Taylor v Speciality Fashion Group Limited
[2009] VCC 301
•12 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-01528
| BEVERLEY TAYLOR | Plaintiff |
| v | |
| SPECIALTY FASHION GROUP LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MORROW |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 February 2009 |
| DATE OF JUDGMENT: | 12 March 2009 |
| CASE MAY BE CITED AS: | Taylor v Speciality Fashion Group Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0301 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – S.134AB(c) Accident Compensation Act 1985 – Application under definition (c) “severe mental or behavioural disturbance or disorder” – aggravation versus vulnerability – whether severe – plaintiff’s credit.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and | Maurice Blackburn Pty Ltd |
| Mr S Carson | ||
| For the Defendant | Mr J Parrish SC and | Hall & Wilcox |
| Ms M Taaffe | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion dated the 26th April 2007.
2 In support of the Application, there were affidavits of Beverley Joan Taylor, the plaintiff, sworn the 8th day of December 2006 and the 10th day of October 2008, and medical reports and other documents as listed in the index to the Plaintiff’s Court Book (“PCB”).
3 In opposition, the defendant relied on various medical reports and other documents as listed in the index to the Defendant’s Court Book (“DCB”).
4 Notice to attend for cross-examination was given to the plaintiff and oral evidence was given by her.
5 The plaintiff claims, that as a result of incidents which occurred during the course of her employment with the defendant between the 4th December 1999 and March 2001, she suffered “serious injury” as that term is relevantly defined. Pursuant to s.134AB(37) of the Act, “serious injury” means – in this case:
“(c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
6 For the assessment of “serious injury” in accordance with subsections (16) and (19) of s.134AB, the word “severe” is further defined in s.134AB(38)(d) of the Act.
7 This Application is to be determined on the evidence before the Court, to which I have referred, by applying the statutory definition set out above to that
evidence.
8 Given that an issue is whether this is an “aggravation” case, I have reminded myself of the principles laid down in Petkovski v Galletti [1994] 1 VR 436 (“Petkovski”), as confirmed in R J Gilbertsons Pty Ltd v Skorsis, now reported at (2000) 12 VR 386, (“Skorsis”).
9 In Skorsis’ Case, Chernov JA said, after considering Petkovski’s Case, at paragraph 40:
“In determining whether an injury which is an aggravation of a pre- existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the incident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
10 The plaintiff seeks leave to proceed at common law in respect of both pain and suffering damages and pecuniary loss.
11 The plaintiff in this case is a sixty year old divorced woman who was born on the 6th September 1948. Apparently she left school at the end of Year 9 when she was aged fourteen and then took on factory work from 1962 to 1966. She trained and worked as a nurse’s aide in a psychiatric hospital at Beechworth. She finished work there in 1969 at age twenty-one and said she was uncomfortable with that type of work. The plaintiff then worked for some three months at the Dromana Hospital as a nurse’s aide before ceasing work due to her being pregnant, and at some time thereafter she was married and had a total of four children with her husband before separating from him in 1978 at aged thirty.
12 In paragraph 4 of the plaintiff’s affidavit of the 8th December 2006 (PCB 9), the plaintiff said that at age thirty-one she formed another relationship that lasted for some three years and she had another child – a daughter – from that relationship.
13 The plaintiff began work for the defendant on the 4th December 1999 and she said in evidence before me that she had been unemployed for many years and on a single parent pension until her youngest child – the daughter – turned sixteen when she was put on unemployment benefits from 1996 to 1999. Apparently the last job that the plaintiff had was working in the family milk bar in 1978.
14 In paragraph 5 of her said affidavit, the plaintiff said that whilst she was on unemployment benefits she was in fact given a Job Search allowance and she began looking for work and heard of a job with the defendant from her sister, and after making an application, started work with the defendant, as I have noted above. In paragraph 17 of her said affidavit (PCB 12), the plaintiff said that she was particularly pleased to get back to work after the children had grown up and initially she enjoyed the work as a casual shop assistant in a women’s clothing retail organisation that had a number of outlets. In paragraph 19 of her said affidavit, the plaintiff claims that when she started work with the defendant she was healthy and happy and had the capability of being a good sales person.
15 Her case is that she was bullied, harassed and treated badly by her superiors, as she sets out in paragraph 7 of her said affidavit. She says that this treatment resulted in her suffering a severe mental disturbance or disorder. The plaintiff said that this conduct started in January 2000 and increased to the point where she was forced to cease work on the 7th March 2001. The plaintiff has not worked since then. At paragraph 11 of her said affidavit, the plaintiff said that she suffered a great deal of psychiatric symptoms since March of 2001 and continues to suffer from those symptoms, which are set out in some detail in paragraphs 12 to 16 of her affidavit and in paragraphs 3 and 6 to 12 of her affidavit of the 10th October 2008 (PCB 14).
16 Whilst the plaintiff was receiving social security benefits she was required to complete a medical review, which she did on the 29th September 1997. A copy of the plaintiff’s response to this review of that date is to be found at DCB 372. Question 1 required the plaintiff to state whether she had a medical condition which stopped her from working, and to this question she answered: “Yes” and when asked to detail her medical conditions, she said she was suffering from depression and anxiety which started in 1995 and affected her ability to work, insofar as she was unable to concentrate. She also said that she suffered from an overactive thyroid which also started in 1995 and caused her fatigue.
17 Question 2 required the plaintiff to state whether her medical condition affected the way in which she did things around her home, to which she replied: “Yes”, whether it stopped her from using public transport, to which she replied: “No”, and she said it stopped her from driving a car. The reason it did, she said, was: “Tiredness. My eyes become sore and blurry”. The plaintiff stated that Dr J Matthews had been treating her in respect of these conditions. At Question 6, the plaintiff stated that she could not do any work at that time, and Question 7 asks if there was any reason why the plaintiff could not do a rehabilitation or training program, to which she replied: “Yes” because “she was not able to concentrate” and also she had been referred to an eye specialist.
18 The plaintiff’s general practitioner, Dr John Matthews, was also required to provide information in respect of this review and he said that the plaintiff was suffering from anxiety and depression, since 1995, which affected her concentration and she was also suffering from a thyroid complaint, again since 1995. He said that her condition was stable with a good prognosis (DCB 375).
19 Dr Matthews said that he was treating the plaintiff with Zoloft and psychotherapy and that she had been treated at hospital in 1995 for her thyroid condition. He said that the plaintiff was unfit for work of at least 30 hours per week and that the plaintiff was also unfit for part-time work of at least 8 hours a week. He stated that he did not think the plaintiff would be likely to work for about at least 30 hours a week for the following twelve to twenty-four months, and the same for part-time work. He signed his part of the review on the 29th September 1997.
20 A similar review was carried out on the 29th May 1998, and on this occasion the plaintiff stated that she was suffering from depression, and had been since May of 1997 and she said that it affected her, insofar as she could not concentrate for long, that she suffered from panic attacks, tiredness and fatigue. When asked as to how the depression affected her in relation to things she did around the home and why it prevented her from driving a motorcar, she said: “I become tired easily, at times therefore I am unable to work at home for long hours et cetera, gardening and housework.” (DCB 382)
21 The plaintiff went on to say (DCB 383) that she could not work at that time nor could she participate in a rehabilitation program because she was “not able to concentrate with the fatigue”.
22 Again, Dr Matthews supported the plaintiff in this review (DCB 384) and he said the plaintiff had been suffering from depression since May of 1997 with panic attacks, poor concentration and lassitude. He said he thought the plaintiff’s condition was improving and the prognosis was good. Dr Matthews said that he was managing the plaintiff with counselling and that she was unfit to work for 30 or more hours a week but she was able to do part-time work.
23 The plaintiff not only failed to mention any of these problems in her said affidavit of the 8th December 2006, but went further and said, in paragraph 7 thereof (DCB 9), that:
“I have previously provided a statement to a WorkCover investigator as part of my WorkCover claim against the defendant. Annexed hereto and marked ‘BJT-1’ is a true copy of my said statement which accurately sets out the position as at April 2001.”
24 A copy of that statement is at PCB 200. After giving her personal details, the plaintiff said:
“I have always enjoyed good health and have not previously suffered from stress, anxiety or depression. When I was forty-six years of age I suffered an overactive thyroid and for this I received medication. This condition cleared and I have been fine for the last three years. I have not suffered any serious accidents or illnesses.”
25 In a supplementary affidavit sworn on the 10th October 2008, the plaintiff said, at paragraph 18 (PCB 18), that she had been –
“informed that my medical record in the past indicates that I have suffered stress and anxiety, and that certain anti-depressant medication has been prescribed. Notwithstanding the prescription of the anti- depressant medication, it is my recollection that I have not consumed the medications for the reasons stated. I believe that the episodes of anxiety and stress in the past have always been short-lived and have not created any illness or ongoing problem with me. In general, I have forgotten about those episodes. I can say that such episodes were nothing like the illness I have been coping with since the onset following my experiences with the defendant. Those experiences have caused me to be very depressed and to suffer the consequences outline above and in my previous affidavit.”
26 In evidence before me, the plaintiff said that Dr John Matthews had been her general practitioner for some thirty-three years. She admitted in cross- examination that she had seen Dr Matthews in March 2000 and on other occasions for the rest of that year for various minor medical problems, but she had never complained to him in relation to the bullying which she said she was suffering from at work or any ill effects from it. In fact the plaintiff turned to another general practitioner, Dr George Maragoudakis, who she saw in early March of 2001 in relation to the problems that she was having in the defendant’s employ. His report of the 10th April 2001 is at PCB 20. He said that the plaintiff was suffering from “work-related depression, anxiety and stress disorder”. He thought the condition was “moderately severe”. His report was provided to an agent of the defendant. He answered a number of questions, including the relationship of the injury to the plaintiff’s employment, to which he answered:
“This condition has been a full and direct result of this patient’s employment. This patient has no relevant prior history. She gives no history of any other issues in her life and there is certainly no history of prior work-related issues.”
27 When it came time to comment on the plaintiff’s capacity for work, he said that she suffered from “severe depression, anxiety and stress” and had no capacity whatsoever for work. He said it was unclear as to how long this condition would last. He thought the prognosis was guarded.
28 In a report dated 13th January 2003 (PCB 24), he said that he was no longer treating the plaintiff and he thought that this may have been due to the fact that she felt uncomfortable with his advice. He said:
“I regularly challenged her on this issue [returning to the workplace] and attempted to harness and motivate optimism and a change of attitude in her without any luck. In fact my attempts were probably counter productive.”
29 In the meantime Dr Maragoudakis had referred the plaintiff to Ms Lesley Thornton, psychologist, on the 26th February 2001, and a report from her of the 12th June of 2001 is at PCB 33. Ms Thornton took a history from the plaintiff that included the fact that the plaintiff –
“reports good health generally. Last year she suffered flu and bronchitis
and had an overactive thyroid gland which responded to medication.”
30 At the time Ms Thornton thought the plaintiff was suffering from a major depressive disorder, as opposed to an adjustment disorder, on the basis of the severity of the symptoms described, but she thought that the plaintiff had suffered no permanent impairment. She said that when she had last seen the plaintiff, on the 4th May 2001, she thought that the plaintiff’s mental state was such that she would need to return to work on a graded basis and could do so at that time if the workplace problems were resolved but she would be extremely vulnerable to workplace stress.
31 The plaintiff’s long-term general practitioner, Dr Matthews, provided a report to the defendant dated 24th November 2003 (PCB 37) where he says that he first treated the plaintiff for work-related problems on the 6th August 2003. He thereafter details the allegations made by the plaintiff against the defendant’s employees, and then said:
“With respect to your specific questions . . . – the presence and nature of the injury; Bev is suffering with a post-traumatic type disorder causing anxiety, panic attacks and muscular pain. Bev has never had these problems before she started working with Millers and hence, it is my opinion that the worker’s employment is certainly a significant contributing factor to the injury.”
32 In relation to further questions, Dr Matthews said, in answer to the question:
Q: “The probable development of the injury occurring if that
employment had not taken place ---”A: “As Bev had never had any problems like this before, I have no doubt that this injury would not have occurred if employment and its associated environment had not occurred.”
33 Whilst it is true that Dr Matthews had not in the past treated the plaintiff for a post-traumatic type disorder, nor for panic attacks and muscular pain, he had certainly treated her for anxiety and depression, and when it came to detailing what he had said in the medical certificates, he noted that he diagnosed “anxiety, depressive disorder, panic disorder and severe muscular pains in her neck, shoulders and back”. It seems to me that it was disingenuous of Dr Matthews to fail to mention anything about the mental disorder or disturbance that he had treated the plaintiff for in 1997 and 1998 which he said went back to 1995. The general tone of his reports suggests to me that he has taken over the role of the advocate rather than simply that of an objective medical practitioner doing his best to give an accurate picture in respect of his patient’s health.
34 When it came time to report to the plaintiff’s solicitors on the 28th February 2008 (PCB 46), Dr Matthews was a little bit more forthcoming in respect of the plaintiff’s history. He said that:
“It is of note that Beverley had two minor episodes of anxiety and depression prior to this episode. The first episode was in February of 1995 when she had numerous friends and family giving her advice regarding her lifestyle and lifestyle issues. I prescribed Prothiaden on the 8th February 1995 but when reviewed, Beverley had not needed to take Prothiaden and managed to control her stress and anxiety with counselling with myself and massage to help her relax. It is of note that this episode occurred during her attack of thyrotoxicosis which I am sure would have influenced this stress quite significantly. The next episode of anxiety depression occurred in August 1997 when her abusive ex- husband was creating problems with her children. This was managed with counselling and a low dose of Zoloft. Unfortunately it took some months for her to work through the family issues and hence she required counselling and Zoloft until May of 1998. It is of note that at this stage she was at the tail end of her thyrotoxicosis which may well have had a precipitating or aggravating factor. There have been no other episodes of anxiety or depression over the years and in general Beverley has coped very well with the lifestyle stressors as a single mother and an abusive husband.”
35 In his most recent report of the 9th February 2009 to the plaintiff’s solicitors (PCB 49), Dr Matthews said:
“This patient continues to suffer with depression and anxiety attacks which dramatically restrict her ability to leave her accommodation unaccompanied.”
(It would seem he was not told that his patient goes to Bingo one night per
week and has for the last eleven years.)36 Dr Matthews said that he was of the view that the plaintiff would remain incapable of any employment for the foreseeable future.
37 Apart from general practitioners, the plaintiff has sought treatment from psychologists, she having indicated to a number of doctors that she did not wish to have psychiatric treatment. Apart from Ms Thornton, the plaintiff has been treated by Ms Helen Jarvis, psychologist, who has provided numerous reports, as listed in the index to the PCB. The plaintiff was referred to Ms Jarvis by Dr Maragoudakis in August of 2001, as noted in Ms Jarvis’ first report of the 21st March 2002 directed to the defendant, at PCB 50. In that report, Ms Jarvis notes that the plaintiff refused psychotropic medication, for reasons which I have already noted. Ms Jarvis said that the plaintiff presented to her with symptoms of a generalised anxiety disorder, post- traumatic stress disorder and a major depressive disorder. She began counselling the plaintiff on a weekly basis and from the time of her first consultation on the 6th August 2001 until the 11th April 2005, she had seen the plaintiff on some ninety-six occasions (PCB 53). The plaintiff said that consultations had continued on an approximately fortnightly basis and it would seem that Ms Jarvis has seen the plaintiff on what must have been hundreds of occasions. Ms Jarvis’ reports indicate that despite the fact that the plaintiff gave quite detailed histories, she did not mention that she had been treated for anxiety and depression by Dr Matthews in the 1990s, and in particular, I refer to PCB 64, and in particular, at PCB 71, where Ms Jarvis noted that the plaintiff –
“was prescribed anti-depressant medication when she separated from her husband in 1976, however she did not take the medication and she recovered spontaneously (her mood lifted) within two months of the onset of her lowered mood.”
38 Ms Jarvis’ voluminous reports have, over the years, given details of the plaintiff’s progress or lack of it whilst Ms Jarvis has been treating her. In a report dated the 28th July 2008 (PCB 75), Ms Jarvis noted that the plaintiff’s progress in the last two years had been variable, that she had made significant progress in terms of her relationship with her children, that her feelings of anxiety had decreased over the last two years and she had experienced a decrease in the number and severity of panic attacks, but:
“Unfortunately her panic attacks have increased recently because she has had to see several psychiatrists over the last few months and she is extremely anxious about her court case in September.”
39 As far as ongoing treatment was concerned, Ms Jarvis said that the plaintiff required regular psychotherapy and regular contact with her general practitioner for additional support. She said:
“This treatment need is likely to continue for at least the next twelve
months and beyond that if her case has not been legally settled.”
40 Ms Jarvis said:
“In summary, whilst Mrs Taylor has made a significant progress in psychotherapy over the past seven years and her ability to function in her everyday life has improved, her psychological condition is not stable. She is significantly affected by legal issues associated with her case and by her contact with QBE Insurance.”
41 Ms Jarvis’ final report of the 8th February 2009 expresses similar sentiments. In that report (PCB 78), Ms Jarvis said:
“While Mrs Taylor’s feelings of anxiety and depression had been slowly decreasing over the last few years, her anxiety and depression have both increased following her difficulties she has had with her children and her subsequent homelessness. She feels powerless because she currently has little control over her accommodation problems and she has no privacy.”
42 As far as further treatment was concerned, Ms Jarvis said that she continues to require regular psychotherapy and regular contact with her general practitioner for additional support, and again she stated that treatment was likely to continue for at least the next twelve months and beyond that if her case has not been legally settled. Ms Jarvis summarised the situation by saying that the plaintiff had made significant progress in psychotherapy over the past seven years and her ability to function in everyday life has improved but her psychological condition was not stable (PCB 79). She thought that the plaintiff was significantly affected by housing problems, difficulties with her daughter and “legal issues associated with her case”.
“She continues to be incapable of working or participating in a work- based training program and she will be unable to work for the foreseeable future.”
43 The plaintiff has been examined by some seven psychiatrists for medico-legal purposes – one at the request of her solicitors – Dr Kaplan, who saw the plaintiff on two occasions, the first being the 24th February 2005 (PCB 89) and again on the 6th May 2008 (PCB 99). The other half dozen being at the request of the defendant’s solicitors, and it is fair to say that with the exception of Dr Botvinik, who saw the plaintiff on one occasion on the 28th January 2003 (DCB 1), they all agree that the plaintiff is suffering from an adjustment disorder with anxiety and depression. There are different opinions as to the severity of the plaintiff’s condition and whether or not it is “permanent”. None of them were given a history by the plaintiff that included the episodes of anxiety and depression for which she was treated by Dr Matthews in the late 1990s.
44 Given that I need to be concerned with the plaintiff’s condition as it now is, I have concentrated on the most recent reports. Dr Kaplan saw the plaintiff on the 6th May 2008, as I have noted, and on that occasion he said (PCB 102) that the plaintiff’s psychiatric condition –
“has undergone a slight improvement over the past three years although she still experiences symptoms of moderate severity and her psychiatric condition continues to have a major impact upon the quality of her life. She continues to suffer from an adjustment disorder with mixed anxiety and a depressed mood with the differential diagnosis being that of a post-traumatic stress disorder.”
45 He went on to say that the plaintiff’s –
“panic disorder has continued to subside although she is probably still mildly agoraphobic and this condition is likely to continue to run a chronic fluctuating course. Any future stressors are likely to aggravate her condition. Mrs Taylor’s psychiatric condition continues to render her incapable of employment.”
46 As far as treatment at the hands of Ms Jarvis was concerned, Dr Kaplan thought that the plaintiff would require continuing “supportive psychotherapy from her treating psychologists as long as she suffers from significant symptoms”.
47 As far as the defendant’s psychiatrists are concerned, Dr Nigel Strauss has seen the plaintiff on four occasions – 26th March 2004 (DCB 30), 4th February 2005 (DCB 38), 6th March 2006 (DCB 47) and finally, on the 6th August 2008 (DCB 55). I note that in that most recent report, as a result of information supplied to him by the defendant, Dr Strauss was made aware of the plaintiff’s psychiatric history which included alleged depression in 1984, for which she was prescribed anti-depressants, and panic attacks in 1994. He noted there was further mention of depression in 1997, 1998 and 1999, as well as anxiety symptoms in 2000 associated with the death by drowning of her grandson (DCB 57). I was impressed by the detailed history that Dr Strauss took from the plaintiff on this last occasion, which included the fact that although the plaintiff had trouble relating to her children, she sees them and looks after her grandchildren from time to time but she told Dr Strauss that she is irritable on occasions and this affects her relationship with her children but they are understanding of her predicament.
48 As far as day-to-day activities were concerned, the plaintiff told him that she spends time with her daughters, drives her own car and goes shopping with her daughters, that she sees few friends and was not interested in watching television. She said that she reads but her memory and concentration were not that good, that she slept poorly and wakes frequently and hence was tired during the day, that her mood fluctuated and she told the doctor that she was “quite depressed”. She said that she was not suicidal but had had occasional suicidal thoughts and she was often irritable, that she took 10 milligrams of Endep for pain-relief once or twice a day and analgesia as required, but not everyday, and that she was not taking any other medication. The plaintiff told Dr Strauss that her confidence and self-esteem were low and that her family at times did not understand her because “she is not the same person that she used to be”. She said that she had panic attacks if she saw someone from her old workplace and she still dreamt about the workplace and people attacking her and she thought negatively about her workplace during the day. She said that she avoided busy places.
49 Dr Strauss said that on mental status examination the plaintiff related well but appeared to be somewhat tense. He said she was not particularly depressed but she was adamant that she could not work and her thinking was negative but there was no evidence of any psychosis or delusions or thought disorder, that her memory and concentration were reasonable and that she was orientated in time, place and person. In summary, he said that there had not been much change in the plaintiff’s condition since he had seen her (in March 2006) and he accepted that:
“She had a mild adjustment disorder with mixed anxiety and depressed mood. I do not believe that she suffers from a post-traumatic stress disorder. I do not believe that the alleged harassment at work would warrant such a diagnosis and certainly she does not have relevant symptoms now. She does become anxious and depressed at times but I do not believe that her psychiatric problems are severe.”
50 As far as her prognosis was concerned, he said that remained guarded.
“She will always suffer from mild anxiety and depression but I do not believe that she requires long-term treatment. I believe her treatment could cease and she does not require any psychotropic medication. I believe that this woman is not motivated to work and this is the major reason why she is not working. I believe that she could cope with the various duties mentioned in the vocational report sent to me but she will not work because of a lack of motivation. She is capable of suitable employment from my point of view.”
51 After taking into account the other psychiatric reports from Dr Stern, Professor Ball, Dr Garland and Dr Cole, as well as that of Dr Kaplan, I find that the opinions of Dr Strauss are the most compelling. He has spent more time with the plaintiff over the years than any of the other doctors, has taken comprehensive histories and ultimately has been provided with more information than any of the other psychiatrists, and I refer in particular to his final report.
52 In evidence before me, the plaintiff said that as a result of the treatment from Ms Jarvis she was not as sick as she had been before and she could look after herself. The plaintiff said that for over two years she had lived with her brother-in-law and that she had done her own shopping, cleaning and looked after herself. She said that she occasionally looked after her grandchildren and had last done so some two and a half months ago. She said that she goes to bingo at Carrum on a Wednesday night, with her relatives, and had been doing this for the past ten or twelve years. She said that her mother had died in November 2007 and prior to this she used to visit her in the nursing home but she said “very infrequently”. She said that her father, who is eighty- four, lives in independent housing and she visits him every four or five weeks. She agreed that she had supported her father in a dispute he had had with an abusive neighbour that went to mediation. She said this was a couple of years ago. She said that she has a bank savings account which she manages but she pays her bills in cash and that she was able to take care of herself on a daily basis and she said I have “right from the beginning”. The plaintiff said that she had left her brother-in-law’s home in September of 2008 and had stayed with a friend (Mrs Mitchell) for some time but for the last six weeks had been living with her son.
53 When questioned about work, the plaintiff said she had never applied for a job since leaving the defendant’s employ because she was not well enough and she said she was not interested in rehabilitation (which apparently had been offered to her) because she thought she was “not well enough”.
54 Mr Parrish, Senior Counsel for the defendant, raises a number of issues, i.e., that this in fact is an aggravation case where the plaintiff has failed to show that any aggravation for which the defendant is responsible is not “severe”. Secondly, Mr Parrish argues that in any event the plaintiff’s condition could not now be appropriately described as “severe”. His third matter was the plaintiff’s credit.
55 I note that Mr O’Dwyer, Senior Counsel for the plaintiff, made it clear that as far as pecuniary loss was concerned that it was an “all or nothing case”.
The Aggravation Submission
56 In Skorsis’ Case (supra), Chernov JA said, at paragraph 40 of the Judgment, that:
“In determining whether an injury which is an aggravation of a pre- existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant's condition before the incident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term. . . . ”
57 In this case, of course, the additional impairment would have to be “severe” rather than “serious”.
58 In the same case, Winneke P said, at paragraph 2 of the Judgment, that where it is the plaintiff who is contending that the relevant injury caused an aggravation of a pre-existing condition to the point where it could be regarded as a “serious injury”, then it is for the plaintiff to prove that the aggravation meets that description. His Honour went on to say that that involved a comparison of the plaintiff’s condition before and after the alleged injury, as described by Chernov JA. However, His Honour added that where it is the defendant who contends that any such aggravation did not amount to “a serious injury” then it was the defendant who bore the evidential burden of showing what the probable course of the plaintiff’s pre-existing condition would be.
59 The plaintiff contends that this is not a case of an aggravation of a pre-existing condition but a condition that has arisen directly as a result of the defendant’s employee’s conduct. It seems to me that the defendant has not shown what the course of the plaintiff’s pre-existing mental condition would have been in any event.
60 In my view this is not an “aggravation” case as such. It seems to me that the plaintiff’s anxiety and depression that she suffered from in the late 1990s, and which apparently prevented her from working at that time, had resolved by the time she commenced her employment with the defendant. She was no longer being treated by Dr Matthews and was ready, willing and able to commence work with the defendant. Whilst it could be said that she was vulnerable in a psychiatric sense when she went to work for the defendant, I do not accept that she had a continuing condition which was made worse by the treatment that she alleged she received at the hands of her superiors. Whilst another person may have been able to cope with the sort of treatment that the plaintiff alleges, or have simply changed jobs, the fact that the plaintiff’s condition was such that she ended up suffering from an adjustment disorder with anxiety and depression, because of her fragile disposition, does not aid the defendant.
The Question of “Severity”
61 S.134AB(38)(b) of the Act requires me (in a case involving definition (c)) to look at the consequences to the worker of any mental or behavioural disturbance or disorder with respect to pain and suffering or loss of earning capacity “when judged by comparison with other cases in the range of possible impairments or . . . mental or behavioural disturbances or disorders”. Subsection (d) is concerned with cases involving mental or behavioural disturbances or disorders and that subsection provides that such illnesses shall “not be held to be severe for the purposes of subsection (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”. Given that the previous subsection (c) requires the consequences of impairment et cetera to be “more than significant or marked, and as being at least very considerable” before they could be regarded as “serious”, one can see that Parliament intended to raise the bar when it came to definition (c).
62 In making that comparison, I do not believe that the plaintiff’s condition, as it now is, could properly be described as “severe”. Whatever may have been the situation in the past, the plaintiff now is able to interact with her family, lead an independent life, and socialise, at least to the point of continuing to go to weekly bingo nights, an activity that she has indulged in for the last ten years or so, she does not have to take psychotropic drugs and her treatment is confined to visits to her general practitioner and her therapist, Ms Jarvis. Further, in my view, the opinions of the psychiatrists, and in particular, Dr Kaplan and Dr Strauss, do not suggest to me that the plaintiff’s condition could appropriately be described as “severe”.
63 Further, I am not convinced that I have received an accurate and reliable picture of the full extent of the plaintiff’s activities, from her. The plaintiff was not an impressive witness. She was guarded, seemed to have selective memory loss, in that she could not remember some matters but was prepared to go into detail on other matters that were favourable to her case. She was clearly embarrassed when it was put to her in cross-examination that her statement to the defendant’s investigators made on the 6th April 2001 (PCB 200) contained a statement that she had always enjoyed good health and had not previously suffered from “stress, anxiety or depression” and she insisted that she was ill at the time and had not realised what she was saying when she spoke to the investigators, and that in effect I should take no notice of that statement. Unfortunately for the plaintiff however, as I have already noted, she said in her affidavit that this statement was accurate.
64 The plaintiff was also embarrassed when cross-examined about the documents she had signed in the Social Security medical reviews (to which I have already referred). At one stage when asked whether what she had filled in was true and correct, she replied: “That’s what I got told to write, yes.” When queried as to who told her, the plaintiff gave a non-responsive answer. In general I refer to Transcript pp.23, 27 and 29, where examples of what I believe is selective memory loss occurs. In my view, the plaintiff was deliberately trying to create a false impression about her prior history. This attitude persisted when she came to be examined by the psychiatrists, and indeed by her own treating psychologist, Ms Jarvis. Ms Jarvis, unlike WorkCover investigators, was a person who the plaintiff said she had great confidence in and indeed felt comfortable with her as her therapist. Ms Jarvis took extensive histories from the plaintiff, as shown in her reports, and it is particularly disappointing to read, at PCB 71, that whilst the plaintiff was prepared to tell her that she had been prescribed anti-depressant medication when she had separated from her husband in 1976, and that she had been diagnosed with hyperthyroidism some twelve years ago, and that she had suffered distress when her grandson, Joel, drowned in 1999 but was “able to deal with it and this allowed her to be available to help Kevin, Joel’s father”, and that she, however, did not need counselling herself. After being told this, Ms Jarvis said that it was “clear that she had dealt well with Joel’s death”. It seems to me that the plaintiff deliberately kept from Ms Jarvis the fact that she had been treated by Dr Matthews in respect of depression and anxiety in 1997 and 1998 (as I have previously referred to) and that this condition was so severe at that time that it kept her from working. I am satisfied that the plaintiff deliberately lied to the many psychiatrists who questioned her in relation to her past history and that she did so because she thought that if she revealed these problems that it would hurt her case.
65 When I questioned the plaintiff about her claim that she had been ill when the investigators interviewed her, and as a consequence what she had told them about her past was unreliable, she nevertheless affirmed that the rest of the statement that she had made to the investigators was accurate and reliable.
66 In cases such as this of mental or behavioural disturbance or disorder, it is of the utmost importance that the plaintiff’s credibility be maintained. The psychiatrists and other treating doctors have to rely largely on the credibility of their patient when it comes to forming their opinions. Likewise, a Judge, in assessing a claimant in this type of case, and in assessing the medical evidence put forward in support of such a claim is also dependent, to a large extent, on the claimant’s credibility, and in general I refer to the decision of the Court of Appeal in Dordev v Cowan & Ors. [2006] VSCA 254, at paragraphs 14 and 19.
67 In reaching an adverse conclusion as to the plaintiff’s reliability, I take into account that the plaintiff, a sixty-year old woman, unfamiliar with the courtroom, was cross-examined by an experienced barrister. Further, one must be cautious in drawing such conclusions in a case where the plaintiff is alleged to be suffering from a mental disturbance or disorder. However, having made allowances for these factors, I am still of the view that the plaintiff is, at least, unreliable.
68 Before leaving the question of the plaintiff’s credibility, I note that no supporting affidavits from any member of her family or a friend have been tendered in support of her case.
69 It is necessary for the plaintiff not only to show that her condition is “severe” but also that it is “permanent”. The Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 19, said that as far as the word “permanent” in the Act was concerned, that it –
“conveyed the probability that the impairment or other condition would
last and not mend or repair – or at least not to any significant extent.”
70 In paragraph 13 of their Judgment, the Court again referred to what “permanent” meant, and as far as “a permanent serious impairment” was concerned, they said it must be “likely to last for the foreseeable future”.
71 In this case, I am not satisfied that the plaintiff has shown that her condition is “permanent” in that sense. As I have noted, Ms Jarvis, in reports going back to 2006, suggests that the plaintiff’s ongoing condition is linked to the legal proceedings that she is involved in. Ms Jarvis suggests that the plaintiff’s condition and the need for treatment could continue for some twelve months after the litigation is settled (PCB 75 and 79). A factor that it is appropriate to take into account is the likely duration of any treatment that the plaintiff is likely to have, and as can be seen from Ms Jarvis’ reports, it is by no means certain that the plaintiff will need or seek treatment for the foreseeable future.
72 In conclusion then, in respect of pain and suffering, I am not satisfied that the plaintiff has made out a case for saying that her condition is either “permanent” or “severe”.
73 As far as pecuniary loss is concerned, the plaintiff has not made out a case for showing that she would suffer any loss of income if she worked as a sales assistant for someone other than the defendant, which in my view she clearly has the capacity to do.
74 The plaintiff’s claim is dismissed.
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