Willett v State of Victoria

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2011 0148

KAREN ADEN WILLETT	Appellant
	v
STATE OF VICTORIA	Respondent

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JUDGES	TATE, OSBORN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 November 2012
DATE OF JUDGMENT	12 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 76 [1st Revision, 17 April 2013, Page 47, [166] n 53]
JUDGMENT APPEALED FROM	Willett v State of Victoria (Unreported, Supreme Court of Victoria, Williams J, 14 September 2011)

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NEGLIGENCE – Damages – Psychiatric illness suffered in the course of employment – Whether assessment of damages by jury manifestly inadequate – Whether award reasonably open on view of evidence most favourable to the respondent – Hocking v Bell (1945) 71 CLR 430; Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 – Tortfeasor must take victim as it finds her – State of Victoria v McIver (2005) 11 VR 458, considered.

NEGLIGENCE – Whether jury finding of contributory negligence open – No evidence of behaviour which might constitute contributory negligence and which could be said to be a cause of the appellant’s injury.

NEGLIGENCE – Power of an appellate court to reassess damages – Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729; Murphy v Mark [1977] VR 316; Electrolux Pty Ltd v Siniakis [1998] 1 VR 29; Amaca Pty Ltd v King [2011] VSCA 447, considered – Appeal allowed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A J Keogh SC with Mr M J G Waugh	Clark Toop and Taylor
For the Respondent	Mr M F Wheelahan SC with Ms R L Kaye	Wisewould Mahony

TATE JA
PRIEST JA:

We have had the considerable advantage of reading in draft form the reasons of Osborn JA. However, we would allow the appeal in full.

We are mindful of the difficulties of overruling a verdict by a jury that has had the opportunity to see and hear the witnesses and form its assessments on the basis of that direct observation.

To succeed on appeal on the ground that a verdict was ‘not open’ or ‘not reasonably open’ on the evidence is a demanding task. It involves the assertion that on the available evidence a jury acting reasonably could not have arrived at the conclusion that it did and as such could only have done so as an error of law. It is insufficient for an appellate court to disagree with the assessment of the evidence by the jury. Rather, it is necessary to determine whether the evidence compelled a conclusion favourable to the appellant.[1] As the High Court said in Calin v The Greater Union Organisation Pty Ltd:[2]
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.
[1]Capers v State of Victoria [2011] VSCA 97.
[2](1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ) (original emphasis). See also Clark v Stingel [2007] VSCA 292, [66]-[67] (Warren CJ, Chernov and Kellam JJA); John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657.
It is insufficient for an appellate court to determine that most juries would have delivered a different verdict. Furthermore, it is necessary to look at the evidence from the view most favourable to the respondent as this would have been a permissible path of reasoning for the jury. As Ashley JA said in Capers v State of Victoria:[3]

[T]o say that the jury might have so concluded or to say … that most judges and most juries would have so concluded, does not resolve the matter in the appellant’s favour. Again and again it has been emphasised that a party that carried the onus of proof upon an issue at a trial by judge and jury, and failed, faces a very difficult task in attempting to satisfy an appellate court that it should overturn the judgment which eventuated. Again, it is not in dispute that, in considering an appeal of the present kind, an appellate court must take a view of the evidence most favourable to the respondent; and must be persuaded, upon such a view of the evidence, that there was no evidence which left it reasonably open to the jury to resolve the matter as it did.

[3][2011] VSCA 97, [35] (with whose judgment Warren CJ and Kyrou AJA agreed).

These observations reflect those made by Winneke CJ, for the Court, in Pujick v Savic[4] in an appeal from a finding by a jury of no negligence:[5]

In accordance with the principles which govern an appeal of this kind, an appellate court must take the view of the evidence most favourable to the respondents. To succeed, the appellant must establish that on such a view of the evidence, a reasonable jury, properly directed and confining itself to relevant considerations, could not have failed to find negligence on the part of the respondent … which was a cause of the collision.

[4][1971] VR 632 (Winneke CJ, Starke and Anderson JJ).

[5]Ibid 632-3. See also, to the same effect, Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 311.

The Full Court of the Supreme Court in Zoukra v Lowenstern[6] emphasised that a finding of no negligence was essentially a jury question:[7]

This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in respondent’s favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with upon appeal.

[6][1958] VR 594.

[7]Ibid 595 (Herring CJ, O’Bryan and Dean JJ).

The same general considerations apply to a finding by a jury on an assessment of damages. As Ashley JA said in Butcher v Australian Tartaric Products Pty Ltd:[8]

Consideration of the direct evidence and available inferences to determine whether ‘the damages are so large or so small as to be unreasonable – so excessive or so inadequate that no jury could reasonably have awarded them, or out of all proportion to the circumstances of the case’, taking a view of the evidence most favourable to the respondent to the appeal – requires careful analysis of the evidence, as exemplified by decisions of this Court.

[8][2009] VSCA 303, [8] (citations omitted).

Thus, it is to be acknowledged that the threshold the appellant needed to meet to succeed on the appeal was a formidable one.

However, we consider that the award of damages the jury returned was manifestly inadequate and it was not reasonably open for the jury to arrive at the award it did, on the evidence most favourable to the respondent to this appeal.

We also consider that the conclusion of the jury of contributory negligence was not open to it, for the reasons given by Osborn JA.

We further accept the conclusions reached by Osborn JA on the challenge to the instructions of the trial judge with respect to the assessment of damages and contributory negligence.

We also accept the observation made by Osborn JA that once the jury found, as it did, that Willett did suffer injury as the result of the respondent’s negligence, 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 Willett had suffered a serious mental disturbance of which the respondent’s conduct was a cause. Once the contest about the episodes of bullying and harassment had been resolved in favour of Willett, by reason of the jury’s verdict on negligence, it was of no consequence whether the jury accepted that certain incidents had occurred and not others.[9] What was important was that, whatever range of incidents of ostracism and humiliation the jury accepted, it concluded that the conduct of the respondent amounted to negligence and that this had caused Willett to experience pain and suffering and loss of enjoyment of life. The question becomes whether a reasonable jury, confining itself to relevant considerations, could have arrived at the award of damages it did.
[9]See further below in relation to the disposition of the matter.

Diagnosis of Major Depressive Disorder

The appellant, Karen Aden Willett, (‘Willett’), was 34 years of age at the time of her injury and was 39 years of age at the time of the verdict. At the time of the trial she was an in-patient at The Melbourne Clinic following a suicide attempt involving an intentional overdose of diazepam tablets. Willett gave evidence and relevantly relied on the evidence of Dr Morrell, Professor Dennerstein, Dr Ng, Dr Epstein, Dr Greenbaum, and Dr Entwisle and observations made by lay witnesses ‘before and after’.

Dr Morell was Willett’s treating psychologist. He started treating her on 24 October 2006 and had continued treating her since then. He diagnosed post-traumatic stress disorder with symptoms of depression, anxiety, panic disorder and agoraphobia. Her anxiety and depression fluctuated in levels. He spoke to her about the fact that she was picking at her hands until they bled. He encouraged her to remove herself from the distressing and confronting environment she found in Melbourne by taking the trip to Malaysia. The trip to the UK was another opportunity. He thought it unlikely she would get back to work but could have an easier social life limited to the people she knew.

Professor Dennerstein considered that Willett’s condition had none of the features of post-natal depression but diagnosed Willett as having a major depressive disorder, which was severe and with paranoid features, and panic disorder with agoraphobia. She considered Willett not fit for work. She considered that the longer the symptoms lasted the less likely they were to remit.

Associate Professor Ng was the psychiatrist treating Willett at The Melbourne Clinic and he diagnosed major depressive disorder with a co-morbid anxiety disorder. He could not give an accurate prognosis because he considered her condition could deteriorate. He noted that on admission she showed signs of marked anxiety, physical fatigue, and mental anguish. Her anguish had increased because she had heightened fears of meeting the police officers during the trial who had been involved in the harassment she had suffered, and she feared reliving the previous traumatic experiences.

Dr Epstein is a psychiatrist who consulted with Willett a number of times. He diagnosed Willett as suffering from panic disorder and agoraphobia, which he described as a ‘stress breakdown’. He considered her to be severely damaged with major depressive disorder and an inability to cope. Willett had bowel symptoms that were common amongst people with anxiety. He considered that Willett’s prognosis was poor, and that she might require electro-convulsive therapy and trans-cranial magnetic stimulation.

Dr Greenbaum is a psychiatrist who had seen Willett only once to review her medication. He did not have a strong understanding of how the experiences Willett had, had impacted upon her. He considered that Willett appeared initially nervous with a marked startled reaction and a moderate level of depressive effect.

Dr Entwistle is a psychiatrist who saw Willett on behalf of the respondent but whose reports were relied on by Willett. He saw Willett on several occasions and provided four reports dated 29 August 2006, 10 October 2006, 8 May 2007 and 17 July 2008. Willett’s mood was tense and on edge and she spoke with considerable pressure of speech. She was tearful and she stated that she felt humiliated. In October 2006 Dr Entwistle thought that if Willett’s treatment continued she would be able to work, but not at South Melbourne Criminal Investigation Unit. He diagnosed her as having an adjustment disorder with anxiety. In May 2007 Dr Entwistle changed his mind and expressed the opinion that Willett had no capacity for work and that she presented as genuine, extremely emotional and fragile. She and her husband had had intercourse only twice in the previous year. He diagnosed adjustment disorder with anxiety and panic attacks. In his last report of 17 July 2008 Willett’s weight, which had previously increased, had dropped again to 39.6 kgs. She presented as highly anxious and looked thin and stressed. He diagnosed major depressive illness with anxiety and panic attacks and he thought she had no work capacity inside or outside the police force. He thought her condition was much the same or possibly worse than when he had seen her in May 2007.

For the purposes of the appeal, however, the critical evidence was that given on behalf of the respondent, most particularly the evidence of Dr Dushyanta Shan, a psychiatrist. At the hearing of the appeal, Senior Counsel for Willett accepted that, for Willett to succeed, it was necessary to show that the award of damages was manifestly inadequate, accepting the evidence of Dr Shan.

Dr Shan diagnosed an ongoing and persistent major depressive disorder resulting from Willett’s employment by the respondent.

He saw Willett twice on behalf of the respondent, on 6 July 2009 and 3 May 2010. When he saw her for the first time it was for about 40 minutes. She was tearful for the whole consultation. Willett was then taking 375 milligrams of Effexor as well as Epilim twice daily, Effexor being an antidepressant and Epilim being used in psychiatry for mood swings.

He initially diagnosed an adjustment disorder.

Dr Shan observed that Willett felt a need to wear hoodies, caps, sunglasses and a scarf to avoid being recognised. Dr Shan said that there was:

a long period before I examined the patient when she did not emerge from the house at all. If she did emerge she took to wearing hats and covering herself up so that she would not be recognised. She had a constant fear of being recognised or encountered by persons she might have worked with.

However, not long before he examined her on 6 July 2009 ‘the patient had begun emerging from the house more often’. During the examination:

We established that she does emerge from the house at least once a day … It appeared that she would go for a walk early in the mornings when it was dark. She could take the 21 month child for a walk with her. Sometimes she needed to drop off her four year old at the kindergarten about three times a week. She was capable of going to the shops by then or to the supermarket, but she felt a need to have one of her children accompany her because she felt fearful about going anywhere by herself still.

Dr Shan was aware that not only was Willett becoming able to leave the house if someone else was with her, but that she had managed to travel overseas. He said:

[W]e did establish that she was able to travel to England to attend a wedding and she was away for about three weeks, and I understood went by herself. She explained that by saying she felt better when she was away from her usual surroundings, and her whole family were able to go to Malaysia for a holiday for a break. And by then the patient was now receiving visitors, mainly of family. Her father or sister would visit her and even one girlfriend who was not a police officer. Sometimes she was able to be persuaded to go to a football game with her husband, but she would have to try to wear hats and conceal her appearance in order to feel – in order to feel able to do that.

During this first consultation, he considered that Willett’s overseas trips and the fact that she was capable of being a responsible mother to two young children were not consistent with her having a severe psychiatric disorder. He said:

I felt that a person who had a severe psychiatric disorder would not be capable of travelling overseas by herself or be capable of going on a family holiday with two small children, and also being capable of being a responsible mother for the children. A person with a severe psychiatric disorder usually requires a considerable amount of help, and they are often - they often abrogate these sorts of responsibilities to others.

However, at the time of his second examination of Willett, about a year after the first examination, Dr Shan changed his diagnosis from an adjustment disorder to major depressive disorder. He did this because the definition of adjustment disorder means that it is no longer a valid diagnosis if more than six months have passed since the original stressor and there are no ongoing stressors. He considered that Willett no longer fitted within that category.

At the second examination, he noted that Willett continued to take the same medication as before. She was also taking some Valium some days for anxiety (up to three tablets of 5 milligrams each a day) and Stilnox, which she took sparingly, if she had difficulty sleeping. In cross-examination he accepted that 375 milligrams of Effexor a day was above the maximum recommended dose and that at one point Willett was on 450 milligrams a day. He also accepted that Willett was taking 200 milligrams of Epilim twice daily which was a significant dose of Epilim, particularly significant when taken in conjunction with the Effexor. Three tablets of five milligrams of Valium a day was also at the upper end of the dosage prescribed, especially when taken in conjunction with the other medication. This evidence was consistent with that of Professor Dennerstein who considered that the fact that Willett remained agitated and anxious on the amount of medication she was taking indicated how ill she was, given that ‘for anyone else you would be – you know, really made stuporous almost with that amount’.[10]
[10]Dr Ng gave evidence that while resident at The Melbourne Clinic Willett’s anti-depressant medication was changed to Sertraline so that at that time her medication included 150 milligrams of Steraline a day, 215 milligrams of Quietiapine a day and, as required, Diazepam (50 milligrams a day) and Tamazepam (20 milligrams a day).

Willett was agitated and tearful for most of the second examination. She spoke fast and in an anxious fashion. She was both depressed and anxious in mood.

With respect to her gradually evolving capacity to emerge from the house, Dr Shan noted that Willett had joined an all Asian netball team (having previously led a very active sporting life) to ensure she did not risk encountering anyone she knew. She was able to take her son to school, had formed some friendships with other mothers and was able to do daily shopping. By May 2010 Willett’s routine was thus:

[S]he said that she usually wakes at five, she would go for a walk … she would get her older son … ready for school, and that was about three days a week. She would take both him and her younger son to school with her, and then would come back with the younger son. She had struck up some friendships with some of the kindergarten mothers, and some of them had in fact visited her at home. On Tuesday night… she was capable of taking [her son] to swimming classes, and she was also taking the younger one to a gym program for babies. She was capable of household chores. She did some shopping, apparently she preferred to go shopping daily because of difficulties with planning, for the next day. There was some social contact … she had kept in contact with some female officers, but only once or twice a year. She was now capable of taking her sons to a birthday party, for example, and she even had a birthday party for [her son] and there were some people invited there. She also had been capable of going to a family wedding.

There remained considerable limits on Willett’s capacity to function in an ordinary way:

[S]he did not watch television or read newspapers in case she was troubled by stories relevant to the police force. Sleep was still poor. … her husband said that sometimes she goes to bed at 2.00 a.m. … Her appetite remained variable. There were days when she would not eat … But she did not describe any occasions of binge eating. Her husband advised that she had mood swings, and that she would become irritable and fluster easily, and that she handled any kind of stress poorly.

In cross-examination Dr Shan was taken to the characteristics of a psychiatric episode indicative of a major depressive disorder.[11] Such a diagnosis depended upon five or more of a list of symptoms being present during the same two-week period and representing a change from previous functioning.
[11]As defined in the Diagnostic and Statistical Manual of Mental Disorders, text revision (the DSM-IV-TR).

The first symptom is either depressed mood or loss of interest or pleasure, most of the day nearly every day. Dr Shan gave evidence that this symptom was present each time he interviewed Willett.

The second symptom is markedly diminished interest or pleasure in all or almost all activities of the day, nearly every day, as indicated either subjectively or by observation made by others who were present. Dr Shan’s evidence was that the second symptom was present to some extent.

The third symptom is significant weight loss. This was present.

The fourth symptom is an inability to sleep. This was present. Willett was only able to sleep if her husband was at home and, even then, her sleep was poor.

The fifth symptom is psychomotor agitation or retardation. Dr Shan’s evidence was that retardation was present. He observed it each time he saw her.

The sixth symptom is fatigue or loss of energy nearly every day. This was present.

The seventh symptom is feelings of worthlessness. Dr Shan’s clinical assessment was that this was present.

The eighth symptom is the diminished ability to think or concentrate, indecisiveness nearly every day. This was present to some extent.

The ninth symptom is having recurrent suicidal ideation without any specific plan or suicide attempt or specific plan of committing suicide. Dr Shan’s evidence was that the ninth symptom was not present at the time of his examinations. He considered that Willett’s symptoms had begun with a major depressive episode in relation to her employment that had become ‘chronic’ and that she met the criteria for a major depressive disorder.

Dr Shan considered that Willett’s natural personality, which he considered to be rigid and anxious by nature, was also a contributing factor by making her more vulnerable to developing a condition such as a major depressive disorder. The respondent made much of this. However, Dr Shan said that it was not clear that her personality had ever posed a difficulty for her before in her life. There was no evidence of any underlying psychiatric condition. Furthermore, any vulnerability Willett experienced did not found a basis for reducing the award of damages she was entitled to by reason of the negligence of the respondent. Adapting what was said by this Court in State of Victoria v McIver,[12] this was a straightforward case where the respondent was obliged to take the victim as it found her. It was not shown that any part of Willett’s psychiatric injury flowed solely from a cause other than the tort committed by the respondent. There was no evidentiary foundation laid for establishing with precision what Willett’s pre-existing ‘condition’ was and what its future would be likely to be. All of the medical evidence accepted that the bullying and harassment Willett suffered, when employed by the respondent, was a significant contributing factor to her mental disturbance. Any contribution made to Willett’s pain and suffering by her natural personality is thus not a factor requiring a

reduction in the damages required to compensate her.[13]

[12](2005) 11 VR 458, 464 [13]-[14] (Callaway JA, with whom Ormiston and Batt JJA agreed).

[13]See also Shorey v PT Ltd (2003) 197 ALR 410, where Glesson CJ, McHugh and Gummow JJ said at 411 [2]: ‘Accepting, as did the Court of Appeal, the finding of the trial judge that the appellant genuinely experienced the extreme, and in some respects bizarre, symptoms of which she complained, and that she was not malingering, the question became whether the fall for which the respondents were responsible was a cause of the appellant’s condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed’ (emphasis added). See also Kirby J at 418-20 [41]-[47]. See further Petkovski v Galletti [1994] 1 VR 436; Purkess v Crittenden (1965) 114 CLR 164, 168.

Dr Shan made his diagnosis despite being well aware of the social activities Willett had become capable of, including making new friendships with mothers of children the same age as her sons; holding and attending children’s birthday parties; shopping and joining a sports group. Those capacities were thus seen as clearly compatible with experiencing a major depressive disorder which carries with it continuous and significant restrictions on a person’s normal capacity to function.

When asked whether a major depressive disorder is more severe than an adjustment disorder, as had been initially diagnosed, Dr Shan indicated that a major depressive disorder can be sub-categorised into mild, moderate and severe, and that a mild episode of a major depressive disorder may not necessarily be worse than a severe episode of chronic adjustment disorder. He was questioned further:

Counsel: But this lady doesn’t have mild depressive disorder. She has severe?
Dr Shan: She has major depressive disorder. Well, am I being asked the question to categorise the severity?

Counsel:        Yes.
Dr Shan:        Then I would categorise it as mild to moderate.
Counsel:        So just mild to moderate?
Dr Shan:        M’mm.

In our view, Dr Shan’s qualification of the mental disturbance Willett suffers as a ‘mild to moderate’ condition should not be permitted to dispel the grave nature of the psychiatric condition Willett experiences, as is evident by the extent of the medication required to enable her to function.

With respect to prognosis, Dr Shan considered that Willett was permanently unfit for work in the police force – she ‘had no capacity for her pre-injury job’ by reason of her psychiatric condition. However, he considered that she had the capacity for part-time work in alternative employment and might in the future be capable of full-time work in alternative employment.

The upshot of Dr Shan’s evidence was thus that Willett suffered from an ongoing and persistent major depressive disorder, which, while varying in severity from mild to moderate, affected her in an invasive way on a daily basis requiring significant doses of anti-depressant and associated medication and which rendered her permanently incapacitated for her pre-injury work as a police officer.

This evidence was given against the background that Willett was a career police officer who had joined the police force in 1994, been promoted to Senior Constable in 1998 and to Detective Senior Constable in 2002, who loved her job, demonstrated a high degree of competence as a police officer, and had been ‘rapt’ to obtain the position at the South Melbourne Criminal Investigation Unit. There was evidence that she had been an excellent police officer. Mr John Lowry, a retired police officer who had been the Officer-in-Charge at Fitzroy CIB when Willett was there was a constable, said:

Her handling of that task [of writing a narrative of an investigation] was exemplary. … She would have more detail… of what actual steps she’d undertaken in the investigations, and she made sure that any leads she got she would follow up. … She was excellent. I noticed that she took steps often overlooked by more experienced members, even – even qualified detectives. Every job she got she brought to a satisfactory conclusion … She was always a hard worker. She would work long hours. … She would volunteer to do extra duties and assist other members. … I would say that she’d be in the top five per cent of uniform members that I had come across. … [She] would’ve made an excellent detective. … she had the type of personality that – where she could talk to and fit in with anyone.

The negligence of the respondent had thus, on Dr Shan’s evidence, deprived Willett of the career she had chosen, in which she was proficient, and which she found fulfilling.

While, of course, it remained a question for the jury as to the extent to which it accepted Dr Shan’s evidence, or tempered it by any other evidence which conflicted with it or outweighed it, nevertheless it remains the case that the evidence he gave was the psychological analysis most favourable to the respondent on the issue of damages for pain and suffering and loss of enjoyment of life. Moreover, all of the medical evidence supported the proposition that Willett was totally and permanently incapacitated for her pre-injury employment as a police officer.

The consistency of the surveillance footage with Dr Shan’s diagnosis

The respondent argued that the surveillance footage of Willett, which was shown to the jury, supported its attack on her credibility by demonstrating that far from the withdrawn agoraphobic personality Willett purported to be, she was in fact capable of ordinary everyday activity, including discharging her responsibilities to her children, in ways that included interacting with others in public and appearing in a presentable and undisguised fashion. It was alleged at trial that Willett had wildly exaggerated her claims. The respondent contended on appeal that the surveillance film tended to contradict Willett’s claims, including the claim that she had to use disguises to venture outside.

There were four films shown to the jury. The first film was of surveillance taken on 5 and 9 September 2009. On the morning of 5 September Willett is shown leaving Dr Morrell’s rooms in Caulfield, crossing the street, putting a coffee container in a rubbish bin and jumping into her car. In the afternoon she is seen at Southland shopping centre with a friend (a mother of a friend of one of her sons) and carrying some parcels. On 9 September Willett is seen taking her two boys to the local shopping strip, one kilometre from her home.

The second film was taken of surveillance on 27 March 2010 and on 10 April 2010. On 27 March Willett is seen at Chadstone shopping centre packing a pram into the boot of her car. She is smiling. On 10 April she is seen visiting a hairdresser and leaving with her hair washed and blow waved. She is wearing a tracksuit and looks presentable. She is talking to another woman who appears to be the hairdresser or receptionist.

The third film is of surveillance on 3 May 2010. Willett is leaving Dr Shan’s rooms and gets into her car with her husband. She appears to be wearing sunglasses.

The fourth film is of surveillance on 28 May and 31 May 2010. On 28 May Willett is seen walking into the same hair salon at her local shopping strip as that featured in the second film. She is wearing jeans and a jacket. She converses. While waiting for her appointment she has her fingers to her face and it appears that she is chewing her nails. On 31 May 2010 Willett is seen at her eldest child’s kindergarten, conversing with the other mothers. She is wearing a pair of tracksuit pants and a T-shirt. She is seen talking animatedly to the other women and engages in an intense discussion using her hands. She is also seen chewing her nails. She appears concerned and somewhat raw during the discussion. In evidence she explained that the discussion concerned a suspected person not of good character who had moved into the street and who would not be good for their children. At other moments she smiles and appears affectionate to her son.

In our opinion, the surveillance films do not demonstrate that Willett was engaging in any conduct which was inconsistent with her own evidence or the circumstances on the basis of which Dr Shan formed his clinical opinion. Dr Shan well understood that Willett was engaging in a level of social engagement with others, most especially in a context in which she related to other mothers of young children in circumstances in which children were the primary focus. This was far removed from the demanding context of a workplace of professionals. The absence of clothes designed to conceal, a hoodie, sunglasses, scarf or cap, was consistent with Willett’s need, intermittently, to wear such clothes where there was a risk of being recognised or if she felt exposed. The surveillance films were consistent with what Dr Shan reported as Willett’s routine on an average day. They provide no basis for an allegation that Willett had wildly exaggerated her distress or reduced capacity to function. More particularly, they provide no basis for the jury to temper the clinical diagnosis arrived at by Dr Shan.

The surveillance films are also consistent with the evidence of Dr Morrell, Willett’s treating psychologist, who gave her encouragement and strategies for going off to the local shops. By taking her baby son with her Willett found he offered a distraction to other people so instead of them focusing on her, they would focus on the baby. She was thus able to widen her social context marginally.

More generally, the surveillance film cannot detract from the proposition that the scope of Willett’s life has irremediably shrunk. As a career police officer she occupied a demanding position which required her to exercise problem-solving skills to resolve complex and difficult questions. She was faced with a diverse range of criminal conduct to investigate and resolve. She needed to apply her training to novel situations that demanded a mature assessment of how best to approach them. The position commanded public respect and recognition. Absent the ostracism and social humiliation she experienced at South Melbourne Criminal Investigation Unit, she had thrived in policing. Absent the bullying and harassment she was subjected to at South Melbourne Criminal Investigation Unit, she had every reason to believe she would continue to thrive in policing, performing an important public office and growing in personal maturity and fulfilment.

The enjoyment of life associated with the performance of a position of public trust on which the community relies, and in relation to which there is a continuous supply of novel and challenging problems, is no doubt considerable. The loss of that enjoyment of life is equally considerable. While the life Willett now leads has the satisfaction associated with caring for her young children, a satisfaction which would have been present in her life had she also retained her career, she has lost her chosen career, with all of the dimensions that career offered, and her sense of a future in that career.

In our opinion, the loss of enjoyment of life experienced by Willett by reason of the respondent’s negligence was considerable. Added to that is the pain and suffering associated with a persistent and ongoing major depressive disorder which requires a range of anti-depressant and anti-anxiety medication at a significantly high dosage. While Willett has the capacity to go about some ordinary daily tasks, and engage in some forms of social interaction in which typically her children are the primary focus, this does not detract from the severe loss she has suffered. We consider that the damages awarded – of $108,000 – are so small as to be unreasonable; so inadequate that no jury could reasonably have awarded them and out of all proportion to the severity of the circumstances of the case.

Disposition

We would allow the appeal in full.

Given that, on our view, the appeal should succeed, the question arises as to the appropriate disposition of the matter.

In her Notice of Appeal, Willett sought orders setting aside the relevant orders of the trial judge dated 14 September 2011. In lieu thereof, she sought judgment to be entered for such sum as may be determined and for such costs as follow the event. Alternatively, she sought for the proceeding to be remitted for re-hearing limited to the determination of the sum in which judgment should be entered in her favour.

The respondent accepted, at the hearing of the appeal, that if this Court upheld the ground of appeal that the finding of contributory negligence was not open and was perverse (as it has done) it would be open to this Court to substitute its own judgment by setting aside the apportionment of the damages attributable to Willett’s alleged contributory negligence. However, the respondent argued that if this Court upheld the claim that the award of damages was manifestly inadequate then it ought to remit the matter for a re-trial. It submitted that a re-trial of liability would be necessary in two alternative circumstances; the first was if the issue of contributory negligence was open but the proportion was regarded as perverse, and the second was if the question of what tortious acts or omissions were accepted by the jury was relevant to the assessment of damages.

The first alternative does not now arise. We have also indicated at the outset of these reasons that, the jury having returned a verdict of negligence, the appeal must be viewed on the basis that the jury has accepted that the respondent’s negligence caused Willett’s loss, demonstrated by the jury’s attempt to provide compensation, albeit inadequately. The respondent’s case was not run on the basis of establishing a one-to-one linkage between particular items of ostracism (for example, Edebone’s use of the term ‘black widow’ to refer to Willett when she walked into a room) and particular psychological reactions (for example, panic attacks) so that if the jury rejected that form of ostracism it would also be entitled to conclude that a particular psychological response did not occur or could not be sheeted home to the negligence of the respondent. Rather, the diagnosis proffered by Dr Shan about Willett’s psychological state was given in response to her reduced capacity to function linked in an undifferentiated way to the totality of the social rejection she faced. In our view, for the respondent to suggest that, if the appeal were to succeed, the whole case would need to be remitted for trial, because the opacity of the jury verdict means that the Court is not in a position to now know which acts or omissions the jury found were causative of Willett’s loss, or what duration of pain and suffering the jury accepted, is tantamount to the respondent refusing to accept the verdict of negligence.

At the conclusion of the hearing of the appeal, Senior Counsel for the respondent submitted first that, if the matter were to be remitted, the respondent would again seek a trial by jury. Ultimately, he submitted that it might be premature for this Court, if ordering remittal, to form a view about the appropriate mode of trial (by jury or by judge alone) because a view could be better formed once the issues to be determined by the second trial had been identified.

In response, Senior Counsel for Willett also submitted that it might be premature to determine the issue of disposition and that he would seek to be heard further on that issue. It was unclear whether the submission was directed only to the circumstances in which remittal was ordered or more generally, although it arose specifically out of a discussion between the bench and Senior Counsel for the respondent as to whether parts of the transcript could be ‘read into’ evidence on a second trial.

We consider it would be quite wrong of this Court to remit the matter for a second trial. As indicated above, Willett made a suicide attempt leading up to the first trial and was housed as an inpatient at The Melbourne Clinic, with the heightened fears arising from the imminent trial of which Dr Ng gave evidence. It would be inappropriate to require her to confront the prospect of another trial, even one confined to quantum, especially when the respondent indicated, at least initially, that it would seek a trial by jury if the matter were to be remitted.

We also consider that there is a need for finality in this matter and that the protracted nature of this proceeding should come to an end, the statement of claim having been filed in 2009.

In the specific circumstances of this case, we consider this Court ought to make an award of damages and it is well placed to do so.

It has long been recognised that on occasions an appellate court ought to alter the quantum of an award of damages in a personal injury case. In Lai Wee Lian v Singapore Bus Service (1978) Ltd[14] the Privy Council said:[15]

[If] the award for loss of future earnings, or for any of the other items [including pain and suffering] is so far out of line with what the appellate court considers appropriate as to indicate that the assessing judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award, then the appellate court has the duty to make the substitution and to alter the total accordingly.

[14][1984] AC 729. See also Government Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564

[15]Ibid 735 (emphasis added). See Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, 264-5 and Newberry v Parojam Pty Ltd (Unreported, Queensland Court of Appeal, Thomas JA, Shephardson and Jones JJ), 19 February 1999.

This Court undoubtedly has discretionary power to substitute its own award of damages for a jury verdict: s 14(1) of the Supreme Court Act1986.[16] In emphasising the breadth of the power, Hayne JA, sitting in the Victorian Court of Appeal, said in Electrolux Pty Ltd v Siniakis:[17]

[T]his court’s power to re-assess damages is a power to be exercised in the discretion of the court, and even if both parties contend that there is no issue requiring remission of the matter for retrial it will always, in the end, be a question for this court whether or not to embark upon the task of reassessment.

[16]Del Campo v Uniting Church of Australia [1996] 2 VR 525, 533 (Winneke P with whom Brooking and Phillips JJA agreed); Backwell v AAA [1997] 1 VR 182, 212 (Ormiston JA with whose judgment Brooking JA was in substantial agreement.)

[17][1998] 1 VR 29, 48.

He referred to the previous statutory provision which conferred a comparable power, s 19A of the repealed Supreme Court Act 1958, and noted that the Full Court in Murphy v Mark[18] had said of its application:[19]

[The appellate court] is then, we think, to make the award which in its view the evidence justifies ‘remembering that fair-compensation between the parties is what is to be arrived at’ (per Dixon J., in Lee Transport Co. Ltd. v Watson [(1940) 64 CLR 1 at 14]). If in all the circumstances the majority of the court is not able to agree upon what the evidence shows to be a fair compensation between the parties it is simply not a case for the exercise of power contained in the sub-section.

[18][1977] VR 316.

[19]Ibid 321.

This reflects the principle governing any award of compensatory damages. As the High Court said in Planet Fisheries Pty Ltd v La Rosa:[20]

The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused.

[20](1968) 119 CLR 118, 125.

An instructive application of the power of an appellate court to reassess damages is to be found in Donaldson v Nippondenso (Australia) Pty Ltd[21] in which the then Appeal Division of the Supreme Court upheld an appeal against an award of $35,000 given by a County Court jury in an industrial accident case. The question raised by the appeal was whether the verdict ought be set aside as a manifestly inadequate assessment of damages. Damages were to be awarded only for pain and suffering and loss of enjoyment of life. The Court approached the appeal on the view of the evidence most favourable to the respondent to the appeal by reference to the question of whether the verdict was so low that reasonable men and women, confining their attention to relevant matters, could not have arrived at such an estimate.
[21](Unreported, Supreme Court of Victoria (Appeal Division), 3 May 1994).

The appellant was a process worker who had suffered back injury as a result of her employer’s negligence from being required to perform unduly heavy lifting work over long periods of time. She suffered from back pain as a result of disc prolapse for which she had surgery. She was left with quite significant residual sciatic pain. Upon determining that the verdict given was manifestly inadequate, Brooking J (with whom Smith and JD Phillips JJ agreed) substituted the Court’s own assessment in the following way:[22]

Notwithstanding the jury‘s assessment of damages, I find no reason to regard their verdict on the issue of liability as questionable and, in my opinion, a retrial on all issues should not be ordered.
I am also of the opinion that this court should itself reassess the damages, a view which I understand is shared by my brethren.
I would reassess the damages in the sum of $70,000.

[22]Ibid 8.

In our opinion, there are four complementary reasons that justify a substitution of an award of damages in this case:

(1) First, the Court is dealing with one head of damages only, pain and suffering and loss of enjoyment of life – there is no need to engage in a calculation of loss of earnings or the components that might comprise;

(2) Secondly, having found that the jury's assessment was not open – and in so doing having analysed the evidence in detail – this Court is in as good a position as any to assess damages;

(3) Thirdly, as we have mentioned, the plaintiff is vulnerable psychologically, and in the exercise of the discretion to order a retrial limited to damages this must be a relevant consideration (particularly where the Court is in a good position to assess damages);

(4) Fourthly, there must be an end to litigation.

At trial, Willett argued that the range of an appropriate award of damages was between $300,000 to $400,000, and that an award at the upper end of that range, $380,000 to $400,000, was not unreasonable. On the appeal, Willett relied on a decision of this Court in Amaca Pty Ltd v King.[23] Amaca was an appeal from an award of damages by a jury of $730,000 for pain and suffering and loss of enjoyment of life in the context in which the plaintiff had suffered mesothelioma as a result of his employment. The Court dismissed the appeal on the ground that it was not persuaded that the sum awarded was beyond the sum at which a reasonable jury properly instructed and with all due attention to the evidence could arrive. In the course of dismissing the appeal, the Court, comprising Nettle, Ashley and Redlich JJA, observed 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. So too salaries have greatly increased. As their Honours said:[24]
[23][2011] VSCA 447 (‘Amaca’).
[24]Ibid [177] (footnotes omitted).

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 insasmuch

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:[25]

[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’.

[25]Ibid [180], [182] (footnotes omitted).

We have described in detail above the injuries suffered by Willett and the permanent incapacity it has caused. We have set out the reasons why we consider that, in this case, this Court should substitute its own award of damages for the jury verdict. We consider that, taking all those features into account, Willett should be awarded damages in the sum of $250,000.

OSBORN JA:

Introduction

The appellant, Karen Willett, is a former Detective Senior Constable of police who was employed at the South Melbourne Criminal Investigation Unit (‘CIU’) between 4 October 2004 and 27 June 2006.

In November 2009, she commenced a proceeding in the Common Law Division of this Court claiming damages for pain and suffering and loss of

enjoyment of life as a result of psychiatric illness suffered in consequence of bullying and harassment in the course of her employment.

The proceeding was heard before Justice Williams and a jury over the course of 29 sitting days. The appellant called oral evidence and read statements or reports from some 20 witnesses and the respondent called some 13 witnesses.

On 7 July 2011, the jury returned a verdict by answering four questions:

(1)Was negligence on the part of the State of Victoria a cause of injury to Ms Willett?

Answer: Yes.
(2)What is a fair and reasonable amount of damages to compensate Ms Willett for her pain and suffering?

Answer: $108,000.
(3)Was there contributory negligence on the part of Ms Willett which was a cause of her injury?

Answer: Yes.
(4)By what percentage is it just and equitable that Ms Willett’s damages should be reduced having regard to her own share of responsibility for her injury?

Answer: 50 per cent.

The appellant now appeals the jury’s answers to questions 2, 3 and 4. It is contended on her behalf that:

(a) the jury’s verdict as to quantum was manifestly inadequate;

(b) there was no evidence upon which a finding of contributory negligence could be sustained;

(c) the amount of contributory negligence found by the jury was perverse and against the weight of the evidence;

(d) the instructions of the trial judge to the jury were inadequate both with respect to the issue of damages and the issue of contributory negligence; and

(e) the issue of contributory negligence should not have been left to the jury.

For the reasons set out below, I am not persuaded that the jury’s award of damages for pain and suffering was manifestly inadequate.

Conversely, I accept that there was no proper basis on which contributory negligence could be left to the jury.

These conclusions are effectively dispositive of the appeal.

The appellant’s case as to bullying

It is necessary first to say something about the manner in which the parties joined issue on the question of liability, because the jury’s answers to the questions asked of it resolved a complex factual dispute without reasons. It is necessary to understand the broad nature of that dispute before coming to the matters in issue upon the appeal.

The appellant was born on 4 June 1972. She joined the Victoria Police force in 1994. After initial rotations at different locations in inner Melbourne, she served as a constable at Fitzroy Police Station. She was promoted to Senior Constable in 1998 and after coming second in her class in a Field Investigator’s Course, she obtained a position as a Detective Senior Constable at the CIU.

She commenced work at the CIU on 4 October 2004. The officer in charge of the unit was a Detective Senior Sergeant Davies, whom she had known when stationed at Fitzroy. Her direct supervisor was Detective Sergeant Edebone, whom she met on her first day. The appellant’s evidence was that Edebone allocated her the worst desk in the office which was normally reserved for temporary employees. He also placed her last on a roster, below the order reflecting her rank.

Two days after starting, she was informed by another detective that Edebone believed ‘she had fucked the boss to get her job’. At the end of her second week, the appellant approached Edebone and told him that she was pregnant. Edebone asked the appellant if she’d ever ‘fucked the boss’ because he had heard that she had. The appellant denied the rumour. Edebone then used the telephone to contact the Human Resources Department and asked if the appellant could be replaced because she was pregnant. Edebone told her that the only way he could get rid of her was if she voluntarily relinquished her job. He asked if she was willing to do so. The appellant refused. After some weeks, Edebone commenced calling the appellant the ‘black widow’ when she walked into the room.

The appellant gave evidence of continuing social ostracism by other members of the CIU. She also described a meeting shortly before she left for maternity leave which Edebone instructed her not to attend but which was attended by every other member of the office. After the meeting, Edebone informed the appellant she would have to continue to contribute to the social club whilst she was on maternity leave and on leave without pay.

Edebone also spoke disparagingly of the appellant when another officer asked her to come out on a job with him.

As her pregnancy progressed, the appellant moved to alternative duties but was asked on occasions to undertake duties which were not within the agreed scope of her alternate job description. She was also asked to do menial jobs not consistent with her seniority and act in effect as a chauffeur and messenger.

In mid-February 2005, the appellant went on maternity leave for 26 weeks at half pay. She was due to attend detective training school immediately upon her return from leave. She was required to prepare a portfolio in preparation. She received an offensive telephone call from Edebone about whether she had prepared her portfolio. She also received two other offensive calls from Edebone including one concerning her proposed leave arrangements.

After returning from maternity leave, the appellant described difficulty in getting days off to look after her child, ‘whilst other members were allowed days off to play golf and things like that.’ On 27 June 2006, she found a memorandum at work indicating that other officers were going on a trip to Sydney paid for by the office social club (to which the appellant contributed). She had not been included despite an earlier request to participate. She objected to her treatment to a fellow officer, Detective Senior Constable Wooles, who lost his temper with her. In turn, the appellant broke down and has not been able to work since that date.

The respondent contested that many of the events in issue in fact occurred. In particular, the alleged conversations concerning the manner in which the appellant got the job and about the appellant’s pregnancy; the use of the black widow epithet; and other offensive conversations. The respondent also denied that the appellant was required to undertake alternative duties which she did not agree to and that she was excluded from social club activities. The respondent’s case was further that a number of the appellant’s complaints reflected an over-sensitive personality reacting to conduct which was not unreasonable. The complaints about her desk, rostering, acting as a messenger, and social ostracism were characterised in this fashion. It follows that the jury’s answer to the first question may have been arrived at via either partial or substantial acceptance of the appellant’s case, involving a large number of potential permutations of fact.

The appellant’s evidence as to pain and suffering and loss of enjoyment of life

It is also convenient to set out in a summary way the appellant’s account of the mental distress and disturbance which she suffered as a result of bullying. Her evidence was that before working at the CIU she was a fit young woman who would run four to 10 kilometres some five to six times a week. She also played netball and enjoyed snow skiing. She had met her partner in 2000 and had commenced living with him in 2003. Her first child was born in March 2005 during the course of the events in issue and her second child was born in October 2007 after she had ceased work at the CIU.

The appellant said that when she left the CIU she was a ‘broken horse’ and had nothing left to give. By April 2006, she was vomiting before going to work and habitually picked her hands until they bled. She had also lost weight. She is 165 centimetres tall and her weight fell from 45-48 kilos to 38 kilos for no identified physical reason.

She also lost her libido. She consulted her general practitioner in April 2006 and in June 2006 he diagnosed depression and high anxiety.

During one confrontation with Edebone, she had started suffering from panic attacks which she described as feeling as if she was drowning or choking. These attacks continued to reoccur after she left the CIU. She developed a breathing strategy with the psychologist to whom she was referred by her general practitioner and this helped her cope.

She has taken antidepressants and other medication since April 2006 and when she gave her evidence in chief had that day taken 150 milligrams of Zoloft, 100 milligrams of Seroquel and 15 milligrams of Valium. She cannot get by without medication. She remains depressed and feels as if she is in a dark hole out of which she cannot climb. She feels blue every day. She still picks her hands. She is afraid to socialise with or come into contact with police officers. When she goes out she wears clothing which conceals her face and disguises her identity.

She took an overdose of diazepam on 19 April 2011 and then rang her step-brother who is a psychiatric nurse. She was taken to Monash Medical Centre and then to the Melbourne Clinic. Prior to this she was seeing the psychologist on a weekly basis and found the sessions very beneficial. He had helped her to leave the house, to go to the shops and combat her panic attacks.

Before she became depressed, she had pride in her appearance but now does not. She does not go to the hairdresser or buy clothes as she used to. Her attendance at sporting events and her social contacts generally have diminished. She no longer plays sport, although she did play netball for a period in 2010. She flew to the UK on her own in May 2009 to attend a wedding and greatly enjoyed the trip.

Was the jury’s award of damages manifestly inadequate?

Ground 1 of the notice of appeal is that the jury’s award of $108,000 damages for the appellant’s pain and suffering was manifestly inadequate.

It is a difficult task to overturn a jury’s verdict. The relevant principles were summarised by Ashley JA in Butcher v Australian Tartaric Products Pty Ltd.[26] As his Honour noted, it has been said that an appellant must show that the jury’s answer to a question was such that ‘no reasonable jury could have given’; that such decisions can only be disturbed ‘in an extreme case … [where they are] unreasonable’; and that ‘the occasions for judicial correction of jury verdicts will be extremely rare.’[27] In JohnFairfax Publications Pty Ltd v Rivkin,[28] Kirby J summarised the position as follows:

I am very mindful of what this Court and the Privy Council said in Hocking v Bell, concerning appellate review of jury verdicts. In this Court, the case is often referred to, and given effect. But neither Hocking v Bell, nor any decision since of which I am aware, obliges an appellate court, performing its function of deciding an appeal from a verdict of a civil jury, to defer to the jury decision if there is the merest scintilla of evidence to support that decision. This is a common misreading of Hocking v Bell. It must be removed from legal thinking.
In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons and in circumstances where only limited means are available to decide how the jury may have reached their conclusion. Nevertheless, the touchstone is – and should be – one of reasonableness. Nothing else would coincide with judicial authority. Nothing else would fit with the appellate court’s duty as a receptacle of statutory power. Reasonableness, rationality and fair process lie at the very heart of our legal system. There is no need to apologise for them, or to dispose of them, in deference to fictious or absolute notions or a blind faith in finality of legal process that has clearly miscarried.
The position was explained by McHugh J in Fox v Percy in language that I would adopt, word for word, for application in this case:
‘Juries give no reasons. Because that is so, appellate courts must act on the basis that the jury took that view of the evidence that was reasonably open to them and is consistent with their verdict. Nevertheless, in some cases no reasonable view of the evidence can support the verdict. In those cases the appellate court may intervene to set aside the verdict.’[29]

[26][2009] VSCA 303 (‘Butcher’).

[27]John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1658 [2] (Gleeson CJ), 1675 [112] (Kirby J), 1677 [119] (Kirby J), 1698 [183] (Callinan J).

[28]Ibid.

[29]Ibid 1682, [150]-[152], (citations omitted). Emphasis in the original text.

In turn, as Ashley JA said in Butcher:[30]

Consideration of the direct evidence and available inferences to determine whether ‘the damages are so large or so small as to be unreasonable – so excessive or so inadequate that no jury could reasonably have awarded them, or out of all proportion to the circumstances of the case’,[31] taking a view of the evidence most favourable to the respondent to the appeal[32] – requires careful analysis of the evidence, as exemplified by decisions of this Court.[33]

[30]Butcher [8].

[31]Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369 (Gibbs J).

[32]See, eg Progress and Properties Ltd v Craft (1976) 135 CLR 651, 672 (Jacobs J), and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 878 [64] (Kirby J); see the application of a like principle in cases where the damages awarded are claimed to be unreasonably large: Coulahan v Clissold [2000] VSCA 196 [22] (Charles JA).

[33]See, for example Downes v Pearce [2001] VSCA 10 where an analysis of the evidence by Charles JA led to his Honour’s conclusion that a body of evidence relating to psychiatric rather than physical injury must have been disregarded for no justifiable reason; Abdul- Massihv Abdul- Massih [2001] VSCA 231, where the jury verdict was only compatible with the jury acting upon one or other of two factual bases, neither of which was reasonably open on the evidence; and Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307, where a careful review of the evidence by Kellam JA, in the context of the required approach which his Honour identified at [62]-[63], culminated in his Honour’s conclusions at [67]-[69].

In the present case, the respondent submitted to the jury that the appellant had a vulnerable personality and that she suffered ‘a serious mental disturbance’ as a result of unreasonable feelings of rejection. The respondent thus relied on the seriousness of the appellant’s disturbed mental state to explain, at least in material part, the appellant’s perception of the events forming the basis of the case on liability. Indeed, it called expert psychiatric evidence from Dr Shan which went so far as to express the opinion that the appellant’s recollection of events may have been in part delusional.

Once the jury found that the appellant did suffer injury as the result of the respondent’s negligence, however, the starting point for the assessment of damages for pain and suffering must be that it was common ground that the appellant had suffered a serious mental disturbance of which the respondent’s conduct was a cause.

Despite this common ground, there was nevertheless a direct attack on the appellant’s credit based upon alleged inconsistencies between behaviour depicted in a series of covert films of her everyday life and the degree of agoraphobia and social inhibition that she described as an ongoing component of her mental condition.

The first film showed the appellant without any disguise attending the offices of Dr Morrell, her treating psychologist, and later that day visiting Southland Shopping Centre with a friend. It was put to her that the films were inconsistent with her evidence that:

Mostly when I go out I wear tracksuit pants and trainers, hoodies, hats. Pull the hood over my head so that I can pull it right down then I can’t see – then people can’t see me. It’s like when you’re a child if you close your eyes you can’t see them.

The next film showed the appellant alone and undisguised at Chadstone Shopping Centre and at neighbourhood shops and further films showed her leaving a hairdresser undisguised after having had her hair washed and blowdried. A further film showed her talking with other mothers when attending at a kindergarten with one of her sons, again undisguised. The appellant gave explanations in evidence as to why on each of these occasions she did not feel it necessary to wear a disguise, but each of these films was capable of being regarded as demonstrating that her ordinary life was not as adversely affected as she maintained. A further film showed the appellant in disguise when visiting the chambers of Dr Shan, the psychiatrist retained by the respondent for medico-legal purposes. It was put to her that this disguise was a deliberate exaggeration of her symptoms in circumstances where she knew she might be filmed.

The film taken outside the kindergarten showed the appellant in almost continuous conversation with other mothers. In the course of the film, she laughs, interacts happily with children and talks expressively with other mothers at some length. It was put on behalf of the respondent that this film, together with the films of the appellant attending Southland and Chadstone Shopping Centres, showed a ‘normal suburban mum’ and that the appellant was not as socially depressed and inhibited as she maintained.

The primary forensic purpose of the cross-examination based upon these films was a general attack on the appellant’s credit. That attack was said to affect the credibility of the appellant’s evidence in respect of the facts forming the basis of the respondent’s case of negligence. Nevertheless, it is clear that the cross-examination also put in issue the genuineness of the appellant’s account of her symptoms. In addition to the film evidence, it was also contended that matters such as the appellant’s capacity to undertake overseas trips and to care for her two children showed that her evidence as to the degree to which her mental state incapacitated her was exaggerated.

In turn, this Court must assess the alleged manifest inadequacy of the jury’s award of damages on the view of the evidence which is most favourable to the respondent.[34]
[34]Butcher, [8].

Counsel for the appellant accepted that this was so, but submitted that the psychiatric evidence of Dr Shan which was adduced on behalf of the respondent itself demonstrated that the appellant’s psychiatric injury could not reasonably be regarded as adequately compensated by the jury’s award.

Matters not in issue

Before turning to Dr Shan’s evidence in some further detail, it is convenient to note some preliminary matters which were common ground. At the date the appellant ceased work, she was aged 34. At the date of the jury’s verdict, she was aged 39. She had not worked in the interim, but had lived in a stable relationship and had two children.

The appellant had been admitted as an inpatient to the Melbourne Clinic during the period of lead-up to the trial following a suicide attempt and was under the supervision of Professor Ng. Dr Shan gave evidence that he had a high regard for Professor Ng. Professor Ng’s report was read to the jury. The report stated the appellant had been admitted in the first instance to the psychiatric unit of the Monash Medical Centre on 20 April 2011 following an intentional overdose of diazepam tablets and was subsequently transferred to the Melbourne Clinic on 23 April 2011. She remained an inpatient there (although other evidence indicated she took escorted day leave on weekends). Professor Ng diagnosed a major depressive disorder with co-morbid generalised anxiety disorder. Due to a white blood cell abnormality, her medication was changed after admission to sertraline 150 milligrams per day, quetiapine 215 milligrams per day, diazepam 50 milligrams per day as required and temazepam 20 milligrams per day. Professor Ng thought it was premature to provide an accurate prognosis. The appellant’s condition could deteriorate as a result of prolonged court proceedings, her exposure to persons previously involved in harassment of her, repeated detailed recounting of the experience and the outcome of the trial. It was recommended that her time attending the trial hearing be kept to a minimum if possible.

Dr Shan’s evidence

Dr Shan has practised as a specialist psychiatrist since 1984. He saw the appellant on two occasions at the request of the respondent’s solicitors. Dr Shan ultimately concluded that the appellant was suffering from a major depressive disorder, but he characterised it as only mild to moderate in degree on a scale of mild to moderate to severe. He accepted that this condition had been ongoing for five years and was properly regarded as chronic in the sense of ongoing.[35]
[35]Dr Shan had made an initial diagnosis of adjustment disorder when he first saw the appellant but accepted that the condition had continued for such period since the occasion of the relevant stressors upon her, that this diagnosis was no longer appropriate. T2687.

Dr Shan was taken through the characteristics of a major depressive disorder in cross-examination. He said that a major depressive episode was the foundation of the diagnosis. He accepted the appellant had suffered from a major depressive episode. He accepted that at least five of the criteria for major depressive disorder existed when the appellant was very unwell but by the time he saw the appellant she had improved in some respects.

More particularly, the appellant suffered from depressed mood. She suffered from loss of interest and pleasure in activities of the day to some extent. She had suffered weight loss. She suffered sleep disturbance; psychomotor retardation; a history of fatigue and loss of energy nearly every day; feelings of worthlessness; and some diminished ability to think or concentrate. She did not have suicidal ideation when Dr Shan saw her.

In Dr Shan’s view, the appellant will never be fit to return to work as a police officer, but is able to do alternative part-time work and might find alternative full-time work when her children are older.

Dr Shan’s diagnosis was based on a history of ongoing symptoms which he largely accepted. He was not asked by the respondent to express an opinion on any other basis. When he first saw the appellant in July 2009, he had information from Ms Irwin, a social worker employed by Victoria Police who saw the appellant on 25 occasions during 2006 and 2007 for counselling sessions; Dr Barkley, who met the appellant in 2000 and in 2006 referred her to Dr Morrell, a psychologist, after giving her a WorkCover certificate; Dr Morrell, who first saw the appellant in October 2006 and had treated her regularly since that time for anxiety and depression; Dr Epstein, a psychiatrist with whom the appellant had consulted a number of times and who had diagnosed a stress breakdown; Dr Greenbaum, a psychiatrist who saw the appellant in June 2008; and Dr Entwistle, a psychiatrist who saw the appellant on behalf of the respondent and provided reports in August 2006, October 2006, May 2007 and July 2008.

When Dr Shan first saw the appellant it was for about 40 minutes. She was tearful during the whole consultation. He did not discuss the circumstances of her departure from her workplace with her as it might distress her, but he noted her statements that she had been an outgoing person who enjoyed her work as a police officer until she was appointed at the CIU in 2004. She ceased work in 2006 believing she was bullied. She had had treatment from her family doctor and from a psychologist.

The appellant told him she was unable to work and that the thought of the police force distressed her. She had had a fear of leaving the house and when she emerged she covered herself up by way of disguise. She had a constant fear of being recognised by those she had worked with. She was depressed and cried nearly every day. She was distressed by any communication from the police force and when she had to attend a medical examination at the request of her employer she was agitated. She believed however that her condition had improved somewhat through treatment and she now went out more. She was content to continue treatment with her general practitioner and psychologist.

At the time, she took early morning walks in the dark with her 21 month old child. She would otherwise go out to drop her four year old at kinder about three times a week and also to go to the shops. She wanted her children with her because she was fearful of going outside alone.

She had travelled to England by herself for about three weeks for a wedding and felt better when she was away from her usual surrounds. She and her family had also been able to travel to Malaysia for a break. She had some visitors, mainly family and a girlfriend who was not a police officer. She went to football games but concealed her appearance. At home she cooked and did some chores but found it difficult to motivate herself. Her libido was largely absent. Her second child had been an accident. Her weight was about 40 kilograms. She appeared depressed in mood and angry with her employer. Dr Shan concluded the appellant continued to suffer a psychiatric disorder on the basis of her description of ongoing symptoms, the reports he had read from her treating practitioners and the medication which had been prescribed for the appellant and which she took. Dr Shan diagnosed an adjustment disorder.

When Dr Shan saw her again in May 2010, the appellant was seeing her GP every three months and also seeing the psychologist, Dr Morrell. She did not think it was necessary to see a psychiatrist.

Dr Shan then went through the appellant’s allegations as to what had happened to her at the CIU. He noted that she was uneasy and anxious and vomiting before going on maternity leave and that after she returned she experienced panic attacks and general anxiety at work. The appellant presented on this occasion as agitated and tearful. Dr Shan felt she was depressed and anxious in mood. He noted there continued to be a loss of confidence and partial social withdrawal.

She was upset because a car had been following her to the consultation. She was still in the habit of wearing a cap, sunglasses and a scarf to disguise her appearance when she went out of the house. She had not resumed work or done any courses but she had joined a netball team in Oakleigh. She usually woke at 5:00am and would go for a walk. She described her day to day routine as follows:

She would get her older son Ethan ready for school, and that was about three days a week. She would take both him and her younger son to school with her, and then would come back with the younger son. She had struck up some friendships with some of the kindergarten mothers, and some of them had in fact visited her at home. On Tuesday night she would – she was capable of taking Ethan to swimming classes, and she was also taking the younger one to a gym program for babies. She was capable of household chores. She did some shopping, apparently she preferred to go shopping daily because of difficulties with planning, for the next day. But there were days when she did not cook at all, and left it to her husband. She continued to feel tired and exhausted, but she generally did not sleep if her husband was not at home. She slept if he was home, and then she might sleep for fairly long periods. She continued to receive some help from one of her sisters or her father, but that wasn't all that often. There was some social contact with – and now she mentioned that she had kept in contact with some female officers, but only once or twice a year. She was now capable of taking her sons to a birthday party for example, and she even had a birthday party for Ethan, and there were some people invited there. She also had been capable of going to a family wedding. She wasn't capable of using the computer to read news on the Internet such as magazines, but she did not watch television or read newspapers in case she was troubled by stories relevant to the police force. Sleep was still poor. Some – her husband said that sometimes she goes to bed at 2.00 a.m., and she continued to have those recurring dreams, but on this occasion the themes consisted of being locked under a stairwell, as described there. She did not know the significance of that. Her appetite remained variable. There were days when she would not eat, causing her husband to be concerned. But she did not describe any occasions of binge eating. Her husband advised that she had mood swings, and that she would become irritable and fluster easily, and that she handled any kind of stress poorly.

Dr Shan accepted the view of Professor Dennerstein that the appellant had not suffered from post-natal depression, but he remained of the view that her pre-existing personality played a part in the development of her mental disorder. His impression was that she had long had a rigid and anxious disposition.[36] This made her more vulnerable to developing a depressive disorder. I note, however, that there was no suggestion that her present condition would have eventuated in any event without her experiences at the CIU.[37]
[36]A view supported by notes made by a police psychologist, Ms Ravenscroft, who saw the appellant in October and November 2002.
[37]Purkess v Crittendon (1965) 114 CLR 164; State of Victoria v McIver (2005) 11 VR 458.

Dr Shan diagnosed a major depressive disorder. This diagnosis accorded generally with the final report of Dr Entwistle who was retained by the respondent but whose report was read to the jury on behalf of the appellant. In his last report of 17 July 2008, Dr Entwistle had noted that the appellant’s weight, which had increased, had dropped again to 39.6 kilograms. She presented as highly anxious and looked thin and stressed. Dr Entwistle diagnosed a major depressive illness with anxiety and panic attacks and thought she had no work capacity inside or out of the police force. He thought her condition was much the same or possibly worse than when he last saw her in May 2007.

The primary diagnoses of Dr Shan and Dr Entwistle were broadly consistent with the opinion evidence otherwise called on behalf of the appellant (although the evidence called on behalf of the appellant supported the view that the major depressive disorder from which the plaintiff suffers is more severe in degree than diagnosed by Dr Shan). The appellant’s treating psychologist, Dr Morrell, thought it was unlikely she would get back to work. Professor Dennerstein, who last saw the appellant on 4 April 2011, diagnosed a major depressive disorder which was severe and a panic disorder with agoraphobia and thought the appellant was not fit for work. Dr Epstein diagnosed a major depressive disorder with an inability to cope and thought the appellant’s prognosis was poor and that she might require electro-convulsive therapy and trans-cranial magnetic stimulation. Professor Ng, as I have said, diagnosed major depressive disorder with a co-morbid anxiety disorder. He could not give an accurate prognosis because her condition could deteriorate.

Although it was generally accepted that the current proceeding was a source of stress to the appellant which caused her condition to flare up from time to time, neither Dr Shan nor the other psychiatrists suggested that the appellant’s underlying condition was likely to resolve with the resolution of this proceeding.

A further matter on which the psychiatrists agreed was the fact that the appellant was taking high levels of medication. Professor Dennerstein expressed the view that the appellant’s medication levels were such that they would interfere with her capacity to do an ordinary job. This evidence was not directly challenged.

It is submitted on behalf of the appellant that when these matters are put together the jury’s verdict was not reasonably open to it. The psychiatrist upon whom the respondent relied accepted the diagnosis of major depressive disorder for which the appellant contends. It is submitted that from her mid-30s into her late-30s this disorder has had a very material affect on the appellant’s life and continues to do so. It was accepted by Dr Shan that it has deprived her of the career she had chosen (in which she had displayed considerable aptitude before her transfer to the CIU). It was also accepted by Dr Shan that the appellant’s depressive disorder materially affects her enjoyment of daily life and is a chronic condition which will continue to materially affect her. The levels of medication she is required to take to cope with life are very substantial and, to a degree, themselves incapacitating. The award of damages must have regard to the current value of the dollar and the general level of damages currently awarded for pain and suffering, as the Court said in Amaca v King.[38]
[38][2011] VSCA 447, [175]-[181] (Nettle, Ashley & Redlich JJA).

On the other hand, it is submitted on behalf of the respondent that the appropriate measure of damages for pain and suffering only was a matter for the jury to fix having regard to the evidence as a whole. The appellant’s case as to the effect which her psychiatric illness had had upon her life was squarely in issue having regard to the film evidence; the low level of her ongoing medical treatment (prior to her pre-trial hospitalisation) which involved no more than ongoing medication prescribed by a general practitioner and counselling from a psychologist; and the relatively unhindered capacity she had to engage in and enjoy life as demonstrated by her ability to care for her two children, engage in everyday activities and travel overseas for holidays.

There are some significant qualifications which must be made to the fundamental premise of the appellant’s submission that Dr Shan’s evidence compels the conclusion that the jury’s award of damages was inadequate. The first qualification is that, as the jury was correctly instructed, it was ultimately for it to determine the extent and nature of the plaintiff’s injury on the whole of the evidence. As a matter of fundamental principle, the opinions of a particular expert witness (even if called for the respondent) did not necessarily compel acceptance of particular detailed conclusions on the facts. As the judge told the jury:

Just because an expert is called does not mean you have to accept their opinion. They do not decide the case; you do.

The jury was entitled to act upon any evidence which conflicted with the expert evidence and which outweighed it. Again, as the judge told the jury:

So when you are deciding, for example, whether to accept a particular psychiatrist's opinion about what was the cause of psychiatric injury to Ms Willett, you take into the account the facts that the person based that opinion on and the things she told them about what had happened. And you would be only persuaded of their opinion if you took the view that you were satisfied about those facts as well.
You have got to take the information that the person was given into account when you are deciding how much of their opinion or how little of their opinion you are going to accept.
Sometimes it is going to be necessary to compare the evidence of different experts, just to determine how much you rely on their opinions. The bottom line is that an expert is not infallible, and it is your opinion about the evidence that maters, and you can accept or reject their evidence, just like you can any other witness.

These directions reflect the principles stated by Dixon J in Hocking v Bell:[39]

It is clear, however, that in all I have said I have been dealing with matters of fact, and that such views as I have expressed amount to comments on and conclusions from evidence. Prima facie, such matters are for the jury. Scientific evidence, even when composed in part of text-books, is no less matter of fact within the province of the jury than is other evidence, and it is the jury's function to estimate the reliance to be placed on scientific witnesses, however eminent.

[39](1945) 71 CLR 430, 496.

In Ramsay v Watson[40] it was said:

That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’[41]

[40](1961) 108 CLR 642.

[41]Ibid 645.

Secondly, in the particular circumstances of this case, whilst the respondent expressly accepted the appellant suffered from a continuing psychiatric disorder, the meaning in terms of the appellant’s day to day loss of enjoyment of life of Dr Shan’s diagnosis of a ‘mild to moderate’ disorder was a quintessential jury question requiring resolution on the basis of the whole of the evidence relating to issues of fact and degree.

That this is so flowed from the very basis on which Dr Shan expressed the opinion that the appellant’s disorder was not severe. This was that the appellant had been capable of activities that are inconsistent with the presence of a severe psychiatric disorder.

These include travelling overseas by herself, travelling on a family holiday with two small children for three weeks last year, and being generally capable of being a responsible mother for her children since they were born.

In accordance with the principles explained in Makita (Australia) Pty Ltd v Sprowles[42] by Heydon JA, Dr Shan did not simply label the appellant but explained the criteria by which he expressed conclusion. The relevant concept is explained by Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh:[43]

Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.

[42](2001) 52 NSWLR 705 (‘Makita’).

[43]1953 SC 34, 39-40, cited with approval by Heydon JA in Makita, 729-30 [59].

In significant part, the appellant’s case as to pain and suffering and loss of enjoyment of life necessarily depended directly upon the evidence as to the day to day quality of her life. In turn, it was this aspect of the case which was the subject of challenge by reference to the films put in evidence on behalf of the respondent and by reference to the level and nature of the activities which it was admitted the appellant had undertaken. Accepting the most favourable view of Dr Shan’s evidence from the respondent’s point of view, it remained for the appellant to persuade the jury what the true extent and nature of her ‘mild to moderate’ condition was. It is fundamentally difficult for any appellant who bears the onus of proof to demonstrate that a tribunal of fact was bound to reach particular conclusions. In the present case, it is not possible to establish exactly what the jury concluded as to the true extent and nature of the appellant’s disorder.

It is useful to refer to two cases from the field of criminal law which consider the role of the jury where expert evidence addresses the extent and nature of mental impairment which may have affected an accused at the time of an alleged offence. The proper approach to unchallenged expert evidence was explained by Roden J in R v Hall (with whom Allen and Loveday JJ agreed):[44]
[44](1988) 36 A Crim R 368, 370.

Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
‘The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.’

The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958]1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
‘While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be “a true verdict in accordance with the evidence”.’

In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
‘The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.’

In Walton,[45] Lord Keith of Kinkel on behalf of the Privy Council stated, having considered Matheson and Bailey:

These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.

[45][1978] AC 788; 66 Cr App R 25.

In R v Gemmill (Eames JA with whom Winneke P and Ormiston JA agreed)[46] said:[47]

commonsense retains its place in deciding disputed questions of fact on issues of mental impairment, just as it does in other areas where scientific or technical evidence is being relied in a trial, and where the factual basis upon which the opinions rest are matters which the jury can legitimately evaluate for themselves …[48]

[46](2004) 8 VR 242.

[47]Ibid 253 [49].

[48]See also Taylor v R (1978) 22 ALR 599, 617-619.

The assessment of the consequences of the appellant’s disorder in the present case was not the subject of unchallenged expert evidence, but rather raised questions of fact and degree falling to be determined from the respondent’s point of view not only in the light of Dr Shan’s evidence, but also the film evidence and the circumstantial evidence as a whole. The evidentiary consequences of Dr Shan’s opinion evidence were matters which the jury could legitimately evaluate for itself.

It was submitted on behalf of the appellant that if it was contended the film evidence provided a proper basis for qualifying Dr Shan’s evidence then the films should have been shown to him.[49] In my view, it was open to the jury to have regard to the fact that Dr Shan did not see the films in assessing what weight to give them and in particular in assessing the respondent’s submission to the jury that the films demonstrated the appellant’s evidence was ‘wildly exaggerated’. But it does not follow that they did not form part of the circumstantial evidence as a whole against which the appellant’s evidence fell to be assessed. Indeed, the better view is that the films were entirely consistent with a ‘mild’ disorder. They did not require any modification of Dr Shan’s opinion. They simply illustrated why it was correct.
[49]Butcher (Ashley JA [26], [111], [113]).

There are, upon analysis, a series of levels at which the jury may have discounted the appellant’s claim.

First, because it was plain that the appellant found the trial itself very stressful and disturbing, it was open to qualify acceptance of aspects of the appellant’s evidence as potentially unreliable to some extent for this reason. It was also open to the jury to reject aspects of her evidence as exaggerated or untruthful. The respondent’s case was expressly put on this basis.

Secondly, it was open to the jury to accept the view of Dr Shan’s evidence most favourable to the respondent, namely that the disorder from which the appellant suffered was no more than ‘mild to moderate’ in severity. This was a very significant issue, relating as it did to the intensity of the appellant’s psychiatric disorder. One may compare the evidence as to level of disorder and consequential observations made by Callaway JA in State of Victoria v McIver,[50] a case of trespass to person by way of wrongful arrest and consequent psychiatric illness (recognising of course that each case turns on its own facts).

The evidence most favourable to the plaintiff was that of Dr Kornan. He diagnosed an adjustment disorder with anxiety and depression, indications of post-traumatic stress disorder and associated feelings of inferiority, humiliation and embarrassment. He considered that the plaintiff suffered a chronic psychiatric deficit of moderate to moderately severe intensity and that he was likely to remain at that level permanently. Nevertheless, when the plaintiff’s age is taken into account, I do not think it can be said that an award of $85,000 was manifestly inadequate. Even less, I think, can it be said to be manifestly excessive. The judge had advantages denied to us, for example in seeing the plaintiff give his evidence, and made a quasi-discretionary judgment with which we should not interfere.[51]

[50](2005) 11 VR 458.

[51]Ibid [18].

Thirdly, it was open to the jury to form its own view of the impact of the appellant’s mental disorder on an ongoing basis having regard to the evidence as a whole and not merely the medical opinions before it.[52] It was not bound to accept particular aspects of the appellant’s evidence nor the history taken by Dr Shan.
[52]Butcher [133].

Fourthly, it was open to the jury to accept that although the appellant would not return to work as a police officer because of the probable stress which that was likely to cause her, nevertheless she was presently capable of part-time employment and would become capable of full-time employment when her children grew older. This was the view of Dr Shan. There was of course no claim for economic loss and the jury was told the appellant was and had been in continuing receipt of weekly compensation payments of $1,000.

Fifthly, the matters upon which the respondent placed particular reliance in final address were matters to which the jury was entitled to have regard in assessing damages for pain and suffering and loss of enjoyment of life. In particular, the jury was entitled to have regard to:

(a) the limited nature of the appellant’s ongoing medical treatment;

(b) the history of some improvement in the appellant’s condition;

(c) the film evidence depicting an apparently normal and relatively active life;

(d) the appellant’s capacity to live in an apparently successful relationship with her partner since 2003 and her ongoing capacity to care for her children on a daily basis; and

(e) the appellant’s capacity to travel overseas on three holidays with her partner and his children.

The film evidence bore on a complex and detailed factual picture. By way of example, both the appellant and her partner gave evidence that among other things she had lost interest in her appearance. It was open to the jury to reject this evidence having regard to the films of the appellant coming out of the hairdressers.

The film evidence also provided a basis for failing to be persuaded to a substantial degree by the appellant’s evidence as to the ongoing extent of her agoraphobia and social alienation. The jury were not bound to be satisfied that the appellant had material difficulties meeting and socialising with friends having regard to the film evidence.

Likewise, although Dr Shan accepted the appellant was suffering from a psychiatric disorder, the history taken by him bore on a complex factual picture in much the same way as the films did. The fact that Dr Shan largely accepted the history given by the appellant and her partner left open the clarification of that history. To give a further example, the appellant’s partner told the jury that there had been a slow deterioration in her condition since she stopped work. The appellant told Dr Shan when she saw him in July 2009 that she believed her condition had improved with treatment. She gave some evidence in chief to similar effect. Putting aside the obvious disturbance which the trial itself had caused the appellant, it was open to the jury to conclude on the basis of this evidence, the course of the appellant’s treatment and the film evidence, that the overall picture was one of ongoing improvement not deterioration.

In resolving all these issues, the jury had the advantage of seeing and hearing the appellant give evidence and in a case such as this much necessarily depended on its assessment of the appellant’s credibility and reliability. It is, in particular, difficult for this Court to assess the extent to which the jury may have regarded aspects of the film evidence as inconsistent with the appellant’s presentation and evidence to them.

Ultimately, it was for the jury to decide what detailed aspects of the appellant’s case it did or did not accept, the weight to be given to different details of the evidence and what was the appropriate overall conclusion as to a proper figure to compensate the appellant for pain and suffering and loss of enjoyment of life. If it be accepted, as it must be, that each of the levels of the enquiry to which I have referred must be approached on the basis that the evidence is looked at as favourably as it reasonably can be from the respondent’s point of view, I do not accept that it can be said the verdict as to quantum was not reasonably open to the jury.

More particularly, the jury’s verdict was not to be determined by the label ‘major depressive disorder’ but by an analysis of the evidence as a whole. Dr Shan’s evidence supported the view that the appellant’s initial illness was highly disturbing and distressing and that her condition had again flared up to a serious level in conjunction with the stress of the trial. Nevertheless, if the jury were only satisfied that after the treatment the appellant had had and with the passage of time her underlying condition was only mild to moderate in severity and were not satisfied it affected her daily life to the extent the appellant claimed, then it cannot be said the damages were manifestly inadequate. In my view, the range of damages put forward in submission on behalf of the appellant on appeal ($300,000 to $400,000) reflects an assessment of the appellant’s ongoing condition and its effects as severe. The jury was not bound to take this view of the evidence. Accordingly, I would reject ground 1.

Contributory negligence

Ground 2 of the notice of appeal is that the finding of any contributory negligence on the part of the appellant being a cause of her injury was not open and was perverse. It is submitted that:

(a) there was no evidence of unreasonable conduct by the appellant which the jury could properly regard as constituting a basis for a finding of contributory negligence; and

(b) there was no evidence of contributory negligence which was a cause of the appellant’s injury.

In final address at trial, senior counsel for the respondent said:

The defendant’s allegation of contributory negligence essentially is that if that was so, if her allegations are true, and she was being bullied to the extent that she said she was, if that is so, then she had the means reasonably open to her to make a complaint both inside and outside the unit about that behaviour, and such complaint would likely have brought about the cessation of such behaviour so that she would be removed from the environment of the bullying.

Before this Court, Mr Wheelahan properly conceded that there was in fact no evidence that if the appellant had made complaint of bullying, she would have been removed from the ‘environment of the bullying’.[53]
[53]Senior counsel for the respondent did not appear for the defendant at trial.

It appears that there was some confusion about the evidence at the conclusion of a factually complex five week trial. In the event, however, the basis on which the defendant put contributory negligence at trial cannot succeed. The highest the evidence rose was that if the appellant had made complaint it would probably have resulted in some process of conciliation or mediation.

In my view, this was simply not enough to establish a basis on which a jury could conclude that it is probable complaint would have resulted in the cessation of bullying. The respondent bore the onus of establishing that the appellant had been guilty of contributory negligence and that that negligence was a cause of her injury. As Mr Wheelahan conceded, it might be said it is no more than conjecture what further complaint might have achieved. Not only does the causation argument put at trial fail for the reason conceded but there is no alternative causal argument available to enable contributory negligence to be raised as a defence.

The anterior question of whether there was evidence upon which an allegation of unreasonable conduct by the appellant could be raised is more difficult to resolve and strictly unnecessary to answer. Nevertheless, for the sake of completeness I will set out my views. It may be inferred from the jury’s findings that it must have been satisfied of some material elements of the initial bullying alleged by the appellant, which could in turn have been the subject of complaint and prevented some further material elements of the subsequent course of events.

Dr Caponeccia, a consultant psychologist with particular expertise in respect of the relationship between harassment, bullying and stress, gave critical evidence in this regard. His evidence was that the Victoria Police Manual provided for members to make both formal and informal complaints concerning bullying. He said further that it is very common for the subject of bullying not to make complaints. In particular victims may fear the consequences of making an informal or formal report and may doubt whether complaints will achieve much. His understanding was however that the appellant had made an informal complaint.

The appellant’s evidence was that in September 2005 she spoke to Senior Sergeant Roberts about what had occurred during the initial period of her time at

South Melbourne and told him about Edebone’s behaviour.[54] He asked her whether she wanted to make a formal report but she told him that she did not want to. Roberts said that if she wanted to ‘report it’ formally there was a process to go through. The appellant said she wanted to keep the matter ‘confidential’ because she did not want her life to be made any harder. In turn, Roberts spoke to Edebone in general terms about the appellant and subsequently reported back to the appellant that Edebone did not ‘hate her’. He also took steps to rectify the roster as it affected her.

[54]The appellant also spoke to Superintendent Whiting concerning her experiences in May 2006 but this was after most of the alleged bullying and shortly before leaving the CIU. She was referred in turn by Superintendent Whiting to a counsellor whom she saw on one occasion before leaving the CIU.

In cross-examination, Roberts agreed that the appellant complained to him about the rumour that she got the job at the CIU because she ‘fucked the boss’, but denied that she specified Edebone as the source of the rumour. He agreed she had said she had received an offensive phone call from Edebone and she was offended by other statements made by Edebone. He conceded at one point he might have told her that Edebone did not hate her. He denied that the appellant had complained about being asked to relinquish her job because of pregnancy, or that any of the other incidents were mentioned, including complaints as to the roster. However, his evidence was consistent with the appellant’s evidence that she did not want to make a formal complaint and wished to keep her complaint ‘confidential’.

There is some real force in Mr Keogh’s submission that this evidence establishes the making of some informal complaint by the appellant.

Nevertheless, there was further evidence of other alternatives open to the appellant and the distinction between ‘informal complaint’ and ‘confidential conversation’ might have been meaningful to the jury if the most favourable view to the respondent were taken of the evidence.

Thus, amongst other matters, the appellant told Dr Caponeccia that she was aware of a person who was either a grievance officer, or well-being officer, or equity officer. She was not sure of his exact title but his name was Mr Stevens. The appellant did not regard approaching Mr Stevens as a viable option because he was a best friend of Edebone.

In order to evaluate this evidence, the jury had to assess what elements of the appellant’s complaints concerning Edebone they accepted as proven. The rolled-up answer given to question one at trial does not enable the jury’s factual findings to be unravelled. The jury had further to assess the reasonableness of the appellant’s explanation for not speaking to Mr Stevens. Depending in substantial part on what findings the jury made about Edebone, I am not ultimately persuaded it would necessarily be perverse to reject as unreasonable the appellant’s explanation as to why she did not complain to Mr Stevens. Although the greater the extent of the bullying and/or psychological impact upon the appellant found by the jury, the more reasonable the appellant’s course of conduct might be thought to be in the circumstances in which she found herself.

Next, Dr Caponeccia gave evidence that because the appellant had studied a unit on equity and diversity as part of an Advanced Diploma of Police Management she would have read a workbook setting out a series of avenues for obtaining advice and support in the event of bullying or harassment.

In turn, Inspector Dennis (who was the district Inspector above the other officers I have mentioned) gave evidence that he was very active in the role of senior equity and diversity officer in making sure the appropriate policies were adhered to at the appellant’s workplace. He said there was a webpage which members could check to ascertain the options available to them. He also said there was a substantial network of equity and diversity officers at each work location which members of the police force could go to if they had an issue.

If a member was being bullied at work and was not getting support from the officers in charge there were other options.

A member could go to peers. They could go to another sergeant in the complex. They could go to another senior sergeant and all of our police stations have two senior sergeants, apart from our CIUs. They could also go to their inspector. They could go to ECRU direct. They could go to WorkCover even. They could go externally to the Police Association.

Once again, in part because the jury’s verdict does not speak of what acts or actions caused what stress or injury to the appellant, it is difficult to conclude that it was not open to the jury to form the view that some further step should reasonably have been taken by the appellant. The resolution of this question required findings of fact as to what actually occurred at the workplace, the effects the events had on the appellant and what it was reasonable for her to do in the particular circumstances found. The respondent’s case as to the reasonableness of the making of further complaint cannot be disentangled from this factual matrix and cannot be said to have been hopeless if the most favourable view to it is taken of the evidence as a whole.

Accordingly, in my view, the fatal defect in the respondent’s case concerning contributory negligence was simply one of causation. Even if the jury were satisfied that the appellant might reasonably have been expected to have made further complaint prior to the formal complaints she ultimately made in 2006, there was simply no evidence that this would have extricated her from the unit in which she was suffering bullying and harassment, or that it would otherwise have materially alleviated her position and avoided injury to her within the timeframes in issue.

In summary, a finding of contributory negligence was not open because there was no evidence of behaviour which might otherwise constitute contributory negligence and which could be said to be a cause of the appellant’s injury.

Other matters

It was further submitted that the instructions of the trial judge both with respect to the assessment of damages (ground 4) and contributory negligence (ground 5) were inadequate.

No relevant exceptions were taken to the judge’s charge at trial but nevertheless on appeal it was conceded that the judge’s directions as to assessment of contributory negligence were inadequate. In my view, this concession was properly made[55] but given my primary conclusion on contributory negligence it would be entirely artificial to address this issue further. As the High Court said in Podrebersek:[56]

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man[57] and of the relative importance of the acts

of the parties in causing the damage.[58] It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

[55]See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 (‘Podrebersek’), 532-533; Butler v Rick Cuneen Logging Pty Ltd [1997] 2 VR 99 (Winneke P with whom Charles and Callaway JJA agreed, 102-5).

[56]Podrebersek (1985) 59 ALR 529, 532-3 (emphasis added).

[57]Pennington v Norris (1956) 96 CLR 10, 16.

[58]Stapley v Gypsum Mines Ltd [1953] AC 663, 682; Smith v McIntyre [1958] Tas SR 36, 42–49; and Broadhurst v Millman [1976] VR 208, 219, and cases there cited.

Insofar as the judge’s charge with respect to the assessment of damages is concerned, the High Court has recently emphasised[59] that a party is ordinarily bound by the forensic choices made on his or her behalf at trial. The trial judge summed up carefully and in considerable detail after a trial of some five weeks. She concluded her charge by putting fairly and squarely the case advanced in final address on behalf of each party. I am not satisfied any miscarriage of justice arose from the form of the judge’s charge in respect of damages.[60] No specific defect in respect of this aspect of the appeal was identified in argument on appeal.
[59]Patel v The Queen (2012) 290 ALR 189; 86 ALJR 954, [114] (French CJ, Hayne, Kiefel and Bell JJ); Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 331 (McHugh J).
[60]Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2). General Motors-Holdens Proprietary Ltd v Moularas (1964) 111 CLR 234, 255-7; Broadhurst v Millman [1976] VR 208, 220-1.

Further grounds of appeal go to the reasonableness of the quantum of contributory negligence found by the jury (ground 3) and the question whether contributory negligence should have been left to the jury (grounds 6 and 7). None of these grounds require further consideration given the primary conclusion I have reached concerning contributory negligence. No question of the reasonableness of the quantum of contributory negligence found by the jury can of course arise if contributory negligence itself was not properly before the jury.

Conclusion

For the above reasons, the appeal should be allowed in part. The jury’s verdict with respect to contributory negligence should be set aside and consequential orders made reflecting a finding of no contributory negligence.

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[2013] VSCA 76

12 April 2013