Schotten v Victorian WorkCover Authority
[2023] VCC 2208
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02125
| CHRISTIN SCHOTTEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2023 | |
DATE OF JUDGMENT: | 1 December 2023 | |
CASE MAY BE CITED AS: | Schotten v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2208 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – psychiatric injury – consequences – severe
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Transport Accident Commission v Katanas 262 CLR 550; Church v Echuca Regional Health [2008] VSCA 153; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave to the plaintiff to commence a common law proceeding for pain and suffering damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Maurice Blackburn Lawyers |
| For the Defendant | Ms K Manning | TG Legal + Technology |
HIS HONOUR:
Introduction
1Ms Christin Schotten (“the plaintiff”) was born in Germany in 1995. She is now 27 years of age. She completed a fashion apprenticeship in Germany, but at the same time worked with horses. In November 2015, she came to Australia on a visa that allowed her to work and took up employment in the thoroughbred racing industry, essentially undertaking work as a stable hand and track rider. She worked with several of the well-known thoroughbred racehorse trainers in country Victoria and then at Flemington.
2From November 2017, the plaintiff was working for one of the leading thoroughbred trainers, Lindsay Park, which is run by the Hayes family. She was employed on a sponsored visa. The plaintiff’s employment was based at Flemington. She was supervised by a man who I shall simply refer to by his first name as Bill. Initially, Bill was dismissive of her, but his behaviour progressed to be aggressive and threatening to her. She raised her concerns with her employer, but rather than resolve the situation, it did the opposite, leading to an incident on 6 August 2020 when Bill subjected the plaintiff to yelling, bad language and threats of violence (“the abuse”).
3Following the abuse, the plaintiff reported what had occurred to her employer. There were meetings at work where the plaintiff’s concerns were raised, but because of what might broadly be described as symptoms of anxiety, in approximately mid-October 2020, the plaintiff ceased work. She remained off work for several weeks, before returning to work and remaining with Lindsay Park until her work visa expired in about November 2021. She then attempted work in the racing industry for a different stable, but that did not last. Since then, she has had several employments in the logistics and real estate industries.
4Going back in time a little, after the abuse from Bill, the plaintiff lodged a WorkCover claim which was accepted. On 19 October 2020, she attended Dr Mark Benton at the Guardian Medical Clinic in Flemington. Dr Benton recorded her initial presentation as a history of bullying and work-related stress.[1] The plaintiff has continued to attend Dr Benton from time to time.
[1]Plaintiff’s Court Book (“PCB”) 61.
5Shortly after attending Dr Benton, a referral was arranged to a psychologist, Dr Antoinette Butler Wilks. The plaintiff first attended Dr Butler Wilks on 21 December 2020. She has required ongoing regular treatment with Dr Butler Wilks which has been accessed face-to-face and via telehealth. Dr Butler Wilks obtained a history of the abuse and of the plaintiff’s symptoms. She reported to the plaintiff’s solicitors on 7 September 2022,[2] and diagnosed the plaintiff as initially experiencing severe levels of symptoms of adjustment disorder with mixed anxious and depressed mood in response to what had occurred at Lindsay Park.[3]
[2]PCB 46.
[3]PCB 51.
6In addition to the referral to Dr Butler Wilks, the plaintiff was referred for psychiatric assessment to Dr George Camilleri, consultant psychiatrist. Dr Camilleri reported to the plaintiff’s solicitors on 15 November 2022,[4] and noted that he had first treated the plaintiff on 2 August 2022. He set out a history of the abuse and the plaintiff’s symptoms since then. He set out the treatment provided by him which had included a review of medication prescribed for her psychological/psychiatric symptoms. The early treatment included an increase in venlafaxine to 300 milligrams daily, with a subsequent increase to 375 milligrams daily. Diazepam, 5 milligrams, was also prescribed for anxiety and the plaintiff was trialled with a tranquiliser, quetiapine, at a dose of 25 milligrams at night.[5]
[4]PCB 72.
[5]PCB 75.
7Dr Camilleri diagnosed the plaintiff as suffering from post-traumatic stress disorder and major depressive disorder.[6]
[6]PCB 74.
8Against that background, that is, of a young female employee bullied, threatened and abused by a male supervisor, with referral for specialist psychological/psychiatric treatment and a diagnosed post-traumatic stress disorder and major depressive disorder, this is a proceeding brought by the plaintiff seeking the leave of the Court to commence a common law proceeding for pain and suffering damages on the basis that she had suffered a “severe injury” within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Specifically, the plaintiff claimed to have suffered a “serious injury” within the meaning of s325(1)(c) of the Act, namely a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
9For this proceeding, the defendant accepted that the plaintiff was subject to the abuse. It accepted that the plaintiff had suffered a psychological/psychiatric reaction because of the abuse. What it did not accept was that the plaintiff’s ongoing symptoms produced a “very considerable” psychiatric consequence to her, in the context that the plaintiff must prove a “severe”[7] psychiatric condition. Put simply, the defendant submitted that the evidence disclosed that the plaintiff was still able to work, maintain a relationship, socialise, engage in day-to-day activity and travel overseas. Therefore, when looking at what is retained, the defendant submitted that the plaintiff had not established serious injury.
[7]Transport Accident Commission v Katanas 262 CLR 550.
10The proceeding was conducted in a swift and appropriate manner. The parties tendered medical reports and documents relied upon by them. The plaintiff tendered two affidavits sworn by her and one from her partner. She adopted her affidavits and was cross-examined on them. The defendant also played in Court and tendered covert video surveillance of the plaintiff obtained on 2 January and 7 January 2023.[8] I have considered all of the tendered evidence and the transcript of the plaintiff’s oral evidence, as well as the video surveillance, and I shall refer to it only to the extent necessary.
[8]Exhibit D1.
11At the risk of over-simplification, this is an example of a serious injury proceeding in which the narrow dispute is simply whether or not the plaintiff has met the threshold required for the Court to grant leave to commence a proceeding. The video surveillance was relied upon the defendant, not in the sense of seeking to impugn the plaintiff’s credit, but rather to emphasise what she retains in the discussion of her impairment consequences.
The medical evidence
12Before turning to the plaintiff’s evidence, I shall set out the relevant medical evidence to the extent necessary.
Dr Mark Benton
13Dr Benton continues to treat the plaintiff. He has provided two reports at the request of the plaintiff’s solicitors. The second of those reports is dated 7 August 2023,[9] and covers matters set out in the first of his reports. In that report, he repeated that the plaintiff’s problems commenced from the history of bullying and work-related stress. He said the plaintiff’s anxiety and low mood had persisted since that time, requiring regular appointments with both a general practitioner and a psychologist. He also noted that, since his first report, the plaintiff had been under the care of Dr Camilleri. He said the plaintiff had a diagnosis of post-traumatic stress disorder and severe depressive disorder, as diagnosed by her consultant psychiatrist. He noted the plaintiff remained employed, but would require long-term treatment, likely with a combination of input from a psychologist, psychiatrist and medication.[10]
[9]PCB 63.
[10]PCB 63-64.
Dr Antoinette Butler Wilks
14Returning to Dr Butler Wilks, she has also provided two reports at the request of the plaintiff’s solicitors. In her first report dated 7 September 2022,[11] to which I have already briefly referred, apart from setting out the history of treatment and her diagnosis, she also proffered the opinion that the plaintiff’s psychological health had gradually improved to the point where she was able to work. Dr Butler Wilks then opined that the plaintiff had a current capacity for modified or alternative duties. She set out the aim of ongoing psychological treatment, summarised the situation and answered specific questions. In answering those questions, Dr Butler Wilks said:
“Christin Schotten was initially diagnosed with Adjustment Disorder with mixed anxious depressed mood and posttraumatic stress disorder. Recent assessment indicated Major Depressive Disorder and Post Traumatic Stress Disorder associated with work injury.”[12]
[11]PCB 46.
[12]PCB 52.
15Dr Butler Wilks then said regarding work capacity:
“From psychological point of view, in my opinion Christin Schotten has a current capacity for modified or alternative duties.
She has improved capacity for pre-employment duties in the future with another employer.”[13]
[13]PCB 53.
16Regarding the prognosis and need for ongoing treatment, Dr Butler Wilks then said:
“It is envisioned that recent severe depressive presentation and changes in medication would influence stabilization and prognosis. Recent assessment by psychiatrist Dr Camilleri indicated Christin Schotten is suffering with major depressive disorder and post-traumatic stress disorder.”
…
I recommend continuation of regular appointments with her treating general practitioner, psychiatrist, and clinical psychologist, and referral to clinical pilates/yoga or gym/pool.
Dr Camilleri is also recommending trauma focused sessions current work related injury.”[14]
[14]Ibid.
17Dr Butler Wilks then provided a second report dated 8 September 2023.[15] In that report, Dr Butler Wilks updated the situation since her previous report. Regarding the plaintiff’s ongoing employment in the real estate industry, she said:
“However, her property management job involves being assigned to various suburbs that eventually included Flemington/Kensington areas. Christin Schotten got severely anxious and stressed going back to suburbs where her injury happened and where staff in the racing industry usually reside. She got so scared with the strong possibility that she would come across people from the racing industry and they might recognize her and she would feel overwhelmed, make a fool of herself, and might lose her job. These factors caused significant escalation again of anxiety, stress, depressive and post trauma symptoms. Christin Schotten tried to not be assigned in Flemington/Kensington area but it was declined.”[16]
[15]PCB 54.
[16]PCB 56.
18In that report, Dr Butler Wilks noted that the upcoming Court proceeding had caused additional distress and escalation of symptoms.[17]
[17]Ibid.
19Dr Butler Wilks then said that her recent clinical presentation and psychological review revealed “severe to extremely severe levels of symptoms of posttraumatic Stress Disorder and Major Depressive Disorder”.[18] She then set out the symptoms from that diagnosed condition.[19]
[18]PCB 56-57.
[19]PCB 57.
20Turning then to some questions that Dr Butler Wilks was asked to answer, she provided her diagnosis as the plaintiff having been diagnosed with “Posttraumatic Stress Disorder and Major Depressive Disorder”.[20] She said the injuries were consistent with the stated cause.[21] Regarding work capacity, she said:
“From psychological point of view, Christin Schotten does not have capacity for pre-injury employment duties with previous employer Lindsay Park Pty Ltd and horse racing industry.
Christin Schotten has current capacity for employment with another employer in real estate industry. However, post-traumatic stress symptoms escalate when performing duties that require her to confront places and people that remind her of the traumatic events she experienced in the horse racing industry.
It is difficult to determine future capacity with current presentation.”[22]
[20]PCB 59.
[21]Ibid.
[22]PCB 59.
21Regarding the prognosis, Dr Butler Wilks said:
“Due to severity of levels of major depressive disorder and posttraumatic stress disorder, it is difficult to state prognosis.
She will require long term treatment from GP, Psychiatrist, and Psychologist.”[23]
[23]Ibid.
22Finally, Dr Butler Wilks recommended ongoing, regular appointments with the treating GP, psychiatrist and psychologist, with the provision to access more sessions during flare-ups or when triggered.[24]
[24]PCB 60.
Dr George Camilleri
23Returning to Dr Camilleri, and teasing out some of what he said in his first report of 15 November 2022[25] regarding the plaintiff’s capacity for work, he said in that report:
“Your client is unfortunately unable to work in the horse racing industry any more. Therefore, she does not have the capacity for work in her pre-injury employment. She has capacity to work in alternative suitable employment and currently is doing so but she is much more susceptible to stress, anxiety, depression, and fatigue than she ever used to be. As for her future work capacity, I expect that it will remain much the same as it is now.”[26]
[25]PCB 72.
[26]PCB 75.
24Regarding the plaintiff’s prognosis and need for ongoing medical treatment, he then said:
“Post-traumatic stress disorder is a chronic condition. I therefore expect that she will suffer from this into the foreseeable future and will require continuing medical treatment of the type that she is currently receiving into the foreseeable future. That is, her treatment will be required for a number of years and possibly indefinitely.”[27]
[27]Ibid.
25Dr Camilleri next reported to the plaintiff’s solicitors on 14 August 2023.[28] He set out his ongoing treatment as follows:
“The treatment provided to Ms Schotten has remained largely unchanged. She continues to see me on a regular monthly basis and continues to be treated with the antidepressant Venlafaxine at the fairly high dose of 375mg daily, along with the tranquiliser Quetiapine 25mg at night-time. In addition to this, she sometimes requires a tablet of Diazepam during the day on particular days when her anxiety levels are quite high. As well as seeing me, Ms Schotten continues to see a psychologist on a regular basis, part of her necessary treatment. She will need to continue this regimen of treatment indefinitely.”[29]
[28]PCB 65.
[29]Ibid.
26Dr Camilleri said his diagnosis remained unchanged and he believed the plaintiff suffered from post-traumatic stress disorder and major depressive disorder.[30]
[30]PCB 66.
27Dr Camilleri said the plaintiff’s capacity for her pre-injury employment was nil. He said:
“That is, she is unable to work in the horse-racing industry at this present time due to the traumatic nature of her experiences in that industry and in fact she is highly unlikely to ever be able to work in this industry again. She is however able to work in suitable alternative employment and is infact [sic] currently doing so.”[31]
[31]Ibid.
28Regarding the prognosis, Dr Camilleri said:
“Ms Schotten’s prognosis is guarded. She has been seeing me now for one year and has been treated with medication now for that period of time as well as undergoing psychological treatments and she has reached a level of improvement at which she has plateaued. She does not show signs of improving beyond this level. Therefore, it would seem that she is highly unlikely to achieve an improvement that would bring her to her pre-morbid level of wellness and functioning and that it would seem her condition is of a permanent nature.”[32]
[32]Ibid.
29Dr Camilleri reported for a third and final time on 4 September 2023.[33] In that report, he noted a worsening of the plaintiff’s mental state, with adjustment of her medication. He said that he had recommended the plaintiff be admitted to hospital in order to stabilise her “but she was unable to agree to this due to her current work commitments”.[34] He otherwise repeated his diagnosis and prognosis. He also described the treatment at present as appropriate, consisting of monthly psychiatric consultations, daily psychiatric medication, and regular psychology sessions.[35]
[33]PCB 68.
[34]PCB 68.
[35]PCB 70.
Dr Gregory White
30Dr Gregory White is a consultant psychiatrist who examined the plaintiff at the request of her solicitors and provided a report dated 31 August 2023.[36] For present purposes, it is sufficient to note that he concluded the plaintiff described symptoms of a post-traumatic stress disorder and of a major depressive disorder.[37] He said there was a total and permanent incapacity for performance of pre-injury employment duties or any other similar or later roles in the racing industry “as a result of the plethora of significant psychiatric symptoms”.[38]
[36]PCB 77.
[37]PCB 89.
[38]PCB 90.
31Dr White opined that the plaintiff appeared to have the capacity for full-time duties in an alternative role, but to do so reportedly requires significant compensatory mechanisms.[39]
[39]Ibid.
32Dr White described the plaintiff as displaying stoicism and a desire to engage in employment. He described post-traumatic stress disorder as commonly a chronic condition.[40] He then said it was likely that into the foreseeable future there would be an ongoing measurable impact on the plaintiff’s mental state, relationships, social activities, other activities of daily living, and work capacity.[41]
[40]PCB 91.
[41]PCB 92.
Dr Ash Takyar
33Dr Ash Takyar is another consultant psychiatrist who has examined the plaintiff at the request of her solicitors and provided a report. In a report dated 9 November 2023,[42] Dr Takyar set out the history, mental state examination and review of documentation. Having done so, he expressed the opinion that the plaintiff presented with near-pervasive moderate to severe depressed mood. He went on to diagnose a major depressive disorder and generalised anxiety disorder (with traumatisation features), with a differential of post-traumatic stress disorder for the latter.[43]
[42]PCB 98.
[43]PCB 107.
34Dr Takyar then said:
“The severity and entrenchment of her symptoms despite this treatment is of concern, and while she could not return to the industry or her pre-injury employer in any role, she has been able to work elsewhere, though there has been a trail of disrupted employment since the injury owing to her psychiatric symptoms severity. While Ms Schotten now works at a real estate agent as an inspection manager though spends from rising to 9am (2.5 hours) convincing herself to go to work and struggles to get there on time despite her four minute commute. It is likely that with this symptom severity there will be disruption to her working efficiency, pace and ultimately, attendance and the history of her symptoms and ability to work subsequent to the injury has been such that there is a guarded prognosis as to whether this role will successfully continue long term, though obviously one hopes it does. Arguably she has a limited working capacity, given this, though the longer term history of how she fares in this role and how her symptoms progress will be instructive. Many people with this symptom severity either cannot work or struggle to work more than 5-10 hours a week, others might somehow work 20 or 25 hours at most. It may be that she is seemingly coping now but given this is her fifth job since her return to work at the pre-injury employer (ceasing there at the end of 2021, with four jobs in the nearly two years since) I have real concerns this may play out again and there is a risk if this continues that she may struggle to bounce back and return to work. If she is not coping, she may wish to consider reduced hours, but this is best discussed with her GP, psychiatrist and psychologist – some persons with psychiatric work injury related symptoms despite their illness function better and recover better when working as it gives them structure and improves self-worth and other symptoms.
At this juncture, while for many persons with this severity of symptoms work is not possible or very limited, she seems to be working though it is uncertain given this is her fifth attempt at work since the injury (four external to the pre-injury employer) whether this will remain viable and continue or not. In my view, the ultimate progress in this role will be instructive as to whether there is lowered capacity outside of the racing industry, incapacity or otherwise. Thus I am hesitant to pronounce the current full time work in a different industry as her permanent restrictions as they may not represent her true, underlying capacity and ultimate situation.”[44]
[44]PCB 108.
35Dr Takyar then said also that from a psychiatric stance, the plaintiff could not return to her pre-injury employment. He went on to describe the prognosis as guarded.[45]
[45]PCB 109.
Dr Nitin Dharwadkar
36Dr Nitin Dharwadkar is a consultant psychiatrist who examined the plaintiff at the request of the WorkCover agent. In a report dated 11 November 2020,[46] Dr Dharwadkar took a history from the plaintiff, set out his mental state examination, and then opined that the plaintiff presented with stress due to having been bullied and harassed by a male manager. Dr Dharwadkar took a history that the plaintiff had overall improved and that “she would be able to go back to work with the current employer if HR supports her better, and if she was assured of a safe workplace and also if she did not have to work with BP and after she has further improved emotionally”.[47]
[46]Amended Defendant’s Court Book (“ADCB”) 3.
[47]ADCB 14.
37Dr Dharwadkar then concluded it was reasonable to make a diagnosis of adjustment disorder with mixed anxiety and depressed mood.[48]
[48]ADCB 15.
38The balance of Dr Dharwadkar’s report is perhaps rendered obsolete by the passage of time.
Associate Professor Abdul Khalid
39Associate Professor Abdul Khalid is a consultant psychiatrist who examined the plaintiff on 3 April 2023 at the request of the defendant.
40In a report dated 11 April 2023,[49] Associate Professor Khalid set out the history of presenting complaints, symptoms and treatment. He conducted a mental state examination and then said that based on the history, mental state examination and the documents provided to him, the diagnosis was an adjustment disorder with mixed anxiety and depressed mood, currently in partial remission, but that the plaintiff did not fulfil the diagnosis for either a post-traumatic stress disorder or major depressive disorder.[50]
[49]ADCB 26.
[50]ADCB 33.
41Regarding the prognosis, Associate Professor Khalid said:
“Ms Schotten’s prognosis, both short-term and long-term, is fair because her adjustment disorder with mixed anxiety and depressed mood is currently in partial remission. Her symptoms are likely to resolve further with treatment. She may have some ongoing residual symptoms.”[51]
[51]Ibid.
42Dr Khalid said further:
“I do not consider that the work-related contribution to her mental condition has resolved fully. Her adjustment disorder with mixed anxiety and depressed mood is currently in partial remission. I consider that her condition is likely to resolve fully in the next 6 to 12 months’ time with further psychiatric and psychological treatment although she may have some ongoing residual symptoms.”[52]
[52]ADCB 34.
43Regarding impairment consequences for non-work activities, Associate Professor Khalid said:
“Ms Schotten’s psychiatric condition does not impact her activities of daily living. She is able to attend to her activities of daily living and do fulltime work in real estate. Her social and recreational activities are restricted because she avoids people from the racing industry.”
Summary of medical evidence
44To this point, the evidence leads to a conclusion that, because of the abuse, the plaintiff developed a psychological/psychiatric condition. Her treaters support a diagnosis of an adjustment disorder with mixed anxious depressed mood and post-traumatic stress disorder. That diagnosis is also supported by the medico-legal consultants, Dr White and Dr Takyar. On the other hand, Dr Dharwadkar, at an earlier point in time, diagnosed an adjustment disorder with mixed anxiety and depressed mood, while more recently, Associate Professor Khalid reached the same diagnosis of an adjustment disorder with mixed anxiety and depressed mood, although described by him as currently in partial remission, without meeting the full diagnostic criteria for either a post-traumatic stress disorder or major depressive disorder.
45Having considered the whole of the evidence, I prefer the opinions from the treating practitioners, supported by the evidence from Dr White and Dr Takyar. A consideration of the whole of the evidence discloses that the plaintiff has had a psychological/psychiatric condition which has waxed and waned in severity since the abuse. The treating practitioners are therefore in a position of some advantage as they have seen the plaintiff over the journey, whereas, on the other hand, Associate Professor Khalid has only had the benefit of one consultation in April 2023.
46Regardless, all medical practitioners accept that the plaintiff suffered a psychological/psychiatric consequence. The dispute is mostly as to the severity of that condition, which is an issue that the court is required to resolve, and in doing so, the Court must consider the evidence of the plaintiff.
The plaintiff’s evidence
47The plaintiff’s sworn evidence commenced with an affidavit that she swore on 9 December 2022.[53] In that affidavit, she set out her background, including her work in Australia and what happened to her at Lindsay Park. She then set out her attempts at returning to work thereafter.
[53]PCB 11.
48Relevant for impairment consequences, in her first affidavit, the plaintiff said:
“I have given up working in the racing industry because of my psychological injury. I have been around horses all my life and have been working with horses since I left school in year nine. It was my dream to become a horse trainer. Before I suffered this injury, I planned to work in the racing industry for the rest of my working life.
As a result of my psychological injury, I am now dependent on taking medications daily for my anxiety and depression.
I can no longer even go near a racetrack because of my psychological injury. I used to socialise every weekend at the races. Now I cannot even go near a racetrack.
Before I suffered my psychological injury, I used to go to the gym almost every day to keep fit. I now go to the gym a lot less because of my anxiety and depression. I do Pilates or yoga and light exercises when I am up to it because my Doctors say it is good for me.
As a result of my psychological injury my energy levels are very low, and I lack energy most of the time. Before I suffered my psychological injury, I was a very energetic person. I went to the gym most days and I used to play squash with friends, but I no longer do these activities at all because of my psychological injury.
Before I suffered my psychological injury, I was a very social person and I used to go out to socialise with friends every weekend. Now I barely socialise at all. Some days I struggle to leave the house, and this means sometimes I can’t go to work. I have dogs but there are times when my anxiety is so bad, I’m too anxious to walk them on my own and I wait for my partner to come home to walk them with me.”[54]
[54]PCB 16, paragraphs [24] – [29].
49The plaintiff then swore a further affidavit on 5 October 2023.[55] That set out her ongoing treatment including the circumstances around the recommendation from Dr Camilleri for inpatient treatment. Regarding that, the plaintiff said she could not do it because of work commitments and that her current employment (at Jas Stephens Real Estate) was the first job she had been able to hold down for longer than six months since Lindsay Park Racing.
[55]PCB 32.
50Relevant to ongoing consequences, the plaintiff said:
“Since I swore my previous affidavit, I have been abusing alcohol to cope with my psychiatric symptoms. At times I’ve been drinking at least one bottle of wine daily. At times I have been very tempted to drink alcohol in the morning before I go to work to control my anxiety. This was part of the reason Dr Camilleri wanted to get me admitted to the Melbourne Clinic. I have stopped drinking for the last few weeks.
Since I swore my previous affidavit, I have ceased working at Aramex. I stopped working at Aramex on about 3 January 2023. I was struggling to cope with work when I resigned from Aramex.
After I resigned from Aramex, I commenced working at Jas Stephens Real Estate in Yarraville. I started working there in January 2023. I am employed on a full-time basis as an Inspection Manager.
I often find it a struggle just to get out of bed in the morning and go to work. I am late to work almost every morning even though the office is just up the road from where I live.
I often sleep very poorly because of my psychiatric injury and because of this I often struggle to get out of bed to work in the morning.
On the weekends I do often to very little because of my psychiatric condition. I often stay at home for the entire weekend. I often spend most of the day lying in bed. If I do go out it is normally just to take my dogs out for a walk to the dog park.
I no longer socialise much at all because of my psychiatric condition.
Often my partner wants me to go out to the pub with him, but I don’t feel well enough to go out. Recently, it was our four-year anniversary and my partner wanted to go out for dinner, but I did not feel well enough to go out because of my anxiety.
My partner and I went to Fiji in July this year. We went for one week from 14 July to 21 July. When we were there, I spent most of the time in my room or lying around at our private pool. We did not go out to any of the restaurants apart from the restaurant in our hotel. I struggled to enjoy the holiday because of my anxiety and depression.
Prior to swearing my previous affidavit, I travelled overseas with my partner to visit my family and his family in about August 2022. We visited my family in Germany and his family in Ireland and we travelled to an island off Spain with my partner’s sister and her partner. I struggled to enjoy this trip because of my psychiatric injury. When we were there apart from visiting my parents and my partner’s parents I did not socialise very much. Some days when we were away, I did not leave the house at all.
I have not been to a racecourse since I swore my previous affidavit. I cannot even watch the races on television because of my psychiatric condition. I cannot even listen to the radio during November because of all the talk about the Spring Racing carnival.
I have not been to the gym since I swore my previous affidavit.”[56]
[56]PCB 33-36, paragraphs [6] – [16].
51For completeness, I note the plaintiff provided an affidavit from her partner, Jamie Colgan, sworn 5 October 2023.[57] It is notable that Mr Colgan works in the thoroughbred racing industry. He described the plaintiff as being very passionate about horse racing when they met four years ago. He described it as her “major passion and it was something she wanted to do for the rest of her life”.[58] He otherwise set out his observations of the plaintiff and how she had coped with overseas travel.
[57]PCB 37.
[58]PCB 38.
The plaintiff’s oral evidence
52The plaintiff was cross-examined broadly about what she had said in her affidavits, the work and travel that she had engaged in since finishing with Lindsay Park. The broad thrust of the cross-examination can be summarised, at the risk of over-simplification, to highlight that the plaintiff had been able to achieve and maintain several different jobs, maintain her relationship, some social activities, and travel overseas to see family and separately for a vacation.
53But relevant to her evidence about avoiding suburbs such as Flemington and Kensington where she might run into people from Lindsay Park or the racing industry, the plaintiff confirmed that attending those suburbs made her anxious.[59] She said that she made an active effort to avoid those suburbs.[60] She otherwise confirmed that she was capable of currently performing her job for JAS Stephens as an inspection manager and she described what was involved in that job. She confirmed she had no issues with flying for overseas travel and that overseas travel had been pleasurable to the extent that it had given her a break.[61]
[59]Transcript (“T”) 19, Line (“L”) 14.
[60]T 19, L 26-30.
[61]T 23, L 27-31 – T 24, L 1-3.
54The plaintiff was cross-examined about some of her day-to-day activity, such as walking her dogs. She said, “if it wasn’t for the dogs, I wouldn’t be getting up or going out on the weekends at all”.[62] She confirmed that she would walk the dogs before and after work. She confirmed that her partner still rode track work and that he often started very early in the morning, and he was also doing some afternoon shifts.[63]
[62]T 30, L 9-11.
[63]T 30, L 21-30.
55Regarding her ongoing employment and the progression of her psychological condition, the plaintiff said she still desired to work because that kept her occupied and helped her.[64]
[64]T 33, L 31 – T 34, L 1.
56The plaintiff was cross-examined about some external sources of stress, such as a relative who came to stay for an extended period and the stress of this litigation.
57The plaintiff said that driving was not much of an issue for her.[65] She repeated her evidence that socialising was still difficult. She gave as an example when she recently saw a friend for breakfast and when the friend asked how she was, she broke down in tears in the middle of the café, but overall, she said it is very stressful, she is trying to avoid it, but she has been going a couple of times.[66]
[65]T 35, L 19-21.
[66]T 35, L 29-31 – T 36, L 1-11.
58During cross-examination, the plaintiff confirmed that she did not have any “horse triggers” for her psychological condition and that she could still enjoy being in the presence of horses. It was put to her that it was possible that in the future she could still ride horses, to which she said “probably”.[67] She went on to confirm that the injury had not taken away her love of horses.[68]
[67]T 39, L 28.
[68]T 39, L 29-31.
Video surveillance
59The defendant then tendered and played the video surveillance of the plaintiff. The video surveillance demonstrated the plaintiff driving, including driving to drop off her partner and his cousin in the vicinity of stables at Flemington, before walking her dogs in the Footscray Park along the Maribyrnong, where the Flemington grandstands can be observed. The video surveillance revealed that she attended at a restaurant at the shops near the showgrounds and enjoyed a chicken parmigiana over an approximate 45 minute period in the company of her partner and his cousin. The video surveillance of 7 January 2023 was less exciting, showing her coming and going from a women’s only gymnasium and shopping for a few items at the Coles supermarket near her home.
60The plaintiff was challenged in cross-examination about the video from 2 January 2023, and why, if being in Flemington or Kensington caused triggers, would she drive to an area proximate to the Flemington Racecourse, walk her dogs nearby or enjoy a parma at a restaurant nearby. That cross-examination can be summed up in the following exchange:
“HIS HONOUR:
Q: Having dropped Jamie at work, was the purpose of walking around Footscray to desensitise yourself to that area or was it simply to remain in the area because it’s more convenient to pick him up?---
A: It was definitely to desensitise myself to the area. As mentioned, Yarraville is only a 10, 15‑minute drive and I could have easily made it back to my favourite park to walk my dogs there and not attempting to even improve myself; therefore, I chose the Footscray Park.
Q: So do you do that from time to time or is this the only occasion you’ve been to Footscray with the dogs?---
A: I haven’t been back there, no.
Q: Thank you?---
A: Thank you.
MS MANNING:
Q: All right. You then conclude your walk, you get the dogs – two very lovely dogs, I must say – back into the car and you make your way back to the stables to collect Jamie and his cousin from the stables?
---
A: I didn’t clearly see from the stable but – I can’t recall.
Q: Sorry. I’ll rephrase it. They have finished the afternoon shift. Does the cousin also work with Hawkes or who does she work with?---
A: Yes, she did work with Jamie alongside at Hawkes Racing.
Q: All right. So they’ve gone and done the afternoon shift, fed, mopped out, whatever they need to do. They’re finished and you drive back to the Flemington area and the stabling area and you pick them up?---
A: To the parking lot, yeah.
Q: Okay. All right. And that is something that you agreed to do? They asked you to do it and you agreed to do it?---
A: Yes.
Q: You felt comfortable to do it?---
A: Not comfortable but I did it, yeah.”[69]
[69]T 45, L 23 – T 46, L 22.
61Pausing, video surveillance must be seen both in time, context and what is demonstrated by it.[70] The video surveillance in this case is, on one view, innocuous and the defendant did not rely upon it to impugn the plaintiff’s credit as such. Rather, the defendant’s submission was more subtle, and it relied on the video surveillance to highlight that the plaintiff was able to travel and spend time in the Flemington area, notwithstanding whatever psychological symptoms she experiences.
[70]Church v Echuca Regional Health [2008] VSCA 153 at paragraph [66].
62There is some merit in the defendant’s submissions. Obviously, the video surveillance shows what it shows, including that on 2 January 2023 the plaintiff able to spend several hours in and around the Flemington area. On the other hand, the plaintiff impressed me as a credible witness and her explanation for doing that on the advice of treaters to try and desensitise herself was credible. I accept her evidence that what is seen on the video surveillance is not something that she engages in on a regular basis. That evidence is also consistent with the admission made by counsel for the defendant[71] that it had arranged covert surveillance of the plaintiff for a total of 30 hours – including on other days in January 2023 and then more recently in September and October 2023, but that the tendered video surveillance was the extent of any activity captured on video.
[71] Called for by counsel for the plaintiff and provided to the Court by email on 28 November 2023.
63On this topic, the defendant tendered the clinical records from Dr Benton’s clinic.[72] Those notes do not add much to his reports, but relevantly I note that at an attendance on 3 November 2022, the plaintiff reported a panic attack at a pub some five days previously when she ran into a work colleague.[73] I understand that to mean a former colleague in the racing industry. The doctor reported that the plaintiff had flashbacks. The doctor also recorded the plaintiff as having taken time off work as she was anxious regarding race week and because her employer listened to the races at work, and she was worried about being further triggered. It was also recorded that Dr Camilleri had recommended the plaintiff listen to the races to try to help desensitise.[74]
[72]ADCB 36.
[73]ADCB 3.
[74]ADCB 38.
64Further, on 29 December 2022, Dr Benton recorded that in the context of her partner’s cousin staying with them, the plaintiff felt pressured to go lots of places. Dr Benton recorded that the plaintiff had reflected and that it did give her the push to go out and socialise more.[75]
[75]ADCB 37.
65Next, on 17 May 2023, Dr Benton recorded the plaintiff being worried about running into former work colleagues because she was then managing a portfolio of properties based in Kensington and Flemington. Dr Benton recorded the psychiatrist as having told her to quit her job, but that the psychologist advised her to find a way around it or she will always be trying to avoid problems rather than dealing with underlying anxiety.[76]
[76]ADCB 36.
66The short point is that the evidence in Dr Benton’s clinical records provides support for the plaintiff’s evidence that, on the advice from her treaters, she has attempted to push herself and desensitise herself by spending time in and around the Flemington area, but that overall, it is an area that she avoids.
67At the risk of repetition, the plaintiff impressed me as a direct and honest witness. The defendant did not really suggest otherwise. She made appropriate concessions during her oral evidence. I am comfortable that I can accept her oral evidence but also that I can accept what she said in the affidavits as to the impairment consequences from psychological/psychiatric condition.
Has the plaintiff suffered a severe psychiatric condition?
68The starting point is, of course, that the plaintiff has an accepted psychological/psychiatric condition. I have already expressed my conclusions regarding the medical evidence.
69Next, I consider that condition to be permanent, albeit there may have been a recent fluctuation because of the stress of litigation, but this is not a scenario in which the medical evidence suggests that the plaintiff’s condition will resolve or that she will be cured when the litigation is over. Unfortunately for such a young person, the medical evidence is in fact the opposite. The evidence from her treaters is that she will require regular, ongoing GP attendance, psychological and psychiatric treatment, as well as medication.
70In my opinion, the evidence of the plaintiff’s need for ongoing treatment is, of itself, almost enough to conclude that she has suffered a “severe” psychiatric condition, keeping in mind her young age.
71But if that is not enough, there is then the fact that, because of the abuse, the plaintiff is now unable to continue in her chosen career and pursue her dream of working in the thoroughbred racehorse industry. I accept her partner’s evidence that working in the racing industry was the plaintiff’s great passion.
72Regarding work, first, I accept the plaintiff is well-motivated and has demonstrated stoicism in seeking alternate employment since leaving the racing industry.
73Next, I accept that close involvement with people involved in the thoroughbred racing industry is a trigger for her and that precludes a return to such work. I note that the defendant also, to some extent, conceded that the plaintiff now cannot return to work in the racing industry when its counsel said: “yes, we accept that, within Victoria, potentially. But there’s nothing stopping her from maybe working in – maybe not racing but she could work in sport horses. She could easily in an agistment yard, like the one that she visited.”[77]
[77]T 55, L 26‑30.
74This is an example of a proceeding in which the plaintiff has lost a career that was more than just a job to her, and while I cannot take into account any pecuniary disadvantage, the loss of the career that was a passion and a dream is a relevant pain and suffering consideration.[78] That loss, in combination with the ongoing need for treatment and ongoing symptoms, is enough, in my opinion, to conclude that the plaintiff had suffered a “severe” psychiatric condition.
[78] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35].
75But, yet again, if that is not enough, I also accept the plaintiff’s evidence of her ongoing impairment consequences. I accept her evidence about interference with sleep, interference with her social life, interference with her relationship with her partner and of ongoing difficulty in maintaining employment.
76When all the evidence is considered, I consider there is no doubt that this young person has suffered a “severe” psychiatric condition. The evidence of her ongoing psychological/psychiatric symptoms, need for treatment, need for medication, inability to work in the industry that gave her pleasure and the interference otherwise for ordinary day-to-day, social, and recreational activities, are such that she has demonstrated a “very considerable” impairment consequence.
77Accordingly, leave is granted to the plaintiff to commence a proceeding for pain and suffering damages.
Postscript
78For completeness, I note that the plaintiff did not pursue an application for leave to bring a proceeding for pecuniary loss damages, notwithstanding the fact that she was under the age of 26 years when she was injured. That is a forensic decision that was made by her or on her behalf, but in my opinion, she has a “very considerable” pecuniary loss consequence because she cannot continue in her chosen industry. Perhaps none of that is directly relevant to the leave granted by the court to commence a common law proceeding for pain and suffering damages, but highlights the severity of the plaintiff’s psychiatric condition, whatever label is put on it.
79I shall hear from the parties otherwise as to consequential orders, including orders for costs.
0
2
0