Zhang v Wealth for Life Institute Pty Ltd
[2022] VCC 1519
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-04148
| BEI ZHANG | Plaintiff |
| v | |
| WEALTH FOR LIFE INSTITUTE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2022 | |
DATE OF JUDGMENT: | 13 September 2022 | |
CASE MAY BE CITED AS: | Zhang v Wealth for Life Institute Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1519 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury certification – psychiatric injury – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985; Transport Accident Act 1986
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas (2017) 262 CLR 550; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr J Fitzgerald | Shine Lawyers |
| For the Defendant | Mr J Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff, Mrs Bei Zhang, was born in China. She is well educated. After finishing high school in 1992 she went on to tertiary education, firstly completing a Bachelor of Engineering and then in 2003 completing her PhD in Engineering.
2The plaintiff worked in China both during and after finishing her studies. Her work included:
(a) between 2002 and 2014, undertaking casual freelance translator and interpreting work with a number of different companies;
(b) between 2000 and 2003, working as a part-time sales representative, HR administrator and trainer for Shanghai Bell Atlantic Yellow Pages Advertising Pty Ltd;
(c) between 2003 and 2007, as a full-time training manager with China Telecom Group Yellow Pages Information Pty Ltd;
(d) between 2007 and 2014, as a full-time office manager, marketing supervisor and customer centre director for China Telecom.
3In later years while working in China, the plaintiff held relatively senior middle-management positions.[1] She married in 2001 and her daughter was born in 2009. That marriage subsequently ended in divorce.
[1]See Transcript (“T”) 14, Lines (“L”) 12-16
4The plaintiff moved to Australia to live in 2014. On 11 August 2014, she commenced full-time work for the defendant, Wealth For Life Institute Pty Ltd, as a training supervisor/quality assurance manager. She held a Temporary Work (Skilled) Visa, which had been arranged by a migration agent. The defendant was her sponsor for the purposes of the work visa. For reasons that will be set out, the plaintiff ceased work with the defendant in August 2019.
5The plaintiff married her current husband, Mr Yingming Zhao in 2017.
6In addition to her work with the defendant, on 1 September 2018, the plaintiff commenced working approximately sixteen hours per week as a legal clerk with Tao Jiang Lawyers.
7Further, the plaintiff had completed a real estate agent’s representative certificate course in November 2018.[2] Consistent with the fact that she is well educated and hardworking, in addition, she commenced a Bachelor of Laws with the University of Southern Queensland in early 2019.
[2]T23, L16-20
8The plaintiff’s general health had been very good over the years and she had not suffered any significant illness or injury. She had not suffered any previous psychological illness prior to commencing work with the defendant.
9Prior to her work injury, the plaintiff engaged in a range of recreational and leisure activities such as yoga, swimming and going to the gym. Indeed, her husband described her as “the life of the party”[3] in social scenarios. The plaintiff often invited family and friends over for barbeques and hosted other social functions.
[3]Plaintiff’s Court Book (“PCB”) 49
Employment and injury with the Defendant
10The plaintiff deposed that from the time she commenced working with the defendant she encountered racially-based demeaning comments. The plaintiff, in her first affidavit, recounted various incidents involving co-workers which caused her distress and for which she complained. One of many workplace issues of which the plaintiff complained was the ongoing threat that “we will send you back to China”.[4] She said in her affidavit evidence that there were escalating issues within the workplace between March 2017 and 1 July 2019 which contributed to increasing psychological distress.[5]
[4]PCB 35 and 49
[5]PCB 35-38
11Over the period of her employment with the defendant, the plaintiff’s role changed. In May 2019, the plaintiff was made responsible for the call centre within the defendant’s business. The plaintiff was also undertaking work as a loan manager.
12Matters came to a head on 1 July 2019. On that day, the plaintiff was abused by a co-worker who said, “[f]uck you”[6] and gave the plaintiff “the finger”.[7] The plaintiff became distressed because of this incident. She ceased work at about 11.30am. The plaintiff attended Dr Baha Ali at Meadow Heights Medical Practice later that day. Dr Ali referred the plaintiff to Ms Monique Toohey, psychologist. The plaintiff was certified off work. The plaintiff consulted Ms Toohey on 2 July 2019. The plaintiff has continued to consult Ms Toohey.
[6]PCB 38
[7]PCB 38
13On 3 July 2019, the plaintiff contacted WorkSafe Victoria and made a formal complaint in respect to the workplace issues. On 7 July 2019, the plaintiff received a written apology from a co-worker in respect to the events of 1 July 2019.
14The plaintiff returned to work on 8 July 2019, however issues within the workplace continued to escalate. The plaintiff alleges that the tipping point occurred in August 2019, when she expressed her concerns with the management of two mortgages which had been issued. Specifically, the plaintiff was concerned that there was false information being included on application forms. These concerns were reported to management.[8]
[8]PCB 40
15On 13 August 2019, the plaintiff requested to go on sick leave by reason of the stress and anxiety which she was suffering. The plaintiff was asked to return her laptop and mobile phone. The plaintiff last worked with the defendant on 14 August 2019.[9] She lodged a Workcover claim, which was accepted, and she received benefits under Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
[9]PCB 40
16During the hearing, there was no serious challenge to the timing, nature and extent of the workplace issues to which the plaintiff was exposed. I accept she was subjected to the conduct she described and, as conceded by the defendant, that she suffered a compensable psychiatric injury.
The nature of this proceeding
17Against that backdrop, this is a “serious injury” application brought pursuant to s335 of the Act. The plaintiff, Ms Bei Zhang, claims to have suffered a “serious” psychiatric injury sustained in the course of her employment with the defendant, Wealth For Life Institute Pty Ltd. The plaintiff relied solely upon paragraph (c) of the definition in s325(1) of the Act, namely that she has suffered a “permanent severe mental or permanent behavioural disturbance or disorder”.
18The plaintiff claims to have suffered a “serious injury” in respect to both pain and suffering and loss of earning capacity.
19Mr Ingram, with Mr Fitzgerald, of counsel, appeared on behalf of the plaintiff. Mr Batten of counsel appeared on behalf of the defendant.
20At the commencement of the case, the defendant conceded that the plaintiff suffered a work-related psychiatric injury. The defendant submitted that the plaintiff did not satisfy the relevant test for serious injury, either in respect to pain and suffering or pecuniary loss consequences. Thus, the matter proceeded as a “range case”.
The evidence
21The plaintiff relied on two affidavits sworn by her on 25 May 2021 and 14 April 2022 and gave viva voce evidence. She was cross-examined. She also relied upon affidavits of her husband, Yingming Zhao, sworn 19 April 2022 and Russell Zayedi, sworn 28 April 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence.
The Statutory Scheme and legal principles
22The legal principles are well known and are not in dispute. As mentioned already, the suffering of a compensable psychiatric injury is not in dispute. What is in dispute is the credit of the plaintiff, the extent of her pain and suffering symptoms and her residual capacity for work.
23In respect to applications for “serious injury” based on a psychological or psychiatric condition, the injury must be “severe” to produce “very considerable” pain and suffering impairment consequences.[10] As was said by the High Court in Transport Accident Commission v Katanas:[11]:
“… in making an assessment of the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, a judge must identify and bring to account all of the factors which emerge on the evidence as relevant to the assessment. … .”[12]
[10] Mobilio v Balliotis [1998] 3 VR 833
[11](2017) 262 CLR 550
[12]Transport Accident Commission v Katanas (supra) at paragraph [25]
24Next, in order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
25It was not seriously suggested during the plaintiff’s oral evidence that she should return to her pre-injury employment. A consideration of the whole of the evidence, including the relevant medical evidence, tends to the conclusion that the plaintiff cannot return to her pre-injury employment. It is my view that this constitutes a “very considerable” consequence to her, thus satisfying the narrative test.
26Next, upon establishing “very considerable” loss of earning capacity consequences, which I find the plaintiff has, then she must satisfy the statutory formula as contained in ss325(2)(e), (f) and (g) of the Act, namely, whether she has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in s325(2)(f), and will permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more of her gross earnings, as required by s325(2)(e)(ii). It is this aspect of the plaintiff’s claim that is the real dispute. The defendant submitted that there are jobs that the plaintiff could now undertake, or undertake with limited retraining, if she was motivated to look for work. Therefore, the defendant disputed that the plaintiff satisfied the statutory formulae.
27To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income the plaintiff was earning or was capable of earning “‘during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred’” (“without injury earnings”).[13]
[13]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
The Plaintiff’s credit
28As in a great number of cases of this kind, the credit of the plaintiff is critically important.[14]
[14]See for example Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraphs [76] and [77]
29Indeed, the weight to be attached to the plaintiff’s account of his or her pain and suffering will be affected by an assessment of the plaintiff’s credibility.[15] A plaintiff’s credibility is relevant also to the reliability of the medical evidence. The opinions of doctors depend on the credibility and reliability of the history given to them by a plaintiff.[16] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian. This is even more so in claims based on psychiatric injury.[17]
[15]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at 5, paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-145]
[16]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14], (per Chernov JA, Maxwell P and Neave JA agreeing)
[17] Petrovic v Victorian Workcover Authority [2018] VSCA 243
30The defendant’s credit attack on the plaintiff was put in broad terms to include:
(a) That the history provided to the medico-legal assessors was inaccurate. Specifically, the failure by the plaintiff to advise Associate Professor Peter Doherty, at the time of the first assessment on 17 September 2022, that she was studying a Bachelor of Laws and, on 2 February 2022, that she was commencing a practical training course at the Leo Institute;
(b) The plaintiff’s capacity to undertake study while in receipt of WorkCover payments;
(c) The real reason for the plaintiff being housebound was COVID/her status being non-vaccinated, not her psychiatric injury;
(d) That the plaintiff ceased her part-time job at the legal practice in November 2020 because of a dispute with her employer, rather than by reason of her psychiatric injury.
31I accept that the defendant appropriately raised several credit issues, such as the incomplete history provided to Associate Professor Doherty and the corrections which she made in her second affidavit relating to matters of history, including Dr David Weissman’s report.
32But, I must also take into account that English is not the plaintiff’s first language; that the “serious injury” process is unfamiliar to her; and finally, the nature and extent of her psychiatric condition.
33In my opinion, having observed the plaintiff in the witness box and in light of the whole of the evidence, I conclude that she gave her evidence as best as she could. She made appropriate concessions, including what could be termed as admissions against interest. I do not accept the submission that she set out to deliberately mislead the doctors, or the Court, but I accept that at times her evidence has been incomplete or unreliable. In my view, this does not mean that I should not broadly accept her evidence. I do not accept that the plaintiff’s credit has been impugned.
34Relevant to the issue of credit, I accept that, prior to her injury, the plaintiff was:
(a) working full time with the defendant;
(b) working approximately sixteen hours per week with the legal firm, after-hours and on Saturday;
(c) studying for her law degree;
(d) engaged in a range of sporting activities;
(e) enjoying an active social life;
(f) undertaking a range of domestic activities.
35I find that, prior to her injury, the plaintiff was a driven, capable, and high-achieving individual.
36It is in this context that I will have to grapple with the plaintiff’s ongoing study, voluntary work and stated desire to return to work, when determining this case.
The Plaintiff’s ongoing medical treatment, work and study
37Since ceasing work with the defendant, the plaintiff has continued to attend general practitioners at the Meadow Heights Medical Practice. She initially attended Dr Ali, but a short time after ceasing work with the defendant, she consulted – and continues to consult - Dr Raheleh Moradi Parshekooh.
Associate Professor Peter Doherty’s first report
38On 17 September 2019, the plaintiff was assessed by Associate Professor Doherty, consultant psychiatrist, at the request of the WorkCover authorised insurer. Associate Professor Doherty provided a report dated 17 September 2019.[18]
[18]Defendant’s Court Book (“DCB”) 6
39Associate Professor Doherty recorded a history of escalating issues within the defendant’s workplace and the circumstances of her ceasing work in August 2019. At the time of this assessment, while obtaining a history that the plaintiff was working ten hours per week within the legal practice, Associate Professor Doherty recorded a history that the plaintiff was not involved in study. As discussed previously, that aspect of the history was not correct.
40At the time of his first report, Associate Professor Doherty concluded the plaintiff was suffering from a diagnosable adjustment disorder.[19] Associate Professor Doherty concluded that the plaintiff could not return to work with the defendant, but had a current capacity to undertake her usual activities with an alternative employer. Associate Professor Doherty expected the duration period for the plaintiff’s incapacity to be short and advised that the plaintiff required six to ten sessions with a psychologist to re-adjust her coping mechanisms.[20]
[19]DCB 11
[20]DCB 13 and 14
The visa cancellation and subsequent events
41Pausing, in October 2019, the defendant cancelled their sponsorship of the plaintiff’s visa. It is clear from the evidence that this decision was distressing to the plaintiff.
42In November 2019, the plaintiff travelled to China and spent approximately one month with her family. She said, at that time:
(a) she was “very sick”;[21] and
(b) her medical practitioners suggested some time with her family would be helpful.
[21]T27, L11 and 27
43This evidence was challenged by the defendant, who asserted that the plaintiff travelled to China to visit her father, who had health issues.
44In or about January 2020, the plaintiff commenced a voluntary role with the Australian Asian Alliance. This is a not-for-profit organisation of approximately eighty members. The plaintiff has been the voluntary treasurer with that organisation since that time. This is a task for which the plaintiff is not paid and which she deposed was undertaken online, and from home.
45In early 2020, in addition to studying her law degree, the plaintiff undertook further study. For example, in March 2020, the plaintiff undertook a Certificate IV in Property Services.
46In May 2020, there were discussions with the authorised insurer about the possibility of a return to work with the defendant as either a receptionist or a telemarketer. The plaintiff deposed that she was unable to return to work with the defendant by reason of her psychological condition and her extreme anxiety, which contributed to the development of headaches.[22] This was challenged. The defendant put to the plaintiff that she would not undertake such work as it was below her status.[23]
[22]PCB 41
[23] T17, L11-13
The evidence from treating practitioners
47At this time, having set out Associate Professor Doherty’s initial opinion, it is useful to review the opinions of the plaintiff’s treating medical practitioners.
48Firstly, a report dated 25 June 2020 was obtained by the plaintiff’s solicitors from Dr Parshekooh. At this time, Dr Parshekooh:
(a) considered the plaintiff’s condition had not substantially stabilised;
(b) diagnosed the plaintiff as suffering from an adjustment disorder, major depression and anxiety;
(c) felt the plaintiff’s prognosis was uncertain;
(d) considered the plaintiff was unfit to return to work with the defendant, but was fit to work for duties with limited working hours with another employer;
(e) considered that the plaintiff’s social, domestic and/or recreational activities were impaired to the extent of 80 per cent;
(f) advised that the plaintiff required ongoing antidepressant medication, psychological appointments and psychiatric appointments.
49Dr Parshekooh said that the plaintiff was unfit to return to work with the defendant.
50Secondly, the plaintiff’s treating psychiatrist, Dr Indra Mohan, provided a report dated 25 February 2022.[24] The plaintiff first consulted Dr Mohan on 15 May 2020.[25] At the time of the initial consultation, Dr Mohan obtained a history of bullying at work and the cancellation of the plaintiff’s sponsorship visa by the defendant at the end of 2019. Dr Mohan noted that the plaintiff had become suicidal and had thoughts of jumping off a hill at Meadow Heights. Dr Mohan recorded that the plaintiff had previously been referred to the Broadmeadows Mental Health Service. At the time of the initial consultation, Dr Mohan diagnosed the plaintiff as suffering from an adjustment disorder with depressive symptoms and anxiety, with a differential diagnosis of major depression and anxiety in the context of experiences at work.[26]
[24]PCB 62
[25] PCB 62
[26]PCB 63
51I note that the plaintiff has continued to consult Dr Mohan on a regular basis since 15 May 2020.
Dr Stephen Stern
52On 1 October 2020, the plaintiff was assessed by Dr Stern, psychiatrist, on behalf of the authorised insurer. At the time of this assessment, Dr Stern recorded, under “PSYCHIATRIC SYMPTOMS”:
“Her mood is depressed. She gets tearful. She is short-tempered and she yells. She is not physically aggressive. She feels anxious. She is very worried about her Visa. She suffers panic with shortness of breath. Her family depend on her.
There were suicidal thoughts of jumping off a building in November 2019 but there have been no attempts. Her sleep is disturbed by pain. There are nightmares about work. She has lost energy and appetite. Her weight has increased by 5kg. She now weighs 65kg. Her memory and concentration are reduced. She said ‘I have difficulty remembering things’.”[27]
[27]DCB 17-18
53Dr Stern said that the plaintiff satisfied the DSM-IV criteria and diagnosed that she was suffering an adjustment disorder with mixed anxiety and depressed mood.[28]
[28]DCB 20
54Dr Stern undertook an AMA impairment assessment. He assessed the plaintiff’s impairment at 15 per cent. Dr Stern attributed 10 per cent to the events which occurred during the plaintiff’s employment and 5 per cent to the withdrawal of the visa sponsorship by the defendant in October 2019.
55Dr Stern considered the plaintiff’s work-related psychiatric injuries to have stabilised at the time of assessment.
The Plaintiff ceases at Tao Jiang lawyers
56The plaintiff said she ceased work at Tao Jiang Lawyers in November 2020 because of her deteriorating psychiatric condition. Counsel for the defendant put to the plaintiff that she ceased this work by reason of either the consequences of the COVID-19 pandemic, or a “falling out” with that employer.[29] The plaintiff rejected these propositions and asserted that she ceased this employment “because I was very sick”.[30] The plaintiff, in her first affidavit, had deposed that by the end of November 2020 her condition had deteriorated and she had become suicidal again,[31] which is consistent with the evidence from Dr Mohan.
[29]T26, L12 – T27, L4
[30]T27, L4-5
[31]PCB 41
57Throughout 2021, the plaintiff continued to attend Dr Parshekooh, her psychologist, Ms Toohey and her psychiatrist, Dr Mohan, which is also consistent with an ongoing psychiatric illness.
58By 2021, the plaintiff was also undertaking what was described as voluntary unpaid work with Simply Wealth Group (“Simply Wealth”).[32] Simply Wealth is a business in which the plaintiff’s husband has a pecuniary interest. Another partner in this business, Russell Zayedi, swore an affidavit in support of the plaintiff’s application.[33]
[32] T28, L6-11
[33]PCB 53
59The plaintiff, in her first affidavit, deposed that she was working “a couple of hours a day”[34] assisting Simply Wealth. When giving viva voce evidence, the plaintiff deposed that she was undertaking such work “occasionally”[35] and from her home.
[34]PCB 43
[35]T28, L19 – T38, L9
60It is also relevant to note that in 2020/2021, the plaintiff had been involved in Fair Work (for unfair dismissal) and AAT (for visa issues) litigation.[36] I accept that those proceedings were stressful to her, but equally they resolved, whereas her underlying condition has not.
[36] T20, L5 – T23, L10
61The plaintiff completed her Bachelor of Laws with the University of Southern Queensland in December 2021.[37] On 17 February 2022, the plaintiff started a practical six-month training course at the Leo Cussen Institute.[38]
[37]T32, L9-11
[38]T33, L5-7
62The plaintiff had undertaken a Diploma of Translating at the Sydney Institute of Interpreting and Translating in January 2020.[39] The plaintiff, in early 2022, sat the NAATI exam for accreditation. The plaintiff failed this exam, which she attributed to her psychiatric ill health and the impact which it had upon her capacity to concentrate.[40]
[39] PCB 89
[40]T45, L18-27
63It is appropriate, considering the evidence of her ongoing study and attempts to return to work, to make some observations in respect to the plaintiff’s evidence of her study and/or voluntary work regime. I note it was her evidence that she undertook these activities:
(a) usually later in the day or in the evening;[41]
(b) stopping to lay down and/or have a bath;[42]
(c) online;[43]
(d) having to review lectures on multiple occasions;[44] and;
(e) from her home.
[41] T58, L25-28
[42] T58, L24
[43] T50, L23
[44] T60, L8-20
64While the plaintiff did not shy away from the fact that she had undertaken study and indeed wished to utilise her qualifications,[45] she gave evidence, which I accept, that by reason of her psychiatric injury, the study was undertaken with a significant degree of difficulty.
[45] T32, L18-21
Current medical treatment
65As mentioned, the plaintiff continues to attend Dr Mohan. While there has been some variability between consultations (for example six consultations between August 2021 and February 2022), in recent times the plaintiff has been attending Dr Mohan every two to three weeks. The plaintiff also continues to consult her psychologist and general practitioner on a regular basis. The plaintiff is currently prescribed Lexapro, an antidepressant. This treatment is suggestive of an ongoing chronic psychiatric condition that continues to incapacitate the plaintiff.
The re-examination with Associate Professor Peter Doherty
66On 2 February 2022, the plaintiff was re-examined by Associate Professor Doherty.[46] The history recorded by Associate Professor Doherty at that time, included:
(a) that the plaintiff had completed her legal degree from the University of Southern Queensland;
(b) the difficulties which the plaintiff was encountering in obtaining her permanent residency;
(c) that the plaintiff was undertaking “voluntary work”.
[46]DCB 23
67When undertaking a mental state examination, Associate Professor Doherty noted that the plaintiff “related in a straightforward manner”,[47] which accords to my observation of the plaintiff.
[47]DCB 30 at paragraph [89]
68Associate Professor Doherty, during his mental state examination, recorded that the plaintiff quantified her current level of mood most days at 5/10, noting that it can get lower. The plaintiff quantified her level of anxiety at 8-9/10.[48] Associate Professor Doherty concluded there was still a diagnosable adjustment disorder present.[49] He concluded that, while visa application issues were relevant, the plaintiff’s employment with the defendant materially contributed to the plaintiff’s current condition.[50] Associate Professor Doherty concluded that the plaintiff should be allowed to return to work and, should she become motivated, there was a capacity for suitable work at full hours.[51]
[48]DCB 30
[49]DCB 31
[50]DCB 31
[51]DCB 32
69Associate Professor Doherty provided a supplementary report dated 17 March 2022, in which he certified the plaintiff was fit to undertake the “suitable employment options” identified in the CoWork Pty Ltd (“CoWork”) report.[52]
[52] DCB 35-36
Dr David Weissman
70On 7 February 2022, the plaintiff was assessed by Dr Weissman, psychiatrist, on behalf of her lawyers. Dr Weissman, after conducting a psychiatric assessment of the plaintiff, concluded:
“… she is suffering from a chronic Adjustment Disorder with anxious and depressed mood of moderate intensity associated with traumatisation features.”[53]
[53]PCB 79
71Dr Weissman concluded the plaintiff’s psychiatric symptoms, condition and impairment had stabilised. Dr Weissman concluded the plaintiff’s psychiatric prognosis for the future is still quite uncertain and guarded and probably only fair at best.[54]
[54]PCB 80
Dr Raheleh Moradi Parshekooh’s updated reports
72Dr Parshekooh provided an updated report 15 February 2022.[55] Dr Parshekooh advised:
(a) the plaintiff’s diagnosis was depression, mood fluctuation and suicidal thoughts;
(b) the prognosis was unclear;
(c) her condition had not reached substantial stabilisation and was deteriorating;
(d) the work with the defendant was a significant contributing factor to the plaintiff’s psychiatric condition;
(e) the plaintiff was not fit to return to her pre-injury duties with the defendant;
(f) the plaintiff was not precluded from performing suitable employment into the foreseeable future;
(g) the plaintiff was partially restricted in respect to her social, domestic and recreational activities into the future.
[55]PCB 60
73In the Certificate of Capacity, dated 21 January 2022 (for the period 15 January 2022 – 11 February 2022), Dr Parshekooh certified the plaintiff’s partial capacity as two hours per day for five days per week.[56]
[56] DCB 89
74Dr Parshekooh provided a two-line supplementary report on 8 April 2022.[57] Dr Parshekooh advised:
“In my opinion, her condition is well stabilised with medical treatment and psychotherapy.”[58]
[57] PCB 66
[58]PCB 66
Dr Indra Mohan’s report
75Finally, I refer to the report of the treating psychiatrist, Dr Mohan, dated 25 February 2022. In respect to diagnosis, Dr Mohan concluded:
“She continues to struggle with mood instability, struggles with suicidal ideations that have occurred off and on since my initial review and she has reflected on how her own mental health difficulties have affected her family life and her daughter’s mental health. She also has struggled to handle pressure and gets annoyed quickly. She struggles with anxiety and she fears something bad will happen.”[59]
(Emphasis added.)
[59]PCB 63
76Dr Mohan concluded that the plaintiff’s prognosis is guarded.[60] Dr Mohan considered that the plaintiff’s condition had substantially stabilised and that the plaintiff requires ongoing psychiatric review. In particular, Dr Mohan concluded:
“She requires ongoing psychiatric reviews. The need is to monitor mental state and her risks to suicide and self-harm. The need is also to monitor her medications and response to medications. She also requires ongoing cognitive therapy with the help of a clinical psychologist and to build coping mechanisms.”[61]
(Emphasis added.)
[60]PCB 63
[61]PCB 64
77Dr Mohan considered that the plaintiff’s ongoing psychiatric symptoms related to her workplace experiences.[62] Dr Mohan considered that the plaintiff’s condition would continue into the foreseeable future. Of particular note was Dr Mohan’s advice under “Any other comments you wish to prescribe?” Dr Mohan advised:
“[The plaintiff] continues to have on and off suicidal ideations and has had thoughts to end her life and her risk to self remains and there is need to monitor her mental state and risks.”[63]
(Emphasis added.)
[62] PCB 64
[63]PCB 65
What are the pain and suffering consequences of the Plaintiff’s psychiatric injury?
78It is common ground that the plaintiff suffers a psychiatric illness which is work related.
79In analysing the consequences to the plaintiff, it is relevant, in my opinion, to look at what the evidence discloses of an average day now for her “with injury”. This evidence was not impugned in cross-examination.
80Firstly, I accept her evidence that her sleep continues to be significantly affected by her psychological condition. I accept that there are nights when she suffers nightmares and flashbacks about what happened at work.[64] I accept that, regularly, she has difficulty getting back to sleep, and as a consequence is left feeling tired and unrefreshed in the morning.[65]
[64]PCB 55
[65]PCB 42 and T59, L1-4
81In the mornings, it was the plaintiff’s evidence that she will feel sad and distressed. The plaintiff described this:
“… I told my doctor, I say, ‘I don’t know. I, I just don’t have a reason I was sad, but I was sad’. I can’t tell why I was sad; there is no reason. … That physically not well is, like, there is a storm in your heart and you can’t wipe out, you can’t breathe. There is a, like, a shortage of breathe (sic).”[66]
[66]T59, L6-12
82I accept her evidence that she rarely goes out of the house during the day, and she avoids social events and has less interaction with friends.[67] The plaintiff deposed that she avoids shopping, and that her husband does most of the household chores as she cannot motivate herself.[68] The plaintiff further deposed that she is very scared of crowds[69] and that she struggles with face-to-face interaction with people.[70] On those occasions, when she does have face-to-face interaction, the plaintiff explained that her heart “beats very fast” and she has feelings that she cannot breathe.[71] She described constantly suffering low mood, and at least two days a week she feels very sad and tearful.[72] She is easily irritated.[73] Again, despite the broad challenge by the defendant, none of this evidence was specifically challenged.
[67] T56, L2-5; PCB 42
[68] T50, L14-17
[69]T55, L25-26
[70]T55, L27
[71] T55, L29-30
[72] PCB 42
[73] PCB 42
83In addition, I accept the evidence that she no longer goes swimming, to yoga or to the gym, as she had prior to being injured.[74] I accept the evidence of her gaining approximately 10 kilograms in weight due to the medication she has been prescribed, and her inactivity.[75]
[74] PCB 42
[75] PCB 42
84I am fortified in my conclusions of the plaintiff’s evidence by the affidavit evidence from her husband, particularly paragraphs 12 to 16 of the affidavit of Mr Zhao.[76] This evidence corroborates the plaintiff’s description of the impact which her injuries have on her day-to-day activities. Of note, was his evidence of the lack of care and deterioration in the plaintiff’s level of personal hygiene.[77]
[76]PCB 50
[77] PCB 50, paragraph [13]
85As noted earlier in this judgment, the plaintiff has successfully undertaken a good deal of study since ceasing work. On the face of it, such study runs contrary to the plaintiff’s psychiatric injury. However, on further analysis, I accept this study was undertaken with significant difficulty and importantly, at home. Rather than running contrary to her evidence, it in fact supports my conclusion of the plaintiff as a well-educated and hard-working person, who has attempted work and study, despite the considerable impairment consequences from her injury. Indeed, it would be more likely to be a mark against her credit if she had not attempted any work or study.
86I accept the plaintiff’s evidence in respect to the impact which her psychiatric injury has had upon her sleep, recreational activities, social activities, motivation, study regime, and her reluctance to leave her home without a significant increase in her anxiety.
87Pausing, the matters set out to this point are enough to conclude that the plaintiff has suffered a “very considerable” pain and suffering consequence.
Suicidal ideation
88During final addresses, the defendant submitted that I should not be persuaded by the evidence in respect to the plaintiff’s suicidal ideation. It was asserted there was no reference to suicidal ideation during the hearing, and I ought not be satisfied in respect to this alleged consequence. I do not accept this submission.
89Firstly, the plaintiff, in her first affidavit, makes specific reference to suicidal ideation:
“I continue to have bad thoughts. At times I think about self-harm. This can be dramatic and I am embarrassed to say one time I even grabbed a knife in my desperation.”[78]
[78]PCB 45
90Secondly, the plaintiff’s suicidal ideation was referenced by Dr Stern and Dr Weissman, and was “front and centre” in the report from the treating psychiatrist, Dr Mohan. That Associate Professor Doherty makes no reference to the suicidal ideation in his 2 February 2022 report, is an unhelpful omission. I note that Associate Professor Doherty was not provided with a copy of Dr Mohan’s report and was not requested to comment on it.
91Further, defendant’s counsel did not put to the plaintiff, in cross-examination, the proposition that suicidal ideation was not a genuine aspect of her psychiatric injury.
92I accept that the plaintiff has had suicidal ideation. I accept that this is an ongoing issue. I accept Dr Mohan’s opinion that the plaintiff requires ongoing psychiatric review to monitor her risk of suicide and self-harm. Suffice to say, this is, of itself, a “very considerable” psychiatric consequence.
The visa application
93Mr Batten spent considerable time cross-examining the plaintiff in respect to the impact of her visa cancellation and her inability to obtain permanent residency, and the impact which the consequential litigation has had upon her psychiatric state. As mentioned, I accept that the issues involving the plaintiff’s visa have been stressful to her. However, it is the opinion of each of the three psychiatrists who have reported in this matter that the plaintiff has, and continues to suffer from, a work-related psychiatric injury, with the ongoing impairment consequences already set out, including suicidal ideation. I do not accept that the visa issues were the cause of the plaintiff’s psychiatric injury. But I accept that, for a person suffering a severe psychiatric condition, the stress of the visa situation would be more difficult for her to manage.
What are the economic loss consequences of the Plaintiff’s psychiatric injury?
94In my view, the real dispute in this proceeding relates to the claim for pecuniary loss serious injury.
95Counsel for the plaintiff submitted that I should accept the plaintiff as having either no current work capacity, or, at best, being able to work two to three hours a day for a maximum of five days per week, undertaking suitable employment.
96The defendant, on the other hand, submitted, in the strongest terms, that the plaintiff’s capacity to successfully complete a law degree, to participate in the Leo Cussen course, to undertake voluntary work, and to ultimately aspire to obtain a practising certificate and become a lawyer, precluded a finding that the plaintiff satisfies the requisite economic loss test. Put simply, it was the defendant’s case that, in the circumstances where that the plaintiff retained the capacity to undertake onerous study requirements and voluntary work, she retained the capacity to undertake a range of suitable employment which would enable her to earn income well above the threshold level.
97The defendant’s submissions, at first blush, have merit. The issues that arise are:
(a) does the fact that the plaintiff has successfully completed a Bachelor of Laws (albeit online), is undertaking the Leo Cussen practical training course (again online), and has participated in a range of other studies, as well as undertaking voluntary work from her home, of itself preclude the plaintiff from obtaining an economic loss certificate; or
(b) should I accept that the plaintiff, by reason of her psychiatric injury, is precluded from utilising her Bachelor of Laws and/or her other significant range of qualifications and work experience, and cannot obtain and retain suitable employment and, in those circumstances, is entitled to the grant of an economic loss certificate?
98I am conscious that, broadly, when considering whether the plaintiff has suffered a “serious injury”, regard must be had to what is retained by the plaintiff, as well as to what is lost.[79] Of course, “without injury”, the plaintiff had the capacity to work full time with the defendant and undertake further employment and demanding study.
[79]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [44]
99Since November 2020, both her study and the voluntary work have been undertaken within the restrictions described by her – which I accept – and set out already in these reasons.
100As noted in Barwon Spinners Pty Ltd & Ors v Podolak,[80] the nature and extent of the worker’s incapacity is a factor in assessing the plaintiff’s capacity for suitable employment.
[80](2005) 14 VR 622 at paragraph [25]
101The medical opinion in respect to the plaintiff’s work capacity is largely in agreement, save for the opinion of Associate Professor Doherty, who concluded that the plaintiff is not incapacitated for work from a psychiatric point of view.[81] Associate Professor Doherty disagreed with the work restrictions suggested by the treating practitioner, Dr Parshekooh, of two hours a day, five days per week.[82] Associate Professor Doherty concluded that the plaintiff was capable of undertaking the duties referred to in both the NES 130 Week Vocational Assessment report[83] and the CoWork report.[84] Associate Professor Doherty’s conclusions in respect to work can be contrasted to the opinions of Dr Weissman, Dr Parshekooh and Dr Mohan.
[81]DCB 31
[82]DCB 32, Associate Professor Doherty’s response to Question 6.
[83]DCB 37-49
[84]DCB 50-80
102Referring firstly to the medico-legal assessment of Dr Weissman dated 7 February 2022. In respect to work capacity, Dr Weissman concluded:
“… The key question is whether or not [the plaintiff] has any current psychiatric capacity for suitable duties (and, if so, how much).
Purely based upon my assessment alone, I initially thought that [the plaintiff] has no current psychiatric capacity for work. However, from her perspective, she believes that she has a (partial) psychiatric capacity for suitable duties.
Therefore, I think that she probably has a current partial psychiatric capacity for suitable duties but only on a part-time basis, and certainly not full-time.
I think she could probably work somewhere in the order of 2 – 3 hours per day (only) with a maximum of five days per week.
She would not be able to work as an employee, in an office environment, with a boss and with other colleagues. However, she would be able to work remotely (from home) in a relatively low stress environment doing law clerk duties, administrative duties and accounting duties.
Due to the nature, severity extent and chronicity of her current work-related psychiatric symptoms, she would not be able to work full-time hours and she would not be able to work more than the hours above.”[85]
[85]PCB 79-80
103Referring next to Dr Parshekooh, he said that the plaintiff may have the capacity to undertake suitable employment.[86] While it was unclear from the report, dated 15 February 2022, just what those restrictions/hours would be, in the medical certificate annexed to the CoWork report and dated 21 January 2022,[87] he specifically restricted the plaintiff to working two hours per day five days per week.
[86]PCB 61
[87]DCB 89
104Referring next to the report of the treating psychiatrist, Dr Mohan, dated 25 February 2022, his opinion was that the plaintiff is precluded from doing her pre-injury duties into the foreseeable future by reason of her ongoing psychiatric symptoms and diagnosis.[88] In respect to suitable employment, Dr Mohan said:
“I do not believe she has the capacity to perform any suitable employment as she continues to struggle with anxiety and continues to struggle with her inability to tolerate frustration and pressure and can get quite annoyed quickly. She also struggles with concentration and does not sleep well at night.”[89]
(Emphasis added.)
[88]PCB 64
[89]PCB 64
105Dr Mohan went on to conclude:
“I do not believe she can perform suitable employment for the foreseeable future as noted above.”[90]
(Emphasis added.)
[90]PCB 64
106Dr Mohan has been the plaintiff’s long-term treating psychiatrist. I accept Dr Mohan is in the best position to assess the plaintiff’s injury and her capacity for work.
107I prefer the opinion of Dr Mohan on the issue of work.
108I move to the vocational assessment reports which were tendered. The plaintiff relied upon the assessment of Mr Paul Hartley, Vocational Directions Pty Ltd, dated 28 March 2022.[91] The defendant relied upon two vocational assessment reports. Firstly, an NES 130 Week Vocational Assessment report, dated 3 May 2021.[92] Secondly, a report from Ms Hayley Morey, CoWork, dated 11 March 2022.[93] These assessments, as is often the case in these matters, reach different conclusions.
[91]PCB 81
[92]DCB 37
[93]DCB 50
109I note that neither Mr Hartley nor Ms Morey were provided with the most recent reports from Dr Parshekooh, Dr Weissman or, importantly, Dr Mohan. In the context of my findings, this impacts on the value of these vocational assessments on my deliberations.
110I note that Mr Hartley, having undertaken a lengthy analysis, was unable to suggest any “suitable employment” for which he believed the plaintiff would be able to fulfil all of the inherent requirements in a consistent and reliable manner.[94] Mr Hartley’s conclusion can be contrasted to the conclusion of Ms Morey, who concluded that the plaintiff was capable of transition to suitable employment in the open labour market, pending medical approval.[95] This is an important qualification. Associate Professor Doherty reviewed the employment options suggested by Ms Morey and expressed the view that each of the positions were within the plaintiff’s capacity.[96]
[94]PCB 105
[95]DCB 54
[96]DCB 35-35
111I do not find the vocational assessment reports to be of great benefit to my analysis. It is the expert medical opinions from the psychiatrists in respect to the nature, extent and consequences of the plaintiff’s psychiatric condition, and the prognosis, which I find to be of greater assistance. For completeness, I record that I prefer the opinion of Mr Hartley over that of Ms Morey, and accept his conclusion.
Analysis
112As noted in the course of this judgment, there are conflicting medical opinions. But, importantly, there is no conflict between the treating practitioners and the plaintiff’s medico-legal examiners.
113Firstly, Associate Professor Doherty, while accepting the plaintiff suffers an adjustment disorder, comes to conclusions which, if accepted by me, would lead to the result that the plaintiff could not and, indeed, does not, suffer a serious injury for the purposes of either pain and suffering or economic loss certification. In my opinion, such a conclusion would be against the weight of the evidence.
114Associate Professor Doherty’s report can be contrasted to the balance of the medical evidence. Dr Weissman found the plaintiff to be a traumatised, distressed, anxious, depressed and worried woman.[97] Dr Weissman concluded that the plaintiff has significant day-to-day domestic functional impairment and does not participate in previously-enjoyed leisure and recreational activities and hobbies.[98]
[97]PCB 75
[98]PCB 80
115Dr Parshekooh, the plaintiff’s long-term treating general practitioner, concluded that the plaintiff suffers an ongoing partial restriction in relation to her social, domestic and recreational activities, and will continue to do so into the future.[99] Dr Parshekooh limits the plaintiff’s work capacity to two hours per day, five days per week.
[99]PCB 61
116It is the opinion of the treating psychiatrist, Dr Mohan, which provides me with the greatest assistance in respect to my determination of this matter. Dr Mohan expressed a very real concern about the plaintiff’s suicidal ideation and her thoughts to end her life. Dr Mohan concluded that the plaintiff’s risk of self-harm remains, and that the plaintiff’s condition is stabilised and the prognosis is guarded. The presence of suicidal ideation, which has been a feature of the plaintiff’s psychiatric illness in excess of two years, is a matter upon which I place significant weight. I find that Dr Mohan’s diagnosis of the plaintiff’s injury should be preferred, as I accept he is in the best position to make the diagnosis. I accept his observation that the plaintiff continues to suffer mental health difficulties which affect her family life, her capacity to handle pressure, her struggles with anxiety, and the ongoing restriction into the foreseeable future to perform social, domestic and/or recreational activities.[100] This opinion accords with from my observation of the plaintiff in the witness box.
[100] PCB 63-65
117There is no doubt the plaintiff is motivated to return to work, consistent with her being a high achiever pre-injury. Further, I accept that the plaintiff has engaged in a level of voluntary work with both Simply Wealth and the Australian Asian Alliance, within the limits of her psychiatric injury. This is consistent with my earlier observations and findings of the plaintiff being a driven, capable and high-achieving person. However, what the plaintiff has undertaken from the confines of her home, and what she may aspire to, has to be contrasted to the nature and extent of her psychiatric injury and the reality of her situation. I prefer Dr Mohan’s opinion in respect to both work capacity and the plaintiff’s activities of daily living. I note the gravity of Dr Mohan’s assessments and concerns in respect to the plaintiff’s suicidal ideation. I accept the level of psychiatric distress being suffered by the plaintiff and reported by Dr Mohan.
118I accept that the plaintiff has suffered consequences which can properly be categorised as severe. I accept that those levels of psychological distress very significantly impact upon the plaintiff’s life and lifestyle. As should be clear by now, I accept that the plaintiff has a “serious injury” for the purposes of pain and suffering certification.
119In respect to work, I do not accept the opinion of Associate Professor Doherty. I prefer the opinion of the treating psychiatrist, Dr Mohan. Having considered all of the evidence, I conclude that the plaintiff currently, and into the foreseeable future, has no realistic capacity to undertake suitable employment. I accept that the plaintiff has a serious injury for the purposes of economic loss certification.
Conclusion
120Accordingly, leave shall be granted to the plaintiff to commence a proceeding for pain and suffering damages and for economic loss damages.
121I will hear the parties with respect to costs.
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