Wearne v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PERSONAL INJURIES LIST

No. S CI 2014 6700

GAYLENE WEARNE	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	25-26, 29-31 AUGUST, 1-2, 5-7, 9, 12 SEPTEMBER 2016
DATE OF JUDGMENT:	8 FEBRUARY 2017
CASE MAY BE CITED AS:	WEARNE v STATE OF VICTORIA
MEDIUM NEUTRAL CITATION:	[2017] VSC 25

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TORT – Negligence – Duty of care – Psychiatric injury – Workplace bullying – Scope of duty of care – Employee complaints to employer of bullying conduct by another employee (team leader) – Employer on notice of vulnerability of employee to psychiatric harm – Employer failing to act on complaints – Whether breach of duty.

ACCIDENT COMPENSATION – Personal injury – Psychiatric illness suffered in the course of employment – Employer on notice of vulnerability of employee to psychiatric harm – Content of duty of care – Negligence – Damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie QC with Mr J J Fitzpatrick	Slater and Gordon
For the Defendant	Ms J M Forbes QC with Ms J Frederico	Hall and Wilcox

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Issues in the proceeding................................................................................................................... 1

Evaluation of liability evidence....................................................................................................... 3

The plaintiff.................................................................................................................................... 3
Robyn Skerry................................................................................................................................. 4
Eva West......................................................................................................................................... 5
Nancy Boulos................................................................................................................................. 5
Jasmine Thompson and Paul McDonald................................................................................... 5

Events prior to the claim period...................................................................................................... 6

Employment with the Department from 1992-2005 (Maribyrnong and Sunshine)............. 6
Move to the Preston office in 2005.............................................................................................. 7
The first half of 2006...................................................................................................................... 9
The latter half of 2006 and January 2007.................................................................................. 13

Events during the claim period..................................................................................................... 16

Return to the Preston Office in February 2007....................................................................... 16
Early 2008..................................................................................................................................... 22
Late 2008....................................................................................................................................... 28
The breakdown............................................................................................................................ 40

Events subsequent to the claim period........................................................................................ 41

Expert evidence - Dr Penny Webster............................................................................................ 43

Expertise....................................................................................................................................... 43
The defendant’s objections........................................................................................................ 44
The admissible evidence........................................................................................................... 45

Bullying.............................................................................................................................................. 47

Review of alleged bullying incidents...................................................................................... 50
Report writing.................................................................................................................... 50
Feedback/supervision incidents generally.................................................................. 55
Work Value Review process........................................................................................... 56
Incidents in 2008 - Caravan incident, whiteboard incident, intellectually disabled client incident, probation order incident, giving inconsistent client instructions incidents. 57
Isolating the plaintiff......................................................................................................... 59
Two brothers incident....................................................................................................... 60

Conclusion on the bullying claim............................................................................................ 61

The scope and content of the duty of care................................................................................... 64

Applicable principles................................................................................................................. 64
Analysis........................................................................................................................................ 68

Breach of the defendant’s duty of care......................................................................................... 72

Principles...................................................................................................................................... 72
Breach analysis............................................................................................................................ 75
Requests to move teams................................................................................................... 75
Process for dealing with complaints.............................................................................. 80
Dealing with performance management issues............................................................ 82
Alternative position/conditions of employment......................................................... 85
Counselling, training and education.............................................................................. 88

Causation........................................................................................................................................... 89

Quantum............................................................................................................................................ 90

Quantum evidence..................................................................................................................... 90
Background........................................................................................................................ 90
The course of treatment and assessment of the plaintiff’s injury............................... 91

Impact of the plaintiff’s injury................................................................................................... 98
The plaintiff........................................................................................................................ 98
Dawn Tschujasehenko.................................................................................................... 100
Colleen Hickey................................................................................................................. 101
Janine Vains...................................................................................................................... 101

Pre-existing psychological problems..................................................................................... 101
Nature and extent of the plaintiff's injury............................................................................. 102
Implications of health prior to claim period......................................................................... 104
Pain and suffering damages.................................................................................................... 110
Plaintiff's current capacity for work....................................................................................... 111
Pecuniary loss damages........................................................................................................... 112

Conclusion....................................................................................................................................... 112

HIS HONOUR:

Introduction

The plaintiff, Ms Gaylene Wearne, was employed by the defendant’s Department of Human Services (‘the Department’) at their office in High Street, Preston, in Victoria, as a case manager responsible for assisting in youth welfare within the criminal justice system. She claims damages for pain and suffering and pecuniary loss from the defendant for a psychiatric injury sustained in the course of her employment between approximately February 2007 and 7 November 2008 (‘the claim period’).

The plaintiff alleged that her exposure to bullying and harassment on the part of a supervisor, Ms Robyn Skerry, exacerbated her pre-existing chronic adjustment disorder with mixed anxiety and depression. Further or alternatively, she was unnecessarily exposed to psychiatric harm in her workplace through negligent supervision during the claim period by her manager and senior managers, Ms Robyn Skerry, Ms Eva West and Ms Jasmine Thompson who knew of her pre-existing psychological fragility and its cause, and of her susceptibility to suffer psychiatric harm.

The plaintiff ceased working for the Department on 7 November 2008, then aged 54, when she suffered a breakdown. She is presently aged 62 and has not undertaken any paid employment since leaving the Department.

Issues in the proceeding

The plaintiff alleged that from at least 4 March 2005 the defendant knew or ought to have known that she was vulnerable to psychiatric injury. On that date she reported she had suffered stress from toxic circumstances between employees of the Department at the defendant’s Sunshine office. The defendant conceded that it was, at all relevant times since the plaintiff’s transfer from the Department’s Sunshine office in March or April of 2005 to the Preston office, on notice that she was at risk of psychiatric injury.

The following issues remain to be resolved in this proceeding:

(a) Was there conduct on the part of Ms Skerry that constituted bullying, humiliation and/or harassment of the plaintiff (‘Ms Skerry’s conduct’)?

(b) What was the scope and content of the duty of care owed by the defendant to avoid exposing the plaintiff in the circumstances of this case to an unnecessary risk of injury? If Ms Skerry’s conduct did not amount to ‘bullying’, was there interpersonal conflict between Ms Skerry and the plaintiff of which the defendant, through its employees and agents, was or ought to have been aware, and if so, did that give rise to a reasonably foreseeable risk of the plaintiff suffering psychiatric injury?

(c) Was there conduct on the part of the defendant that was in breach of the defendant’s duty of care in that the defendant failed to take reasonable care for the safety of the plaintiff in her employment (‘conduct in breach’)?

(d) Was any conduct in breach a cause of the plaintiff’s injury?

(e) What is the nature and extent of the plaintiff's injury and her disabilities?

(f) Did the plaintiff suffer pre-existing psychological problems that are, or were likely to be, a cause of her injury, and if so, to what extent was there exacerbation of a pre-existing condition? What was the prospect that the plaintiff may have sustained her condition and disabilities through non-compensable causes?

(g) In what sum should the court assess the plaintiff’s pain and suffering damages?

(h) What is the plaintiff's current capacity to work?

(i) In what sum should the court assess the plaintiff’s:

(i) past loss of earnings; and

(ii) future loss of earning capacity?

Evaluation of liability evidence

In expressing my evidentiary findings, both as to the background matters and what occurred during the claim period, I have relied firstly on a significant body of contemporaneous material ranging from the plaintiff’s GP’s consultation notes, to emails, notes of meetings, internal assessments and reports to higher management, and incident and claim forms. It has also been necessary to evaluate perceptions, feelings and interpersonal relationships, the evidence of which came from the witnesses who generally displayed an understandable lack of clear recollection of events that had occurred over eight years ago. In the narrative of my findings, I have referred to matters going to credit, but some general observations can conveniently be made at this stage.

The plaintiff

While, as will be set out in further detail below, I did not wholly accept the plaintiff’s recollection of several key events, I accept that the plaintiff has a significant depressive illness that was apparent in her affect during the course of her evidence. The plaintiff was doing her best to recollect events that happened a long time ago and were likely to have negatively impacted on her memory. There was evidence that the plaintiff had experienced difficulties with her memory for some time. For example, Ms Skerry recorded that the plaintiff was having problems with her memory in supervision meetings in 2008.

Generally I accepted the plaintiff’s account of what occurred between herself and Ms Skerry, particularly in terms of its impact upon her. On occasion, however, the plaintiff exaggerated aspects of Ms Skerry’s conduct. The plaintiff, for a multitude of reasons that are valid, perceived that Ms Skerry was treating her unkindly, unfairly and was bullying her. It was from this perspective that the plaintiff viewed and reacted to a number of otherwise commonplace or trivial interoffice and interpersonal conflicts.

On other occasions, the plaintiff downplayed the significance of other stressful events in her life. Examples of this were her personal health concerns during 2008 and family stressors including the death of her ex-husband. Further, the psychological impact of events that had culminated in the plaintiff leaving the Department’s Sunshine office do not appear to have been fully resolved and she was not able to effectively draw a line under those events and start afresh at the Preston office. I think it unlikely that the plaintiff was in a well frame of mind generally during the claim period. She focussed all of her difficulties on what she perceived to be various injustices suffered during the course of her employment with the defendant in 2007-2008. As I will set out below, the plaintiff’s perception of this was only partly justified.

I accept that the plaintiff struggled to adjust to changes in work practices and that there were forceful stressors in her personal life. To some extent the plaintiff was resistant to well-intentioned interventions from other colleagues such as Ms West and Ms Boulos, but I evaluated her attitude in this respect in the light of the pre-existing stress reaction to the Sunshine office incident, of which the defendant was well aware.

Robyn Skerry

Ms Skerry did not concede that any of her conduct towards the plaintiff was inappropriate. She was an unimpressive witness who was clearly defensive. I did not find her evidence to be persuasive and in particular I reject her evidence that she tried to be considerate of the plaintiff’s fragile psychological state. Ultimately, although she admitted to belatedly recognising that the plaintiff needed to be treated with ‘kid gloves’, she did not do so. I am satisfied that she was informed of that need by her superiors well in advance of that time. Ms Skerry was prone to frustration when she would become intemperate.

Further, Ms Skerry claimed that a note of a meeting about a significant issue that precipitated the plaintiff’s ultimate breakdown was made contemporaneously with that meeting. As I later explain, I am satisfied that the note was a reconstruction made about five months after the event to cast Ms Skerry’s participation in the events that led to the plaintiff’s breakdown in a better light.

Eva West

Ms West gave considered responses and was generally reliable when evaluated against contemporaneous documents and the evidence of others. She readily conceded what she could not recall or did not know. I accept Ms West as an honest, truthful and reliable witness.

Nancy Boulos

Ms Boulos is a registered psychologist who has worked in the field of worker’s compensation and injury management since 2003. When she worked for the Department as a team leader in the injury management team in the North Western Region, from June 2006 to August 2008, she was a provisional psychologist. She obtained her registration in Victoria in 2009.

For reasons that are outlined in further detail below I found aspects of Ms Boulos’ evidence problematic. While I am satisfied that she did not set out to mislead the court, there were inconsistencies between her contemporaneous descriptions of events in emails, and her recall in court of events during the claim period. As a psychologist, Ms Boulos ought to have had a greater perception of the plaintiff’s condition than was at times evident. Her evidence appeared self-serving in explaining her involvement with the plaintiff and I formed the impression that a primary function of the Work Health Unit was to manage the Department’s exposure to injury claims. Whether Ms Boulos was motivated by insight into the plaintiff’s condition or insight into the risks faced by the Department, in her role in the plaintiff’s issues she seemed strangely detached.

Jasmine Thompson and Paul McDonald

Jasmine Thompson and Paul McDonald were notable absentees from the witness box in this trial. Jasmine Thompson, the senior manager for the North and Western Regions was the Department’s key decision maker. The plaintiff accepted that the defendant’s solicitors had made thorough, but ultimately unsuccessful, efforts to locate Ms Thompson who left the Department’s employ some years ago and moved to New Zealand. I do not draw any inference against the defendant for its failure to call evidence from Ms Thompson. However, contemporaneous documents and the evidence of others provided the basis for evaluation of what she knew and did in connection with the plaintiff’s employment by the Department.

Paul McDonald, the regional manager of the Department’s Northern Region at the relevant time, was another upper management participant in these events who was available to give evidence, still working in senior management for the defendant. Ms Thompson reported to Mr McDonald. His appearance in the witness box was foreshadowed by the defendant in opening but he did not give evidence. I infer that his relevant knowledge and instructions are sufficiently indicated by the documents and that, had he given evidence, he would not have altered, in the defendant’s favour, the position stated in these documents.

Events prior to the claim period
Employment with the Department from 1992-2005 (Maribyrnong and Sunshine)

In August 1992, the plaintiff was first employed by the Victorian Public Service as a youth worker in the Department’s Maribyrnong office. In 1994, she transferred to the Department’s Sunshine office. She was a case manager, responsible for assisting young people within the criminal justice system and involved in preparing reports for use in court, supervising compliance with court orders, and attending court on behalf of the Department. Then, the majority of the plaintiff’s time was spent out of the office, meeting with clients and attending court.

On 7 March 2005, the plaintiff reported an incident of work-related stress that had occurred on 4 March 2005, which resulted in a successful WorkCover claim. The plaintiff was mostly off work, with medical certificates for work related stress and anxiety, from 7 March 2005 until her transfer to the Preston office approximately one month later. The Sunshine office incident, appropriately, was not explored in evidence in any detail.

On 24 March 2005, the plaintiff attended a meeting where the defendant developed a documented action plan for an early intervention strategy for occupational stress, using an external injury management consultant, Ms Leta Chen. The plan included strategies for concurrent internal (e.g. organisational health) and external (e.g. employee assistance program) supports to assist the plaintiff. Two specific return-to-work strategies were identified for the plaintiff – either a project role at the Department’s head office or a move to the Preston office in a similar youth worker role. It was the latter that transpired.

What was significant was that as a result of the Sunshine office incident the plaintiff remained anxious about any ongoing contact with a number of staff from her former workplace, experienced ongoing stress arising from those events, and that the defendant knew of her anxiety and its cause.

Move to the Preston office in 2005

In April 2005, the plaintiff commenced at the Department’s Preston office in a youth worker role under the supervision of team leader Ms Leslie Garten. The Preston office serviced Melbourne, Heidelberg and Broadmeadows Magistrates’ Courts but dealt with youths living within what the Department identified as the Northern Region.

The defendant put in place a number of support processes for the plaintiff. She received a reduced case load. She continued, throughout 2005 and into 2006, to consult Ms Chen for ongoing counselling and support. Later, possibly around the time Ms Chen ceased to be involved, the Department’s internal Work Health Unit became involved.

Generally team leaders monitored the wellbeing of staff, however the Work Health Unit was available to step in should there be a need for more intensive support. Its role included supporting workers experiencing issues that were impacting upon their ability to be at work or to return to work following a prolonged absence. Ms Nancy Abdelnour (nee Boulos) was the defendant’s employee within that unit who principally dealt with the plaintiff. Ms Boulos knew that the plaintiff had been involved with the Work Health Unit prior to her commencement with the Department in 2006 but could not recall receiving any background or handover briefing. I will return to Ms Boulos’ involvement in more detail below.

The plaintiff initially transitioned well into her role at the Preston office, receiving favourable performance development and recognition feedback from her acting team leader, Mr Ray Reiffel, in July 2005. However, she continued to experience anxiety. Although the precise timing remained unclear, the plaintiff was appointed to the role of acting team leader for approximately six months shortly after her transfer to Preston. The plaintiff recalled feeling ‘stressed [about the team leader role] … I’d been offered to continue for another six months and I said no thank you, I’d rather just work with the clients than go through supervising staff and that sort of thing’.

Personal stressors and ongoing concerns regarding her experiences at the Sunshine office continued to affect her from mid to late 2005. On 5 September 2005 she saw her GP, Dr Fred Ng, who noted that she had been feeling ‘down and anxious for some months’. At that time she was first prescribed Zoloft, on a dose of 50mg per day. Dr Ng on 10 October 2005 recorded the plaintiff’s stress arising from the terminal illness of her ex-husband and her son’s divorce. On 23 November 2005, the plaintiff stated to Ms Chen:

I am very happy at [the Preston] office and well supported, however, there are many ongoing issues in relation to the merge of the North and West region and I find myself emotionally fragile and suffering anxiety. I identified that I need assistance in trying to move on from these issues as it continues to impact on my current situation.

On 5 December 2005, Dr Ng recorded that the plaintiff was feeling stressed and anxious from work and seeing a counsellor (Ms Chen). Her dose of Zoloft was increased to 100mg daily.
The first half of 2006

Around the time that the plaintiff moved to the Preston office, the nature of the work done by youth justice case workers within the Department was changing. Some of the plaintiff’s difficulties in the transition to Preston were due to the different expectations being placed on her. The youth worker role was evolving into an office-based case-management role with less work than before undertaken outside the office. That work (e.g. weekly face to face meetings with clients) was increasingly outsourced to external non-Government entities. The new focus for the Department’s case workers was on information management and report writing.

With the role change, the Department introduced new systems and procedures. Client information was now recorded on a new digital database called ‘CRIS’, with the expectation that all client files would be comprehensive and completely computerised. The information entered into CRIS was regularly audited by team leaders, and became a tool for team leaders to measure whether performance standards were being met. A key document that the plaintiff was expected to compile for each of her clients was a client assessment plan (CAP). The CAP, once finalised and uploaded onto CRIS, could not be amended by small changes without updating the entire document. The same limitation applied to other documents that were loaded into CRIS, including court reports. Accordingly, the working procedure was that the youth worker would draft CAPs and court reports in advance of the relevant deadline, and they would be reviewed and settled by the team leader and signed off on in final form before upload to CRIS.

The plaintiff agreed that from the very early days of its introduction she had difficulties adjusting to the new manner of reporting on CRIS. She acknowledged that she struggled with the Department’s ‘new ways’ generally in her time under Ms Garten’s supervision in 2006, which pre-dated the claim period and her involvement with Ms Skerry. These modernising changes to the youth worker role did not appeal to the plaintiff, who considered moving out of juvenile justice work altogether as a result.

Further, several witnesses identified different practices between the Department’s Sunshine and Preston offices in terms of expectations for report content and standards. Ms Amelia Van Lint, the plaintiff’s senior manager in 2005-2006, and Ms Janine Vains, another case worker who had also transferred from Sunshine to Preston described the difference between practice at the two offices to be that the general expectations and reporting standards at Preston were higher.

Contact with Western Unit (Sunshine) staff continued to be anxiety provoking for the plaintiff in the first half of 2006. Her team leader, Ms Garten, and more senior manager, Ms Van Lint, were both aware of these ongoing issues. On 28 February 2006, Ms Garten wrote to Ms Van Lint that ongoing management and support was required for ‘work health issues arising for Gaye, in the context of interactions/visits/contact [with] western JJ staff’. Ms Van Lint recalled a combination of meetings, phone calls and discussion about support strategies for the plaintiff between the plaintiff and some or all of Ms Garten, Ms Chen, and the Work Health Unit.

The plaintiff continued to believe, and the Department acknowledged, that she was suffering from post-traumatic stress following the events precipitating her exit from the Sunshine office. On 6 March 2006, the plaintiff attended a meeting with Ms Garten and Ms Chen to discuss strategies that would assist her in coping with the increased presence of Western Unit staff in the Preston office, in anticipation of the upcoming amalgamation of the two offices.

In early March 2006, the plaintiff applied for long service leave later that year, informing Ms Van Lint that it was needed to deal with stress. She took sick leave from 13−27 March 2006. Dr Ng recorded on 15 March that she was feeling anxious and overwhelmed from work.

On 3 May 2006, the plaintiff reported feeling unsupported by her managers regarding her ongoing participation in the ‘PCCC project’ that involved the organisation of police-supported blue light discos, an initiative that she had been involved in while at the Sunshine office. An email she sent to Ms Van Lint on that date made clear to the Department her ongoing difficulties:

I have previously made you aware that I have experienced an extremely difficult time in the past and that I am attempting to overcome these issues by finding other sources of confidence/self-esteem building in my employment. It is my belief that this has not been taken into account when making your decision not to support me in this project.

Ms Van Lint recalled that while it was not usually the case that a Sunshine based project would remain with a worker following a move to Preston, the plaintiff’s ongoing involvement in the PCCC project was ultimately supported pending further review.

On 11 May 2006 the plaintiff lodged a DINMA (the Department’s template form for reporting incidents of ‘Disease/Injury/Near Miss/Accident’). She reported ‘stress’ arising out of ‘workplace issues’ in respect of an incident on 10 April 2006. The incident was not clearly identified in the DINMA.

Around this time, the youth justice worker role was being reclassified. As part of a work value review process, workers with long-term experience at the plaintiff’s level at that time (‘CPW-2’ level) were effectively invited to apply for the higher ‘CPW-3’ classification that brought an increase in responsibility and pay. A dispute developed about this process. The plaintiff contended that Mr Reiffel had misinformed her about the process and had encouraged her not to apply, which she didn’t. She was devastated to learn that other workers, particularly former colleagues from the Western Unit who were at or around her level of experience, were promoted through this process.

The Work Value Review process exacerbated the issues from her previous experiences at the Western Unit, and caused the plaintiff significant stress in May 2006. Both Ms Garten and Ms Van Lint recalled that the issue ‘seemed to escalate after [the plaintiff] found out that staff at the Western Unit had been successful’ in their applications.

On 26 May 2006, the plaintiff met with Ms Van Lint, Ms Garten, Ms Piera Calandro (OH&S representative) and Ms Camille Munro (from the Work Health Unit) regarding the plaintiff’s reported stress, and issues for and strategies to assist the plaintiff were discussed. The issues identified at this time were the plaintiff’s long hours of work (although she was not carrying a full case load of clients), the standard of court reports, a perceived lack of encouragement from management including regarding the continuance of her involvement with the PCCC project, the Work Value Review process, and a range of supervision issues with her team leader at that time, Ms Garten. The plaintiff acknowledged that differences of opinion regarding the content of reports had arisen between herself and Ms Garten on a number of occasions. On 16 June 2006 Dr Ng again recorded in consultation notes that the plaintiff was experiencing work related stress.

Regarding the Work Value Review process, the plaintiff ultimately lodged a formal grievance with the Department’s Regional Manager, Mr Paul McDonald. In that review, Mr Reiffel denied telling the plaintiff that she ought not apply for the promotion to CPW-3, but in evidence he did not have a clear recall of their discussions. On 29 June 2006, Mr McDonald informed the plaintiff that he had made no finding of wrongdoing regarding Mr Reiffel’s actions, but that she could submit an application for re-classification, although increased pay on any subsequent promotion would not be backdated.

The plaintiff’s working relationship with Ms Garten was deteriorating in mid-2006. On 7 July 2006, Ms Garten lodged a DINMA reporting the negative impact on her own stress levels and emotional well-being following a confrontation with the plaintiff during a feedback discussion. Ms Van Lint, who was Ms Garten’s manager, recalled that ‘obviously it took a lot of energy supporting and supervising Gaye, and … [Ms Garten] was starting to feel stressed by it’.

In July 2006, Ms Garten reported in the plaintiff’s performance development and recognition review:

It is noted that Gaye has a strong commitment to being engaged in direct service delivery and working with young people and she has persevered and increasingly struggled through a particularly challenging/difficult period over the past 12 months in terms of adjusting to her roles, both as acting team leader and JJ worker at Northern JJU, addressing professional development issues, staffing changes and OH&S issues.
Gaye will continue to be offered assistance and support to address OH&S issues, performance concerns and professional development through supervision, training opportunities and subsequent PDRP planning and continued consultation with WorkHealth.

This passage appropriately encapsulated the Department’s knowledge in mid-2006 of the difficulties the plaintiff was experiencing in performing the role that was expected of her at Preston, her commitment to being a successful employee and the Department’s recognition of her continuing need for assistance and support.

The plaintiff took long service leave from 28 July to 22 September 2006.

The latter half of 2006 and January 2007

In late September 2006, Ms Jasmine Thompson, to whom Ms Van Lint reported, approved a secondment for the plaintiff to the Refugee Minor Program at the Department’s expense on her return from leave. This secondment was arranged by Ms Boulos, supported by Ms Van Lint. Ms Boulos recalled that the secondment was intended to expand the plaintiff’s options for alternative roles within the Department, given her difficulties in the youth justice team at that point in time. Ms Boulos characterised it as ‘part intervention but part to sort of open more doors for Gaye’; [as] ‘she needed to have a break away from that unit.’

The secondment was a positive experience for the plaintiff and a success for the Work Health Unit, but as it was about to end the plaintiff became quite anxious about returning to the Preston office. She unsuccessfully applied for a permanent position with the Refugee Minor Program. On Ms Boulos’ recommendation, the plaintiff’s secondment was extended by one month and she remained with the program, and absent from the Preston office, for the remainder of 2006.

In January and February 2007, the plaintiff was unwilling to return to the Preston Youth Justice Unit. Ms Van Lint communicated the fact of the plaintiff’s fragile state of mind and her anxiety about the prospect of return to the Preston office to the Department’s more senior management, first in an email of 10 January 2007 to Ms Thompson:

While Gaye is very clear that she does not want to return to the JJ program, we have made it clear to her that at the end of this period, her options at this time would be to return or to leave the program. Gaye has been strongly encouraged to actively apply for a range of other positions both internal and external to DHS and Nancy Boulos will work with Gaye over the coming weeks to monitor her progress.

On 15 February 2007, Ms Thompson reported up the line to Mr McDonald:
She doesn’t want to come back and is not in a good frame of mind but has no other options available to her at the moment. I gather she has some job applications in but nothing resolved yet ...
Bottom line though is that if she returns, she will need to take up her allocated position quite quickly but in the interests of trying to avoid an immediate work cover claim, I think it is important that I explore options to allow for a short transition period to allow her to get back into JJ and her substantive position ...
I think it quite likely that she will make a work cover claim if she has to remain in JJ in the medium or long term …

No other suitable option was identified. When, on 20 February 2007 the plaintiff’s secondment ended, she returned to the Preston office. During the period that the plaintiff was on secondment, a department re-structure amalgamated the North and Western Youth Justice Units.

Before I turn to events from 20 February 2007–7 November 2008, the claim period, I record my finding that I am satisfied that the Department knew and accepted, from the beginning of the claim period, that the plaintiff was not in a good frame of mind, that she experienced anxiety and stress that had resulted in periods of leave, including taking an extended period away from the Youth Justice Unit in an attempt to recover her health by a period of long service leave followed by the secondment. The Department understood the plaintiff’s vulnerability to a psychiatric injury. It knew that continuing to work in the Youth Justice Unit exposed the plaintiff to the source of her original stress and anxiety, namely interaction with workers from the Western Youth Justice Unit. It knew of the other issues that had contributed to the plaintiff’s vulnerability to stress and anxiety, namely;

(a) her need to acquire new and different skills to adapt to new systems and procedures;

(b) the additional stress experienced by the plaintiff through attempting the ‘acting team leader’ role;

(c) the unsatisfactory outcome from her perspective in the grievance dispute with Mr Reiffel; and

(d) her feelings of not having been supported over the PCCC project.

The Department also understood that the risk was that a return to the Youth Justice Unit was ‘quite likely’ to affect the plaintiff’s health prospectively leading to an immediate WorkCover claim or a likely WorkCover claim in the medium term. The risk was identified as sufficiently significant to require particular attention from management.

Neither Ms Thompson, who could not be located in New Zealand, nor Mr McDonald, whose absence from the witness box was unexplained, added any explanation of this correspondence between them. Because the plaintiff’s team leader and her manager reported to Ms Thompson and through her to Mr McDonald, I am satisfied that the Department well understood the basis for Ms Thompson’s concerns. That basis emerges from the background events thus far set out. The critical question became whether the subsequent response of the Department in the management of the plaintiff was adequate in the context of the identified magnitude of the risk.

Events during the claim period
Return to the Preston Office in February 2007

On her return to Preston, the Department placed the plaintiff with a new team leader, Ms Robyn Skerry who was supervised in turn by Ms Eva West. Ms West reported to Jasmine Thompson.

From the outset, Ms Thompson informed Ms West of both the personal health problems and performance issues that could impact upon the plaintiff’s return to work. Ms West understood that the plaintiff had preferred to remain at the Refugee Minor Program and was generally reluctant to return to the Youth Justice Unit in the Preston office. Ms Skerry was also aware from the outset of the plaintiff’s issues in relation to the Sunshine office ‘debacle’, but was not briefed specifically about those events. The plaintiff told Ms Skerry directly that the Sunshine office events caused her anxiety resulting in post-traumatic stress disorder. Ms Skerry was loosely aware of other issues the plaintiff had previously experienced: ‘I think it was around supervision, around report writing. That type of thing. Entries on CRIS’.

The plaintiff was not immediately allocated a full case management role, but transitioned back in the first few weeks through program work and case support tasks. Ms West assisted the plaintiff in her transition, with ongoing consultation with the Work Health Unit, a reduced case-load and the offer of additional training in CRIS.

Despite her initial misgivings, the plaintiff felt positive overall in February-April 2007 about returning to the Preston office. By the end of March 2007, the plaintiff was asking Ms Skerry to give her more work and was offering to assist other workers if needed. On 22 March 2007, the plaintiff applied directly to Mr McDonald, seeking reclassification from CPW-2 to CPW-3. In early April 2007, the plaintiff expressed her appreciation for the support of Ms West and Ms Skerry, stating in an email to them both:

I just wanted to let you know how much I appreciate your support. I think I might just make it … with your continued, caring and supportive ways/style of management which means so much to me. I am beginning to gain a little confidence (have a way to go) but knowing I don’t have to be afraid of feeling afraid means the world to me.

Ms Skerry considered that in this period the plaintiff was feeling fairly positive. Yet an important message being communicated was the plaintiff’s continuing vulnerability to psychological injury and the significance of supportive and caring styles of management of her. This communication did not convey to the Department that the risk had ameliorated. Rather, it reinforced the need for continued vigilance by the Department to ensure a proper approach to management of the plaintiff’s workplace environment.

On 20 April 2007, the plaintiff informed her supervisors of the possibility that someone might complain about a breach of client privacy. She had accessed the confidential file of another worker’s client, the boyfriend of one of her foster children. After that worker complained, the plaintiff’s self-report was passed up the line of management. The plaintiff was subsequently found to have engaged in misconduct, characterised by Ms West as ‘a result of poor judgment and lack of thought rather than a deliberate breach for personal or other gain.’ Ms Skerry, who was not involved in dealing with the complaint, considered the plaintiff’s conduct to be a serious breach of confidentiality. The plaintiff was counselled about the Department’s privacy policy and applicable code of conduct. I pause to note that the conduct of the plaintiff’s superiors in respect of the breach of client privacy was appropriate. That this incident occurred at all was consequent on the plaintiff’s conduct.

Around this time the plaintiff was struggling generally with the new procedures within the Department, particularly using CRIS, achieving consistency in report writing standards, and recognising an increased emphasis on privacy and confidentiality. Ms West recalled that:

Gaylene expressed on numerous occasions that – um, the way things had changed were ridiculous for the Department. Um, the policies, the expectations – um, particularly because for 15 years um, there hadn’t been any feedback to Gaylene according to what Gaylene had been saying to the contrary.

Ms Skerry’s recollection of the period from February-July 2007 was:

Gaye was struggling still with the – I mean the CRIS system, the thing about the roles, as we changed the case management role it’s like about 75/80 per cent administration. We’re sitting behind computers all day. We’re on the phone all day. We’re not out and about with clients. So you know, entering data onto the CRIS system, every time you make a phone call you need to put that – you need to enter that information into the CRIS system and that’s what she was struggling with. So it was a huge part of her role.
It was a huge part of her work. The report writing, she was struggling with the report writing. It was a time management, getting reports in on time, the quality of reports, that type of thing. Case management strategies, that type of thing, you know, if I was reading a report, you know, there was certainly holes in the case-manager’s strategies in regard to addressing young people’s offending.

I am satisfied that the Department understood that the plaintiff, an employee of long standing who had not been offered employment on the basis of expertise in the new administrative systems, suffered stress and anxiety about the new demands being placed on her as an employee. This understanding imposed particular demands on the Department in providing the plaintiff with a workplace that was not injurious to her health and wellbeing.

The plaintiff described her initial impression of Ms Skerry’s supervision: ‘She seemed nice on the outside’; that ‘she would be smiling as she criticised me ... it started off small and little bits and got more and more’. I am satisfied that in the first two or three months of Ms Skerry’s supervision the plaintiff, who had not wanted to return to Preston, tried hard to succeed and discharge her duties as required.

In around May 2007, the plaintiff first asked Ms West if she could be moved to the supervision of another team leader. Initially, the issue behind this request seemed to be supervision of report writing. The process for Ms Skerry to review and sign off on the plaintiff’s reports had escalated into a source of conflict between them. The plaintiff recalled ‘... it was awful, and I was starting to question myself as well. I was starting to think that maybe I’m not a good worker’. She approached Ms West and reported to her ‘that it was stressing me, that I found it very stressful ... I told her everything. I told her I felt that I was being bullied and harassed for every little comma and any little bit of work that I did. It was never acceptable’. Although the allegation of bullying had been raised, the significant information from this complaint for Ms West was that the plaintiff was suffering ongoing stress and anxiety. Ms West had been informed by Ms Thompson of both personal health problems and performance issues that could impact upon the plaintiff’s psychological health. The plaintiff’s reported concerns sounded a clear warning bell for Ms West.

Ms West accepted that by early 2008 the plaintiff’s request to change team leader needed to be addressed. Despite recognition of this need, Ms West responded that a team change would be disruptive to others, and that she considered it best to work these things out ‘in-house’. Ms Thompson, in at least ‘a couple’ of discussions with Ms West about the possibility of moving the plaintiff to the supervision of another team leader, confirmed Ms West’s decision. The plaintiff remained on Ms Skerry’s team. I am satisfied that the decision to move the plaintiff to a different team required approval by Ms Thompson, and consultation with the Work Health Unit.

There was no evidence that the Work Health Unit, Ms Thompson, or Ms West considered the implications for the plaintiff’s mental state and her psychological health when rejecting a team change as disruptive to others. The plaintiff then perceived that she was not being supported by management despite express statements from them that they were trying to help her. This perception was not immediately articulated by the plaintiff. I am not persuaded that the relevant risks of which the Department was aware were being properly balanced. The implications for the plaintiff’s psychological health from her more senior managers apparent support of Ms Skerry’s approach to the plaintiff’s difficulties, particularly with the new work procedures, were negative. The plaintiff was feeling bullied. Whether she was in fact being bullied is a matter that I will come to in due course. Irrespective of that analysis, I am satisfied that the Department was not giving proper care to the management of the plaintiff’s work environment in the context of its knowledge of the risk factors then operating.

Ms West permitted an ‘open door’ arrangement, whereby the plaintiff was able to come to her office and speak to her directly if she was experiencing difficulties. By about August 2007, the plaintiff began to use this opportunity, on average, once or twice a week. At this stage the plaintiff’s complaints tended to be around the frequency of Ms Skerry’s feedback and the level of editing of her written work, rather than the manner in which feedback was given. Ms West considered that Ms Skerry’s feedback to the plaintiff was warranted and reasonable. Additional training for the plaintiff was suggested, but it never eventuated for a number of reasons, including the plaintiff’s reluctance to participate. I am satisfied that Ms West was, sub-consciously, reinforcing the plaintiff’s perceptions that Ms Skerry had her full support, that she needed to do better, and that she was not capable of meeting the required standard.

In mid-2007 the plaintiff experienced a number of difficulties in her personal life. On 30 May 2007, the plaintiff reported to Dr Ng feeling depressed following the worsening condition of her ex-husband with a terminal illness and another close relative being hospitalised in a coma following a brain haemorrhage. At this time she was taking 150mg of Zoloft daily. The plaintiff took sick leave from 15-20 June 2007 and reported to Dr Ng that her employer was supportive of that leave, which was confirmed by both Ms West and Ms Skerry.

In June 2007, Ms Skerry completed the plaintiff’s annual performance development and recognition report, indicating that after returning to a reduced caseload, following consultation with the Work Health Unit, the plaintiff’s workload had gradually increased. Ms Skerry referred to the plaintiff’s difficulty adapting to CRIS and her recent personal issues, but was positive overall:

Gaye's confidence using and transcribing information onto CRIS continues to cause some anxiety, and often requires the assistance of co-workers. Gaye has declined to participate in further CRIS training during this review period, however she has indicated she will consider one to one CRIS training, as offered by NYJU management, in the next development plan.
…
According to Gaye it was difficult for her to return to work with any confidence following her period of secondment. Gaye stated she was anxious regarding her view of management perceptions as a result of unresolved issues/concerns between herself and management prior to this current review period. However, Gaye reflected that her return to work plan, was smooth and comfortable, due to the influence of work health plan, her reduced workload and support by current YJ management.

At around the same time, Ms West’s equivalent review of Ms Skerry was also generally positive, but noted that ‘managing difficult staff issues/performance management and the broader systems issues continues to be an area of development for Robyn’.

These reports flow up the line to senior management and I am satisfied that Ms Thompson and Mr McDonald were informed of, and aware that, the plaintiff was now continuing in the Youth Justice Unit into the medium term, being the period they identified as likely to lead to a WorkCover claim, and that the plaintiff was continuing to experience stress and anxiety. Ms Skerry was not performing well in managing difficult staff issues and staff performance management. Ms Thompson and Mr McDonald ought to have been aware that their decision not to transfer the plaintiff to another team was not assisting the proper management of the plaintiff’s workplace wellbeing, which they had earlier identified as carrying significant risk of causing her injury.

As at 18 July 2007, the plaintiff was still on a return to work program and was not performing the full range of duties of her CPW-2 position. Personal issues also pressed on her. In August 2007, she was admitted to hospital for gall stone surgery. In November 2007, her ex-husband passed away in the US. Dr Ng noted that the plaintiff continued to take 150mg of Zoloft daily.

The plaintiff’s Work Value Review seeking promotion to a higher CPW-3 position remained ongoing. In late 2007, it was still being considered. Ms Thompson recommended that the final decision be deferred for a further six months from 12 November 2007 on the basis that the plaintiff worked at the CPW-3 level for that period. A decision would then be made as to whether she would be permanently promoted. The plaintiff was initially proactive in taking up the higher level of responsibilities, emailing both Ms West and another team leader, Ms Alicia Zineder in December 2007, requesting that she be considered to case manage more difficult clients and offering to take on additional clients that required a senior staff member.

The decision not to promote the plaintiff permanently at that time is not to be criticised on its merits. Again, it is significant that there is clear evidence of the plaintiff’s willingness to attempt to make the job work for her, while the delay and the management of communications with the plaintiff about its progress were likely contributing to her anxiety levels.

In December 2007, Ms Skerry completed a performance review of the plaintiff. Ms Skerry described their relationship as ‘probably not as good as it was at the beginning of 2007 … There had been some issues with, you know receiving feedback so I – I think we started off a lot better than probably we finished in 2007.’ Ms Skerry recalled perceiving that her feedback was not being received by the plaintiff in the spirit in which it was given.

Early 2008

On 31 January 2008, the plaintiff requested feedback from Ms Thompson and Ms Skerry as to her performance acting in the CPW-3 role. On 7 February 2008, Ms Skerry’s supervision notes reported that the plaintiff was:

… going better/emotionally stronger ... time management not an issue, KPIs and reports all on time ... keeping up with CRIS ... hasn’t booked into CRIS training as Gaye has been unable to locate any refresher courses.

In February 2008, Ms Thompson met with Ms Skerry and the plaintiff. The plaintiff recalled that Ms Thompson had said that she was happy with the work she was doing. In connection with the extended CPW-3 trial period, the plaintiff understood that Ms Skerry was to provide her with a portfolio, being a special project that she would coordinate. Ms Skerry did not allocate a particular portfolio to the plaintiff at that time. As a result of this, the plaintiff felt unsupported in the trial period, effectively blocked from achieving a successful promotion. She recalled that she ‘felt like giving up .... I was hitting my head against a brick wall because I was desperately trying to work at a higher level, but how could I if I didn’t have the tools to work at a higher level so to speak’. Ms West agreed that Ms Skerry had not given the plaintiff any portfolio or project work, explaining:

I wouldn’t necessarily say that Robyn had failed. I think that there was discussions between Robyn and Jasmine around the reasons why additional work on top of what Gaye had, and was experiencing some concerns about the performance that at that time it didn’t appear to be the best time to be giving her projects.

I am satisfied that the Department was continuing to lose sight of the objective of managing the plaintiff’s work environment to avoid a WorkCover claim. As the Department lost focus, the plaintiff continued to suffer significant levels of work induced stress and anxiety.

On 25 February 2008 the plaintiff reported to Ms Skerry that she had been experiencing panic attacks, which Ms Skerry accepted as genuine. Ms Skerry told Ms West that she had observed the plaintiff’s panic attacks. Ms West informed Ms Thompson that the plaintiff ‘was reporting panic attacks as a result of the stress that she was under relating to trying to achieve the level 3 upgrade’. As I have already stated, I accept that there were more complex reasons for the plaintiff’s stress and anxiety that Ms West and Ms Thompson ought to have appreciated. Ms West recalled observing the plaintiff having what she thought might be a panic attack only once, an event later in 2008 which I will come to, but was aware from Ms Skerry that there had been other occasions.

In early 2008, Ms West recalled that, although the plaintiff was by this stage managing cases appropriate for a senior case worker, there were still time and information management concerns. Ms West described the plaintiff’s management of her duties as varied. There were periods when the plaintiff appeared confident and competent, and was managing or felt that she was managing the workload reasonably well. At other times, she was extremely frustrated with feedback from Ms Skerry. Ms West also characterised the two women’s relationship as variable, capable on a personal level of being quite positive but anxiety-ridden at times of supervision.

Ms Skerry described the plaintiff as anxious, and resistant to further training to reflect the changes in her role. Ms Skerry considered that the plaintiff was struggling to meet the standard of a CPW-3 worker. Her memory was poor and time management continued to be an issue. These concerns would be identified by a professional as symptomatic of significant stress and anxiety, but I was not persuaded that Ms Skerry was particularly insightful about the plaintiff’s psychological condition. To the extent that she was, she was much less insightful than Ms West.

In late March or early April 2008, Ms West met on at least two occasions with Ms Skerry and the plaintiff. At the first meeting, the plaintiff walked out because she felt she was ‘not being heard’ by Ms Skerry. The plaintiff recalled that on that occasion,

… we were just discussing in general her criticism of me, and negative attitude towards the work that I was doing and she just kept denying that that was the case, that she was critical of me and that she wasn’t supporting me.

I accept the plaintiff’s evidence of this meeting.

Ms West discussed the friction between the plaintiff and Ms Skerry in a supervision meeting with Ms Skerry on 14 March 2008, and Ms Skerry agreed to consider some strategies that they discussed.

Ms Skerry confirmed that, certainly in the early part of 2008, the plaintiff had not hesitated in speaking up when she disagreed with an aspect of her supervision. The plaintiff clashed with her in relation to Department standards which Ms Skerry sought to reinforce and which she described the plaintiff as resisting, creating ‘considerable friction’. Ms West did not consider that Ms Skerry’s criticism of the plaintiff’s work was any greater than it was with other staff members.

The plaintiff was away on leave from 28 March to 7 April 2008.

The second meeting between the plaintiff, Ms Boulos, Ms West and Ms Skerry was held on 16 April 2008. Ms West described the purpose of this meeting as follows:

The meeting was called because Gaylene was experiencing, or had talked about experiencing frustration and felt that Robyn was nit-picking. Was getting very anxious about the feedback that Robyn was giving her ... To try and mediate some of those perceptions, I guess, and have some better understanding of each other’s perspective.

Ms West reported that Ms Thompson had made the decision that it was best to leave Ms Skerry and the plaintiff in the same team ‘to try to work it out as professionals’, and that Ms Boulos agreed to that course. The plaintiff reported being seen as an ‘agitator’ by supervisors, but stated that she had agreed to continue to try and operate in the same team. Ms Boulos’ recollection was that the decision to continue to try and work through the plaintiff’s grievances without implementing a change in the team structure was made by upper management, but that the plaintiff would have demonstrated a willingness to ‘try and keep going’ at that point. Ms Skerry agreed that by this meeting she was aware the plaintiff had been requesting to move to another team, but that the plaintiff had accepted the decision that had been made to continue without a change.

Ms Boulos described her goal at this time to achieve ‘a supportive return to work [for the plaintiff]’ but could not recall whether the plaintiff renewed her request to change to a different team during this meeting. Ms West in written notes from this meeting described the plaintiff as feeling ‘much better, more relaxed, more heard and understood; feels Robyn’s attitude is better’.

The plaintiff asked Ms West to be re-allocated to another team in numerous further meetings about Ms Skerry’s supervision. Ms West agreed that the plaintiff’s complaints regarding Ms Skerry’s management did not stop. From around this time the plaintiff recalled that there were ‘... lots of little meetings with Robyn and Eva, occasionally Jasmine, but it was always just trying to work out how we can work out the issues that I was laying out. But nothing ever changed’. Ms Boulos recalled various informal meetings and catch-ups in addition to the formal meetings that she attended with the plaintiff and the plaintiff’s supervisors, but could not be more specific. Ms West recalled that the plaintiff was teary in meetings, although this was not always the case. She specifically recalled two occasions in late 2008 when the plaintiff was teary.

I am satisfied that the Department’s representatives who knew of and understood the plaintiff’s vulnerability to psychiatric injury, particularly Ms Thompson, Ms West and Ms Boulos, had by this point lost sight of the goal of creating a workplace environment that was safe for the plaintiff’s mental state and minimised the risk of psychiatric injury and a consequent work care claim.

Ms West stated that from as early as May 2008 she knew the Department was ‘walking on eggshells’ in relation to the plaintiff’s mental health. In one meeting between the plaintiff and Ms West, in ‘maybe mid 2008’ the plaintiff recalled that Ms West had said to her ‘I know what you’re going through, I’ve been bullied by Robyn myself’. This evidence was not challenged when the plaintiff was cross-examined, however Ms West denied making such a statement in her evidence in chief. On the probabilities, I prefer Ms West’s evidence on this matter. She may have been trying to express empathy for the plaintiff, but was misinterpreted.

At a supervision meeting between Ms West and Ms Skerry on 7 May 2008, the latter expressed feeling unsupported in her supervision of the plaintiff given the plaintiff’s tendency to bypass her and report concerns directly to Ms West. Ms West agreed that this supervision meeting was not the only one in which Ms Skerry had expressed her views strongly about dissatisfaction with Ms West’s supervision of her and that she had felt on more than one occasion that what Ms Skerry was saying to her was inappropriate. While I accept that Ms West was in a difficult situation given her supervisory responsibilities towards both women, she did not appear to seek assistance from her superiors on the issue. I infer that she failed to provide clear guidance to both the plaintiff and Ms Skerry particularly as the relationship between them deteriorated from mid-2008. That failure contributed to the anxiety and stress experienced by both women in the latter stages of 2008. It also contributed to the manner in which Ms Skerry supervised an increasingly stressed and vulnerable plaintiff in the latter stages before her breakdown.

On 12 May 2008, Ms Thompson submitted to higher management a final assessment of the plaintiff’s application for a permanent CPW-3 role, recommending that it be declined and, significantly, noting that the plaintiff continued to suffer from PTSD and ongoing issues with management. This assessment came less than a month after Ms Thompson’s decision that the plaintiff not be transferred to another team but left to work out her differences with Ms Skerry as professionals. It is difficult to reconcile Ms Thompson’s decision not to change the team structure with her awareness of the current state of the plaintiff’s health in a manner that is favourable to the Department.

The plaintiff continued to struggle against the stressors that were affecting her psychological state. She had no option but to put on a brave face, and that is what she did. In that context, unsurprisingly, Ms West recalled a ‘good period’ of approximately 4-6 weeks after that meeting, and that there was no further complaint from the plaintiff about Ms Skerry until about July 2008. Ms Skerry reported that on 12 May 2008, the plaintiff, who remained on a reduced case load, said at a supervision meeting that she believed her work was good, she was doing a good job and was feeling less pressured.

Ms Skerry’s supervision notes of 4 June 2008 recorded that the plaintiff was ‘travelling OK with a low case load of seven clients’. In the next supervision meeting between Ms West and Ms Skerry on 11 June 2008 Ms Skerry recorded ‘discussion regarding Gaye’s progress ... noticed that Gaye has been docile lately – not going to stress anymore’ (quoting the plaintiff’s words).

The plaintiff took leave between 23 June to 22 July 2008. Ms Skerry’s supervision notes from 23 June 2008 recorded ‘make time to talk to Nancy [Boulos] when the plaintiff returns from leave … concerning Gaye’s options … 1:1 Counselling – regarding stress and a third week of leave has been applied for via Eva West’.

Late 2008

On 8 August 2008, the plaintiff attended a joint supervision meeting with Ms West and Ms Skerry in which she reported ‘it has been a horrific year, biding my time until I can leave here ... thinking about working 4 days a week. Emotionally exhausted from YJ [Youth Justice]’. The plaintiff was now overseeing 16 clients, a high case load. Ms Skerry recalled that the plaintiff experienced difficulties with the increased case load, her time management was an issue, the plaintiff was having problems with her memory and was rushing her report writing. Ms Skerry stated that in response the plaintiff was offered training, a mentor, supervision, and Ms West’s open door policy.

On 14 August 2008 the plaintiff was formally notified that her application for a permanent upgrade to a CPW-3 role had been rejected.

I pause the narrative at this point to return to mid-2008 or thereabouts to detail a number of interactions between Ms Skerry and the plaintiff, that occurred at times that have not been more precisely identified, that the plaintiff submits are examples of Ms Skerry’s bullying or harassing conduct. Given that the plaintiff and other witnesses were recalling events which occurred almost 10 years ago, it was unsurprising that they were unable to be more specific about the exact chronology of these incidents. Ms Skerry often had no recollection of the particular incident. I have no reason not to accept the plaintiff’s evidence in most cases. It is not each incident considered alone that is significant. Rather, Ms Skerry’s demeanour and her attitude as revealed by her conduct on most of these occasions when taken collectively contributes to my satisfaction that the Department was not ensuring that the workplace was appropriately safe for a person whom they knew to be fragile and vulnerable to psychological distress.

The first of these incidents, which probably occurred in about August 2008, was an occasion when the plaintiff was attending the Broadmeadows Magistrates’ Court for one of her clients. In discussions with the client’s lawyer, she concluded that her client appeared to be of low IQ and would benefit from a disability client service plan assessment. Spontaneously, she requested that the magistrate consider asking for such a plan to be done. The plaintiff described Ms Skerry’s reaction upon hearing of her having taken the initiative in this way as being ‘absolutely furious’, saying that the plaintiff should have first called to discuss the issue with her and should never have done such a thing. In evidence, Mr Reiffel, when asked about the plaintiff’s account of this incident, confirmed that the plaintiff had acted appropriately for a worker with her level of experience. I will refer to this as the intellectually disabled client incident.

Secondly, on another occasion, the plaintiff had been present at court when a young person, who was not her client, was placed on a youth supervision order. I will refer to this as the probation order incident. After the court adjourned, the plaintiff approached the young person and his mother who appeared distressed and offered general advice and information. Ms Skerry objected to her conduct. When the plaintiff returned to the office she recalled:

Robyn just out in front of everybody, she just yelled at me that I have no right to be giving young people information like that. That I have to call the right team and have to tell the team that there was a young person just been in court and that a team member would call them in due course and that I should never do such a thing ...

Ms Skerry could not specifically recall this incident other than to say that she would not have yelled at the plaintiff. Mr Reiffel agreed, when the plaintiff’s conduct was put to him for comment, that the conduct described was what would be expected of workers in the court advice role. Ms Skerry also agreed generally that for someone with Ms Wearne’s experience, the course of action described would have been appropriate.

Thirdly, the plaintiff described an incident involving a whiteboard on which staff were expected to record their whereabouts and movements in and out of the office. I will refer to this as the whiteboard incident. Although Ms Skerry chastised her for forgetting to put her name on the board on an occasion, with a demeanour that was ‘annoyed, frustrated ... it was not sort of quietly in my ear, hey don’t forget to mark yourself. You know it wasn’t nice, it was angry’, the plaintiff later observed Ms Skerry forgetting to record her own movements, compounding her feeling that she was being treated unfairly. Ms Skerry could not recall this incident.

Fourthly, the plaintiff also claimed that Ms Skerry isolated and excluded her by failing to share information with her in about 2008. One such occasion occurred when Ms Skerry failed to inform her of a change in her role from acting to permanent team leader. Ms Skerry’s evidence was that it would not have been her role to inform team members of this promotion. The Department had a confidential system regarding recruitment processes given the fact that there were others internally who had applied unsuccessfully and the need for a mandatory grievance period to pass. The responsibility for announcements regarding this role change properly sat with the manager of the office.

The plaintiff also recalled Ms Skerry becoming a grandmother for the first time, an event which she perceived had been deliberately shared with others in the office but not herself. Ms Skerry denied that there was any intention to exclude the plaintiff from the staff discussion about this event. She recalled that the conversation occurred in the middle of the open plan office area when another worker raised it and others came and joined the conversation. I accept Ms Skerry’s explanation of her alleged failure to inform the plaintiff in each case and dismiss this complaint from further consideration.

Fifthly, and more significantly, throughout 2008 Ms Skerry’s feedback regarding the plaintiff’s report writing continued to be an escalating source of friction between them. These complaints were not illustrated by production of the actual reports in question and cannot be readily evaluated. It is difficult to assess whether the plaintiff’s ability as a report writer was being justly criticised. Again, I have confined myself to assessing the reported demeanour and reactions of Ms Skerry in the context of the Department’s need to appropriately manage a psychologically fragile employee.

The plaintiff referred to corrections to one report in particular that she raised with Ms West sometime in 2008. None of the witnesses were able to be more specific about the timing of this. The plaintiff had taken a paragraph from a report written by another worker that had been previously reviewed and approved by Ms Skerry and copied the words into one of her own reports. She said she did so because the particular paragraph was appropriate to the circumstances of her client and the language used by the other worker had clearly been approved by Ms Skerry. I will refer to this as the plagiarised report incident.

Ms Skerry made extensive corrections to the paragraph, notwithstanding that the words were identical to the report she had already approved. The plaintiff concluded that ‘my report writing isn’t as bad as Robyn tries to make it out to be and that Robyn was picking on me, that I was being bullied ... I just didn’t want to deal with her anymore ... what could I do to change things?’ The plaintiff described feeling ‘physically ill from the stress’. Ms Skerry could not recall this incident. Ms West recalled raising this issue with Ms Skerry who provided an explanation for the corrections. It must follow that the plaintiff raised the incident with Ms West at the time.

The plaintiff also gave, as a specific example, a disagreement about the use of a comma. She recalled that Ms Skerry had made a correction to one of her draft reports, to insert a comma after the word ‘and’ in the middle of a sentence. I will refer to this as the comma incident. The plaintiff recalled: ‘I just said to her “Oh, actually Robyn that’s not good English. You don’t put a comma after “and”.’ Well she got really annoyed with me and insisted, it had to go there ... she absolutely insisted ...’. The comma incident was not put to Ms Skerry in cross-examination, but Ms West recalled the plaintiff raising it with her.

Regarding the substantive content of her reports, the plaintiff said that Ms Skerry ‘just didn’t want to listen to my recommendations [regarding client management] ... I was always wrong ... even though I had been working with the young person for many, many months, sometimes years’. The plaintiff gave an example, where one of her clients was doing quite well and complying with fortnightly reporting as was appropriate for someone considered a low risk client, but Ms Skerry insisted that he come in weekly and receive a formal warning because he remained unemployed, which the plaintiff considered was a harsher response than was warranted in the circumstances. By contrast, in respect of another of her clients, who the plaintiff and the previous case worker had considered was due for a formal warning given poor compliance with the Department’s monitoring programs, the plaintiff recalled being instructed by Ms Skerry to visit the client twice a week even though she lacked the time to do this, due to client workload. Ms Skerry could not recall giving these instructions. I will refer to these as the inconsistent instructions incidents.

The plaintiff described these successive incidents as ‘just whittling away at my confidence ... I felt picked on ... slowly but surely I [was losing] confidence in the littlest things, in the big things’. I accept the plaintiff’s evidence of her reaction to these incidents that I consider were mostly inappropriate management responses when the Department knew that it was dealing with a psychologically fragile employee. As I will in due course explain, I am not satisfied that Ms Skerry was bullying the plaintiff. However, I am satisfied that I should infer in all the circumstances that Ms Skerry, and in particular her supervisors Ms West and Ms Thompson, knew, or ought to have known, of some, if not all, of these small incidents and that the cumulative effect of them was to increase the stress and anxiety being experienced by the plaintiff in a way that was unnecessary.

In September 2008, Ms Boulos was preparing to leave the Department for other employment. On 3 September 2008, Ms Boulos sent a ‘hand-over’ or briefing email to her manager in the Work Health Unit and her Human Resources manager. This email was copied to Ms Thompson, Ms West and Ms Skerry. I accept Ms Boulos’ summary as evidence of the Department’s knowledge that the probable WorkCover claim predicted by Ms Thompson at the start of the claim period now appeared more likely because the plaintiff’s vulnerability was now described as extreme. The email stated:

Hi Jean/Nicole,
I have been assisting YJ program on and off with some issues regarding staff-member Gaye Wearn[e], for approx 2 years now. Gaye’s issues have been predominantly around her capacity to manage her workload and performance and her general mental health. Gaye continues to exhibit some behaviours of concern which I think Robyn (who is directly supervising Gaye) and Eva and Jasmine will need some advise and assistance with (sic).
Past interventions have included:
1.Facilitating 6 month secondment opportunity with Refugee Minor Program (out of YJ cost centre) to give Gaye a break from YJ and the opportunity to enhance her experience in another program area.
2.Vocational AX with Konekt with the offer of some additional Voc counselling which Gaye felt she did not need.
3.Regular contact with myself to check in on how she is coping and managing, especially in past 6 mo where she has struggled with accepting constructive feedback from her Supervisor/Management regarding her work performance and general attitude/behaviour.

The concern I have with Gaye is that she is extremely vulnerable to becoming long term incapacitated for work should she hit a “brick wall”, and given her personality style, she is also someone who struggles with feedback – as she associates this with causing increase in her stress.
Happy to discuss further, but I’m sure Robyn can fill you in on the rest of the information.

Several features of this email are particularly significant. Firstly, Ms Boulos suggests that the reader can obtain further information from Ms Skerry and that, in my view, displayed a particularly limited understanding by Ms Boulos of the nature of the plaintiff’s problems at the Youth Justice Unit. It is probable that the plaintiff sensed that she had little more support from the Work Health Unit than she received from management as all gave the appearance, at least, of supporting Ms Skerry and not offering her an independent avenue for complaint, support, or assistance.

Secondly, Ms Boulos’ warning that the plaintiff was vulnerable to long term incapacitation is directed to management, not the plaintiff or anyone preferring the interests of the plaintiff to those of the Department. Ms Boulos confirmed that this email essentially constituted her handover notes to those who would be ‘looking after the [plaintiff’s] case’ in future. She did not consider it appropriate to copy the communication to the plaintiff. Ms Boulos confirmed that her reference to the risk of ‘long term incapacitation’ referred to a potential breakdown in the plaintiff’s mental health:

COUNSEL: [Reading from email] That, “there was a risk of her extreme vulnerability to a long term incapacitation”? --- Yes.
A breakdown, in other words? --- Yes. So certainly from my experience I was concerned that, you know, continuation of Gaye feeling like this and feeling like she’s not having, I guess, better days than worse days, or being – having difficulty managing. But it would culminate to her ceasing to work and that’s a real concern because often when people do go off work they have real difficulties with coming back to work.
…
You agree that you’ve sent a fairly strong message there? –- I have. I was giving a clear update to those who needed to know where I felt things were at and the risks and concerns that I had.

Thirdly, it is implicit in Ms Boulos’ email, and she was then a trainee psychologist, that a breakdown was not an inevitable consequence.

Finally, Ms Boulos was identifying, for the information of her superiors, that the supervision of the plaintiff by Ms Skerry, Ms West, and Ms Thompson was problematic.

In November 2008, Ms Tschujasehenko visited the plaintiff at her home. She recalled that the plaintiff was visibly upset, and that the normally neat and tidy house was in a state of disarray, with dishes accumulated in the kitchen sink. Ms Tschujasehenko gave evidence that from this time onwards the plaintiff increasing isolated herself from family and friends, would cancel commitments, would rarely leave her house, and sought comfort mainly from her dogs.

Ms Tschujasehenko remarked that the plaintiff, in more recent times, appears to be incrementally getting better, that she does not require as much convincing to attend social gatherings, but that progress is slow.

Colleen Hickey

Ms Hickey has maintained a friendship with the plaintiff for about 40 years.

Ms Hickey stated that the plaintiff was ‘friendly, easy going, fun, social’ and that she enjoyed her work in the early years. Ms Hickey noted a change in 2008 when the plaintiff became ‘a lot more anxious’.

Janine Vains

Ms Vains, a former work colleague of the plaintiff, attempted to assist the plaintiff when she was experiencing difficulties with Ms Skerry by raising it with their manager, Ms West. Ms Vains recounted that she told Ms West that the plaintiff felt persecuted, bullied and isolated by Ms Skerry.

Ms Vains observed that over the course of employment under the supervision of Ms Skerry the plaintiff appeared to be suffering from ongoing distress, often culminating in tears at work. She also noted that following meetings with Ms Skerry the plaintiff was incredibly upset, extremely distressed and was sobbing at her desk. Ms Vains said the frequency of these outpourings was varied, but towards the end of the plaintiff’s employment they became more regular. She described the plaintiff as an otherwise friendly person, who was honest and caring.

Pre-existing psychological problems

I am satisfied that the plaintiff suffered from a pre-existing psychiatric condition, as a result of the following contributors:

(a) the previous history of depression as noted by Dr Ng;

(b) the stress and anxiety resulting from her period of employment at the Sunshine office, which required antidepressant medication;

(c) the stress and grief associated with the death of her ex-husband, mother in law and mother in a relatively proximate period of time; and

(d) her own medical issues.

Dr Datta, in his reports dated 31 July 2009 and 21 February 2011 set out the following history:

… [The plaintiff] has also had two major stressful events happen over the past few years. One of them has been the death of the father of her two children, who died on account of cancer and had to be nursed almost continuously for the last six months of his life. Gaylene was one of his close friends and helped him with his Will and in a number of other areas and she was left quite devastated at his death two years ago.
…[Her mother in law] passed away within a week or two of his death. Gaylene and her children were quite close to her as well and were left with a series of losses in a couple of weeks. She has also very recently lost her mother and is currently grieving on both counts.
She has a past history of at least two depressive episodes, the first one beginning about 16 to 17 years ago and at this stage she was treated with Zoloft for about five years. She gradually discontinued the Zoloft and was off it, but did encounter some stress at work about 5 to 6 years ago and needed to get back onto the Zoloft, on account of a stressful situation she found herself in.
In her background, she is the younger of two siblings and describes a very prominent family history of depression on her mother’s side of the family. Both her maternal grandmother and her mother have had episodes of depression. Both her children have had episodes of depression which have required treatment.

Professor Dennerstein similarly reported the plaintiff’s history.

As has been set out in some detail above, the plaintiff had struggled psychologically following the events at the Sunshine office.

Nature and extent of the plaintiff's injury

There was little disagreement on the evidence about the nature of the plaintiff’s psychiatric injury, or its cause being substantially work-related. I am satisfied that the plaintiff suffers from an exacerbation of a pre-existing psychological injury, chronic adjustment disorder with mixed anxiety and depressed mood. There are no physical manifestations of her psychiatric injury. The description of her illness by the professionals varied a little, but these variations are not ultimately significant.

Professor Dennerstein’s stated her diagnosis for the plaintiff as follows:

Diagnosis, Ms Wearne’s current condition and prognosis
[The plaintiff] is a 61 year old single mother of 2 and former youth justice worker. She had previous episodes of depression and was taking prescribed antidepressant Zoloft because of work related stressors in which she felt she was being bullied and intimidated by fellow workers and management at the Sunshine office, prior to transferring to the Preston office. Her symptoms increased at the Preston office. Her diagnosis is thus that of exacerbation of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. It is likely that at some stages this was severe enough to meet criteria for Major Depressive Disorder. There has been considerable improvement with her mood with change of antidepressant to Pristiq. Anxiety continues to be a major problem for her.

The defendant’s psychiatrist, Dr Grant, stated:

Summary, Assessment and Diagnosis
Ms Wearne still appears to have an ongoing Major Depressive Disorder, moderately severe, non-psychotic type, with specific features of melancholia.
Her condition still appears to relate to the accepted workplace injury of 7.11.08 and has never entered into a period of remission since then, so I have consider her current condition to be significantly and materially work-related, even though there appears to be a significant constitutional or endogenous pattern to her symptoms.
…
With the pattern of symptoms described by Ms Wearne, one would be anticipating a significantly greater symptom relief with more vigorous, orthodox treatment ... With further medical treatment, I would be cautiously optimistic about her regaining additional work capacity and review in six to nine months after further treatment has been undertaken would be appropriate to re-assess her capacity.

The evidence in respect of the plaintiff’s diagnosis from the injury resulting from the incidents with Ms Skerry has been noted above. As stated above, I accept that the plaintiff suffers from an exacerbation of a pre-existing psychological injury, chronic adjustment disorder with mixed anxiety and depressed mood, as a result of the defendant’s negligence.

The plaintiff is entitled to damages for the exacerbation of her psychological condition, and not for her condition in full.

The defendant submitted that in many respects the plaintiff retains a reasonable quality of life, is moderately active and leads a relatively fulfilling life. She has been able to holiday within Australia with her family, and overseas to visit friends, and has maintained a varied level of volunteer activity and relationships with friends and family since ceasing to work. I accept this submission, but I do not consider that the description of her activities in this regard is inconsistent with the diagnoses of Dr Dennerstein and Dr Grant set out above and my finding as to her condition.

Dr Dennerstein described the plaintiff’s present condition as in partial remission. Dr Dennerstein and Dr Datta, the latter who last saw the plaintiff in 2014, noted that there had been some improvement in the plaintiff’s mood with a change of her antidepressant to Pristiq. The plaintiff’s treatment with Dr Datta is limited to adjusting medication type and dosages. Dr Datta does not conduct regular reviews with the plaintiff.

The plaintiff continues to attend Dr Ng on approximately a three monthly basis for prescription of her medication. This level of treatment is similar to the level of treatment the plaintiff was having prior to the incidents with Ms Skerry, that is, attending Dr Ng every few months for a prescription of medication. It is accepted that the level of medication now is higher than it was in 2006, consistent with an exacerbation of her pre-existing condition.

I am satisfied that the plaintiff’s future prognosis is guarded and poor and, while more vigorous treatment options may be explored with her in future, on the present evidence, there is very little chance of any material improvement. If further recovery is to be achieved at all, it will take substantial time.

Implications of health prior to claim period

As J Forrest J recognised in Johnston v Box Hill Institute of TAFE,[31] my finding that the plaintiff suffered an exacerbation of a pre-existing psychological injury requires that I consider the principles in Malec v J C Hutton Pty Ltd (Malec).[32] In the context of my findings generally, Malec holds that the plaintiff is entitled to damages on the basis that her psychiatric illness is the direct result of the defendant’s negligence, but those damages must be reduced to take account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar psychiatric illness.[33] In this context, the law takes account of hypothetical situations of the past and the future effects of the pre-existing psychological injury, and the chance of future or hypothetical events occurring.
[31][2014] VSC 626, [453], not disturbed on appeal: [2015] VSCA 245, [105].
[32](1990) 169 CLR 638.
[33]Ibid, 642-643.

In Tabet v Gett,[34] Gummow ACJ said:

The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant.

Kiefel J said:[35]
Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, ‘the hypothetical may be conjectured’. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.

[34](2010) 240 CLR 537, 557 [39].

[35]Ibid, 136, [585] (citation omitted).

In Seltsam Pty Ltd v Ghaleb (Seltsam),[36] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
[36][2005] NSWCA 208, [103]; approved in Smith v Gellibrand Support Services Inc (2013) 42 VR 197, [71]-[73].

(a) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;

(b) The court must form an estimate of the likelihood of the possibility of alleged future events occurring; and

(c) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

In Seltsam, Ipp JA stated:[37]

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

[37]Ibid, [104]-[108] (emphasis in original; citations omitted).

I am satisfied that the plaintiff suffered a pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition). In this context, I must evaluate the possibilities that, on the hypothesis that the defendant did not negligently cause the plaintiff’s present injury, the plaintiff’s pre-existing psychological injury would have been exacerbated in any event by non-compensable causes leading to the result that the plaintiff would have been injured with consequent disablement to an equal or lesser extent than that which actually occurred.

At the outset, I note that this question was not explicitly addressed by the evidence or the submissions, in the sense of evaluating solely, and as if the aggravation had not occurred, the possible progress of the plaintiff’s pre-existing psychological injury and its likely impact on her health, well-being and capacity to work.

That is not to say that the issue was not addressed in submissions at all, as the defendant submitted for a significant discount for vicissitudes. The defendant submitted that the plaintiff, if not injured, would have been unlikely to have continued in her employment as a youth worker, given past employment dissatisfaction and performance issues. Prior to February 2007, the plaintiff had made attempts to find other suitable employment, through one session of vocational counselling and applying for a position with the Refugee Minor Program, without success. She was also underperforming in her role and experiencing issues with memory. Furthermore, the defendant argued that the plaintiff’s age and experience reduced the likelihood that she would have been able to find and secure alternative employment.

In Club Italia (Geelong) Inc v Ritchie[38] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually in the order of 15% while emphasising that each case depended on its own facts. The defendant contended for a greater discount.
[38](2001) 3 VR 447, 464 [57].

That said, in my view, a distinct analysis is required in the present case and a judge must do the best he or she can to determine an appropriate award of damages on the material adduced.[39]
[39]New South Wales v Moss (2000) 54 NSWLR 536, [88]; Tabet v Gett (2010) 240 CLR 537, 585 [136].

The following considerations appear relevant. First, currently, the plaintiff:

(a) suffers anxiety and depressed mood (specific features of melancholia);

(b) requires significant medication;

(c) is unable to work;

(d) suffers significant loss of enjoyment in her lifestyle; and

(e) is fixated on the way that she was treated by Ms Skerry and avoids supervision and hierarchical structures, and so has limited dealings with others.

Secondly, the plaintiff’s psychological state was patently fragile prior to the claim period during 2005 and 2006 and she was struggling to cope with the standard duties of a youth justice worker.

Thirdly, other matters, including the Sunshine incident and personal factors including the health and subsequent death of her ex-husband and others close to her took a significant toll on her psychological state and were significant contributing stressors in her life. In the past, her prior injury had seen her on antidepressant medication and in receipt of workers compensation payments.

Fourthly, the plaintiff was actively contemplating other employment prior to the claim period.

In my assessment, having regard to these matters and in particular to my assessment of the plaintiff, and other witnesses, notably Ms Skerry and Ms West, when giving evidence, there is a significant possibility that the plaintiff would not have successfully adjusted to the contemporary youth justice worker role and that ongoing stressors at work and in her personal life could have triggered a breakdown had she remained at Preston, or at least in a hierarchical, supervised employment role. It is possible that the plaintiff would not have worked at Preston for much longer than she did, although the notion that she ought to find alternative employment was more than two years old.

I cannot be satisfied about a time frame for a possible breakdown through non-compensable causes. I cannot discount the possibility of positive change, for example, a different job with a more appropriate form of supervision such as a different team, or more effective psychiatric treatment.

The plaintiff demonstrated significant commitment to her employment. Although she expressed dissatisfaction and an unwillingness to return to work at Preston following the secondment to the Refugee Minor Program, she did return to employment at this time and committed to making the best of her situation on a number of occasions when her hopes for alleviation of her employment stressors were dashed. She tried alternative opportunities at the Refugee Minor Program and appeared capable of adapting to new tasks and duties. In all likelihood, she would have continued to seek out other employment opportunities. However, her prospects of securing such employment would have been moderately reduced because of her pre-existing psychological condition.

The prospect that the plaintiff could have been in the same psychological state as she currently is due to events other that those that constitute the defendant’s breach of its duty is significant. I accept that the plaintiff, in ideal conditions, would have worked to her 66^th birthday, but the possibility of disablement at an earlier point from injury caused by non-compensable factors remains significant.

For the reasons that I have explained, it is appropriate to apply a greater than standard discount, for vicissitudes principally due to the plaintiff’s pre-existing condition. In the circumstances, the appropriate discount factor is one third.

Pain and suffering damages

In Willett v Victoria,[40] the Court of Appeal overturned a jury assessment of damages in a claim by the plaintiff/appellant for damages for psychiatric injury caused by workplace bullying. The court, by majority, considered the jury’s award to be manifestly inadequate. The court determined that once liability has been determined, the starting point for the assessment of damages for pain and suffering and loss of enjoyment of life must be that it was common ground that the plaintiff had suffered a serious mental disturbance of which the respondent’s conduct was a cause. The question to then be determined was the proper compensation for the pain and suffering and loss of enjoyment of life caused by the defendant’s negligence.
[40](2013) 42 VR 571.

The majority agreed with recent observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[41] that over the course of time society has come to place greater value on the loss of enjoyment of life and the experience of pain and suffering than it did before. Salaries too have greatly increased. The court said:[42]

Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?

The court noted that awards of damages have markedly increased:[43]
[O]ver the last 10–20 years, awards of damages have increased significantly; not just in personal injuries cases, but also in other areas of litigation. For example, last year [2010] a jury in this State awarded a barrister more than $600,000 in damages for defamation and that amount seems not have been regarded as unreasonable … At all events, it appears that damages awarded by juries in cases of defamation are capable of providing us with at least some guidance as to the reasonableness of the amount awarded in this case for loss of enjoyment of life and pain and suffering. And we bear in mind too that the law today is not “more jealous of a man’s reputation than of his life and limb”.

[41](2011) 35 VR 280.

[42]Ibid, 320-321 [177] (citations omitted).

[43](2011) 35 VR 280, 321 [180], 322 [182] (citations omitted).

The plaintiff is entitled to damages for pain and suffering and loss of enjoyment of life as a result of her psychological injury and its effects.

I have considered the severity of the plaintiff’s psychological injury as described in the medical and lay evidence discussed above and in the plaintiff’s own evidence as to the impact of her condition upon her life. Taking into account that I am assessing an exacerbation of a pre-existing condition and on the basis of the discount that I have identified as appropriate for that reason, I will award the plaintiff damages for pain and suffering and loss of enjoyment of life in the sum of $210,000.

Plaintiff's current capacity for work

From 23 March 2010 to December 2012, Dr Ng certified the plaintiff as fit for alternate duties on a part time basis. Dr Ng expressed a hope that with appropriate support and treatment the plaintiff may be able to work in some capacity in a different area under a different environment. In December 2012, Dr Ng certified that the plaintiff had no current capacity for any employment and has continued to certify that she is unfit since this time. He said: ‘I can envisage that any attempts to retrain her or to try and guide her into alternative employment would be likely to exacerbate her anxiety and she is not likely to be successful’. Dr Ng considers part of the plaintiff’s anxiety and reluctance to search for employment stem from the plaintiff not wishing to subject herself to scrutiny or criticism.

Dr Grant opined that the plaintiff does not have residual work capacity for pre-injury duties or their equivalent, but that she is presently fit for work for a new employer, at least on a part time basis initially, on the basis of the medical evidence. He believes that with more aggressive and alternative treatment, the plaintiff could regain further capacity.

Professor Dennerstein opined that the plaintiff had no capacity to return to her pre-injury employment and that she would be too anxious to do similar work with strangers, noting that the only people the plaintiff does not become anxious around are her children and grandchildren. Professor Dennerstein considered that the plaintiff had no capacity for suitable work.

Ms Roglic considered that the plaintiff may be capable of part time employment, but only in circumstances where she is able to operate independently, at her own pace.

I am satisfied that the plaintiff has been incapable of working at all since 7 November 2008 and will remain wholly incapacitated.

Pecuniary loss damages

The parties agreed that subject to my findings concerning capacity to work and the appropriate discount for vicissitudes, the plaintiff’s past loss of earnings totalled $424,546, being $380,460 for lost earnings and $44,086 for lost superannuation. The plaintiff’s future loss of earning capacity to age 66 was agreed at $198,472, being $179,643 in respect of earnings and $18,829 in respect of superannuation. The concept of a discount for vicissitudes is subsumed in the analysis on Malec principles and that analysis conceptually applies to both past and future pecuniary loss as well as pain and suffering damages.

I assess the plaintiff’s pecuniary loss in the sum of $415,345.

I note that the parties agreed the Fox v Wood component of the damages at $61,700 and account must be given for make-up pay $8,204, which is not included in past loss of earnings.

Conclusion

I assess the plaintiff’s damages in the following sums:

(a) Pain and suffering damages - $210,000.

(b) Pecuniary loss damages - $415,345.

A total of $625,345.

I will hear from counsel in respect of costs and invite counsel to submit a minute of the appropriate judgment to reflect these reasons.

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[2017] VSC 25

8 FEBRUARY 2017