She, her husband and children continue to reside together just outside Mount Gambier.
36 During the trip she was in receipt of a Newstart allowance. She had received permission to take the two children out of school and was home schooling them as best she could.[17]
[17]T 60
37 In her affidavit sworn in June 2012 (sworn at Lightning Ridge in New South Wales whilst on her trip), she deposed that she had not been able to resume employment, that her concentration and memory was bad and she was still avoiding people as much as possible. She stated that she could not work in any environment where she had to deal with members of the public and could not work if she had to meet deadlines. She stated that she continued to have nightmares which woke her. Dreams involved workmates and were frightening. She did not consider that her condition had improved at all over the previous twelve months. She was moody and irritable. Any sort of loud noise or decision making or confrontation ended up with her becoming upset and crying. She preferred to be alone most of the time. She got headaches three or four times a week and took Panadol for that. She preferred to spend most of the time on her own, other than when she had to do things for the family. I note that, since ceasing work to undergo her hysterectomy, she has not attempted a return to work with the department or attempted to work elsewhere.
38 Prior to the commencement of her problems, Ms Oppelaar had been a member of the local Harriers Club. This involved regularly running with a group of people with associated social events.
39 In early December 2010, Ms Oppelaar was examined by Dr Shan, a psychiatrist, at the request of the defendant. Dr Shan recorded that she had told him that interests that she had given up consisted of running and socialising.[18] Ms Oppelaar was cross-examined at some length concerning running activities. Various pages from her Facebook site were tendered.[19]
[18]DCB 52
[19]Exhibit 2
40 In cross-examination, Ms Oppelaar conceded that she had not run as much with the Harriers Club after she had children, but she had still socialised with members of the club. She had stopped running with them altogether after her second child was born in 2004.[20]
[20]T 71
41 Ms Oppelaar conceded in cross-examination that in 2010 she had taken part in a number of different runs. One was a 10-kilometre fun run at the Blue Lake in Mount Gambier in November 2010. Another was a half marathon (approximately 21 kilometres) at Apollo Bay in May 2010. Approximately 300 people took part in that run.
42 After the half marathon had been run by her, she indicated on her Facebook site that she was feeling great that she had done it.[21]
[21]Exhibit 2
43 At about the same time, Ms Oppelaar agreed that she had gone on training runs of distances up to 21 kilometres. On one occasion at about that time, she included on her Facebook site the following message:
“Well, what a fantastic way to start the day! Up and running at 6 am with other mad enthusiasts, rewarding cuppa at Maccas after and feeling great for the rest of the day. Thanks Deb for a great morning and will see you again at 6 am tomorrow!”[22]
[22]Exhibit 2
44 She travelled to Adelaide with friends to take part in a 10 kilometre fun run. Her friend Deb had driven Ms Oppelaar and another friend over to Adelaide and back. They had stayed the night there. Approximately 100 runners participated in the run.
45 On any view the history given to Dr Shan in early December 2010 the she had had to give up her interest in running[23] was not true. Ms Oppelaar was doing a good deal of running and training.
[23]DCB 52
46
Ms Oppelaar also agreed that she had taken part in an event at the Melbourne Cricket Ground (“MCG”) in 2010 in support of breast cancer charities. The event involved several hundred women, dressed in pink, assembling on the playing surface of the MCG, just prior to an
AFL match and in front of a large crowd.
47 Ms Oppelaar also agreed that she had performed various duties in connection with her children’s local school including of being rostered for lunch duties, making up lunches, attending school sports, attending barbecues at the school and assisting in a reading program for students at the school.
48 Ms Oppelaar stated that she had first become involved in Facebook activities five or six years ago. It was put to her in cross-examination that her Facebook site disclosed that her likes, interests and activities included gym, running, swimming, socialising, camping, reading and travel. She agreed that the site did contain those entries. She was uncertain as to when they would have been put onto the site.
49 The various entries on the Facebook site create an impression that Ms Oppelaar is a relatively happy, energetic and social person. I appreciate that such a site may not always convey an accurate picture of such matters, but it does appear that, at least through 2010, she was energetic and active, participating in a number of fun runs and energetically training for them. I consider that this is quite at odds with the picture that she gave to Dr Shan and other doctors that she had given up running, was unable to socialise with others and unable to mix with crowds.
50 In June 2009, Ms Oppelaar told a Medical Panel that in the days when she was not working, she tried to keep fit and regularly went to the gym and went on walks. She visited friends, although less than before. This was at a time prior when the plaintiff was living and working in Warrnambool.[24]
[24]DCB 27
51 In her oral evidence, Ms Oppelaar stated that she became upset if she passed a courthouse in any town she visited during her around Australia trip. She indicated that she could not bear the thought of passing within sight of the Warrnambool Court. She said that attending the Court for the hearing had been extremely difficult. In the affidavit sworn by her in July 2010, she stated that she did not want to be anywhere near the Warrnambool Court, even to the point of feeling physically ill when near to it or Warrnambool itself.[25] Nevertheless, she was able to continue working at the Court for some sixteen months following her return to work in April 2006 and for a further period of approximately seventeen months between her return following her cancer surgery and November 2009 when she underwent a hysterectomy. It would appear that her aversion to the Court increased after she finally left work at the end of 2009 and perhaps further increased after she left Victoria on her twelve month caravan trip.
[25]PCB 30
52 Ms Oppelaar states that she avoids the limelight, crowds and noise.[26] I do not consider that this is consistent with her attending and participating in the fun runs previously referred to or attending at the Melbourne Cricket Ground in the company of thousands of people.
[26]PCB 30
Medical Assessments
53 The plaintiff tendered reports from her general practitioner, Dr Philip Hall, dated January 2009 and September 2011. The first of those reports is not relevant to this application. In his report of September 2011,[27] Dr Hall set out the history of her attendance at the clinic in late 2005 with a history taken that she felt victimised and was distressed and tearful. She was noted to be extremely anxious and developing phobic symptoms associated with her workplace. On returning to work in 2006, Ms Oppelaar had advised him that new management was in place and was very supportive, although she still had some reservations regarding ongoing issues in the workplace. In August 2007, Dr Hall noted ongoing anxiety and depression issues. At that time, Ms Oppelaar was separating from her husband who was moving to South Australia. She was commenced on antidepressant medication. Soon after, she was diagnosed with breast cancer.
[27]PCB 61
54 Dr Hall noted that in January 2010, Ms Oppelaar had declared that she was unable to continue on in the workplace due to her perception of victimisation and her sense of anxiety on approaching the workplace itself. Dr Hall said that her health and mental health had improved significantly as a result of not attending work, and there had been some degree of reconciliation with her husband and family. At the date of his report (soon after her departure around Australia), Dr Hall considered that Ms Oppelaar had made significant improvement in her mental health and further that she had moved on from her physical traumas of breast cancer. He believed that she would have difficulty in returning to her former role with the Department and that there would be a degree of anxiety associated with returning to work in any form. However, he did believe that she was employable in a suitable position in a supportive environment.
55 I note from Dr Hall’s report that she advised him that she remained convinced that the victimisation of her at work in 2005 was directly related to her knowledge of a particular case of fraud at the Geelong branch of the Department of Justice and an attempt thereby to remove her from the Department by harassment.[28] There was no mention of such a belief or event involving the Geelong branch in either of Ms Oppelaar’s affidavits or in any other history provided to doctors who examined her.
[28]PCB 62
56 Apart from Dr Hall, there appears only to have been one other person who has treated Ms Oppelaar, namely the psychologist, Ms Garrison. She saw Ms Oppelaar on about thirty-five occasions, commencing in January 2006.
57 In her report of 29 August 2006[29], she set out Ms Oppelaar’s reported symptoms of ongoing mood disturbance, feeling emotionally quite overwhelmed and distressed quite often, tearfulness and impaired sleep at times. Ms Oppelaar had also told her that she worried about her career prospects. Ms Garrison conducted various psychological tests and concluded that Ms Oppelaar was suffering from a significant emotional and psychological reaction of the type which meets the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood. The disorder had, in Ms Garrison’s opinion, responded well to time off work and counselling. She consider that Ms Oppelaar had made a sufficient recovery from her symptoms such that she was then capable of returning to her pre-incident work hours and responsibilities, provided she had access to ongoing psychological support as required.[30]
[29]PCB 46
[30]PCB 50
58 In May 2011, Ms Garrison reported that Ms Oppelaar was still experiencing significant emotional and psychological reaction of the type meeting the diagnostic criteria of an adjustment disorder with mixed anxiety and depressed mood. Again, she considered that the disorder had responded to time off work and counselling, but it persisted. She considered that Ms Oppelaar had some of the symptoms of major depression, suggesting that she found it difficult to function at times. In Ms Garrison’s opinion, despite the suggestion from the tests that dysthymia, major depression and generalised anxiety symptoms were evident, an adjustment disorder with mixed anxiety and depressed mood was still the most relevant diagnosis. The stressors identified were said to be workplace stress, cancer, relationship breakdown and reconciliation.[31]
[31]PCB 57
59 Ms Garrison expressed no view concerning Ms Oppelaar’s capacity for employment in her latter report. Ms Garrison had not seen Ms Oppelaar whilst she was travelling around Australia. She has seen her once for an hour since her return in August, a matter of a few days ago. She reported no change.[32]
[32]PCB 59.1
60 Dr Michael Epstein saw Ms Oppelaar at the request of her solicitors on one occasion in July 2011, just before she left on her around Australia trip. On that occasion, he took a history from Ms Oppelaar which included that she had resumed running three or four times per week and attending gym twice per week. She said she was not socialising as much as she had in the past. She told Dr Epstein that she was sometimes happy and cheerful but feels flat four days per week. During those times she feels bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and had problems with memory and concentration. She was less interested in her appearance and had no libido. Two to three times per week, she became quite depressed and during those times she felt hopeless, helpless, useless and worthless and became tearful. Generally her depression settled over a few hours but might last all day. She continued to have nightmares about what happened at work, at least weekly.
61 Dr Epstein recorded no history of Ms Oppelaar’s imminent around Australia trip and I infer that she did not tell him of her plans for it. He examined her on 28 July 2011, a matter of a week or two before her departure. On any view the journey was a substantial one even if she and her husband had not committed to a set itinerary. I consider it likely that her omission to tell Dr Epstein of it was deliberate.
62 Dr Epstein reported that she appeared mildly depressed and anxious during the course of his interview. Her attention, concentration, working memory and speed of information processing appeared within normal limits. From a diagnostic point of view, he considered that Ms Oppelaar had developed a chronic adjustment disorder with both anxious and depressed mood, arising from the work situation in 2005. He thought her marital breakdown might well have been contributed to by factors arising from her work situation. Her breast cancer had doubtless contributed to her level of depression and that was unrelated to employment.
63 He considered that she did not have the capacity to perform pre-injury duties, but did have the capacity to perform suitable employment part time in a supportive work environment with little pressure or responsibility. Even then, it would take some time for her to become comfortable in that environment. He considered that her psychiatric state would improve if she was able to return to work.[33]
[33]PCB 73
64 A Medical Panel consisting of psychiatrists, Dr Julian Freidin and Dr Brendan Hayman, concluded, in June 2009, that Ms Oppelaar suffered an adjustment disorder with depressed and anxious mood that had stabilised.[34]
[34]DCB 28
65 Dr Dush Shan examined Ms Oppelaar at the request of the defendant’s solicitors in November 2006, December 2010 and March 2012. In November 2006, Dr Shan considered that Ms Oppelaar was not depressed in mood, was not unusually anxious, did not describe panic attacks and did not indicate that she had any ongoing psychological symptoms that caused her to be incapable of work. At this time, Ms Oppelaar had been back at work for some seven months. He thought she might have been unfit for work for some four weeks after the meeting that she had had with the departmental officer on 30 December 2005. He did not think she had any psychological illness as such.
66 In December 2010, Dr Shan noted that Ms Oppelaar perceived all of her various conditions, psychiatric and medical, to have developed because of her experiences in the workplace in 2005 and after resuming work in 2006. He considered that the separation from her husband and the diagnosis of cancer were undoubtedly contributing factors. He thought that the medical menopause induced following hysterectomy had also contributed to a fluctuating emotional state.
67 He considered that Ms Oppelaar did not have the capacity for her pre-injury job which he thought was a highly responsible one. She would be capable, however, of manual work such as working in food services or as a shop assistant. She appeared to be capable of domestic chores and care of her children.
68 In March 2012, Ms Oppelaar flew from Darwin in order to be examined again by Dr Shan. On this occasion, Dr Shan took a history that Ms Oppelaar was uncertain if she and her husband would remain in Darwin. Again, he took a history that she was largely unsociable and had lost interest in any kind of sporting activities. Previously, she told him she had enjoyed running but found it an effort to do that at that time. Dr Shan was somewhat vague about his diagnosis of Ms Oppelaar’s condition. He did believe that she had a continuing incapacity for her pre-injury job and that there were also some restrictions for domestic and social activities, due to her fluctuating moods and symptoms. He thought that she was capable of simple, manual work but not capable of employment such as a sales consultant or a general clerk or a customer service officer.[35]
[35]DCB 72
69 In February 2009, Dr Carol Newlands saw Ms Oppelaar at the request of the defendant’s claims agent. She concluded that Ms Oppelaar at that stage had developed an adjustment disorder with mixed anxiety and depressed mood. However, she thought that this had begun to resolve. I note that her examination occurred approximately eight months after Ms Oppelaar’s return to work following her cancer treatment. She thought that whilst the initiating situations appeared to have been work related, there were other occurrences which may have played a perpetuating/exacerbating role in her symptomatology, including marital stress and separation, as well as the diagnosis and treatment of her breast cancer. She thought the initiating stressor would have been the difficulties in the workplace, but other factors may well have played a role. She considered that Ms Oppelaar should continue with antidepressant medication for some time to come. She thought her difficulties in concentration and a need to have others review her work would impact on her occupation.
70 Dr Edmond van Ammers saw Ms Oppelaar in March 2012 at the request of the defendant’s solicitors. In terms of the clinical symptoms described to him, he considered that the diagnosis would be that of major depressive episode, mild to moderate severity and limited symptom panic attacks. He also considered that a diagnosis of alcohol abuse could be given. This latter diagnosis was based on a history of two to four drinks per night. He considered that Ms Oppelaar was able to do part time casual work of low intensity and responsibility.[36] He thought that she would be able to function as a sales representative if it did not require too much initiative in terms of establishing contacts, cold calling or selling complex products. She would be able to function as a general clerk, customer service officer and console operator, he thought. If she was able to obtain a position, it would only be working on a part time basis and if such positions were neither stressful, nor involved high levels of responsibility.
[36]DCB 65
Consequences and Conclusion
71 I accept Ms Oppelaar’s evidence that she did not enjoy her time at work at the Warrnambool Court from the time that she resumed in April 2006 until the time that she finally ceased working in late 2009. Nevertheless, she did work consistently through that period, performing her normal Court duties. I accept that she was concerned about her job security and that she formed a belief that she may have, to an extent, been victimised. I am not required to make any finding as to whether that belief was justified. From the time she initially returned to work, she had supportive officers in charge. She did not indicate that any of the other members of staff at Warrnambool were a problem for her. It seems that she became deeply suspicious of visits by Geelong and Melbourne based officers of the Department. I accept that there were numerous changes made to the systems adopted in the Warrnambool Court with which she was not comfortable.
72 I consider that, although she did not enjoy working with the new OIC who took over in 2005, the most distressing aspect of Ms Oppelaar’s work during that year and early 2006 was the investigation into her conduct regarding the speeding charges laid against her. The charges, on any view, appeared to have been dealt with by the Magistrate in an unusual manner. The Department, not surprisingly, investigated the way in which those charges had been handled. Ms Oppelaar appears to have taken great offence that there could have been any suggestion of impropriety on her part.
73 Ms Oppelaar was able to continue working until she was unfortunately diagnosed with cancer. This was treated and she returned to work. She continued until she was required to undergo a hysterectomy. Her illness and the surgical procedures that followed it were serious and would have undoubtedly been distressing for her. During the same period, her husband left her and her two young children. Fortunately, they have got back together since.
74 The case put for Ms Oppelaar is that, notwithstanding her ability to work on until late 2009, some four years after the alleged offending conduct by the Department, she now feels unable to approach the Warrnambool Court and indeed the town of Warrnambool itself without distress. I do not accept that her discomfort is as bad as she would have me believe. Until mid-2010, Ms Oppelaar remained a resident of Warrnambool. She moved to Mount Gambier following reconciliation with her husband. Her sister remains a resident of Warrnambool and she sees her regularly. Despite her unhappiness with her work situation, she was able to attend work at the Court for nearly four years after the commencement of her problems.
75 During that period of nearly four years, Ms Oppelaar was able to attend work on a part time basis, as she had done for many years before 2006. She has been able to play a major role in bringing up two young children. In early 2006, those children were aged about four and two respectively. Initially, she ran the household, looked after the children with the assistance of her husband, and assisted her husband with the financial side of his own business. That business failed. From mid-2007, she appears to have run the household and looked after the children virtually on her own. It does appear that her husband did provide assistance with the family after Ms Oppelaar was diagnosed with cancer. Nevertheless, he continued to live apart from her in Mount Gambier.
76 From mid-2010, Ms Oppelaar has resided with her husband and children near Mount Gambier. I consider that there is evidence that she has not led the life of a recluse or anything like it. She is engaged in school activities of a type engaged in by many but not all school parents. She has participated in and enjoyed running activities on a relatively significant level, to which I have referred earlier in these reasons. I consider that it is of some significance that in late 2010, Ms Oppelaar advised Dr Shan that she had had to give up her running activities. I consider this likely to be a deliberate attempt to exaggerate the consequences of her condition. I consider that the Facebook pages tendered in evidence depict Ms Oppelaar as enjoying her active lifestyle and as being inconsistent with her suggestion that she lives a recluse‑like existence.
77 From August 2011 until August 2012, Ms Oppelaar, her husband and children had embarked upon and completed a major trip around Australia. The organisation of such a trip and the participation in it would inevitably have involved much planning and a degree of stress. During her year away, she received no treatment or counselling of any sort although she continued with her medication.
78 I note that Dr Hall, who has been her general practitioner since prior to 2003 and who has seen her professionally on many occasions since, concluded in mid-2011, that Ms Oppelaar had made significant improvement in her mental health. He thought that whilst there would be a degree of anxiety associated with returning to work in any form, he did believe that she was employable in a suitable position in a supportive environment. Dr Hall has not seen Ms Oppelaar since she departed on her round Australia trip and his views must be based upon his observations of her immediately prior to August 2011.
79 Ms Oppelaar was able to attend at the Warrnambool Court on the three consecutive days of the hearing of this matter. She may not have enjoyed doing so but she was able to do so. No application was made for her application to be heard at another Court in Victoria other than Warrnambool.
80 I accept that Ms Oppelaar suffers from an adjustment disorder with depressed mood and anxiety. I consider it likely that her problems at work, and especially those related to the investigation of the speeding charges against her, have been a contributing factor to the development of that condition. I do not consider that her work issues are the sole contributing factor. I consider it likely that the development of cancer and the surgical procedures that followed, together with her difficulties with her marriage, would also have been significant contributing factors. For the purposes of this allegation, I accept that it is not necessary for Ms Oppelaar to prove that the work issues were the sole cause of her condition.
81 Nevertheless, Ms Oppelaar must establish to my satisfaction that the condition from which she suffers amounts to a permanent and severe mental or a permanent and severe behavioural disturbance or disorder. She must satisfy me that the consequences of that condition are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe. I am not satisfied that she has discharged that onus.
82 In particular, I have noted the views of Dr Hall that up to the time shortly before Ms Oppelaar departed on her trip, her mental health had appeared to him to have improved significantly. He considered her fit for suitable employment immediately she departed around Australia. I further note the views of Dr Epstein that her psychiatric state would improve if she was able to return to work. I note that he considered that she did have the capacity to perform suitable employment.
83 I am not satisfied that Ms Oppelaar has established that she is unable to work, at least on a part time basis, as she did before 2006. It follows that I am not satisfied that she has suffered loss of earnings of 40 per cent or more.
84 I am not satisfied on the evidence before me that her condition could be described as permanent, in the sense that it was not likely to improve in the foreseeable future.
85 Accordingly, for the reasons expressed above, I am not satisfied that Ms Oppelaar has established that she has suffered a “serious injury” as defined in the Act.
86 Accordingly, her application will be dismissed.
87 I shall hear the parties in respect of costs.
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