Panayi v Pilcher (t/as McKinnon Pharmacy and Post Office)
[2012] VCC 1848
•29 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04442
| Christina Panayi | Plaintiff |
| v | |
| Trudy Pilcher (t/as McKinnon Pharmacy & Post Office) ABN 44 481 373 977 | Defendant |
---
JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 & 14 November 2012 | |
DATE OF JUDGMENT: | 29 November 2012 | |
CASE MAY BE CITED AS: | Panayi v Pilcher (t/as McKinnon Pharmacy & Post Office) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1848 | |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – psychological injury – pain and suffering only
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms B.Knoester | Zaparas Lawyers |
| For the Defendant | Mr B. McKenzie | Lander & Rogers Lawyers |
HER HONOUR:
1 The plaintiff applies under s 134AB (16)(b) of the Accident Compensation Act 1985 for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of the psychological injury suffered as a result of an armed robbery which occurred at the pharmacy where she was working as a retail assistant on 1 April 2009.
2 The parties agree that as a result of the robbery the plaintiff suffered, and continues to suffer a mental disorder, whether described as post traumatic stress disorder (PTSD) or generalised anxiety.
3 The defendant says, however, that given the plaintiff’s clinical improvement over time to date as documented by her treating psychologist, the court should not be satisfied that her impairment is permanent. In addition, the defendant says that the pain and suffering consequences of her impairment, when judged by comparison with other cases in the range of possible mental disorders, cannot fairly be described as being more than serious to the extent of being severe.
4 The plaintiff says that there is sufficient evidence to warrant a finding of permanence as at the date of the hearing. The plaintiff says that she is a stoic person but that in the light of her age (24), the fact that her condition has affected her chosen vocation, and that she suffers from a range of symptoms and problems which have persisted since the robbery, the pain and suffering consequences of her impairment meet the required threshold.
The hearing
5 The plaintiff gave evidence. There was no other viva voce evidence. The plaintiff relied on reports from: her treating general practitioner, Dr Andrew Patrick and treating psychologist, Mr Carlo Saba; and on the medico-legal reports of psychiatrist Dr Paul Kornan. The defendant relied on the medico-legal reports of psychiatrist Dr Timothy Entwistle, on a letter of recommendation from the plaintiff’s employer; and on an academic transcript concerning the Graduate Diploma of Counselling and Psychotherapy which the plaintiff completed in 2011.
Plaintiff’s evidence
6 The plaintiff was born in 1988. After completing Year 12 in 2005, she attended Deakin University where she completed a Bachelor of Applied Science with a major in Psychology in 2010. In 2011 she completed a Graduate Diploma in psychotherapy at the Cairnmiller Institute.
7 While in her final years at school and at university, the plaintiff worked at McDonalds, in retail stores and at the Electoral Office. In late 2007 she was hired as a retail assistant by the business owner/pharmacist and worked up to 20 hours per week doing a variety of tasks including helping the post office employees. She continued to undertake her undergraduate studies full time. Along with her siblings, she taught at Greek school for around three hours per week on a Friday evening from about 6 pm.
8 On 1 April 2009 at around 11 am the plaintiff was typing an invoice when a man wearing a round hat, sunglasses and a Hawaiian shirt, pointed a gun at her and demanded drugs and money. The pharmacist shouted at her not to give him anything but the plaintiff, worried for her safety, opened the till and gave him some money (around $200). He left the store and the pharmacist called the police after trying unsuccessfully to grab some of the money back from him. The offender was apprehended. The plaintiff was upset about the robbery but returned to work the next day. She was further upset when the pharmacist showed another pharmacist the security camera footage of the robbery.
9 The plaintiff had five sessions of counselling with Mr Saba through the victims of crime service. She continued to be nervous at work during the months after the robbery. Around the time of the robbery she had some assignments due at university but found it difficult to concentrate and obtained an extension. She found that she did not like going to university at night. She remained anxious at work in the pharmacy. By late 2009 she decided she no longer wished to work in the pharmacy, mainly because she felt the work was unrelated to her professional interests. In January 2010 she commenced work at IEC, an organization which provides behaviour therapy to children with autism and other developmental disorders. She remained able to work and study after the robbery, but experienced a number of difficulties which are outlined below. Prior to the robbery, she had intended to qualify as a psychologist by completing a Master of Psychology degree and obtaining registration with the Australian Psychological Society. As at the date of the hearing, however, she has decided to take a break from further study for a year. She still hopes to become a psychologist but is unsure whether she will be able to complete the further study required in the light of the trouble she has concentrating and her problems with travelling when it is dark. However, she is qualified to do youth work, social work and counselling which is the type of work she currently does with IEC, up to 28 hours per week.
10 The plaintiff relies on a number of following matters in relation to pain and suffering, including:
· She is only 24 years old;
· She suffers from PTSD;
· She feels scared and anxious and has nightmares twice per week which wake her;
· She is jumpy and anxious when she hears a noise;
· She is fearful when driving home and entering her driveway;
· She is on edge when walking alone and checks behind her; she is vigilant during the day;
· She does not like to go out alone at night and avoids working if she has to go home in the dark; she is anxious at night if alone; she does not like to be in her driveway alone at night, nor to travel alone to her boyfriend’s house at night; nor to go alone to gym at night;
· At home she worries if she hears noises and wakes family members to check the house, and frequently opens windows to check if there is someone outside;
· Her studies took longer than before the robbery;
· She has trouble maintaining her concentration;
· She does not like being at home alone during the day and will go to her grandmother’s to study rather than stay home alone; she worries if she is left alone with a child during working hours;
· She has trouble with concentration;
· Occasionally she has feelings of panic; mostly she is able to calm herself down but once a week she will withdraw for a while until her attention returns;[1]
[1]Plaintiff’s Court Book (PCB) p22.
· She feels she needs to take a break from studying towards her goal of becoming a clinical psychologist;
· She attends Mr Saba whenever she feels the need, usually every two months, but has a continuing need for treatment;
· She relies on her family to be with her at home or to accompany her at night;
· She and her partner have bought a house but she anticipates that in order to move into it she will want to have fencing, a dog and a security system in place;
· She does not like seeing movies that involve robberies.
11 The plaintiff’s evidence was that prior to the robbery she had full concentration, was confident and independent, was able to work at night, travel alone at night, and had no difficulty being alone. She used to go to the library at night. She has not told her employer, or Laura Boscaglia, about the robbery because she was a bit embarrassed.
12 The plaintiff also agreed with a number of propositions put to her in cross-examination:
· Her pre-robbery pattern of full-time study and part-time work at the pharmacy continued after the robbery;
· She received very good marks at Deakin University before and after the robbery; and very good marks in her Graduate Diploma;
· She left the pharmacy because she obtained work at IEC which was more suited to her professional interests; she continues to work at IEC, up to 28 hours per week;
· She manages her work at IEC with considerable skill;[2]
[2]The plaintiff agreed with the comments of her referee, Laura Boscaglia, in October 2010, to the effect that she has been “a reliable and motivated therapist…insightful, caring and patient in her work with our clients”.
· She has never sought medication from her doctor for anxiety or other symptoms (including any sleep problems) and no treating or examining doctor has recommended that she take such medication;
· She has never sought psychiatric treatment nor been told that her condition requires such treatment;
· She only sees Mr Saba when she wants to raise issues which come up from work; she agreed that his reports reflect the things they have discussed and that she told him in 2011 that she was very pleased with her results;
· She still hopes to become a clinical psychologist but will reconsider in a year whether to continue her studies;
· She is able to tailor her work to fit daylight hours;
· She continues to teach at Greek school with her siblings and a family friend early on Friday evenings;
· She goes to gym 3-4 times per week, has friends, is well supported by her family and friends and is not lonely or isolated.
Expert evidence
13 The plaintiff’s treating general practitioner, Dr Andrew Patrick noted on 23 May 2010 that after the robbery she experienced memories and recollections of the trauma which resulted in insomnia and nightmares but that counselling and CBT had helped her to cope.[3] On 25 October 2012, Dr Patrick noted that “she was deriving benefit from attending her psychologist” and recommended further sessions.[4]
[3]PCB p41.
[4]PCB p42.
14 The plaintiff’s treating psychologist, Carlo Saba, provided two reports. In his first report dated 12 February 2010, he noted that as a result of the robbery she suffered symptoms of PTSD.[5] After five sessions of counselling Mr Saba felt that she had demonstrated enough gain to warrant extra counselling.
[5]PCB p43.
15 In his report dated 8 October 2012, Mr Saba noted a diagnosis of PTSD which had improved with counselling.[6] He noted:
This has been reflected in the management of her PTSD symptoms that resulted in reduced heightened emotional states of stress and anxiety, improved sleep functioning, reduced hypervigilant responses, reduced depressive moods and thoughts.[7]
[6]PCB p46.
[7]PCB p49.
16 According to Mr Saba, Cognitive Behavioural Therapy (CBT) based intervention have helped the plaintiff restructure her “perception of threat and safety…” as well as her “perceived distrust of strange men, in particular, those men wearing hats and sunglasses”. Other psychological strategies had helped her challenge her irrational thoughts. He felt that she had “commenced exploring the full impact of her trauma and demonstrated willingness to improve her management of anxiety symptoms”.[8]
[8]PCB p49.
17 Mr Saba stated:
Ms Panayi has made tremendous progress over the time period described earlier and throughout the course of her intervention. She has made very clear progress in her ability to effectively manage her reactions/symptomology to the trauma that was the armed robbery. She no longer meets diagnostic criteria for PTSD. She does however, experience generalised anxiety, largely attributable to her experienced trauma, the consequential impact this has had on her life, and recurring fears regarding her perceptions of safely when she is alone and faced with triggers of the event.
18 Mr Saba noted that in the early days after the robbery her PTSD had a severe impact on her functioning, “currently, the impact on her general functioning would be considered minimal/mild” and she reported to him that the impact is less than it was in the past. He concluded:
…Her general prognosis is very good. Ms Panayi appears to have made a very positive shift in the management of the PTSD symptomology that she experienced shortly after the initial trauma. I have confidence that Ms Panayi would be able to carry out general, occupational, relationship and social functioning in a healthy and normal manner. This is evident in Ms Panayi being able to successfully complete her postgraduate studies, purchase a home with her partner and maintain solid employment over the last twelve months period.
Ms Panayi should be able to engage in and successfully carry out employment in her field of choice without restrictions and without impairment from her experienced PTSD symptoms and past trauma.
19 Mr Saba qualified his opinion with the observation that she may experience some setbacks in her progress if she were to return to work as a retail assistant in a similar job to that she undertook at the pharmacy.
20 Mr Saba concluded that it would be appropriate for the plaintiff to have further counselling as this would benefit her further but also would “be vital in ensuring the long term efficacy of the changes made thus far, and would reinforce the strategies explored and used during the initial strategies of the intervention”.[9]
[9]PCB p51.
21 Dr Paul Kornan, psychiatrist, provided medico-legal reports dated 28 July 2010[10], 2 October 2012[11] and 13 November 2012.[12] In his first report, Dr Kornan diagnosed PTSD, specific phobia, and panic disorder without agoraphobia. He felt that her psychiatric state was of “chronic moderate intensity, although at times it can be moderately severe in degree”. She was primarily affected at an emotional level and was fit to work, and would be fit to work full time after a year or so. He felt that she would need psychological treatment for two years or so.
[10]PCB p52.
[11]PCB p258.
[12]PCB p63A.
22 In his second report, Dr Kornan noted that the plaintiff told him she was thinking of going back to study in 2013 to do a Masters of Education.[13] Unfortunately, Dr Kornan saw the plaintiff shortly before Mr Saba provided his second report and Dr Kornan did not have it. He noted that she was working 25-28 hours per week. He noted “I suspect that her condition does limit her to some degree”, but did not elaborate. He made a slightly different diagnosis but indicated that the severity of her symptoms remained the same. He concluded that she has not shown any sustained improvement. He felt that her prognosis was uncertain and that if her condition persisted it might affect her ability to maintain full time employment.
[13]At the hearing the plaintiff indicated that she no longer intended to undertake this course.
23 In his very brief supplementary report, Dr Kornan stated that the plaintiff’s symptoms are constant and interfere noticeably with her personal life. He felt that her symptoms would persist “into the foreseeable future”.[14]
[14]PCB p63A.
24 Dr Entwistle provided medico-legal reports dated 9 October and 12 November 2012.[15] In his first report he diagnosed PTSD and reached the following conclusions:
[15]Defendant’s Court Book (DCB) pp 1-7.
1. Ms Panayi’s symptoms are largely in remission. She has learned to self manage. She impresses as an intelligent young woman who has used therapy to good effect. She continues to report some residual symptoms of anxiety.
2. At the time of assessment, Ms Panayi detailed a normal level of social engagement. Her relationship with her parents was described as mutual and supportive. She continues to attend gym. Because she is working and has always been rather driven there is little time for other leisure activities she said. Ms Panayi has an ability to work and continues to do so from a psychiatric perspective.
3. The prognosis in Ms Panayi’s case is good. She impressed as a resilient young woman who has made good use of therapy. She has continued to study and is currently working. She described a supportive and loving relationship with her partner and parents.
...
5. Ms Panayi has not required medication for her condition. She has undergone trauma counselling and has indicated that she has attended Mr Saba regularly up until February 2012 when it was deemed that she was managing well. She continues to attend him at times of need only.
25 In his second report, Dr Entwistle said that the plaintiff told him her treatment with Mr Saba had been effective and she is now self managing and not in need of treatment on a regular basis. He did not get a history from her that she only capable of working reduced hours by reason of the injury sustained on 1 April 2009. He repeated his opinion that her condition is now in remission and that he does not consider her work capacity to be reduced.
Legal principles
26 The combined effect of sections 134AB(16), (38)(d),(h) and (i) of the Act is that the plaintiff must establish on the balance of probabilities that she has suffered a work-related permanent severe mental or permanent severe behavioural disturbance or disorder. The consequences of her mental illness or disturbance in terms of pain and suffering must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly be described as being more than serious to the extent of being severe.[16] The psychological consequences of a physical injury as well as the physical consequences of a mental disorder may be taken into account in determining whether she has suffered a serious injury within the terms of sub-paragraph (c) of the definition of “serious injury” in section 134AB(37) of the Act.
[16]Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA
27 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[17] In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his or symptoms.[18] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him.
[17]Fleming v Hutchinson (1991) 66 ALJR 211.
[18]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 per Tate JA; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
28 Apart from the capacity for work, assessing the extent to which a mental disorder interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[19]
[19]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
29 Each case has to be determined in the light of its own facts.[20]
[20]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
30 Overall, the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[21]
[21]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
31 I am entitled to take into account that the plaintiff is 24 years old and that she will experience these pain and suffering consequences for a considerable period of time.[22]
[22]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44] (Ashley JA).
Findings and reasons
32 I found the plaintiff to be an intelligent, articulate and straightforward witness. I accept her evidence as to the impact on her day to day emotional life and social and recreational functioning. The defendant conceded, and I am satisfied, that as at the date of the hearing the plaintiff suffers from a mental disorder, whether described as generalised anxiety or residual PTSD. I note that Dr Kornan’s opinion regarding the severity of her presentation is at odds with the opinions of the longstanding treating psychologist, Mr Saba, and of Dr Entwistle. On balance, I prefer their opinions to that of Dr Kornan. Dr Kornan did not have the benefit of the recent report of Mr Saba which provides clear evidence of the progress made by the plaintiff, and which is consistent with the opinion of Dr Entwistle that her condition is in remission.
33 Nevertheless, I accept that some PTSD symptoms have persisted since 2009. Only Dr Kornan expressed the view that the plaintiff’s symptoms would persist into the foreseeable future. I have some reservations, given the opinions of Mr Saba and Dr Entwistle about her improvement to date, about finding that her condition is permanent. However, I acknowledge that it is possible that her symptoms will improve albeit that she will continue to attract the diagnosis of a mental illness or disorder. I therefore find that, as at the date of the hearing, her condition is permanent.
34 In all the circumstances, I accept that the robbery has had a considerable impact on the plaintiff’s confidence and on her personal life. She was robust and confident prior to the robbery and suffered no mental disorder. She was able to be home or at work alone, and had no difficulty going out alone at night or being at home alone then. Since the robbery, she has become anxious, vigilant, and experiences nightmares. Her ability to move around independently, day or night, has been compromised. This in turn affects her social life and potentially may affect her ability to work or study after-hours. I accept that these pain and suffering consequences are significant for her and I do not underestimate them.
35 I consider that the plaintiff has been stoic and extremely diligent in managing her condition, and its impact on her life.
36 I am required to consider what has been lost in the context of what has been retained. I have described what has been lost above. However, I accept the opinions of her treating psychologist and that of Dr Entwistle that her symptoms have improved considerably over the past few years. She has not required either medication nor psychiatric treatment for her condition. She seeks treatment from Mr Saba when she needs to see him to discuss issues. Her weight and appetite remain stable. Her memory and concentration are largely intact. She has not told her employer of her difficulties and works up to 28 hours per week in her chosen field at a standard which has attracted favourable comment by Ms Boscaglia. She has maintained her social contacts and her relationship with her boyfriend and with her family and friends. She plans one day to move with him into the house they have purchased. She has managed to compensate for her anxiety about being alone or about being alone at night by doing many things in company. She continues to go to gym and to teach at Greek school. She still may undertake the further studies required for registration as a clinical psychologist. She was able after the robbery to complete her undergraduate studies and to complete a post graduate diploma in her chosen field. Her sleep is only disturbed about once per week.
37 In all the circumstances, while I accept that the pain and suffering consequences of the plaintiff’s mental disorder are considerable, I am not satisfied that the consequences of her mental disorder are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
Conclusions
38 It follows that the application is dismissed.
0
6
0