Fiorenza v Hosking's Jewellers Pty Ltd [2025] VCC 1152

(a) Ms Fiorenza was not a credible and/or reliable witness;

(b) Ms Fiorenza's current psychological condition was no longer due to the compensable aggravation;

(c) the impairment consequences of the compensable aggravation injury did not meet the statutory threshold;

(d) Ms Fiorenza would now be retired, even absent the aggravation injury, and she therefore has no relevant loss of earning capacity.

(a) Was Ms Fiorenza a reliable witness?

(b) What were the impairment consequences of Ms Fiorenza's "without injury" psychological condition?

(c) What are the current impairment consequences, if any, of the compensable psychological aggravation injury?

(d) Is Ms Fiorenza permanently unable to earn at least 60 per cent of her "without injury" earnings because of the impairment consequences of the compensable psychological aggravation injury?

(e) Is the loss of earning capacity consequence of Ms Fiorenza's compensable psychological aggravation injury "severe"?

(f) Are the permanent impairment consequences of the compensable psychological injury "severe"?

1. The relevant legal principles are well known and were not in dispute.
2. For the reasons that follow, Ms Fiorenza is granted leave to seek loss of earning capacity damages for her compensable psychological aggravation injury. Such leave also entitles Ms Fiorenza to claim pain and suffering damages.

1. The following, I believe, are non-controversial matters. As far as any were contested, these represent my findings unless otherwise stated.
2. Ms Fiorenza was born in Italy, the youngest of seven children. She migrated to Australia with her family when aged two years. She lived with her parents until her mother passed away in 2000, and her father in 2007. She cared for her parents in their later years. She now lives with an older sister and brother-in-law, and has done so since about 2010. Ms Fiorenza remains very close to her large family.
3. Ms Fiorenza completed Year 10 at school. Over the next fifteen years or so, Ms Fiorenza worked in a clothes factory and then in a supermarket.
4. In about 1985, Ms Fiorenza obtained casual work as a sales assistant in a jewellery store. She enjoyed the work, and was employed by several different jewellery stores over the following ten years.
5. In 1995, Ms Fiorenza obtained casual work with Hoskings. Initially she worked at the Keilor Downs store. She moved to Hoskings store at Watergardens Shopping Centre in 1997. In 2007, she was moved to the Airport West store, and then back to the Watergardens Shopping Centre store in 2017.
6. Ms Fiorenza has had some physical health issues:

(a) in 2003, she was diagnosed with breast cancer. Whilst undergoing treatment, she was unable to work for five months, and worked reduced hours until 2007;

(b) in May 2016, Ms Fiorenza was hospitalised with pancreatitis;

(c) on 2 April 2019, Ms Fiorenza fractured her left knee on a tram ("the tram accident"). This required internal fixation. She has ongoing pain and restriction in her left leg;

(d) in June 2021, Ms Fiorenza was again diagnosed with breast cancer, requiring surgery and radiotherapy;

(e) in July 2024, Ms Fiorenza fell out of bed and hit her head;

(f) Ms Fiorenza has ongoing pain in her knees and hips due to osteoporosis;

(g) she suffers from dry eyes;

(h) she suffers from acid reflux.

1. In 2007, Ms Fiorenza suffered from difficulty swallowing, which led to significant weight loss. She was an inpatient at Essendon Private Hospital for four weeks, and was diagnosed with globus hystericus.
2. Ms Fiorenza suffered from depression following the death of her father. She was prescribed Lexapro, and consulted clinical psychologist, Dr Peter Cook, and psychiatrist, Dr Sunil Datta.
3. Ms Fiorenza alleges that she was bullied and harassed by a work colleague from 2012.
4. She submitted a Worker's Injury Claim Form on 6 October 2017 in which she alleged that she suffered from an "Adjustment Disorder, D[e]pression, Anxiety related to work place stressors + harassment".[1] The injury was alleged to have been caused by bullying and harassment from 3 November 2012 by the store manager. The claim was accepted.
5. Since October 2017, Ms Fiorenza has consulted Dr Cook approximately fortnightly. She is currently prescribed Diazepam as needed and Lexapro, 15-20 milligrams. She consults her general practitioner ("GP"), Dr Dusan Sajdak, fortnightly.
6. Ms Fiorenza has not worked since October 2017.

1. Counsel for Hoskings submitted Ms Fiorenza was not a credible or reliable witness for the following reasons:

(a) In Ms Fiorenza's second affidavit, and initially in her oral evidence, she said that the assistance she gave to her niece was limited in time and scope. It was not until Hoskings requested documents relating to a carer's pension that Ms Fiorenza swore her third affidavit acknowledging that she was the designated carer for her niece and received a fortnightly allowance for that by way of a carer's pension. Ms Fiorenza admitted that the care and assistance could be more than 20 hours in some weeks and it was ongoing. Counsel for Hoskings submitted that the contention in Ms Fiorenza's second affidavit that she tried to help her niece for a brief period but had to stop due to her mental health was not true;

(b) Ms Fiorenza was not candid about the assistance she received from other family members. In her affidavits, Ms Fiorenza deposed to being looked after by her family members due to her psychological state. The clinical records of Ms Fiorenza's GP, Dr Sajdak, reveal the opposite - that Ms Fiorenza is looking after them and that is causing her stress and anxiety. Counsel for Hoskings submitted that Ms Fiorenza's contention that Dr Sajdak had come up with that on his own (because he also treated those other family members) was not credible;

(c) In her affidavits, Ms Fiorenza scarcely touched upon the problems she continued to experience with her left leg injury sustained in the tram accident in April 2019. That, and other physical difficulties, provided the basis for the application for fortnightly domestic assistance. Her mental health did not feature at all. When Ms Fiorenza deposed to her domestic limitations on account of her mental health condition, she should have deposed to her physical limitations;

(d) In her affidavits, Ms Fiorenza deposed to taking Lexapro after the death of her father for around eighteen months to two years, whereas the letters from Dr Datta reveal that Ms Fiorenza was prescribed Lexapro throughout the period 2007 to 2012. During cross-examination, Ms Fiorenza agreed that was possibly the case. Further, Ms Fiorenza said that prior to 2012, she was prescribed a dose of 10 milligrams of Lexapro, whereas Dr Datta noted the dose was increased to 15 milligrams, and Dr Weissman took a history of 20 milligrams.

1. Senior Counsel for Ms Fiorenza accepted that Ms Fiorenza gave some inconsistent answers in cross-examination. It was submitted that Counsel for Hoskings had "grossly exaggerated" the tenor of the clinical record referring to pain in Ms Fiorenza's hips and knees. Senior Counsel submitted the carer's pension "is minimal" and largely used to pay for the taxis to the niece's appointments. Thus is was submitted, "it's highly unlikely that the plaintiff would be engaged in a plot to cover it up".[2] It was submitted that, whilst Ms Fiorenza's affidavits could have been "better drafted", it was never part of her case that she has not done lots of things for her niece. Ms Fiorenza should be given the benefit of the doubt.

1. I bear in mind the observations of the Court of Appeal in Petrovic v Victorian Workcover Authority:[3]

"As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff's proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff's account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based."

1. I accept Dr Cook's assessment of Ms Fiorenza's intellectual aptitude.[4] I also take into account that Ms Fiorenza has suffered from psychological difficulties for many years. She is a poor historian. These matters may explain the reason for unreliability, but they do not make the evidence any more reliable.
2. I formed the view that Ms Fiorenza was unreliable on some matters. The following are examples:

(a) Ms Fiorenza's affidavit, sworn on 11 June 2025, gave the impression that over the prior two years, she had provided support to her niece by attending some appointments with her. She specifically noted that her niece was getting a lot better and that the niece did not live with her.

Dr Cook's report dated 6 July 2025 described Ms Fiorenza's role in assisting her niece included making sure she was eating appropriately and that her hygiene needs were attended to.

On 8 July 2025, Hoskings served a Notice to Produce on Ms Fiorenza which sought production of any documents relating to a carer's allowance. Following this, Ms Fiorenza swore her third affidavit on 15 July 2025 which described attending treatment appointments with her niece being "the extent of my caring for her" and that in February 2025, Ms Fiorenza was approved to receive a carer's allowance for her care of her niece.

During cross-examination, Ms Fiorenza accepted that some weeks she provides more than 20 hours of assistance to her niece. She said she does some shopping for her and accompanies her to appointments.

In my view, Ms Fiorenza's second affidavit was not sufficiently forthcoming about the nature and extent of the assistance which she had been able to provide to her niece over the preceding two or three years;

(b) Ms Fiorenza's affidavit made some mention of her physical health difficulties, but gave the reader the impression that her inability to participate in domestic chores was a product of her psychological condition. As Ms Fiorenza accepted during cross-examination, the domestic assistance provided for her, through Calvary Care, was because of her various physical difficulties;

(c) Ms Fiorenza's recollection of her prior psychological difficulties and treatment as described in paragraph 10 of her first affidavit,[5] was not accurate. Ms Fiorenza was prescribed Lexapro between 2007 and 2013. She consulted Dr Datta, psychiatrist, periodically between 2007 and 2014. She appears to have seen Dr Cook regularly over that time.

1. Given my reservations as to her reliability, I am cautious about accepting Ms Fiorenza's account absent other objective or contemporaneous evidence.

What were the impairment consequences of Ms Fiorenza's "without injury" psychological condition?

1. This is a convenient point at which to consider the medical evidence tendered by the parties.

1. Thirteen reports were tendered from Dr Datta, dated 12 November 2007, 16 November 2007, 29 November 2007, 11 December 2007, 15 January 2008, 26 March 2008, 30 July 2008, 3 December 2008, 2 February 2010 (two reports), 11 October 2011, 12 December 2012 and 18 February 2014.
2. Dr Datta first treated Ms Fiorenza in late 2007 when she was admitted to Essendon Private Hospital.
3. In his first report dated 12 November 2007, Dr Datta outlined the various physical health difficulties, and personal difficulties Ms Fiorenza had experienced since 2000. He noted she had begun to develop a combination of depressive and anxiety symptoms, and had been feeling rather hopeless and helpless. He noted she had become increasingly pre-occupied with how she would manage if she continued to feel this way. Dr Datta opined:[6]

"The overall formulation at this stage would be that of someone going through a functional overlay of somatic symptoms, on account of a comorbid depression. The aetiology of the depression is probably related to the number of stressful situations she has been through over the past few years and in particular the loss of her close relationship with her parents, and her own diagnoses of physical illness."

1. In his report dated 29 November 2007, Dr Datta observed:[7]

"Personality assessment wise, it is probably fair to say that, what we have experienced in the Ward has probably been some degree of evidence of underlying histrionic personality characteristics, but given the fact that we have known her only during this episode, when she was quite unwell and emaciated, this may well be something that we modify in the future."

1. By January 2008, Dr Datta noted Ms Fiorenza was working part time and seemed to be responding to a combination of hypnotherapy and antidepressants. Dr Datta suggested an increased dose of Lexapro to 15 milligrams a day.
2. In March 2008, Dr Datta noted Ms Fiorenza was "considerably more settled" on 15 milligrams of escitalopram a day.[8]
3. In July 2008, Dr Datta referred Ms Fiorenza to Dr Cook for treatment. He noted she had had twelve sessions with Brian Lowe, psychologist, but his consulting days did not fit with her work schedule. He said:[9]

"... [Ms Fiorenza] has had an anxiety disorder, with a globus hystericus and difficulty in swallowing. The working formulation was that of an anxiety disorder, superimposed on someone with histrionic personality traits.

1. In December 2008, Dr Datta provided a referral for a further twelve sessions with Dr Cook. He stated:[10]

"As you know, ... [Ms Fiorenza] suffers from a major anxiety disorder, with recurrent periods of depression and has problems with gambling and some hysterical symptoms in the context of anxiety.

I have suggested that she continue with Escitalopram 10 mg a day in an indefinite capacity at this stage."

1. In February 2010, Dr Datta provided Ms Fiorenza with a referral for a further twelve sessions with Dr Cook. He noted she continued to take escitalopram. Her GP had considered a reduction in the dose, but Ms Fiorenza had a significant motor vehicle accident in which her car hit a neighbour's house, and she was suffering from a number of post-traumatic symptoms. Dr Datta reported Ms Fiorenza had also had a "dramatic increase in her level of anxiety and would need ongoing supportive therapy and anxiety management".[11] Dr Datta opined the escitalopram ought be continued on the same dose for the time being.
2. In October 2011, Dr Datta provided a further referral to Dr Cook. He noted that Ms Fiorenza believed she had put on weight because of the escitalopram and as a result had attempted to go off it. She experienced a worsening of her symptoms, so resumed taking 10 milligrams a day. Dr Datta said that his view was that Ms Fiorenza needed to take it indefinitely.[12]
3. In December 2012, Dr Datta provided a further referral to Dr Cook. He noted Ms Fiorenza had been doing very well, although she had again attempted to go off the escitalopram and experienced an increase in her level of anxiety. She had resumed taking 10 milligrams a day. Dr Datta noted:[13]

"She continues to have some degree of globus Hystericus type symptoms and it does look like she has residual symptoms of anxiety and will almost always have to be on some level of an SSRI to prevent her spiralling out of control as she had done earlier on."

1. In February 2014, Dr Datta provided a further referral to Dr Cook. He noted Ms Fiorenza had a long history of anxiety disorder, and in the context of stress seemed to become extremely fragile and in the past was manifesting somatic symptoms. Dr Datta noted that she had been able to manage without antidepressants over the prior year. Given the fragile nature of her personality, Dr Datta said Ms Fiorenza was prone to stress and would benefit from continuing therapy.[14]

1. Six reports were tendered from Dr Cook, dated 24 October 2017, 18 December 2017, 14 March 2019, 28 April 2019, July 2019 and 6 July 2025.
2. In his first report, dated 24 October 2017, Dr Cook noted that he first treated Ms Fiorenza in 2008, when she experienced emotional difficulties after the death of her father. He said that condition was "complicated by external factors and she continued treatment at a low frequency".[15]
3. Dr Cook said that in late 2012, Ms Fiorenza presented with difficulties relating to workplace stress. Treatment continued until the end of 2014. There was then a break in treatment until October 2017, when Ms Fiorenza again consulted Dr Cook regarding workplace issues.
4. Dr Cook's second report, dated 18 December 2017, included a detailed account of Ms Fiorenza's workplace issues from November 2012, and her general background. At that time, Dr Cook diagnosed a Major Depressive Disorder with significant associated anxiety. He opined that it was evident from his earlier treatment of Ms Fiorenza that she "had a nervous disposition and was somewhat prone to anxiety and rumination".[16]
5. Dr Cook opined as follows regarding Ms Fiorenza's state as at December 2017:[17]

"Currently Ms Fiorenza is extremely vulnerable. She will require a protracted period of psychological and medication based treatment before she is able to contemplate a return to work in any respect ... It is unlikely that she will ever be able to return to work with the managers in question, and a return to work with Hoskings in any area remains uncertain. There is considerable potential for further deterioration and the current claims dispute is adding to her distress."

1. Dr Cook's third report, dated 14 March 2019, noted an incident on 8 March 2019 during which Ms Fiorenza had contact with the alleged bully whilst out shopping, which caused her significant distress and "significantly set back her recovery".[18]
2. Dr Cook's fourth report, dated 28 April 2019, noted ongoing issues with Ms Fiorenza's WorkCover payments that were causing her distress and also that Ms Fiorenza had injured her knee when alighting a tram.[19] Dr Cook opined that she had no current work capacity, and was a highly vulnerable woman, prone to deterioration.
3. Dr Cook's fifth report, dated July 2019, noted that Ms Fiorenza had reasonable self-care, but there had been some deterioration in that area. Dr Cook noted that:[20]

"... Ms Fiorenza has appeared depressed and she has become increasingly despondent. There has been a flattening of affect and significant distress."

1. Dr Cook noted that Ms Fiorenza's self-reporting by way of the DASS-42 (Depression Anxiety Stress Scale) indicated extremely Severe Depression and Anxiety and severe stress. Dr Cook opined that her self-reported responses were consistent with her presentation. Dr Cook noted Ms Fiorenza's contemporaneous reporting of her symptoms, including sleep difficulties, periods where she had wished she was dead, ongoing difficulties with concentration and attention, distrust of others, social avoidance, becoming housebound and fearful. Dr Cook said that Ms Fiorenza was proud of her work performance and it was "central to her identity".[21]
2. Dr Cook maintained his diagnosis of a Major Depressive Disorder of moderate severity with significant associated anxiety. He opined that she had no current work capacity, and that was likely to continue. Dr Cook noted that Ms Fiorenza intended to keep working to aged seventy-five years, and "[p]reviously her employment afforded her a sense of achievement that greatly assisted her self-esteem".[22]
3. Dr Cook's most recent report dated 6 July 2025 included an analysis of other reports, a detailed account of the workplace issues between 2012 and 2017, as well as subsequent events. Dr Cook noted that since about 2023, Ms Fiorenza had provided support for her intellectually disabled niece who had many health issues, including bowel cancer. He noted that in the prior eighteen months, Ms Fiorenza's sister, Ms Valente, and brother-in-law (with whom Ms Fiorenza lived) were experiencing significant health issues, and Ms Fiorenza had provided emotional, and some physical, assistance to them. Dr Cook noted this had helped Ms Fiorenza to "feel useful and to occasionally shift her focus away from thoughts about her past employment and current lack of purpose. However, she consistently reported feeling exhausted and overwhelmed."[23]
4. Dr Cook noted that Ms Fiorenza's self-care had deteriorated. There had been episodes in recent months in which she had been far less engaged and responsive. She was increasingly despondent. Her DASS-42 self-report indicated extremely Severe Depression, severe anxiety and extremely severe stress. Dr Cook opined that those responses were consistent with her presentation. He stated:[24]

"On all recent occasions since 2017 Ms Fiorenza endorsed responses indicating severe dysthymia, internal tension and autonomic reactivity, low self-esteem, irritability, hopelessness etc. In 2008 a lower level of dysthymia was present and significant symptoms of stress and anxiety were not present."

1. Dr Cook maintained his diagnosis of Major Depressive Disorder. He opined that this was of considerable severity and there was significant associated anxiety. Having treated Ms Fiorenza for a long period, he opined there was no evidence to suggest she had a borderline personality disorder, an avoidant personality disorder or a dependent personality disorder (as had been suggested by Dr Kevin O'Daly, psychiatrist). Dr Cook remained of the view that Ms Fiorenza's work-related psychological condition permanently incapacitated her for work.

1. Six reports were tendered from Dr Sajdak, dated 31 October 2017, 21 November 2017, 13 March 2019, 1 May 2019, 24 June 2019 and 28 May 2025. Extracts of Dr Sajdak's clinical records were tendered for the period July 2024 to February 2025.
2. A Certificate of Capacity dated 14 May 2025 was tendered, noting no capacity for suitable employment based on the following clinical diagnosis:[25]

"Adjustment disorder (mixed depression + anxiety) related to work place stressors and harassment (the stressors have been chronic and originally started several years ago in 2012)."

1. In his report dated 21 November 2017, Dr Sajdak reported that Ms Fiorenza was diagnosed with depression and anxiety relating to workplace bullying. It was not an exacerbation of a pre-existing condition, and could be "tracked back to 2002".[26] Dr Sajdak opined Ms Fiorenza had no work capacity.
2. In his most recent report dated 28 May 2025, Dr Sajdak again noted Ms Fiorenza suffered from depression and anxiety related to workplace harassment and bullying, likely in the form of a chronic Adjustment Disorder with Mixed Anxiety and depressive symptoms. He opined that she had no work capacity. Further:[27]

"She continues to be very preoccupied with her trauma from her work-place injuries. Her depressed state has reduced her ability to concentrate, engage in human interactions at a level required to work in sales, and her memory is significantly impaired. She is still unable to sleep despite therapy and medication ...

I do not think she will significantly improve to her pre-injured state, even after her work cover claim has been legally closed."

1. A short report was tendered from Dr Federico dated 30 October 2017, noting his treatment of Ms Fiorenza from September 2016 for stress management therapy.

1. Ms Fiorenza tendered a report from Dr Senadipathy dated 30 July 2007. Dr Senadipathy examined Ms Fiorenza for the purpose of a WorkCover claim she made in 2007. The claim alleged stress as a result of unfair treatment in the workplace. Hoskings did not accept the claim, and Ms Fiorenza did not pursue it.
2. Dr Senadipathy opined that Ms Fiorenza presented with features of reactive depression related to her belief that she was unfairly transferred from the Watergardens' store to the Keilor Downs' store. She was suffering from depressed mood, insomnia, loss of appetite, tiredness and crying. Her condition had partially resolved. Dr Senadipathy opined that Ms Fiorenza did not need psychiatric or psychological treatment, the "[b]est treatment would be to help her return to her former workplace".[28] She had the capacity to work, and was working.

1. Hoskings tendered a report from Dr Glowinski dated 8 May 2019. Dr Glowinski examined Ms Fiorenza on 3 May 2019. This examination occurred the month after Ms Fiorenza's tram accident.
2. Dr Glowinski diagnosed a chronic Adjustment Disorder with Mixed Anxiety and depressive features. He opined that Ms Fiorenza might benefit from a higher dose of Lexapro, and recommended an initial increase to 20 milligrams per day. He did not think her illness was of a complexity requiring psychiatric care. He was of the view that it was highly unlikely that Ms Fiorenza could work. She had no current work capacity and that would continue indefinitely.

1. Ms Fiorenza tendered a report from Dr Stern dated 2 August 2019. Dr Stern examined Ms Fiorenza that day.
2. Dr Stern diagnosed a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood due to work stress between 2002 and 2017. Dr Stern provided an impairment assessment.

1. Ms Fiorenza tendered the Certificate of Opinion of a Medical Panel dated 4 April 2018. The Panel comprised Dr Diane Neill, psychiatrist and Dr John Cronin, psychiatrist. The Panel opined that Ms Fiorenza was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood attributable to the claimed injury. The Panel determined Ms Fiorenza was incapacitated from work from 2 November 2017.
2. Ms Fiorenza tendered the Certificate of Opinion and Reasons for Opinion of a Medical Panel dated 6 January 2020. The Panel comprised Dr Peter Farnbach, psychiatrist, and Dr Steven Adlard, psychiatrist. The Panel found a 25 per cent psychiatric impairment resulting from the accepted psychiatric injury, including depression, stress and anxiety. The degree of impairment was permanent.
3. On mental state examination, the Panel noted:[29]

"... The worker presented as pleasant and cooperative. She was neatly attired and well groomed. Her affect was depressed and anxious, consistent with her stated degree of symptomatology. She was able to smile appropriately at times.

The worker's speech was normal in rate and rhythm, and there was no evidence of thought disorder.

The content of the worker's talk was appropriate to the interview. There was evidence of self-deprecation though no overt guilt. She expressed pessimism with regard to her future. There was passive, though not active, suicidal ideation. There was no evidence of psychotic symptomatology."

1. Ms Fiorenza tendered a report from Dr Weissman dated 22 May 2025. Dr Weissman examined Ms Fiorenza via WhatsApp that day.
2. On mental state examination, Dr Weissman relevantly noted:[30]

"She appeared quite tired-looking. She was very flat and subdued with a restricted range of affect.

She was at least mildly slowed, in terms of her cognition (attention, concentration, and speed of information processing/mentation).

... she was quite a detailed, over-inclusive and circumstantial historian.

The quality of her affect appeared to be at least moderately anxious and worried, as well as at least moderately depressed, low, flat, sad and unhappy.

The content of her thinking revealed frequent, multiple times daily, intrusive, emotionally distressing thoughts, triggers and reminders of, memories and recollections of, some flashbacks of, and preoccupation with, the alleged/reported/perceived work-related bullying, harassment, victimisation, targeting and abuse, associated with mild to moderate ongoing traumatisation features.

The content of her thinking also included moderately-severe, fairly sustained, pervasive, persistent and intense depressive and anxiety symptoms, themes and features, directly due to the circumstances of her employment.

She has social withdrawal. She feels 'very' useless. She feels regret and shame. ...

... she has, it seems, fairly frequent work-related bad dreams. There were various examples of incident-related/work-related anxiety, nervousness, hypervigilance and hyperarousal, associated with emotional distress and resultant avoidance.

... I note reference to mild to moderate subjective/reported complaints regarding concentration and short-term memory disturbance, which were sometimes present during today's interview, and appeared to be psychiatrically-based.

Her insight and judgment were characterised by a markedly diminished self-esteem and confidence as well as a significantly elevated responsiveness to reminders and triggers of her alleged work-related stress, bullying and harassment."

1. Dr Weissman noted that Ms Fiorenza's symptom "load" probably satisfied the diagnostic criteria for a chronic Major Depressive Disorder but his preferred diagnosis was a chronic Adjustment Disorder with Depressed and Anxious Mood, of moderately-severe intensity, associated with mild to moderate traumatisation syndrome. He opined that she was permanently unfit for all work. He recommended she continue to see her GP and psychologist. He recommended an increase in the dose of Lexapro to 20 milligrams, and up to 40 milligrams if tolerated.

1. Hoskings tendered a report from Dr O'Daly dated 25 June 2025. Dr O'Daly examined Ms Fiorenza that day.
2. Dr O'Daly noted Ms Fiorenza's current reported symptoms and lifestyle. Those were broadly in keeping with the impairment consequences in Ms Fiorenza's affidavits.
3. On mental state examination, Dr O'Daly relevantly noted:[31]

"Ms Fiorenza dressed in clean, casual attire and wore her straight blonde hair in a neat well-groomed bobbed style ...

... demonstrated confident and appropriate eye contact, and her speech was spontaneous and of normal rate, rhythm and volume.

Ms Fiorenza said her mood was suboptimal and somewhat low and that anxiety was a feature of her psychological state.

... affect was somewhat anxious but warmed as the assessment progressed.

... was cooperative, pleasant and open and was able to discuss a broad range of themes thoughtfully.

... thought form was organised and her thought content described no absolute preoccupations ...

There was no evidence of any perceptual abnormality.

At the time of assessment, Ms Fiorenza was oriented to time, person and place and her cognition, insight, judgment and capacity all appeared sound."

1. Dr O'Daly diagnosed a chronic Adjustment Disorder with adjustment and reactions to her workplace difficulties, and pre-existing mixed cluster B borderline and cluster C anxious, avoidant, dependent, personality traits/disorder.
2. Dr O'Daly opined that Ms Fiorenza's employment does not materially contribute to her current condition. This was said to be so, because she had not worked since 2017, and -

"... the feature of her psychological profile and psychosocial circumstances is and has been the effects of her pre-existing mixed cluster B borderline and cluster C anxious, avoidant, dependent, personality traits/disorder - as the feature of her psychological profile and presentation."[32]

1. Dr O'Daly noted that Ms Fiorenza had always lived with her parents and now with her sister, had never married and had no children. He further noted that she was reviewed by a psychiatrist in 2007 in the context of swallowing difficulties and severe weight loss. Ms Fiorenza reported decompensating psychologically following the loss of her father.
2. Dr O'Daly further stated:[33]

"It is however unlikely that the injury would have occurred had the incidents during her work not taken place, as there is evidence of hereditary risk with regard to pre-existing personality vulnerability and inherent lifestyle/psychological and psychosocial factors, both historic and current."

1. Dr O'Daly opined that being at the age of seventy-two and having not worked for eight years, Ms Fiorenza's "current psychosocial circumstances and capacity should be considered indefinite". The prognosis was poor and the current treatment ought to continue.
2. Dr O'Daly opined that Ms Fiorenza:[34]

"... [D]erives absolute pleasure and benefit from her interpersonal relationships with her family, as has been the case throughout her adulthood.

In my opinion, there is very little that has changed in Ms Fiorenza's lifestyle since she ceased work."

1. As Ms Fiorenza's claim is in the form of an aggravation of an earlier injury or condition, I must identify the additional impairment and determine whether that meets the statutory threshold. This requires a comparison of Ms Fiorenza's condition before and after the aggravation.
2. In opening the case, initially Senior Counsel submitted that Ms Fiorenza had been bullied and/or harassed in her employment with Hoskings since 2003. Thus, it was said that the "without injury" condition fell to be assessed prior to that. Subsequently, it was submitted that the compensable claim, the subject of this application, arose in the period 2012 to 2017, and Ms Fiorenza's "without injury" condition fell to be considered as at 2012. It was also submitted that Ms Fiorenza's "without injury" psychological condition should be considered in the period 2014-2016 when she was having no treatment. Ultimately in opening, Senior Counsel submitted the relevant "without injury" period was prior to November 2012.[35] At that point, the impairment consequences of the pre-existing condition were submitted to be "Anxiety, depression ... [a]nd some medication ... treatment from a psychologist ... [a]nd she'd seen a psychiatrist on a number of occasions, a Dr Datta."[36]
3. In closing submissions, Senior Counsel submitted the starting point for determining Ms Fiorenza's "without injury" psychological impairment consequences was to be found in a "DASS-42" score as at 19 May 2008, which revealed moderate depression, but was normal in terms of anxiety and stress.[37] When asked to identify the impairment consequences of Ms Fiorenza's "without injury" anxiety and depression, Senior Counsel did so as follows:[38]

"She had a mild condition that remitted and abated and was largely non-existent at the time her work-related injuries emerged, that is, towards the end of 2016.

... Depression and a mild interference with her enjoyment of life."

1. Counsel for Hoskings submitted that the accepted compensable injury was a course of work claim between November 2012 and October 2017. The relevant "without injury" period for the analysis required by Petkovski v Galletti[39] was prior to 2012. At that time, Ms Fiorenza was consulting Dr Cook regularly, consulting Dr Datta, and was prescribed Lexapro.
2. Ms Fiorenza's accepted claim is for a psychological injury suffered in the course of her work between November 2012 and October 2017. I find that the relevant pre-injury period is the period prior to November 2012.
3. I prefer the contemporaneous evidence of Dr Datta as to Ms Fiorenza's psychological state at that time. Ms Fiorenza was seeing Dr Cook approximately monthly. She consulted Dr Datta irregularly. She was prescribed Lexapro. Ms Fiorenza was suffering from an anxiety disorder and would likely require medication indefinitely. Ms Fiorenza was able to continue to work.

What are the current impairment consequences, if any, of the compensable psychological aggravation injury?

1. Ms Fiorenza relied upon three affidavits sworn by her on 27 April 2023, 11 June 2025 and 15 July 2025.
2. In those affidavits, Ms Fiorenza deposed to the following impairment consequences by reason of her psychological injury:

(a) she feels depressed and finds very little gives her enjoyment. Her mood is generally only two or three out of ten. She rarely smiles properly or laughs;

(b) she spends most of her time at home, often in her room crying;

(c) often she will not shower or get dressed, and will sleep during the afternoons;

(d) she has poor sleep due to ruminating about her treatment at work, and experiences nightmares;

(e) sometimes she hopes that she will not wake up in the morning;

(f) she has lost her appetite, forgets to eat and sometimes skips meals;

(g) she is forgetful and has poor concentration;

(h) she is withdrawn and distrustful;

(i) she no longer sees friends regularly and avoids phone calls;

(j) she has been unable to provide the care and support to her family that she was able to provide prior to her injury;

(k) she avoids parts of Watergardens Shopping Centre for fear of seeing people from Hoskings;

(l) she no longer goes for walks outside;

(m) she hardly engages with her nieces and nephews;

(n) she is short tempered and snaps at her family;

(o) she experiences flashbacks of the bullying and harassment.

1. Ms Fiorenza also relied upon an affidavit sworn by her sister, Carmel Valente, on 11 June 2025. Ms Valente deposed to what her sister was like before she was injured, and the change in her since she was bullied at work. The affidavit was generally supportive of Ms Fiorenza's claimed impairment consequences.
2. Hoskings did not seek leave to cross-examine Ms Valente.

1. The parties tendered medico-legal reports from psychiatrists and the Medical Panel, each of whom had seen Ms Fiorenza on one occasion:

(a) Dr Senadipathy's report is of very little assistance. It is not only dated, but it pre-dated Ms Fiorenza's admission to Essendon Private Hospital and her treatment by Dr Datta, Brian Lowe and Dr Cook.

(b) The reports of Dr Glowinski, Dr Stern and the Medical Panel are also of limited assistance in this application, given they are now dated; however, they each diagnose an Adjustment Disorder, and opine that Ms Fiorenza had an incapacity for work at the relevant time.

(c) Dr Weissman and Dr O'Daly provided the most recent medico-legal assessments. They both diagnosed a chronic Adjustment Disorder.

(d) I found Dr O'Daly's opinion difficult to follow. Having diagnosed an Adjustment Disorder due to the workplace difficulties as a present condition, he then went on to opine that Ms Fiorenza's employment no longer materially contributed to that condition. He appeared to suggest that Ms Fiorenza's condition was the result of the work incidents occurring in the context of a pre-existing personality vulnerability. His further opinion that it was unlikely the injury would have occurred absent the work incidents, was confusing. I do not accept his opinion that the compensable aggravation injury has ceased.

1. I prefer the opinion of Dr Cook, Ms Fiorenza's long-term treating psychologist, that she currently suffers from a Major Depressive Disorder. I do so, because he is an experienced psychologist who has seen Ms Fiorenza frequently over many years. His opinion is similar to that of Dr Weissman, albeit their ultimate diagnoses do not precisely align.
2. As I have already identified, this is an aggravation injury. In 2012, prior to the alleged workplace bullying and harassment, Ms Fiorenza had a chronic anxiety disorder requiring regular treatment. Her treating psychiatrist was of the view she would likely require ongoing pharmacotherapy.
3. Notwithstanding the personality characteristics Dr Datta identified, and the physical and psychological difficulties she experienced prior to November 2012, Ms Fiorenza remained able to work. It is clear that work and family were important parts of her life. Ms Fiorenza's self-esteem was linked to her sense of achievement at work.
4. It is difficult to make findings as to the precise impairment consequences attributable to the compensable aggravation injury. This is partly due to the inevitable limitations in an application such as this, where the only oral evidence is from the plaintiff and various medical reports are tendered without any of the medical practitioners giving oral evidence. It is particularly difficult in this case. Ms Fiorenza is a poor historian. Her "without injury" impairment consequences were not articulated on her behalf with any precision. The time at which it was said they ought be assessed shifted in the running of the case.
5. Unusually, I find that it is not necessary to determine each of the impairment consequences attributable to the compensable aggravation injury in this case. This is because I am persuaded that one consequence of Ms Fiorenza's compensable aggravation injury is that since November 2017, and permanently in the requisite sense, Ms Fiorenza has had no capacity to work in any suitable employment. Given that finding, and my finding below that Ms Fiorenza would likely have continued working to age seventy-five years absent her compensable injury, it is not necessary to identify each of the other impairment consequences attributable to the compensable aggravation injury.

Is Ms Fiorenza permanently unable to earn at least 60 per cent of her "without injury" earnings because of the impairment consequences of the compensable psychological aggravation injury?

1. For Ms Fiorenza to succeed in her claim for the loss of earning capacity consequence, she must establish:

(a) her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments, fairly described as "severe" (the narrative test);

(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and

(c) after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.

1. Whether the tram accident, and/or Ms Fiorenza's subsequent cancer and/or other intervening circumstances reduced or extinguished her without injury earning capacity are matters for a damages trial. Those matters are not to be taken into account in this gateway analysis.[40]

Absent the compensable injury, when did Ms Fiorenza intend to retire?

1. Senior Counsel for Ms Fiorenza submitted that Ms Fiorenza deposed that prior to suffering her compensable injury, she intended to work into her seventies,[41] and she would still be working now if it were not for the compensable injury.[42] It was submitted that it was not unusual to have older staff working in jewellery stores beyond the usual retirement age.[43] Indeed, Hoskings currently employ a sales assistant who is seventy-six years old.[44] Dr Cook noted in his report dated June 2019 (prior to the Originating Motion being filed and served):[45]

"Ms Fiorenza had intended to keep working until age 75 and the work related injury has resulted in her losing a central part of her identity. Previously her employment afforded her a sense of achievement that greatly assisted her self-esteem."

1. Counsel for Hoskings submitted that, absent injury, Ms Fiorenza would now be retired. She ceased work in 2017, when aged sixty-seven years. That is the usual retirement age. That contention was said to be supported by Ms Fiorenza deposing as follows in her first affidavit sworn on 27 April 2023:[46]

"I feel sad that the final years of my career were taken from me."

1. Counsel for Hoskings submitted there was no other evidence that indicated as a probability, that Ms Fiorenza would have worked beyond aged seventy-two years.
2. Counsel for Hoskings did not challenge Ms Fiorenza's evidence that she intended to work into her seventies, and that she would still be working now. The contention reported by Dr Cook that Ms Fiorenza intended to work to aged seventy-five years was not challenged during cross-examination of Ms Fiorenza.
3. I accept that work was an important part of Ms Fiorenza's life. I further accept that this type of work can be, and is, performed by persons beyond the usual retirement age.
4. I bear in mind that this is a gateway application.[47] In that context, I am sufficiently satisfied, on the whole of the evidence, that Ms Fiorenza would have worked to about aged seventy-five years absent the compensable aggravation injury.

1. As I have already said, I find that Ms Fiorenza has no capacity for any suitable employment by reason of the compensable aggravation injury. That incapacity is permanent in the requisite sense.

Is the loss of earning capacity consequence of Ms Fiorenza's compensable psychological aggravation injury "severe"?

1. I find that the loss of capacity to undertake any suitable employment now and into the foreseeable future is a consequence that can be fairly described as being "severe" to Ms Fiorenza. She therefore satisfies the narrative test.

1. Given that I have found that Ms Fiorenza has satisfied the statutory threshold to claim pecuniary loss damages, she is also entitled to claim pain and suffering damages.[48]
2. Ms Fiorenza has leave to issue common law proceedings claiming both pain and suffering and pecuniary loss damages.
3. I will hear the parties on the issue of costs.

[1] Plaintiff's Further Amended Court Book ("PCB") 180

[3] [2018] VSCA 243, at paragraph [74] (footnotes omitted)

[19] In his report of July 2019, Dr Cook stated Ms Fiorenza fell on a tram, which took off before she was able to sit.

[39] [1994] VicRp 32; [1994] 1 VR 436

[40] Acir v Frosster Pty Ltd [2009] VSC 454

[47] Findlay v Transport Accident Commission [2025] VSCA 126

[48] Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]