Vardy, Leanne v Cleaning Wizard (Central) Pty Ltd and VWA

[2009] VCC 1493

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-00405

LEANNE VARDY	Plaintiff
v
CLEANING WIZARD (CENTRAL) PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 and 18 September 2009
DATE OF JUDGMENT:	19 October 2009
CASE MAY BE CITED AS:	Vardy, Leanne v Cleaning Wizard (Central) Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1493

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - serious injury application - severe and permanent mental or behavioural disturbance or disorder - relevance of pre-existing condition - credit of plaintiff and reliability of plaintiff’s evidence in issue – application in respect of pain and suffering and economic loss.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Smith SC with	Arnold Thomas & Becker
Mr S Smith
For the Defendants	Ms J Dixon SC with	Wisewould Mahony
Ms M Fox
HIS HONOUR:

1          In this proceeding the plaintiff seeks leave, pursuant to the provisions of the Accident Compensation Act 1985 as amended (“the Act”), to commence proceedings seeking damages for both the pain and suffering and pecuniary loss arising by reason of injuries suffered in the course of her employment with the first named defendant in late November 2002. The plaintiff alleges that in late November 2002 the course of her work with the first named defendant as a cleaner she was subjected to inappropriate sexual advances and sexual assaults (“the behaviour”) and that by reason of being exposed to the behaviour, she has developed a severe and permanent mental or behavioural disturbance or disorder within the meaning of the provisions of s.134AB(13)(d) of the Act.

2          The plaintiff was born on 14 February 1965. Her early childhood was an unusual one. By reason of the inability of her mother to adequately care for her, the plaintiff at a young age was placed in a home conducted by the Salvation Army. When the plaintiff was eight or nine years of age her mother remarried and the plaintiff left the home to live with her mother and stepfather. The plaintiff described her stepfather, Mr Robert Hyatt, as being of Aboriginal descent and as a man who was very strict and who would punish both she and her brother in “weird, wonderful ways”.[1]

[1]             Transcript (“T”) 46

3          The plaintiff lived with her mother and stepfather for approximately three years, at which time the relationship between her mother and Mr Hyatt broke down. Approximately eight months later the plaintiff’s mother married Mr John Adamson. The plaintiff lived with her mother and Mr Adamson for approximately ten years until the age of approximately twenty-three. She said that she had a good relationship with Mr Adamson,

4          The plaintiff said that she completed her High School Certificate in 1982 and that whilst she had a dream to study law at university, this remained only a dream and at no time did she make an application for admittance to study at university.

5          The plaintiff described her work history as involving employment:

(i)	as a Customs officer;
(ii)	with Stockdale and Leggo;
(iii)	as a personal assistant to the finance manager and export clerk of Bridgestone;
(iv)	with Thomas Direct, where she was engaged to manage a fundraising campaign to support the Helicopter Rescue Service;
(v)	with Victoria University, where her job involved finding traineeships for students;
(vi)	with a company called Security Mail, which involved her undertaking telemarketing work for BMW.

6          The plaintiff said that she commenced working with the first named defendant because this work, which involved nightshift, neatly accommodated her obligations as a mother, in that she could start work after her children had gone to sleep and be home before they awoke. She said that it was her intention to continue working these sorts of hours until her youngest child had commenced school and that at that time she would have sought fulltime employment working regular hours.

7          In an affidavit dated 28 September 2008, the plaintiff described the ongoing effect of her emotional injury as involving suicidal thoughts, frequent anxiety and panic attacks, reluctance to leave her home without the presence of another person and experiencing waking visions which involved seeing faces of people at her window or within her house. She said that she was fearful and became upset if she saw “brown-skinned people or dark-skinned people” and that she suffered from impaired concentration and aggression.

8          In the course of evidence given before me, the plaintiff described her medical history and present condition as follows:

• Prior to being exposed to the behaviour she had suffered from an “obsessive cleaning disorder”[2] and she had consulted two psychiatrists, Dr Benjamin and Dr Honey, with respect to that disorder. She said that the disorder did not in any way interfere with her ability to work on a fulltime basis.

• The plaintiff described the fact that after being exposed to the behaviour, she lost her voice continuously for three weeks and since that time although her voice gradually returned, she would lose her voice if she became stressed and upset.[3] She described suicide attempts which involved slashing her wrists and taking an overdose of medication. She described suffering from panic attacks which were brought on particularly when she saw people “like Indian, Pakistan, Sri Lankan, dark New Zealanders”.[4] She said since 2002 she heard voices nearly every day and had visions of faces looking through the window. Whilst this originally involved seeing “a white man like Billy Idol who would walk past my bathroom window all the time”[5], the plaintiff said that she did not see that vision anymore, however she continued to have a vision involving the presence of dark face with big black eyes. The plaintiff said that she would not leave her home by herself, that she suffered from nightmares and that she had not had a complete night’s sleep since being exposed to the behaviour. She said that she remembered the body odour of the man who attacked her, that the body odour of her son and her husband reminded her of that odour and that this fact interfered in her relationship with both her son and her husband. She said that since the behaviour, she had developed a memory of an incident which occurred whilst she was living in the Salvation Army Children’s Home which involved two boys playing inappropriately with her.

• She said that she had a problem with her temper, that her concentration level was low and that she was very forgetful, to the extent that there were instances when she could not remember “how I got somewhere – I know we drove, that’s it, but I don’t remember being in the car, and travelling along the road”.[6]

• The plaintiff said that she was presently being treated by her family doctor, Dr Keating, in combination with Dr Waechter, who prescribed Effexor, Seroquel and Diazepam for her use.

[2]             T 47

[3]             T 50

[4]             T 51

[5]             T 52

[6]             T 56

Did the Plaintiff Suffer a Compensable Injury?

9          The defendants raise as an issue for consideration the question as to whether the plaintiff has established that she has sustained a compensable injury. The plaintiff’s presentation to Dr G Braude on 1 December 2002 together with the history provided by her at that attendance, in combination with the acceptance of the plaintiffs claim for weekly payments of compensation under the Act without further explanation or qualification, satisfies me that this issue should be determined in the plaintiff’s favour.

The Reliability of the Plaintiff’s Evidence

10        The plaintiff proved to be a generally unreliable historian when her evidence was tested in cross-examination. In this regard I accept the submissions made by the defendants that the plaintiff:

(i)	Minimised a number of significant aspects of her past psychiatric history, both in her evidence and in the histories provided to a number of the consulting psychiatrists who examined her for the purposes of the application;
(ii)	falsely provided a history on a number of occasions that she had either –

(a)	applied for entrance to;
(b)	been accepted into and or, deferred her enrolment in

a law degree;

(iii)     provided inconsistent histories to a number of consulting psychiatrists as to whether she had been sexually abused by her present stepfather and, contrary to her evidence, specifically provided a history on a number of occasions that Mr Adamson had sexually abused her during her teenage years;[7]

(iv)   when providing a history to a care agency known as ISIS, misrepresented her indigenous heritage and her relationship with her husband, in that she represented to ISIS that she was of indigenous heritage and that she had separated from her husband;

[7]             In her evidence, the plaintiff denied vehemently that Mr Adamson had ever sexually abused her or that she would ever have made an allegation that he did so.

11        Whilst the defendants are rightly critical of the inconsistencies in the plaintiff’s evidence, there is little doubt that the plaintiff is suffering from a significant mental illness. In the circumstances, I do not find it surprising that the plaintiff would not cope well with the pressure associated with the giving of evidence in a proceeding of this nature. This does not, however, explain the deficiencies in the plaintiff’s evidence to which I have referred above. In these circumstances I am of the opinion that generally the plaintiff’s evidence on any given topic requires careful scrutiny before it is accepted.

The Presentation of the Plaintiff

12        I had the opportunity of assessing the plaintiff during the course of her evidence and cross-examination which occupied a full day. The plaintiff struck me as presenting as someone who was acutely mentally unstable. At various times she lost her voice and her demeanour varied from cowering to being assertive. On occasions she appeared to be quite manic; at other times she became distressed and broke down.

The Extent of the Plaintiff’s Pre-existing Mental Illness

13        There is a considerable body of medical evidence which satisfies me that the plaintiff suffered from a psychiatric illness of some moment prior to being exposed to the behaviour.

14        The plaintiff consulted a psychiatrist, David Stratton, on one occasion in 1996 whilst residing in Queensland. Dr Stratton diagnosed the plaintiff as presenting with obsessive compulsive disorder and post natal depression. He did not think, however, that her problems at that time were so severe that she required medication.

15        In a report dated 2 September 1998, Dr Marcus Benjamin, a psychiatrist, described the plaintiff as suffering from anxiety features with significant mild obsessive compulsive disorder symptoms and considerable phobic anxiety. In a report dated 30 August 2004, he stated that in August 1998 he commenced the plaintiff on Aropax, 20 milligrams daily, which he had increased to 40 milligrams per day by 10 November 1998. On 4 April 1999, Mr Benjamin further reported that he saw no reason for further follow-up of the plaintiff at that stage.

16        In February 2002, the plaintiff consulted a psychiatrist, Dr John Honey. Dr Honey obtained a history that the plaintiff did not love her husband, that she became depressed and wanted to crash her car and did not like shopping in crowded places as she felt that people were looking at her. At the time of her presentation to Dr Honey, the plaintiff was using the anti-depressant, Cipramil in a dose of 40 milligrams per day and was taking Mersyndol for headaches. In a report dated 15 March 2004, Dr Honey expressed the opinion that the plaintiff was suffering from depression and with a borderline personality disorder.

17        I accept the submission on behalf of the defendants that the plaintiff was prior to being exposed to the behaviour, suffering from a psychiatric condition of some consequence, in that she was suffering from an obsessive compulsive disorder and made regular use of anti-anxiety or anti-depressive medications. Further, when the opinions of Dr Benjamin, in April 1999, and Dr Honey, in February 2002, are compared, it appears that there had been some deterioration in the plaintiff’s psychiatric condition between those two dates.

18        Although the plaintiff asserted in her evidence that she was not affected to any extent by any symptoms of anxiety, depression, agoraphobia or obsessive compulsive disorder symptoms immediately prior to being exposed to the behaviour, I am satisfied that this was not the case and that it is probable that the plaintiff was at that time suffering from symptoms at least as severe as those with which she presented to Dr Honey in February 2002.

19        The plaintiff gave evidence that prior to being exposed to the behaviour she had a relatively stable employment history in occupations involving a degree of responsibility. This evidence was tested in cross-examination and the plaintiff gave detailed evidence as to her employment with Customs, Bridgestone, Thomas Direct, Security Mail, Victoria University and TNT. I found the plaintiff’s evidence to be consistent and generally persuasive on this issue.[8] Further, contrary to other histories provided by the plaintiff to various medical practitioners, the history provided by her as to her pre-injury employment was generally consistent.

[8]             T 136-138

20        Although I am cautious in relying on this history of employment in absence of independent corroboration for the reasons I have expressed earlier, when account is also taken of:

(i)	the fact that it is not suggested by the defendants that the plaintiff was anything other than a competent employee before being exposed to the behaviour;
(ii)	the evidence of Dr Honey that when he examined the plaintiff some nine months prior to the occurrence of the behaviour, it was his opinion that her condition was such that it was not likely to stop her from engaging in employment or to affect her ability to engage in employment;[9]

I am satisfied that the plaintiff’s capacity for work was intact immediately before she was exposed to the behaviour, and that I should accept the plaintiff’s evidence that she held the positions which she described in her evidence and that she managed the responsible duties involved in those positions competently.[10]

[9]             T 293. This, in my opinion, provides a good yardstick as to the extent of her condition.

[10]           Whilst I have described the plaintiff’s pre-existing psychiatric condition as being one of some moment, it is significant that the condition did not affect the plaintiff’s ability to work.

21        In the circumstances I am satisfied, having considered the evidence available as to the extent of the plaintiff’s pre-existing psychiatric condition that:

(i)	the plaintiff’s psychiatric condition did not adversely impact upon her ability to function effectively in the workplace and that she was most probably, when she commenced her employment with the first named defendant, fit for a large range of employment situations;
(ii)	the fact that that the plaintiff’s ability to work was maintained is strongly indicative of the fact plaintiff was managing her psychiatric condition reasonably well and that, whilst the condition required management by the use of anti-depression medication, it did not significantly interfere with her ability to function.

The Plaintiff’s Medical Evidence as to the Consequences of the Incident

22        Dr Paul Kornan examined the plaintiff on 14 June 2006. On that occasion he expressed the opinion that the plaintiff suffered from an obsessive compulsive disorder, a post-traumatic stress disorder and major depression with some associated anxiety features. He opined that her psychiatric impairment was stabilised, that the major portion of her psychiatric impairment had been caused by her employment issues and that whilst she was presently unfit for work, he was optimistic that the plaintiff should be able to return to part-time employment in the next two to three years.

23        Ms Jude Weston, psychologist, in a report dated 6 December 2003, stated that the plaintiff was referred to her for psychological assistance secondary to emotional distress arising from workplace sexual harassment and abuse which occurred in November 2002. She described the plaintiff as presenting at the severe range in both depression and anxiety and diagnosed her to be suffering from a post-traumatic stress disorder. When she last saw the plaintiff in August 2004 she opined that:

“(i)	The work-related injury has significantly emotionally destabilised Mrs Vardy.
(ii)	When I last saw her on 16 September 2004 I believe she will be unable to return to work for her previous employer at any time in the future and will need assistance to gain alternative employment or re-train in due course. I believe she will be able to return to work at some stage.”

24        Dr Alexandra Rodda, consulting psychiatrist, commenced treating the plaintiff in May 2004. Although, by reason of personal illness, a number of Dr Rodda’s records have been lost, she estimated that she examined the plaintiff on some twenty or so occasions.

25        In a report dated 12 September 2009, Dr Rodda opined that the plaintiff’s history of having a mother who developed a mental illness indicated that the plaintiff had inherited a capacity to break down. She described the plaintiff’s life ethic until being exposed to the behaviour as having been a defence against psychosis. She commented:

“Because she has spent a lifetime defending against madness, she is not able to give in to it completely and to experience the relief of anxiety that a psychotic breakdown, with its delusion certainties, brings to people when the hyper anxious prodrome stage develops into a full psychosis. However, I chose to medicate her with anti-psychotic medications, which are major tranquilisers and are used in various post-traumatic stress syndromes to take some form of pressure off her.”

26        She continued:

“Though Leanne’s pre-morbid adjustment was one of ‘reaction formation’ and required a lot of energy to maintain and therefore could be said to have been unstable, she would most likely have been able to maintain it for the rest of her life but for the injurious incidents at work.”

27        She commented upon the plaintiff’s prognosis as follows:

“Her prognosis is not good. It is unlikely that she will be able to return to work. She may become a little more comfortable within herself with treatment.”[11]

[11]           Plaintiff’s Court Book (“PCB”) 178P

28        In evidence before me, Dr Rodda was asked as to the likelihood of the plaintiff improving with more rigorous psychiatric treatment, to which she responded:

“I can't predict really with 100 per cent certainty and I do believe that no one can stop, miracles do happen, but they’re very rare. My aim for Leanne in therapy would be to make her and her family more – less distressed to start off with; probably a little bit more comfortable, I don’t know that I would ever be able to get her back to work, to what extent I would be able to achieve that. But certainly my aim would be to adduce the amount of suffering that she is undergoing now.”

29        Dr Albert Kaplan examined the plaintiff on 8 September 2009. In a report of that date he expressed the opinion that the plaintiff presented with a post- traumatic stress disorder, that she had also developed agoraphobic symptoms and had experienced panic attacks. He was of the opinion that her condition was probably triggered by the assault which occurred in the course of her employment in the context of an underlying vulnerability and that her psychiatric condition rendered her incapable of employment.

30        In the course of his evidence before me, Dr Kaplan expressed the opinion that he did not accept that a formal diagnosis of borderline personality disorder could be sustained with respect of the plaintiff and that being exposed to the behaviour either triggered or caused an aggravation of pre-existing conditions which resulted in the plaintiff developing a post-traumatic stress disorder and a chronic adjustment disorder, together with an aggravation of a pre-existing vulnerability in the form of depression and anxiety. He said that having regard to the chronicity of the plaintiff’s symptoms since November 2002, it was unlikely that the change in the plaintiff’s condition was temporary. It was put to Dr Kaplan that the plaintiff’s inconsistent and inaccurate history should cause him to have reservations about arriving at a diagnosis, to which he responded:

“Well then I’d have to look at her current clinical picture and the symptoms that she describes, and the symptoms she describes – I mean it’s hard to imagine that she would be able to manufacture this, and both the post-traumatic stress disorder and the agoraphobia with the panic attacks. So the diagnosis, the current diagnosis I think stood, appears to be consistent with the picture that she paints.”[12]

[12]           T 255

31        In response to a suggestion that more active psychiatric or psychological intervention may assist the plaintiff, Dr Kaplan said:

“Well, unfortunately post-traumatic stress disorder tends to carry a poor prognosis, particularly once it becomes entrenched and treatment is notoriously difficult. Agoraphobia tends to run the chronic fluctuating course, and tends to be aggravated by stress.”[13]

[13]           T 256

32        As to the plaintiff’s prognosis, Dr Kaplan opined:

“Given the condition has been present for so many years now, it is well

entrenched and I think that the prognosis is likely to be unfavourable.”[14]

[14]           T 258

33        As to the relevance of being exposed to the behaviour in causing the plaintiff’s symptoms given the presence of her prior psychiatric history, Dr Kaplan observed:

“She had very brief periods of treatment previously and she appears to have had more consistent symptomology and certainly much more extensive treatment since the incident.”[15]

[15]           T 260

The Defendants’ Medical Evidence

34        The plaintiff has been examined by Associate Professor George Mendelson on a number of occasions. In a report dated January 2003, Assoc. Prof. Mendelson expressed the opinion that the plaintiff’s employment had been a significant contributing factor to her psychiatric condition which he diagnosed as an adjustment disorder with anxiety.

35        In a report dated 24 November 2003, Assoc. Prof. Mendelson expressed the opinion that the plaintiff did not have any gainful capacity for employment by reason of her anxiety and depressive condition and opined that her current treatment was not optimal and that she should be treated by a consulting psychiatrist.

36        In reports dated 13 April 2004 and 1 March 2005, Assoc. Prof. Mendelson maintained the position expressed in his November 2003 report, namely, that the plaintiff was presenting with a mixed anxiety and depressive disorder precipitated by the events which occurred at work during November 2003 and that she did not have any capacity for gainful employment.

37        Assoc. Prof. Mendelson reviewed the plaintiff on 22 January 2009. On that occasion, he expressed the opinion:

(i)	that the plaintiff was not suffering from a post-traumatic stress disorder;
(ii)	that the most appropriate psychiatric diagnosis for the plaintiff’s symptoms of anxiety and depression was that of dysthymic disorder;
(iii)	that it could be argued that being exposed to the behaviour in November 2002 had aggravated the plaintiff’s pre-existing psychiatric problems;
(iv)	that the plaintiff would in the future be able to work in the company of female workers. (In this regard, Assoc. Prof. Mendelson concurred with the opinion of Dr Botvinik expressed in a report dated 26 November 2007.)

38        In a further report dated 10 September 2009, Assoc. Prof. Mendelson altered his opinion as to whether the exposure to the behaviour continued to be a significant contributing factor to the plaintiff’s presentation, and opined:

“Any incident that might have occurred whilst Mrs Vardy was at work in late November 2002 was not the cause of her ongoing psychiatric problems.

Quite clearly Mrs Vardy has a long history of psychiatric problems, for which she sought treatment from her general practitioner and from at least two psychiatrists, including in early 2002 only a few months prior to the incident in November 2002.

In my view the incident as described by Mrs Vardy might be considered as having caused a temporary exacerbation of her pre-existing psychiatric problems and if it were accepted that it caused an adjustment disorder the symptoms would have been expected to last no longer than six months.”

39        I do not accept the opinion expressed by Assoc. Prof. Mendelson that by September 2009, the behaviour was no longer playing a part in the plaintiff’s presentation. It seems that the cause for the change in his opinion in this regard was the provision to Assoc. Prof. Mendelson of a report by Dr Honey dated 5 March 2004, which referred to the consultation between the plaintiff and Dr Honey of 5 February 2002. I interpret Dr Mendelson’s report as placing significant reliance upon a diagnosis made by Dr Honey that the plaintiff was presenting with depression as well as a borderline personality disorder. It is clear, however, that these were differential diagnoses and that Dr Honey wished to review the plaintiff before coming to any concluded view as to his diagnosis.[16] Further, I do not find the reasoning given by Assoc. Prof. Mendelson for the change in his position as to the relevance of the behaviour as a cause of the plaintiff’s persisting psychiatric symptoms to be in any way persuasive.

[16]           T 291

40        In his report dated 22 January 2009, Assoc. Prof. Mendelson concurred with Dr Botvinik’s view expressed in his report dated 26 November 2007 that the plaintiff would, in the future, be able to work in the company of female co- workers. I note that in expressing that view Dr Botvinik opined that as at the time of his examination the plaintiff remained unfit fit for pre-injury duties or any other suitable employment, but that she was not totally and permanently incapacitated for suitable employment in the future when he expected that her condition would improve.

41        I interpret Assoc. Prof. Mendelson’s endorsement of Dr Botvinik’s views in the course of his report of January 2009 to be expressing an opinion that whilst the plaintiff continued to be unfit for suitable work , in the future her psychiatric condition would improve such that she would be able to work in the company of female co-workers. Having regard to the fact that some seven years have now passed since the happening of the incident, I do not accept the opinion of Assoc. Prof. Mendelson that it is likely that the plaintiff’s condition will improve such that she is fit to return to any form of work. In this regard, I prefer and accept the opinion of Dr Rodda, as supported by the opinion of Dr Kaplan, that it is unlikely that the plaintiff will be able to return to work.

42        Dr Alan Jager examined the plaintiff on behalf of the defendants on 11 August 2009. In a report of that date, he expressed the opinion that he was uncertain as to whether there was any relationship between the plaintiff’s employment and her current symptoms and that her disturbed emotional state pre-dated her workplace injury and may represent a borderline personality disorder. He also expressed the opinion that the plaintiff possessed a part-time capacity for employment as a cleaner. The issue as to whether the plaintiff’s presentation was consistent with being one caused by the presence of a borderline personality disorder was raised with Dr Rodda, Dr Kaplan and Dr Honey. Both Dr Rodda and Dr Kaplan unequivocally expressed the opinion that they did not accept a diagnosis of borderline personality disorder as being valid. Both witnesses gave persuasive explanations for excluding the diagnosis. Having considered the explanations given by Dr Rodda and Dr Kaplan for excluding the diagnosis, I find them to be persuasive and I prefer their evidence to that of Dr Jager. Further, I do not accept the evidence of Dr Jager that, as at the time of his examination of the plaintiff, she possessed a part- time capacity for employment as a cleaner. This opinion appears to be at odds with the opinions expressed by all other psychiatrists who have examined the plaintiff.

Conclusion as to Medical Evidence

43        I found Dr Rodda to be a particularly impressive witness. As the plaintiff’s treating psychiatrist I consider her to be best placed to express opinions as to the plaintiff’s diagnosis and as to the relevance of the behaviour in the plaintiff’s current presentation. Dr Rodda’s evidence at T 219, line 19, to T 220, line 23, was evidence which I considered compelling in its analysis of the plaintiff’s vulnerability to the particular trauma to which she was exposed in the course of her employment with the first named defendant. There can be no doubt that the views expressed there by Dr Rodda were genuinely held by her and I accept them.

44        I also accept the analysis by Dr Rodda as to the relevance of the plaintiff’s pre-existing psychiatric illness to her current condition. She was asked:

“Q:	She may well have been suffering from depression and anxiety before the incident?---
A:	Yes.
Q:	You don’t see that as problematic?---
A:	No.
Q:	In terms of saying that she was functioning well beforehand?---
A:	Yes.
Q:	It would depend wouldn’t it how severe the depression and anxiety was?---
A:	That’s right.
Q:	The fact that you can go to work doesn’t necessarily mean it’s not fairly severe?---
A:	The fact that she could go to work means that it was not severe enough to prevent it.
Q:	All right?---
A:	And so it would not have been in the same ball park as what she is experiencing now.”

45        Further, given the evidence of both Dr Rodda and Dr Kaplan, which I accept, I am satisfied that any improvement which might be achieved in the plaintiff’s level of functioning is unlikely to significantly alter her capacity for work and I am satisfied that her impairment is permanent within the meaning of the Act.

Conclusion

46        In assessing the consequences of the plaintiff’s injury upon her for the purposes of determining whether the plaintiff has suffered a severe mental or behavioural disturbance or disorder in circumstances in which I have found the plaintiff to have been suffering from a pre-existing psychiatric illness, I am required to compare the extent and effect of psychiatric condition which was present before the behaviour with that which pertains at the present date and which I am satisfied was caused by the behaviour.

47 I am satisfied that following, and by reason of, the behaviour there was a very significant deterioration in the plaintiff’s level of functioning. This is illustrated at one level by the fact that extent of the plaintiff’s agoraphobia as described at the time of her presentation to Dr Honey, is very different to that from which she has suffered since that time, [17] and at another level by the contrast between the plaintiffs capacity to work before the occurrence of the behaviour and her incapacity for work thereafter.[18] I am satisfied that the consequence of the injury has been to turn a woman who, notwithstanding the presence of a pre-existing psychiatric illness, was able to function at a reasonable level into someone who is now largely dysfunctional.

[17]           The dislike of shopping in crowded places is far removed from her evidence, which was not challenged, that she was unable to leave her house by herself. In particular, her evidence at T 188 as to the extent of her agoraphobia, which I accept, was compelling on this issue. When the plaintiff’s present symptoms were put to Dr Honey, he expressed the opinion that the plaintiff’s symptoms were much more severe than those which had been described to him in February 2002.

[18]           I have previously commented that I am satisfied that, whilst the plaintiff was fit for a large range of work prior to being exposed to the behaviour, the effect of the behaviour has been to render her permanently unfit for any form of suitable employment.

48        Whilst it was submitted by the defendants that the plaintiff has not availed herself of appropriate vocational rehabilitation and further that a more aggressive psychiatric treatment program may well have made a significant difference to the plaintiff’s level of functioning, I am not satisfied that this is the case. I accept the evidence of Dr Kaplan and Dr Rodda that the plaintiff’s condition is difficult to treat and I am satisfied that even with a more rigorous treatment program, any gains which may have been achieved would have been marginal.

49        In the circumstances, I am satisfied that the effect of being exposed to the behaviour has been to cause the plaintiff to decompensate from a person capable of a wide range of varied employment to one who is totally unemployable and that, as such, the loss of earning capacity consequences of the plaintiff’s psychiatric injury satisfy the criteria established by the Act in that when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders they may fairly be described as being more than serious to the extent of being severe.

50         Having arrived at this finding, I am satisfied that the plaintiff is entitled to an order authorising her to commence proceedings seeking damages for the pain and suffering and loss of earning capacity consequences of being exposed to the behaviour

51        I will hear counsel as to the precise form of the orders sought and as to costs.

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