Turner v State of Victoria
[2021] VCC 288
•29 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03109
| VICTORIA CLAIRE TURNER | Plaintiff |
| v | |
| THE STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 29 March 2021 | |
CASE MAY BE CITED AS: | Turner v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 288 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – agreed ongoing psychological injury. in issue if permanent and severe.
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Demmler v Transport Accident Commission [2018] VSCA 284; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh with Mr P Haddad | Dimitra Panagopoulos Lawyer |
| For the Defendant | Dr J C Plunkett | Minter Ellison |
HIS HONOUR:
1On 19 March 2014, the plaintiff, Victoria Turner, was working as a teacher at a State high school, when she was assaulted by a student in what is described by her as an event in which she was physically hit, kicked, held down and chased by a male student aged approximately fourteen years and apparently diagnosed with mild Autism and Asperger’s Syndrome (“the incident”).
2There is no dispute that the incident occurred. There is no dispute that it was a frightening event and caused the plaintiff to suffer a psychological response. It begs the question “who would want to be a teacher”.
3This is an application by the plaintiff to the Court for a determination of “serious injury” pursuant to s134AB(37) of the Accident Compensation Act 1985 (“the Act”). Specifically, the plaintiff relies on the definition of serious injury contained in subparagraph (c), namely a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
4The plaintiff seeks a determination of serious injury so as to commence a proceeding for pain and suffering damages.
5The principles in respect to such a serious injury application are well known and were not in dispute in this application. Indeed, there was not much that was in dispute. The defendant accepts that the plaintiff has an ongoing psychological injury. The dispute was appropriately confined by counsel for the defendant, Dr Plunkett, as:
· whether the plaintiff’s condition was stable and permanent;
· even if the condition is permanent, it is not “severe” and therefore does not satisfy the statutory threshold.
Background
6The plaintiff was born in 1984. She is currently a single lady. As at the happening of the incident she was employed as a secondary school physical education (“PE”) teacher. She had previously completed a Bachelor of Applied Science majoring in physical education when she was twenty-two years of age and thereafter worked as a PE teacher, including a period when she lived in London. She is a lady who places a great deal of emphasis on physical activity and keeping active. Sport has always been huge in her life[1] and she loves travel.[2] But for being injured, her intention had been to continue to work as a PE teacher.[3]
[1]Transcript (“T”) 33, Line (“L”) 20
[2]T33, L13
[3]Plaintiff’s affidavit sworn 28 February 2020 at paragraph [29]; Plaintiff’s Court Book (“PCB”) 6
7Pausing here, there is no challenge in this case to the fact that the plaintiff is a credible and reliable witness and that was my impression of her as she gave oral evidence.
Is the Plaintiff’s condition permanent?
8For the following reasons, I conclude that the plaintiff’s condition is permanent.
9Firstly, the incident occurred now some seven years ago.
10Secondly, with the exception of Dr Timothy Entwisle, no medical practitioner suggests that the plaintiff does not have an ongoing psychological condition due to the incident. In his most recent report of 25 August 2020, Dr Entwisle opined that “the effects of her claimed psychiatric injury have ceased”,[4] which of course goes beyond permanency in the sense that Dr Entwisle now states that there is simply no persisting psychiatric injury. I reject that opinion as it is against the weight of the medical evidence and in any event the defendant does not rely on Dr Entwisle’s report in that regard.[5]
[4]Defendant’s Court Book (“DCB”) 17
[5]T14, L18
11Thirdly, the defendant says that the issue of permanency arises from the opinion expressed by consultant psychiatrist, Dr Michael Epstein, in his report of 13 November 2020. In particular, the defendant relies upon Dr Epstein’s opinion that the plaintiff’s condition was then unstable because of the impending loss of her full-time employment at PLC.[6]
[6]PCB 111
12Dr Epstein’s opinion needs to be seen in context. He examined the plaintiff at a point in time where her ongoing employment had been disrupted when she was not offered an ongoing employment contract. But since then the plaintiff has secured ongoing employment, still at PLC, albeit on a less than full-time basis. Regardless, Dr Epstein’s comments regarding stability need to be taken in the context of the whole of his opinion, including as follows:
“From a diagnostic point of view she has a chronic Post Traumatic. Stress Disorder characterised by recurrent intrusive thoughts about the assault, distress with reminders of it, increased concerns with regard to her own safety, hypervigilance, emotional withdrawal and a sense of bleakness. More recently her level of anxiety has increased because of her impending unemployment and her concerns about her future career.
She does not have a capacity for pre-injury employment in a co-educational school because of her post traumatic stress disorder. She does have a capacity to work in an all girls' school and in that context is able to work full-time doing full duties as a physical education teacher.”[7]
[7]PCB 111
13In other words, while there may have been a deterioration in the plaintiff’s condition, expressed by Dr Epstein as increased anxiety levels, because of the uncertainty regarding her ongoing employment as at November 2020, that issue has gone away because she has secured ongoing employment. Further, notwithstanding some increased anxiety as at November 2020, Dr Epstein quite clearly diagnoses ongoing symptoms from what he describes as a “chronic Post Traumatic Stress Disorder” and in particular an inability to return to employment in a co-educational school. There is no suggestion that any of that is going to change and so I conclude that the plaintiff’s condition is permanent.
14Fourthly and finally on the issue of permanency, in so far as the plaintiff has deposed in affidavit material as to her current psychological symptoms, restriction for work and need for ongoing psychological treatment, she was not seriously challenged about those matters.
Is the Plaintiff’s condition severe?
15This issue is at the heart of the resolution of this application.
16As previously mentioned, there was no real challenge to the ongoing consequences that the plaintiff has deposed to in her recent affidavit regarding the effect of her psychological condition on her social, recreational and domestic capacity. It is convenient to set out those consequences in the full:
“I refer to paragraphs 22 to 27 of my First Affidavit and say that I continue to suffer from significant difficulties as a result of my injury. Of particular note, l have the following problems.
(a)My skin has become significantly irritated as a result of stress caused by my mental state which has led to a lot of additional treatment together with medication use.
(b) I continue to suffer from intrusive thoughts about the assault.
(c) I continue to suffer nightmares particularly being chased and not being able to escape. The chaser is always a male.
(d) I have become hypervigilant and l am fearful about my level of safety. For example, when I go for a walk, I am nervous and frightened about being apprehended by a male.
(e) I also have become withdrawn and I am reluctant to discuss my mental state.
(f) I am also extremely concerned about my own safety. I find that I always lock the door to my apartment and check to ensure that the windows and doors arc secure.
(g) I am also concerned about my safety when I am in public and I am constantly in fear that I will be apprehended or chased.
(h) I have recently been employed by PLC as a PE Teacher however my contract terminated at the end of 2020. I enjoyed working at PLC because it was a secure environment and there were no male students. My levels of anxiety were manageable whilst I was in that environment. As soon as I exited that environment, I immediately became apprehensive.
(i) I am also very fearful about working in a male environment. I have not been able to return to any form of employment which involves teaching male students. I believe that I have lost any ability to return to any employment involving teaching boys or men.
(j) I have been nervous and anxious when around my sisters' boys who are 9 and 7. I am particularly concerned about the 9-year-old.
(k) I am also prone to bursting into tears due to my mental state. On average I burst into tears when I am reminded of the incident which occurs weekly.
(I) I also find the litigation very stressful as it reminds me of the incident and causes me a great deal of anxiety, stress and emotional upset. Unfortunately, it reminds of the mess that my life has turned into.”[8]
[8]Plaintiff’s further affidavit sworn 26 February 2021 at paragraph [7] PCB 10ꟷ11
17In addition, there is no challenge to the proposition that the plaintiff is now unable to work in a co-educational school or an all-male school as a consequence of her psychological condition.
18The issue of the plaintiff’s restriction for employment is a relevant pain and suffering consequence, but cannot be relied on as a pecuniary loss consequence. In that regard, the plaintiff says, amongst other things, that the limitation on her employment causes her a lot of stress and she is very concerned about her future employability.[9] I take that evidence into account as a relevant pain and suffering consequence.
[9]Plaintiffs affidavit sworn 26 February 2021 at paragraph [10] PCB 12
19It must be remembered that where application for serious injury is made on the basis of a psychological/psychiatric condition, the impairment consequences from such injury must meet the “severe” threshold, noting that the word “severe” is of stronger force than the word “serious”.[10]
[10]Mobilio v Balliotis [1998] 3 VR 833
20In the present case, there is no dispute that the plaintiff has an ongoing injury. There is no dispute that it produces impairment consequences. The dispute is simply whether the impairment consequences as identified are “severe”.
21In the resolution of this issue, I have also taken into account the plaintiff’s oral evidence. She was cross-examined about her ongoing social, recreational and domestic activities. There is no need to refer to the plaintiff’s oral evidence in detail. It can be summarised on the basis that she is still an active woman. In addition to teaching – including teaching full-time when such a contract is available at a girls’ school – she has travelled extensively (although interrupted by the current pandemic) – including to exotic locations such as the base camp at Mount Everest. She continues to exercise and runs several times a week. She enjoys occasional surfing. She enjoys competition sports, including touch rugby and ultimate frisbee. She has both male and female friends. She still enjoys socialising and going out for dinner or to a movie with friends. True it is that she gave evidence that a number of these activities are her escape,[11] nevertheless they are activities she is able to engage in without much restriction, although there was some attempt in re-examination to elicit evidence that her social life was less than it was before the incident. She gave evidence that before the incident she was out most nights and that has now been reduced by approximately half.[12] While there may be some reduction in her social life, it is clearly not a situation where she does not have a social life. When her various sporting interests are taken into account, she still seems to engage in pleasurable social or recreational activities most days and nights.
[11]T35, L3
[12]T35, L19
22The plaintiff has had considerable conservative treatment. That has principally been with Dr Rick Hooper, a general practitioner, and Ms Dianne Perrett-Abrahams, a psychologist. Dr Hooper’s most recent report is dated 22 September 2020.[13] His report confirms the restrictions deposed to by the plaintiff. In particular, he notes that the plaintiff can perform various personal or daily activities of living and sporting activities. He states that she may have difficulty with some social activities – e.g. with unknown male individuals. He further states that she may require further psychological/psychiatric help in the future and that she has a capacity for work as a full-time physical education teacher in a girls’ only school.[14]
[13]PCB 37
[14]PCB 38
23Ms Perrett-Abrahams has seen the plaintiff on a regular basis since the incident. It is agreed that in fact she has consulted with the plaintiff on over one hundred occasions and that such consultations continue. In a report dated 29 September 2020,[15] she confirms that the plaintiff continues to suffer a chronic post-traumatic stress disorder with associated anxiety and moderate depression with consequential impairment of concentration and fatigue.[16] She confirms a capacity to work in a girls’ school only and concludes her opinion by noting that “[d]espite her hard one (sic) gains in recovery … I remain of the view that her prognosis is for partial restoration only”.[17]
[15]PCB 86
[16]PCB 93
[17]PCB 95
24For completeness, I note that the plaintiff was treated by a consultant psychiatrist, Dr Paul Wendiggensen, between 30 September 2014 and 22 April 2016, and for a period she also took antidepressant medication. In a report dated 20 January 2021,[18] Dr Wendiggensen opined that the plaintiff’s prognosis was good if she could continue teaching in an all girls’ school, but that her prognosis was dubious if she was not then assisted to returning to work in her chosen and preferred career.[19]
[18]PCB 52
[19]PCB 55
25This is, on one view, a relatively straightforward application and simply involves a consideration as to whether, on the whole of the evidence, the plaintiff’s psychological impairment produces consequences that are “severe”. The less than straightforward part of the application arises because the plaintiff cannot rely on the restriction for employment as a pecuniary loss consequence because of the provisions of the Act, and this, of course, is to be distinguished from the provisions of the Transport Accident Act 1986 (“TAA”). If in fact this was a serious injury application under the TAA, then the pecuniary loss consequences could be combined with the pain and suffering consequences.[20]
[20] Demmler v Transport Accident Commission [2018] VSCA 284. See also Hooley v Transport Accident
Commission [2019] VSCA 263 at paragraphs [40] and [41].
26This a “line ball” application. At the risk of repetition, there is no challenge to the fact that the plaintiff continues to suffer ongoing symptoms of PTSD. There is no challenge to the fact that she has an ongoing restriction for employment which produces some ‘stress’ and is a relevant pain and suffering consequence. There is no challenge that she requires ongoing psychological attendances or that she has had interference with some personal relationships, including with her nephews, because of her psychological condition. But balanced against that, she has been able to maintain full-time employment, has a full and varied social life and regularly engages in a range of sporting activities. But for the pandemic, there is no suggestion she could not have continued with her love of overseas travel, including to remote and exotic locations.
27I am conscious that the threshold for the plaintiff to succeed in this application is to demonstrate impairment consequences that are “severe”. However one might describe the impairment consequences they do not, in my judgment, amount to “severe”.
28Accordingly, the application is dismissed. I will hear further from the parties as to the appropriate cost orders.
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