Osbourne v State of Victoria (Department of Education and Training)
[2019] VCC 1374
•2 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03472
| ERIN LISA OSBOURNE | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION & TRAINING) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 27 February 2019 | |
DATE OF JUDGMENT: | 2 September 2019 | |
CASE MAY BE CITED AS: | Osbourne v State of Victoria (Department of Education & Training) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1374 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Katanas [2017] HCA 32; Taouk v State of Victoria [2013] VCC 84; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment: Leave granted to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr R Kumar | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for psychiatric injury suffered by the plaintiff in the course of her employment with the defendant on 12 October 2012 as a result of a physical assault upon her by a student in a classroom controlled by the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff relies upon clause (c) of the definition of “serious injury” under s134AB(37) of the Act, claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
4 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
5 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
6 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. She also tendered the affidavit of her husband, Kenneth John Osbourne, sworn 10 February 2019,[3] and the affidavit of her daughter, Jemma Osbourne, sworn 11 February 2019,[4] together with the affidavit of Rosaleen Helen Alban, sworn 13 February 2019.[5] In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[3]Exhibit B
[4]Exhibit C
[5]Exhibit D
Outline of Section 134AB
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By ss(38)(d) of the Act, a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of ss(16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] in reaching my conclusions.
[6](2005) 14 VR 622
11 The defendant accepted liability for psychological injury suffered by the plaintiff on 12 October 2012 and accepts that the plaintiff suffers from a psychiatric condition up until the present time and into the future, but contests whether the consequences satisfy the test stipulated. Further, the defendant submits that the current psychiatric diagnosis is that of Mixed Anxiety and Depressive Disorder (ICD Code F41.2) as per the psychiatric opinion of Dr Mendelson, psychiatrist, dated 24 October 2018;[7] however, the sole issue in contention is whether the consequences proved by the plaintiff can be described as “severe”.
[7]Exhibit 6
The Plaintiff’s evidence
12 In her first affidavit, sworn 6 March 2018,[8] the plaintiff attested she was born in October 1960 and she lived with her husband and her twenty-one-year-old daughter. At the completion of her secondary education, she completed a four-year teaching degree at Burwood Teacher’s College and thereafter, taught at the Parkwood Secondary College in North Ringwood from 1983. She taught there for thirty years until the school closed at the end of 2012. She stated her main interest was performing arts, but she also taught some humanities.[9]
[8]Exhibit A
[9]Exhibit A, paragraph 4, Plaintiff’s Court Book (“PCB”) 10
13 The plaintiff worked full time until her daughter was born in 1996, and thereafter, had seven years off on family leave until she returned in 2003, working part time. She continued working between 0.4 and 0.6 of her load, and on the date of the relevant incident on 12 October 2012, she was teaching part time.[10]
[10]Exhibit A, paragraph 5, PCB 10
14 As to the circumstances of the injury, the plaintiff swore as follows:
“In 2012 a new student, Nicolas Palich started at the school in Year 7. I hadn’t worked with him, as I had been away for the start of 2012 for cancer treatment. When I returned to work in term 3, Assistant Principal Jackie Harris called me into her office and said that Nic can fly off the handle and become violent. I was told by Jackie and the Welfare Coordinator Ann Adams that Nic had anger management issues and autism. I was not provided with any particular training of how to deal with his condition and issues.
Even though Nic was in Year 7, he was solid and already taller than me. I am 5ft 2 inches. Normally, Nic had an aide with him in every class. I was later told and believe that on the date of the incident Nic had attended the Welfare Officer Ann at recess. He had been upset but was told to go to class after the recess, which was mine.
The class was period 3, Year 7 music. Classes were about 40 minutes long. The standard class had 22 or 23 students. I was teaching the glockenspiel unit. Nic attended my class but without his aide. I had not been directed that I shouldn’t let him in without his aide present. I did not know that he had been to the Welfare Officer or had been upset before attending the class.
[Not long after] the start of the class Nic became agitated about another student. About half way through the class, I heard noise and looked up from where I was working with some students. Nic was in the front row standing holding up glockenspiel beaters ready to throw at kids in the back of the room. He was distressed and swearing. I tried to calm him down. He grabbed on to my left upper arm. He was pulling at my top and I thought he would pull it off. He was kicking me with his feet in the left hip. I couldn’t get away from him. He was swearing and spitting. I was trying to jerk away. I had just come back from breast cancer, and I was scared he would injure the operation site on the left side. I used my right side to try to jerk to get away. Eventually, he let go and ran out of the room.
While this was happening, I yelled out for the kids to get out of the room, or sit in their seats and not move. When Nic went out into the hallway, I was worried for the kids who had left the room and gone into the hallway. I ran out after him. I told kids to go and get help.
I broke down. I was hysterically crying and in shock. The kids wrote statements about what had happened. I was already in pain. The school nurse put hot and cold packs on my right shoulder and left hip respectively. I tried to calm down. I organised an appointment at the North Ringwood Medical Centre.
I later filled out an Edusafe Incident report regarding the incident. I am told and believe that Nic was expelled and subsequently attended a special needs school.”[11]
[11]Exhibit A, paragraphs 14-20, PCB 11-12
15 By way of medical treatment, the plaintiff was referred by her general practitioner, Dr Bates, to psychologist, Ms Roslyn West, whom she saw until May 2014, and was thereafter referred to psychiatrist, Dr Roxana Irimia, in about February 2013. She is still seeing Dr Irimia for medication and counselling.[12]
[12]Exhibit A, paragraph 24, PCB 13
16 The plaintiff continues to take antidepressants, and at one time was prescribed 450 milligrams of Effexor (per day). She is currently taking 150 milligrams of Effexor.
17 After the incident, the plaintiff had the rest of the term off. Parkwood College had been scheduled to close down at the end of 2012 and the plaintiff had already lined up a job at another school, Melba College in Croydon, as a performing arts teacher, which was her main area of interest.[13]
[13]Exhibit A, paragraph 28, PCB 14
18 After commencing at the new school, the plaintiff found it was “all too much”. She was referred to a psychiatrist. The new school was supportive and had agreed to split her allotment into two, whereas instead of eight periods of teaching, she only teaches four, and the balance is on library duties, performing tasks “like covering books”.[14]
[14]Exhibit A, paragraph 30, PCB 14
19 The plaintiff swore that she has been asked to teach more classes, but she has felt unable to do so, and she stated that this had been supported by her psychiatrist, who wrote a letter to the school.[15]
[15]Exhibit A, paragraph 30, PCB 14
20 In terms of her career, the plaintiff swore as follows:
“The biggest change in my work is that I don’t teach performing arts anymore. I loved teaching performing arts for three decades. I loved seeing students play different instruments and enjoy music and dancing. I no longer take part in school productions, music concerts and bands, which used to be a big and enjoyable part of my job. I see it happen at Melba College and I feel sad that I am not a part of this anymore. At Melba, I have been asked to teach music but refused. I just have lost my confidence. I can’t cope with that type of teaching anymore. I’m scared that something will happen again.
Before, I was an active and popular teacher. The kids would come into the music room, and would talk to me at lunchtime. I don’t feel that I have this connection anymore. I used to supervise student teachers and volunteer for tasks outside my role, like taking on sports teams or organising excursions. I don’t do that now. I feel like I am not contributing.
My concentration and memory are poor. I find it hard to focus on what I am doing. From one class to the next, I check students’ books to see where we are up to. I forget what I am doing halfway through a task. I have trouble remembering student names. I have even had to ask students at the school half way through an activity ‘What am I doing?’. I feel like my administration skills have diminished.
When I teach, I am afraid to enforce discipline in the classroom, or confront students like I used to. I let the kids get away with things. The students are more poorly behaved. I don’t achieve what I used to be able to achieve. I am nowhere near as organised as I used to be. I am not as confident as I used to be.
I used to have sympathy and enjoy working with students who were challenging and different, but now I struggle with this too. I have a student, who has Autism. I let him do whatever he wants. I don’t want to stand up to him. I’ve let him play games on the iPad. I wouldn’t have previously put up with this. I don’t want him to flare up. I am very nervous with kids who misbehave. I feel guilty about my behaviour.”[16]
[16]Exhibit A, paragraphs 32-36, PCB 14-15
21 The plaintiff swears that at home she adopts the opposite attitude as follows:
“At home, I am the opposite. Rather than too permissive I am often negative and don’t have patience. I am snappy and irritable at times. It has affected my relationship with my husband and daughter. They try to encourage me to go out, but I often want to stay at home. My relationship with my husband is different. My daughter has been upset about what happened and needed her own psychological treatment to help cope.
I think about what happened all the time. I feel a lot of anger towards the student Nic who attacked me. I didn’t do anything to provoke him. I just tried to stop him hurting other kids. I have never hurt anybody or anything. I don’t know why he did it.
I am very forgetful generally. I have forgotten that I have washed my hair and face and done it for a second time before I realised. More than once I have forgotten that I had taken medication and ended up either missing it taking a second dose. One time, I was so disorientated that I took my dog’s medication by mistake.
At home I have become untidy. I used to be neat and put everything away. I just don’t care. It doesn’t matter to me anymore. I hoard stuff at home and live in clutter. My husband now does most of the housework.”[17]
[17]Exhibit A, paragraphs 37-40, PCB 15-16
22 With respect to her other interests, the plaintiff swears:
“I used to love reading. I haven’t been able to read a whole book since the incident. I can’t concentrate. I have started to pick up books and I don’t remember what I have read. I still buy books but then I don’t read them. I really miss reading.
Along with reading, playing piano used to be my passion. Playing piano has been a part of my life since I was seven years old. It was what I did at school and I have a piano at home. I can’t even imagine going back into a music class. I don’t play piano at home because it isn’t enjoyable. I don’t have [the] urge. After all this time not playing since 2012 I suppose I have lost my skills. My musical ability used to be a big part of my life and something that I was proud of. I have a big collection of piano music, but I have given some of it away. I don’t think I will ever play again.”[18]
[18]Exhibit A, paragraphs 41-42, PCB 16
23 In her second affidavit, sworn 11 February 2019, the plaintiff swore:
“I still see my psychiatrist Dr Roxana Irimia at least once a month. I have counselling with her, and she prescribes my medication. Paragraph 26 of my previous affidavit said that I took 100mg of Effexor but that would have been incorrect. I take 150mg of Effexor daily. I have been at this dose since about December 2017. WorkCover pays for the psychiatrist appointments, and the medication.
I am still working at Melba College for the 0.5 allotment. I teach half the amount of classes that I would normally teach for a part time allotment. The remainder of the time I work in the library helping out. I don’t think I could cope with more teaching time. The time in the library and reduced teaching load [is in] accordance with my Certificate of Capacity from my GP Dr Bates.
I still don’t teach performing arts or music. I loved it, it was a big part of my identity. When there is a school musical or performance in assembly I miss what I used to do. However, I don’t think I could handle it. It is not an option for me. Even thinking about teaching those subjects makes me nervous and anxious. I need a calm and controlled class.
I am nervous before I get to know the kids and wary of students generally. I avoid conflict, especially with any troublesome students. I’d prefer to just let them get away with things. Even when I do yard duty, I call over other teachers if they need to discipline students. This is nothing like how I was before, where I was an outgoing and confident teacher.
There was an incident at the school last year where a kid bailed up the Vice Principal. I was in the library and heard noise. I went out and saw what happened. I thought the student, who I had previously taught, was going to hit the Vice Principal. I was terrified. I didn’t want her to go through what I have been through. I burst into tears in front of other staff and a student doing work experience. I felt horrible, and get shaky and teary thinking about it now. The student is still at the school. I am scared of him and go out of my way to avoid him. I can feel scared of any student who yells and carries on.
I stay at school because this is the career I trained to do. I don’t want to let Nick (the student in the original incident) ruin my career. I don’t want to let him to ‘beat me’ or ‘win’. It was the career that I chose and that I loved. I talk to my psychiatrist about school and we work through issues. She has been very supportive helping me stay at work.
Outside of work I don’t do much. I spend a lot of time preparing even though I only teach a quarter load. I haven’t returned to reading. I used to be an avid reader. I would read over 20 books a year easily. I read all sorts of books. I haven’t read a full book since October 2012. I keep buying them and sit them on the bookshelf. I try to read but I can’t concentrate. I forget where I am up to and what happened.
I also haven’t returned to playing the piano. I have tried to get on it, but don’t play the old pieces anymore. My technique is gone, I don’t have the ability like I used to. I feel extremely upset about it because for a long time playing the piano was my life.
I go to an art class once a week. I started this a couple of years ago [I] did [this] as a sort of therapy. Roxy encourages me. It gets me out of the house and helps me turn off. I don’t do art outside of the class at all.
I rely on my husband Ken more than I ever did. I don’t have an interest in the house anymore. Ken does most of the heavy cleaning which I stopped doing. I can’t be bothered maintaining the house. It doesn’t feel important.
I don’t really like going out. Even going out with my husband and daughter can feel like too much of an effort.
I dream about school a fair bit. I dream that I can’t control the class. Things go wrong all the time in my dreams and I can’t change it. Even in my dreams I have no confidence. I feel like a useless teacher.
…
I feel angry at the world and how people treat each other. I get so angry when I watch the news, and think about people getting away with things. I wasn’t like this before. I feel I have too much negativity in me. I am more anxious and worried about things than I used to be. I feel I have too much negativity in me.
I don’t feel like I’m the person that I used to be. I’m less tolerant. I get angry quickly. I get road rage within the car, which I never did previously. At school I am the opposite and avoid conflict as much as possible. I feel like there are two of me currently, but the one person that I want to be has gone. I feel unstable and out of balance in my mind.
I still keep each of the boxes of medication that I have taken. Attached to this affidavit and marked ‘ELO-2’ is a photograph of the boxes. I find it hard to say why I keep the boxes. I have kept them from the start. I think I was hoping that needing medication would only be short term. Now, years later, it is reminder of what I have been through and, as the pile gets bigger, what I continue to go through. I don’t like taking the medication at all. I feel forced to stay … on it because of the symptoms that I suffer. This is the medical advice from my psychiatrist that I can’t just quit. I get side effects from the medication. If I miss taking the medication, I feel sick and dizzy and ill. This has happened a few times and I feel paranoid about it. I can’t believe that I have taken so many boxes of tablets. I feel sad about it. I need the medication to calm me down and help me keep in control. I wish I could stop but don’t think I could handle things without it.”[19]
(sic)
[19]Exhibit A, Plaintiff’s second affidavit, sworn 11 February 2019, paragraphs 4-15 and 17-19, PCB 27-29
Cross-examination of the Plaintiff
24 The plaintiff agreed that she applied for employment at a new school after the subject incident of 12 October 2012, as she knew her school at Parkwood was to close at the end of the year. She was accepted at Melba College for 2013.
25 The plaintiff completed an “Expression of Interest” in Term 4 of 2012, wherein she asserted her main area was music, which had evolved into performing arts, and that she also enjoyed history and geography.[20] She also stated, therein, she had a fascination with ancient history and medieval history and has enjoyed teaching those subjects to many classes.[21] She also represented, therein, she had a lot to offer to the school, having had thirty years of experience.[22]
[20]Transcript (“T”) 20, L29-31
[21]T21, L1-2
[22]T21, L5-8
26 The plaintiff agreed she started at Melba College in around January 2013, and her allocation was a humanities class and a classroom consisting of music and dance. She had indicated she wished to work the same number of hours, being 0.5 of the available hours.[23]
[23]T21, L16-27
27 The plaintiff had started seeing a psychologist in November 2012, but at the commencement of the year, in 2013, she had yet to see her psychiatrist. She had discussed the return to work with her psychologist and general practitioner and, at that stage, was not on medication.[24]
[24]T21, L30 – T22, L5
28 However, when the plaintiff commenced at Melba College she found the experience very difficult and she started seeing her psychiatrist, Dr Irimia. At this stage, she was off work for about three weeks. When she came back to work, she was unable to maintain a 0.5 workload.[25] When she built up to 0.5, she still had no contact with students.[26]
[25]T22, L14-19
[26]T22, L25-27
29 In that first period, the plaintiff worked with the vice-principal, assisting with parent/teacher interviews, making cups of tea for the parents and “those sorts of roles”.[27]
[27]T22, L30 – T23, L2
30 By the end of 2013, the plaintiff had two classes and she had started to work in the library. She enjoyed the library work at that time and continues to do so.[28] In February 2014, she told her psychologist, Ms Roslyn West, that she loved the library, learning to catalogue and working on displays.[29]
[28]T23, L10-11
[29]T23, L21-23
31 Also, the plaintiff agreed she taught two Year 9 girls piano, thirty minutes a week, in compliance with the Duke of Edinburgh music course.[30] The plaintiff said she took on this course so that she would not have to do face classroom music, but once the girls finished their Duke of Edinburgh course, she did not take any more students. She agreed that she was prepared to take on more piano students on the basis that it was either one on one or two on one, but not a classroom situation.[31]
[30]T24, L1-10
[31]T25, L1-4
32 The plaintiff agreed she continued to work the 0.5 number of hours up until the present time, and as far as she was aware, the school was happy with her performance.[32]
[32]T26, L14-20
33 The plaintiff agreed she saw a Dr Tagkalidis in 2017 for an impairment assessment. She agreed she gave a history of having ongoing problems with her memory and concentration, but that she was still able to multitask and manage reasonably well in the school environment.[33]
[33]T27, L17-29
34 In either 2017 or 2018, the plaintiff was offered to go back into the music department, but she refused, because she felt unable to go back into that environment.[34]
[34]T27, L30 – T28, L8
35 The plaintiff agreed that she had kept the same ratio of teaching and library since the end of 2013, and she had not tried to adjust it, and as far as she was aware, the school was happy to keep it at that level.[35]
[35]T28, L16-21
36 When it was suggested to the plaintiff that the regime had not changed because she was enjoying the role in the library, she replied:
“I enjoyed the role in the library. If I could go back and teach music, and be like I was, I would do it and give up the library. But I just can’t face one of those music classes.”[36]
[36]T28, L26-29
37 It was put to the plaintiff when she saw Professor Mendelson, psychiatrist, on behalf of the defendant in October 2018, and it was his opinion that her current emotional state would not prevent her from trying to increase her teaching load gradually and to attempt to teach the same subjects as she did prior to the assault, which might be facilitated if she initially had another teacher in the classroom with her, she replied she did not think she had discussed that with him.[37] In any event, she disagreed that she would be able to adhere to that regime, and replied:
“No, there’s no way I would want to teach with another teacher in the classroom. Melba’s sort of trying to have what they call sessions where – peer observation – and I’ve avoided that every step of the way. I do not want anyone in my classroom, I don’t want them to see (witness distressed) – I don’t – don’t want them to see the lack of confidence that I used to – and I’m embarrassed. And I would never go back in there, that - do everything to - anything to avoid having someone watch my class. We have glass partitions in our new building and I make room changes just to avoid having someone in the other room.”[38]
[37]T29, L3-13
[38]T29, L17-28
38 The plaintiff agreed that when she was seeing her psychologist, it was helping her emotional state, and she stated that her psychologist, Ms Roslyn West, helped her a lot in those early days.[39] When it was put to her that from about the middle of 2014 there had been some further improvement in her emotional state, she replied:
“I think - well, I - I built up a lot, I got onto a lot of medication and I gradually have come down from that, so I’m not what I used to be, but I’m not what I was back then either.”[40]
[39]T31, L10-16
[40]T31, L24-27
39 The plaintiff also agreed that she had experienced a gradual improvement over the last several years.[41]
[41]T31, L28-31
40 The plaintiff was taken to a report of Dr Roslyn West dated 28 May 2014 wherein it was recorded: “Now she is not as easily startled and can think things through without getting upset”[42] and she replied: “Yes, maybe not as upset, but I still got upset.”[43]
[42]T32, L12-14
[43]T32, L15-16
41 Further, she agreed that she had survived some fresh challenges with students in recent times (2014) and that she was well supported in her new school by the principal and vice-principal.[44] She also agreed that that has continued to be the case up until the present time.[45] She further agreed that her condition since 28 May 2014 had been handled by her general practitioner, Dr Bates, and her psychiatrist, Dr Irimia. She was asked:
Q:“Has what Dr Irimia been doing with you, or been talking to you about … changed from February 2013 to whenever it was you last saw her? January or February 2019?---
A:Yes, because when I was – I couldn’t go in there without crying every session to Roxy [Dr West]. And – and we would work through things. But it’s been the same sort of topic and the same help all the way through.”[46]
[44]T32, L26-31
[45]T33, L1-2
[46]T35, L25 – T36 L1
42 The plaintiff agreed that Dr Irimia would be the person that she had spoken to most frequently and regularly because she saw her general practitioner, Dr Bates, every three months. The prescriptions come from Dr Irimia.[47]
[47]T36, L18-24
43 The plaintiff agreed that she spoke to Dr Bates about things happening at school and about situations at home, but mainly about school.[48]
[48]T37, L1-7
44 In terms of her treatment, Dr Bates writes her Certificates of Capacity and receives information from the psychiatrist as to what she is doing.[49]
[49]T37, L15-22
45 The Certificates had been constant since the incident happened and she gives them to the bursar at the school. Her medications consisted largely of Effexor, and the dosage has varied over time. It was now 150 milligrams.[50] The plaintiff had been gradually reducing her Effexor from a previous high of 450 milligrams daily.[51] The gradual reduction has usually occurred in school holidays. Further, the plaintiff agreed she would make future attempts in the forthcoming school holidays to cut down again. She replied:
“I would like to because I hate being on it … Just always a constant reminder of what was going wrong in my life and what happened, and I hate it, I hate being on the medication.”[52]
[50]T37, L15-31
[51]T38, L25
[52]T40, L22-26
46 Further, the plaintiff stated that she could not go off the medication because “I get too sick”.[53] She stated, further, that she always tried to cut down with a doctor’s assistance, but a couple of times she would forget to take them and then become sick the next day.[54]
[53]T40, L30
[54]T41, L1-7
47 In the middle of 2017, the plaintiff agreed with a history given to Dr Tagkalidis, to the effect:
“The worker stated that she is independent in all personal activities of daily living. Showers every day and dresses every day with good interest in her self presentation.”[55]
(sic)
[55]T41, L31 – T42 L4
48 The plaintiff further stated:
“You know, yes, he [her husband] was always doing the gardening and he still always looks after the garden. And I always did the housework, you know, every Saturday morning. Clean the showers, all that sort of stuff. But I don’t do that any more. I – I think it’s got worse over the years.”[56]
(sic)
[56]T42, L18-23
49 The plaintiff agreed that she had told Professor Mendelson that her husband cleans the shower and the toilet, and vacuums and irons the clothes.[57]
[57]T43, L1-4
50 The plaintiff agreed that she had an injured shoulder since 2012 and although household activities aggravated her shoulder pain, she disagreed that she had not done the chores since 2012 because of the physical injury. She stated:
“No. Because I could – I could physically do them. It’s more I just – I don’t want to do them. I don’t look at housework as important anymore, I don’t care if the house is dirty.”[58]
[58]T44, L2-5
51 It was put to the plaintiff that with the assistance of Ms West, she was able to get back to cleaning certain rooms. She replied:
“We try to keep the lounge room and the dining room clean, and the family room. The rumpus room is a shambles. We moved out of our bedroom down to a bedroom with Jemma because our bedroom is just covered - my bed’s covered in clothes and things I just don’t pack away, and the den’s a shambles, so we try to keep the lounge room and the dining room clean, but there are three other rooms in our house that are significantly cluttered and full of mess.”[59]
[59]T44, L21-29
52 The plaintiff agreed she had told Dr Tagkalidis in June 2017 that the nightmares and flashbacks had abated around two years ago, but she stated she does dream about school a lot.[60] It was further put:
Q: “Those dreams are pretty occasional, aren’t they?---
A:Yeah, maybe a couple of times a month, but it’s always on school and always I can’t cope.”[61]
[60]T45, L1-5
[61]T45, L13-15
53 The plaintiff agreed that, since the incident, she had taken up an art class and a drawing class on a weekly basis for relaxation.[62]
[62]T45, L15 – T46, L8
54 With respect to reading, she was asked:
“Is it a case you’ve chosen not to pursue it?”[63]
[63]T48, L2
55 To which she replied:
“No, every night would be, go to bed and read – start reading a novel or get back into a novel, and I’d continue reading that novel every night, but after this happened I couldn’t concentrate, I’d forget what I’d read, I’d have to start again the next night. I might get a bit further forward into the book and in the end I just gave up.”[64]
[64]T48, L2-8
56 The plaintiff further stated:
“… every so often I’ll pick up a book and try, but, again, the same things happens, I can’t remember what’s involved, so I have to go back and read it again and I just – I just think what’s the point, I can’t – I can’t read it, I can’t understand and take it in enough to continue the next day.”[65]
[65]T48, L12-17
57 The plaintiff has bought books and tried to read during school holidays, and with respect to the recent Christmas holidays, she said:
“… I bought the book, The Boy in the Striped Pyjamas. I bought a whole lot of books from book depository, I can’t remember the names of them, but I haven’t opened up any of them – well, I have opened them up but I haven’t read them.”[66]
[66]T48, L23-28
58 When asked:
“Have you tried reading a book that you have read previously and that you enjoyed?”[67]
[67]T49, L30-31
the plaintiff replied:
“Yes, yes, I did … Same thing. I really like Matthew Reilly, an author, and I know I really got into his Ice Station book, and I’ve tried numerous times to start that again, and I can’t – can’t get into it.”[68]
[68]T50, L1-5
59 When the plaintiff was taken back to the question about loss of pleasure, to which she had earlier replied “I get as much pleasure as I ever did from the things I enjoy”,[69] she stated:
“… I know this is going to sound silly, and I feel (witness distressed) – I just wanted to get over the whole thing and keep going with my life. I was on so many drugs, and I knew that I shouldn’t – not fill it in correctly, but I just wanted to get it all over and done with. If I had to fill it in now, I would put different answers.”[70]
[69]T51, L1-2
[70]T51, L3-9
60 The plaintiff was then taken to the topic “loss of interest”, and she agreed she had circled “I have not lost interest in other people or activities”.[71] She stated:
“I hadn’t lost interest in – in my school kids or – but I wasn’t playing the piano then, I wasn’t doing anything. I don’t know why I wrote – I can’t tell you why I wrote what I wrote.”[72]
[71]T51, L25-26
[72]T51, L26-29
61 With respect to concentration, the plaintiff circled “I can’t concentrate as well as usual”.[73]
[73]T51, L31
62 It was then put to the plaintiff that she had answered the questionnaire honestly at the time and that since that time, there had been a gradual improvement in her condition. She replied:
“No, I disagree with that. And - and this, I still believe that the medication I was on, it was such a high dose, you know, maybe I did feel like this thing, but if you’d taken me off the medication and asked me to fill it in, I wouldn’t have filled it in the same way.”[74]
[74]T53, L5-10
63 The plaintiff further stated that she was hoping, when her daughter, Jemma, finished Year 12, she could go back to full-time work, but agreed it would depend if the school could offer her that position.[75]
[75]T54, L25-31
Re-examination of the Plaintiff
64 The plaintiff was taken back to the questionnaire document and the state she was then in when taking 450 milligrams of Effexor a day. She stated:
“Well, the medication made me feel like I was stable, made me feel that I could cope with things and that life was, yeah, okay, and – and by filling this in I probably did feel like I was doing okay on this – being on that high dosage. But you know, even know – as I said before, to fill that in – I would fill that in differently now.”[76]
[76]T56, L13-19
65 The plaintiff stated that in the year of her injury, her daughter was finishing Year 12 and that she had hoped to go back to full-time work because she felt she did not need to be home for Jemma anymore, who would be going off to university.[77]
[77]T56, L1-9
66 With respect to playing the piano, the plaintiff stated that she had a piano at home and:
“Dad started myself and my two sisters off playing the piano when we were young, so I – I started when I was seven. I did all the exams, I did all the theory exams, and then I went to a music school for Year 11 and 12 – Blackburn Secondary – or Blackburn High. And then I went to teachers college, and majored in music, and then I taught for all that time at Parkwood in the music area. So it was my life. Every subject I taught, apart from a couple of humanities classes, was music. I was able to play at home. I don’t play at home any more.”[78]
[78]T58, L3-13
67 When asked how she felt about certain rooms being cluttered in the house, the plaintiff replied:
“… I feel frustrated and I feel worthless, I just feel like I’m - I feel like not a good mother and wife because I can’t even keep a house clean. I can’t pack things away. It just makes me upset and I’ll try, I’ll suddenly decide yes I have to go and clean the den, and I get halfway, not even halfway through and I just give up.”[79]
[79]T59, L21-27
68 When asked about her attitude towards housework, the plaintiff replied:
“I don’t feel the need, it doesn’t feel important to me anymore to keep the house clean. I can’t honestly say why. I could vacuum, I could iron if I wanted to, but I just don’t, I don’t really know why I don’t, but it’s not important to me.”[80]
[80]T60, L2-6
69 When asked why she could not face music classes anymore, the plaintiff replied:
“Well, the music class was where it happened. It’s where Nick attacked me. And I don’t like it, I don’t like the idea of kids in there, it’s not controlled, in a music class it can get noisy, ah, and I don’t like that any more, I don’t feel safe in it any more.”[81]
[81]T61, T12-17
Submissions by the Defendant
70 Defence counsel submitted that while the Court could find that the condition is significant, it does not reach the necessary statutory threshold.
71 Counsel relied on the opinion of Dr Tagkalidis[82] of a partially resolved Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with partially resolved features of traumatisation (as at 16 June 2017). Further, medico-legal psychiatrist, Dr Turnbull, for the plaintiff, stated:
“I tend to agree with Dr Tagkalidis’ opinions about adjustment disorder and major depressive disorder … .
…
… it is my opinion that her diagnosis is major depressive disorder that is now in partial remission.[83]
[82]Defendant’s Court Book (“DCB”) 42
[83]PCB 77-78
72 Further, Dr Tagkalidis stated:
“… due to the nature of the psychiatric injury, the duration of the symptoms and the duration of treatment, the workers psychiatric condition has substantially stabilised, and is unlikely to remit with further treatment.”[84]
[84]DCB 42
73 It was further submitted that the treating psychiatrist, Dr Irimia, is in broad agreement with the other two psychiatrists when he diagnosed:
“… depression in partial remission and generalised anxiety disorder with panic attacks, also in partial remission. She had significant post traumatic stress disorder symptoms, but in good control now”.[85]
[85]PCB 60
74 Further, psychiatrist, Dr Mendelson, for the defendant, considered that the preferred diagnosis was one of Mixed Anxiety and Depressive Disorder and it was unlikely that the symptoms would fully resolve, but there may be some further improvement after she retires.[86]
[86]DCB 64
75 Further, when Dr Turnbull is asked to comment on the severity of the injury, he has stated:
“… [the plaintiff] fits in somewhere between all those in terms of functional capacity. In terms of her illness, there has been a fairly reasonable improvement of her symptoms and condition, albeit not a complete one. I think she is on the moderate to severe end of her illness. I would be comfortable in saying that she suffers a serious psychiatric illness, but less comfortable concluding that it is severe in a clinical or functional sense though I would not entirely rule it out.” [87]
[87]PCB 79
76 Counsel also referred to the opinion of Dr Tagkalidis, to the effect:
“… she has good energy levels, motivation and drive, and an improved libido in the last 2 years. She said that she has reduced concentration, struggles with focus and is less well organised in thought with forgetfulness but can multitask and manage reasonably well at work.”[88]
[88]DCB 38
77 Further, Dr Tagkalidis stated:
“… she is independent in all personal activities of daily living, showers every day and dresses every day, with good interest in her self-presentation. She said that she is primarily responsible for household chores … .”[89]
[89]DCB 38
78 Further, Dr Irimia, as the treating psychiatrist who sees the plaintiff monthly, essentially only comments on her ability to work.
79 It was submitted this was to be compared with the history taken by Dr Turnbull to the effect that the plaintiff never had a wide group of friends, but was clearly less involved in friendships and outings than before. It was submitted that Dr Turnbull did not refer to this aspect in a way that necessarily connoted great significance for the plaintiff. It was further submitted that Dr Irimia, who sees the plaintiff on a monthly basis, does not expand sufficiently as to the psychological consequences of the injury.[90] It was submitted that there was a dearth of material from treating doctors as to what are the consequences for this particular plaintiff as related to them.
[90]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
80 In particular, it was put Dr Irimia does not mention playing the piano, reading or teaching music.
81 On the other hand, the defendant’s psychiatrist, Dr Mendelson, did relate that the plaintiff’s current emotional state would not prevent her from trying to increase her teaching gradually and to attempt to teach the same subjects, as she did prior to the assault on 12 October 2012. Specifically, he did have a history about her piano playing and teaching music and reading.[91]
[91]DCB 59
82 As to the severity of the consequences, defence counsel submitted the plaintiff had been in steady work since 2013, wherein there had been no extended absences. As far as she was aware, the school was happy with her performance and there was an ongoing position for her. It was put that the plaintiff conceded she could manage reasonably well in the school environment and that there was no reason that she would not be able to continue as she has over the last four or five years.
83 It was further put that it was her own perception that her performance as a teacher is affected but that the objective evidence was that she had been teaching history from the same text book for some thirty years and that the Court should not be satisfied that there was any significant impact upon her ability to perform as a teacher by reference to her psychiatric condition.
84 Further, it was put that the plaintiff now does an art class, which was not part of her pre-injury regime, and she appeared to be enjoying that immensely.[92]
[92]T45, L21 and following
85 Further, since filling out the questionnaire in 2014,[93] which, it was submitted, tells against significant loss in terms of hobbies, it was put that the plaintiff conceded that there had been a gradual improvement since that time.[94]
[93]Exhibit 8
[94]T53 L6
86 Further, it was put that the allegation that she did not get enjoyment from playing the piano should be compared with the fact that she wanted to keep tutoring the piano at school for either one or two students at a time.[95]
[95]T62, L8
87 It was further submitted that the current level of medication of 140 milligrams may be reduced in the future and, also, the frequency of psychiatric treatment has reduced.[96]
[96]T34, L21
The Plaintiff’s submissions
88 It was conceded that “severe” is a stronger word than “serious”, but is not subject to any further adjectives.
89 The Court’s task is one of looking at all of the relevant consequences and not simply picking on one consequence, or one seemingly major consequence, and making it a determination based on it.[97]
[97]Transport Accident Commission v Katanas [2017] HCA 32
90 The first consequence comes under the heading of “loss of vocation” in the sense the plaintiff was primarily a performing arts teacher, and it was an occupation that she loved very much and she could no longer do it. It was clear that the plaintiff could do some school teaching, but not in her chosen field, one that she loved.
91 It was also submitted that although the plaintiff was still attending the same number of hours as previously, only half the amount of time is spent on teaching. Although it was true that she enjoyed the library work, her preferred role would be as a performing arts teacher and/or a music teacher.
92 Further, it was submitted that the loss of one’s preferred vocation was held to be significant in the cases of Taouk v State of Victoria,[98] and Hunter v Transport Accident Commission.[99] In the latter case, the plaintiff had not returned to school teaching and was working part time in her own business. Nettle JA (as he then was) found that even if the plaintiff could return to teaching part time, he would still find that there was a severe injury. It was submitted that his Honour found that the definition of mental impairment was satisfied because he noted the inability to do the job full time related, in part, to its complexity and her inability to deal with the complexity of the task.
[98][2013] VCC 84
[99][2005] VSCA 1
93 It was further put the plaintiff should be seen as a witness of truth and that in the witness box the plaintiff presented herself as credible, frank and measured, even though there were moments of her exhibiting high levels of distress. I agree with this submission. It was submitted that those moments of distress were not contrived and it was significant that they arose, particularly with respect to the issues of an inability to teach in a classroom in her chosen field, and also relating to playing the piano at home. A third issue in this regard was the requirement to take medication, which she made abundantly clear that she disliked. Further, it was submitted that when giving evidence relating to those particular consequences, the plaintiff becoming emotional, corroborated the proposition that those losses were of great significance in her case.
94 It was further put that in the witness box the plaintiff was a person who was doing her level best to keep an even keel in giving evidence, and what transpired is that she was overwhelmed momentarily on a few occasions by emotion, and then quickly remorseful of same, and this should lead to the Court’s conclusion that she was a person of fragile disposition who struggled to keep her emotions in check. I would accept this submission.
95 It was next submitted that the variations of diagnoses with respect to the medical evidence was not significant, particularly where causation was not an issue. Accordingly, it was the plaintiff’s submission that there was significant ongoing depression and significant ongoing anxiety, to the point of Panic Disorder, albeit both of these are in partial remission. It was further put that the plaintiff’s psychiatric condition was quite possibly able to remain stable, but the tenure of Dr Irimia’s opinion was that she was fragile to the extent that the prospect of deterioration was in the mix, and it was contended that the prospect of improvement is a dim prospect, at best, on the evidence.
96 By way of example, Dr Turnbull related the incident at school, post-injury, when the plaintiff simply experienced a boy yelling at the principal, although it was no direct attack upon her, led to her breaking down.
97 It was emphasised that Dr Turnbull expressed the view that the plaintiff no longer reading or playing the piano, and doing less outdoor activities, were all because of her psychiatric status.[100]
[100]PCB 79
98 It was further put that the need to take daily medication was a significant factor, as, indeed, the plaintiff’s efforts to reduce same over the years. The plaintiff stated it was:
“… Just always a constant reminder of what was going wrong in my life and what happened, and I hate it, I hate being on the medication.”[101]
[101]T40, L24-26
99 It was submitted that this was evidence that it was not only the annoyance of having to take pills at a regular time each day, but it was something that perpetuated her memory of the events giving rise to her injury and, in particular, counsel referred to the evidence about the packets of medication being horded, and shown to the Court, and referred to as “blasted things”.
100 With respect to the ongoing need to take medication, counsel relied on the treating psychiatrist, Dr Irimia’s, statement:
“… she could not tolerate a decreased dose of antidepressants … due to a tendency to [a] relapse of her anxiety and depression.”[102]
[102]PCB 60-61
101 Further, Dr Bates, her treating general practitioner, stated:
“… [The plaintiff] remains on … and this is likely to continue for the long term.”[103]
[103]PCB 40
102 In addition, Dr Turnbull expressed the view with respect to whether further treatment was required, to the following effect:
“… I think the status quo should be maintained to prevent deterioration.”[104]
[104]PCB 78
103 Further, with respect to the maintenance of an ordered household compared to one which is now described as “a shambles” is of significance, it is submitted that the way in which the plaintiff had kept her house in the past is something that was very fundamental in terms of enjoyment of life. Once again, I can accept this submission.
104 With respect to the cessation of hobbies, the plaintiff told the Court that she previously loved reading, and that she had not read an entire book in the past six or seven years. It was put that this was a very significant loss for a person who had been an avid reader. It was submitted that the consequence was related to the issue of concentration and not being able to remember what she had read, and finding the whole experience frustrating, and something that just led her to give up.[105]
[105]T47-50
105 With respect to playing the piano, it was put that the sequence is one of a psychiatric injury, losing interest, not playing, and ultimately losing technique, all of which amount to a chain of causation and, thereby, a consequence of the injury.
106 It was further put that the plaintiff’s change of behaviour with respect to her family, in the sense that she was now snappy and irritable, also had a consequential impact on her enjoyment of life. The plaintiff’s subjective view expressed to Dr Tagkalidis, was that she had only recovered to about 65 per cent of her pre-accident self. This comment was repeated to Dr Mendelson.[106] It was put that a fundamentally significant consequence was the plaintiff’s loss of identity. She felt like there were two of her, two personalities, but that the only type of person she wanted to be was the one that was gone.[107] It was submitted that this was a very significant consequence, being a fundamental change in identity. It was submitted that this consequence alone would be sufficient to make the finding severe. It was put that a significant change in who you are and how you engage in the world is at such a fundamental level, impacting on so many aspects of existence, that its destruction to enjoyment of life is “very, very impactful”.[108] This change in personality was amply corroborated by her family members.
[106]DCB 37 and DCB 60 respectively
[107]PCB 29 at paragraphs 17 and 18
[108]T129
107 With respect to Dr Irimia not supporting an incapacity for work on account of the injury, it was submitted his opinion was to the effect that she was encouraged to only work the current “arrangements”, which are said to include library hours and reduced hours, and that he would discourage any type of full-time employment and any significant change to her current “working routine”.[109]
[109]PCB 60 and 61
108 Further, it was submitted that the plaintiff’s questionnaire completed in 2014 was at a time when she was on 450 milligrams of Effexor, compared to her present 150 milligrams per day. It was submitted that I am to assess the plaintiff as she is today and not when she was taking 450 milligrams per day. Her explanation “I don’t know why I wrote – I can’t tell you why I wrote what I wrote”[110] is explicable, it is said, in terms of the medication then being consumed. It was then submitted that unless the Court was to find the plaintiff was a prevaricating witness or not a witness of truth, it should be accepted that that was something that she did without being able to give a current subject explanation, but which is objectively explicable in terms of the difference in medication. Suffice to say, I do not find the plaintiff prevaricated in any respect and I considered her a witness of truth.
[110]T51, 28-29
109 Finally, it was submitted that the impairment consequences are to be assessed by reference to the plaintiff’s own evidence, to lay evidence, and, of course, the medical evidence. It was submitted the consequences related in the medical evidence need not be proved by reliance on each of them individually. It can be proved by reliance on any one of them, so the fact that Dr Irimia, for example, or any other doctor, has not mentioned a particular topic, should have little weight if the Court can be satisfied, on other evidence, that the matter is well established.
110 Finally, it was submitted that the case of Katanas[111] was authority for consequences such as loss of interest, motivation, and inability to concentrate, to be seen as symptoms and consequences of mental impairment.
[111]Transport Accident Commission v Katanas (supra)
Analysis
111 It is clear enough on the whole of the medical evidence that the plaintiff has suffered a permanent mental or permanent behavioural disturbance of disorder as a consequence of psychiatric injury suffered in the course of her employment.
112 The task, therefore, is to determine whether the consequences of that mental or behavioural disturbance or disorder are “severe”.
113 In my view, the plaintiff was a witness of truth and wholly reliable in describing the consequence of her injury.
114 The plaintiff has been required to undergo regular psychiatric treatment and is on daily doses of medication in the vicinity of 150 milligrams. This is likely to be of a long-term nature in order for the plaintiff to operate at or about her current level.
115 The taking of the medication is stressful to the plaintiff, in the sense that it reminds her of her disability and the injury, and the manner in which it was incurred.
116 I am satisfied that the plaintiff has undergone a significant change in her personality in the way that she operates in the world, in the manner described above. Although she is able to work the same hours that she was working pre-injury, I am satisfied that it was her intention to work full time once her daughter completed Year 12 in or about 2013. I am satisfied that she is unable to work in a classroom of more than two or three students because of her loss of emotional control in a classroom situation.
117 I am satisfied that she has lost the ability to enjoy he recreational activities, such as playing the piano and reading novels, and that her ability to maintain a tidy house has been severely compromised in the manner described.
118 Taking a holistic approach of all the components of the consequences, and finding the plaintiff a witness of truth, I consider that those consequences of her mental disorder can be described as “severe” and leave will be granted in the manner sought.
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