1 The appellant, Suzana Gjorgovska, appeals against the decision of a County Court judge of 8 April 2005 dismissing her application for leave to bring common law proceedings for recovery of damages for pain and suffering and pecuniary loss arising out of injuries that she claims to have sustained in the course of her employment with the first respondent on 23 April 2001. The application was made pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") and, at the outset, was based on the claim that the injuries fell within the definition of "serious injury" in s.134AB(37)(a) and/or (c) of the Act. As will be explained more fully later, during the hearing of the application, the appellant confined her claim to one that was based on the definition of "serious injury" in paragraph (c) of s.134AB(37) of the Act. Thus, her ultimate case was that, as a result of an incident at the workplace, she suffered permanent, severe, mental or behavioural disorder or disturbance essentially constituted by post traumatic stress disorder, pain, panic disorder with agoraphobia, chronic adjustment disorder with depressed mood and anxiety and depression.
2 The circumstances giving rise to the appellant's claim, as found by her Honour, were these. She was employed by the first respondent as a cleaner at La Trobe University each week day between the hours of 4.00am and 6.00am. On 21 April 2001, while working during those hours with a fellow employee, Sam Emini ("Sam"), the appellant attempted to enter a room on the third floor of the building with a view to cleaning it but she could only open the door slightly because it was blocked from the other side. As she commenced to open the door, she heard a male voice coming from the room that spoke in a language other than English. The appellant became frightened, closed the door and fled, apparently to find Sam who was on a lower floor. As she ran, she tripped and fell on the stairs onto her left side. She nevertheless continued until she found Sam and, together, they went to the room in question and found a man, apparently of Chinese origin, standing near its door. The appellant had a brief conversation with him and then telephoned her supervisor who attended the scene and later told the appellant that the man had been asleep in the room. According to the appellant, the incident caused her to be disoriented with the result that she could not remember the supervisor's telephone number and therefore had to ring her husband in order to obtain it. The intruder was later removed by security guards. Although she was shaken, the appellant attempted to continue with her work. She was told by the supervisor to fill out an accident report form and to take a week off. She went home and has not worked since.
3 Later that day the appellant consulted her then general medical practitioner, Dr Nassios, who spoke Macedonian, about her sore leg and the anxiety that she said arose from the incident. In July 2001 Dr Bond became her treating general practitioner. Because the appellant continued to complain of physical and psychological symptoms that she claimed arose from the incident, she was referred to a number of specialists, including a neurosurgeon (Mr Jensen), a neurologist (Dr Symington), sport and rehabilitations specialists (Drs Stone and Lim), and a psychiatrist (Dr Ranaweera). She was treated by a Macedonian speaking psychologist, first Ms Tashevska, and then she continued to see Mr Stojcevski on a regular basis. The appellant was also assessed for medico-legal purposes by three orthopaedic surgeons (Messrs Deacon, Buzzard and Dooley), four psychiatrists (Drs Cohen, Epstein, Strauss and Mendelson), an occupational physician (Dr Castle) and the medical panel.
4 The appellant said in her evidence that, before the incident of 23 April 2001, she was fit and well, and enjoyed life, drove a motor car and was able to look after her household and children. But this has changed, she said, as a result of the injury she sustained on that day. She told the health practitioners and the court that she experiences flashbacks to the incident and is particularly frightened at night when her husband works night shift, leaving her alone with the children. She constantly checks that the windows and doors are locked and has called her husband at work a number of times to come home because she was frightened. The appellant said that she now has panic attacks, is constantly anxious for no apparent reason, cries a lot, has regular dreams that wake her up, and that her relationship with her husband has been detrimentally affected. The appellant also contended that she experiences constant pain in her back and her left leg which affects her mobility and that she has to use a walking stick to support her because sometimes her left leg gives way. In light of these matters, the appellant claimed she spends most of her time at home and is unable to work. She sees Dr Bond regularly and continues to be certified by him as unfit for all work. Her Honour noted in her reasons that the appellant said that she could not return to work at a clinic at which she used to work on weekends because of her back pain and also because she was afraid that she would end up like the patients there. She also said that she last saw Work Solutions, a work placement organisation, in May 2004 and they could not identify any work for her.
5 At the date of the hearing the appellant was aged 40. She was born and educated in Macedonia where she completed secondary school, before working largely in factory jobs until her marriage. She and her husband arrived in Australia in 1991 and have two children, one born in 1992 and the other in 1994. In 1996 the appellant obtained work on weekends as a cleaner at the Albert Road Clinic and, in May 2000, she secured a second job, with the first respondent, cleaning at La Trobe University. The appellant claimed that she is unable to speak English fluently and has a limited understanding of spoken English. She said that she can read a few words in English, but cannot write it at all.
6 In late 1998 the appellant was involved in a car accident in which she sustained some injuries. She received treatment for them from Dr Nassios, who also referred her to a number of specialists.
7 The appellant's case as first presented to the court was, as I have noted, that she suffered from a physical as well as a mental injury. In order to provide a context in which the appellant's abandonment of her claim for leave based on physical injury took place, it is necessary to set out briefly the medical evidence that was placed before this court by way of reports from various medical specialists. As is apparently customary in applications of this nature, the medical experts were not cross-examined although, as I will mention again later, the appellant was cross-examined. The evidence of the medical specialists is sufficiently summarised by her Honour in her reasons and it has not been suggested by the appellant that she relevantly erred in that respect. Consequently, it is only necessary for present purposes to refer to the essential parts of the judge's summary of that material. As I have said, the appellant saw Dr Nassios shortly after the incident and, thereafter, on a number of occasions until she commenced consulting Dr Bond. In his report of 5 July 2001, prepared for the employer's insurer, Dr Nassios said that he had diagnosed the appellant as having soft tissue injury to the lower back and left leg and severe anxiety reaction to the shock of seeing a stranger. He said she could work in light duties in daylight hours in company with another worker and expected her to make full recovery within six months.
8 Dr Bond provided a number of reports and concluded in February 2004 (and confirmed in January 2005) that the appellant was fit for part-time light duties either in a call centre, or light cleaning duties with a feather duster. He considered that her psychological and physical injuries contributed equally to her incapacity for work.[1]
9 In October 2001 Mr Jensen wrote to Dr Bond saying that the appellant was suffering from back pain and left sciatica and, in late March 2002, considered that her condition had "evolved" and that she be referred to a multi-disciplinary pain clinic. In his report of 25 February 2004, Mr Jensen noted that the appellant had "been overtaken by psychological catastrophe" and said she was totally incapacitated for any employment.
10 In his reports of 31 May 2004 and 18 February 2005 Mr Stojcevski diagnosed the appellant as suffering from post traumatic stress disorder and considered that ongoing therapy was merely preventing further deterioration in her psychological state and concluded that he would be "surprised" if she would work at all in the "foreseeable future".
11 Dr Cohen, who saw the appellant in 2001, 2003 and 2005, said in his reports that he considered that the appellant suffered from post traumatic disorder and recommended specialist psychiatric treatment. He said that she had no current work capacity. He noted in his report of 13 August 2003 that the appellant had become "fairly well entrenched in the invalid role", and that she had not been receiving adequate or appropriate psychiatric treatment in the previous two years. In his report of 2 March 2005 Dr Cohen said that it was probable that her impairment would not resolve even with ongoing treatment and that the language barrier would be a major obstacle to successful treatment. He found, however, that the appellant was not entirely co-operative in that she refused to speak any English to him even though she agreed that she regularly saw Dr Bond without an interpreter.
12 The appellant saw Dr Strauss in late July 2003. He considered that she had developed the elements of a post traumatic stress disorder and anxiety and depression secondary to her physical injuries. He noted that "she has adopted the role of a semi-invalid" but said that he had no evidence to suggest that she was deliberately "over exaggerating her problems".
13 Dr Epstein, who examined the appellant in April and December 2004, diagnosed her as suffering from post traumatic stress disorder associated with panic disorder and agoraphobia and depression resulting from a combination of the physical and psychiatric effects of the incident. He concluded that she had no current work capacity and, later, confirmed his earlier opinion and noted that the appellant "has developed, at least to some degree, a chronic pain syndrome in which her complaints of pain are in excess of any physical signs ... [and] that she has reacted excessively to this situation". Nevertheless, he said that he saw no reason to have concerns about her credibility.
14 In December 2003, the medical panel found that the appellant was suffering from a post traumatic stress disorder with depression, a panic disorder with agoraphobia and a pain disorder, as a psychological reaction to the work place incident.
15 On the other hand, Dr Mendelson, who saw the appellant in August 2004, considered that, despite her complaints of anxiety and left leg symptoms, she did not describe the specific symptoms needed to fit the criteria for post traumatic stress disorder.[2] He concluded that she suffered from no diagnosable mental disorder, noting that her "manifestations of anxiousness" were "fairly non-specific" and that her physical and emotional symptoms were being perpetuated by her anger and resentment and therefore were not permanent. I will deal further with Dr Mendelson's report at a later stage.
16 The judge delivered a careful set of reasons in which she examined, amongst other matters, the medical evidence and the consequences for the appellant of the pain and suffering and economic loss arising from the psychiatric disturbance that she said she suffered as a result of the event in question. Importantly, her Honour concluded that the appellant was not a credible witness and that she exaggerated the effect of the incident on her as well as her symptoms when providing the relevant history to the medical experts and to the court. The judge was also not satisfied that the appellant discharged the onus of establishing that her mental or behavioural disorder or disturbance was severe or permanent and that the same applied to her claimed loss of earnings. Moreover, her Honour considered that the appellant failed to disentangle the source of her relevant problems as between the physical and mental impairments.
17 More particularly, the judge said that, in her view, the incident giving rise to the appellant's claimed injury did not meet the first criteria for post traumatic stress disorder, namely "an event that involved actual or threatened death or serious injury". Her Honour said that she accepted as accurate Dr Mendelson's description of the event as a "frightening experience" which, the judge said, did not fall within the first limb of the accepted definition of post traumatic stress disorder.
18 Her Honour went on to say that, even if the incident of the kind described by the appellant could found a diagnosis of post traumatic stress disorder, she was not satisfied on all the evidence that the appellant found it to be one that involved "actual or threatened death or serious injury". The learned judge considered, as I have said, that the appellant exaggerated her description of the event and its initial impact on her both to the doctors she saw and to the court. In particular, said the judge, the appellant's return to the room with her co-worker and her verbal exchange with the intruder suggested that the event involved no actual or threatened harm.
19 It is plain from the material before us, including her Honour's reasons, that at the trial the respondent put the appellant's credit in issue. Thus, the case was conducted below essentially as one where the credit of the appellant was the, or a, principal issue and Mr Collis, who appeared before us for the appellant, did not contend otherwise. Since the resolution of the appellant's credit is plainly relevant to her case, it is appropriate to look briefly at the context in which her Honour made the finding in this regard. The respondent's principal case was that the appellant had deliberately exaggerated the degree to which she was frightened by the incident of 21 April 2001 and its effects on her. At the trial, much of the attack on the appellant's credit focussed, in the first instance, on her claim that the incident resulted in her suffering a permanent severe impairment of her lumbar spine. The respondent contended that the appellant had not suffered any such injury following the incident in question given that she initially complained only about her lower left leg and that any back injury she may have had arose as a result of the car accident in which she was involved in late 1998. As I have said, considerable cross-examination was directed to these issues and that seems to have brought out that the appellant falsely denied to her medical practitioners, who examined her for the purpose of this proceeding, that she had these earlier back problems. This stood in stark contrast with her complaints to Dr Romas in May 1999 concerning her claimed back injury. Other matters on which the appellant was skilfully cross-examined by the respondent's senior counsel included the following: