Willett v the State of Victoria

[2011] VSC 354

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE		Not Restricted

COMMON LAW DIVISION

S CI 2009 9928

KAREN ADEN WILLETT	Plaintiff
v
THE STATE OF VICTORIA	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF RULING:	28 June 2011
DATE OF REAONS	29 July 2011
CASE MAY BE CITED AS:	Willett v the State of Victoria
MEDIUM NEUTRAL CITATION:	[2011] VSC 354

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ACCIDENT COMPENSATION – EVIDENCE – Admission - Evidence of acceptance of WorkCover claim not evidence of admission that alleged injury occurred or admission that alleged injury ‘arose out of employment’ under s 82(1) Accident Compensation Act 1985 – Evidence of acceptance of WorkCover claim evidence of admission that injury was incurred in the course of employment under s 82(1) Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Meldrum QC with Mr B Penno	Clark Toop & Taylor
For the Defendant	Mr T Casey QC with Ms A Ryan	Wisewould Mahoney

HER HONOUR:

1. Karen Willett sought damages for non-pecuniary loss from the State of Victoria as her employer through Victoria Police.  Ms Willett was a detective working at the South Melbourne Criminal Investigation Unit between October 2004 and June 2006.  She claimed to have been bullied and harassed by fellow officers throughout that period.  She alleged that she suffered psychiatric injury as a result. 

1. Counsel for Ms Willett wished to rely upon evidence of the acceptance of her WorkCover claim by Gallagher Bassett Services, the authorised agent of the Victorian WorkCover Authority, as evidence of admissions by the State. 

1. Counsel for Ms Willett argued that, by accepting her claims for weekly payments and impairment benefits under s 98C of the Accident Compensation Act 1985, Gallagher Bassett could be taken by the jury to have admitted on behalf of the State that Ms Willett suffered a mental illness as a result of bullying and harassment at work, as she claimed in two WorkCover claim forms, which were already before the jury.

1. On 28 June 2011 I ruled that counsel for Ms Willett could not rely upon the evidence to which they referred as evidence of admissions either that the perceived discrimination, bullying, harassment and exclusion had occurred or that it had caused Ms Willett’s admitted injury.  These are my reasons for that ruling.

1. Counsel for Ms Willett had referred to a number of other pieces of evidence.  They argued that, in light of this evidence, the jury could conclude on the balance of probabilities that Gallagher Bassett had made those admissions, both that the alleged bullying and harassment had occurred and that it caused Ms Willett’s admitted psychiatric illness.  They cited the evidence of:

(a)       her 6 July 2006 WorkCover Worker’s Claim Form in which she:

(i)gave the first day of her employment as the date of her psychiatric injury;

(ii)attributed the injury to ‘ongoing workplace discrimination & bullying’;

(iii)     described her injury as ‘stress and depression’;

(iv)responded to the question ‘When did the injury/condition occur?’ by ticking the  box showing ‘in the course of work’ as the relevant time; and

(v)      gave this account of her treatment at work:

Since commencing duty at South Melbourne CIU on 4 October 2004 I have continually been subjected to workplace discrimination, bullying, harassment & exclusion.  I have endured numerous incidents & as a result I have suffered depression, anxiety, stress & loss of confidence, sleeplessness, irritability, low tolerance, anger & weight loss;

(b)      a 28 June 2006 Victorian WorkCover Authority Certificate of Capacity from Ms Willett’s general practitioner, Dr O D Barkley, which stated :

(i)       that she was unfit for any duties for one week from 28 June 2006; and

(ii)      Dr Barkley’s diagnosis of ‘acute stress reactive depression’;

(c)a 29 August 2006 letter to Gallagher Bassett from a psychiatrist, Dr Timothy Entwistle, in which Dr Entwistle stated that:

(i)he saw Ms Willett on 21 August 2006 and took a history of her complaints of bullying and harassment;

(ii)he concluded in response to specific questions that she had a ‘work-related condition’ and that there were no non work-related factors he could gather; and

(iii)he diagnosed her to be suffering from ‘an adjustment disorder with anxiety’;

(d)Gallagher Bassett’s 19 September 2006 letter to Ms Willett which stated:

Gallagher Bassett Services Workers Compensation Vic Pty Ltd has accepted your claim for weekly payments of compensation under the Act;

(e)Dr Entwistle’s 8 May 2007 letter to Gallagher Bassett after his re-examination of Ms Willett on 1 May 2007, confirming:

(i)his diagnosis of an adjustment disorder with anxiety and panic attacks; and

(ii)his conclusion that she continued to have an unresolved, wholly work-related condition;

(f)Ms Willett’s 11 September 2007 Worker’s Claim for Impairment Benefit Form, referring to her ‘psychological injuries, stress, depression, anxiety, panic attacks’ sustained on 15 October 2004 occurring as a result of ‘harassment/discrimination in workplace’ at the Victoria Police South Melbourne CIU;

(g)Gallagher Bassett’s 4 December 2007 letter to Ms Willett which:

(i)notified her of the acceptance of liability for her psychiatric injury after receipt of her s 98C claim;

(ii)stated that she had been determined to be suffering a whole person psychiatric impairment of 25% after examination by Dr Norman Rose ‘for the purpose of assessing the degree of permanent impairment, if any, resulting from the accepted injuries for the purposes specified in section 104B(2) of the Act’;  and

(iii)advised that her entitlement was for $0 of compensation;

(h)Dr Entwistle’s 17 July 2008 letter to Gallagher Bassett, after his re-examination of Ms Willett on 7 July 2008, in which he diagnosed a Major Depressive Illness with Anxiety and Panic Attacks which was essentially work related, chronic and likely to be associated with some pre-existing vulnerability.

1. It was common ground that Ms Willett’s entitlement to compensation was founded in s 82(1) of the Act. That sub-section is in these terms:

Entitlement to compensation

(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

1. It was also common ground that there needed to be no causal relationship between employment and an injury which occurred ‘in the course of employment’[1] whilst an injury might ‘arise out of employment’ if there was that causal connection. 

   [1]Hegedis v Carlton & United Breweriesand HIH Winterthur Workers Compensation (Vic) [2000] VSC 380 [6] (Ashley J).

1. Counsel for the State contended that as s 82(1) entitles a worker to compensation for an injury which arises either out of employment or in its course, it would not have been open to the jury to determine on the material before it that Gallagher Bassett had admitted both that Ms Willett was bullied and harassed at work and that she suffered psychiatric illness as a result. In other words, it would not have been open to the jury to conclude that her injury arose out of her employment, as opposed to in its course.

1. Counsel for the State argued that these conclusions would not have been open to the jury because there was no need for Gallagher Bassett to be satisfied of anything more than that the injury was incurred in the course of her employment.

1. I agreed with the State’s argument.

1. Given the alternative bases for entitlement to compensation under s 82(1), I was not persuaded that it would have been open to the jury to conclude that it was more probable than not that Gallagher Bassett admitted any more than it had to: namely, that Ms Willett suffered a psychiatric injury in the course of her employment. I reached that conclusion notwithstanding that Ms Willett attributed her injury to perceived workplace discrimination, bullying, harassment and exclusion.