Plaintiff v Defendant

Supreme Court of Victoria|2009-06-09|Before: BEACH J

ACCIDENT COMPENSATION - Workplace injury - Psychiatric injury - Assessment of damages - Pecuniary loss damages - Pain and suffering damages - Section 134AB Accident Compensation Act 1985.

1 Shortly after midnight on 11 December 1999, the Shell service station at the intersection of Queens Street and Victoria Street, Altona Meadows was the subject of a violent armed robbery. The robbery was perpetrated by a man wearing a gorilla mask and brandishing a gun. At the time of the robbery, Patricia Norris, the plaintiff, was employed in the service station. The service station was operated by Brumar (Victoria) Pty Ltd, the defendant. Ms Norris was an employee of the defendant.

2 As a result of the robbery, the plaintiff alleges she sustained severe psychiatric injuries consisting of a post-traumatic stress disorder and severe depression. In this proceeding, the plaintiff claims damages for these injuries. On the first day of the trial, the defendant admitted negligence. Thereafter, the proceeding continued as an assessment of damages.

3 This proceeding is brought pursuant to the provisions of s 134AB of the Accident Compensation Act 1985 ("the Act"). The trial of this proceeding commenced on 26 May 2009 before a jury. However, during the course of the trial it became apparent that the plaintiff had obtained the leave of the County Court pursuant to s 134AB(16)(b) to commence this proceeding. After hearing argument, I ruled that the granting of leave by the County Court created an estoppel in favour of the plaintiff on the issue of "serious injury". Specifically, I ruled that the defendant was estopped from denying that as at July 2005[1] the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being "likely to last for the foreseeable future"[2].

4 Upon the delivery of this ruling, the plaintiff made application pursuant to Rule 47.02 for the jury to be discharged and the proceeding to continue before me as a cause. The application was made on the basis that the defendant, in cross-examining the plaintiff and the plaintiff's psychiatrist, Dr Kruse, had sought to dispute the matters the subject of the estoppel. Further, the defendant had asserted that it would call evidence from psychiatrists contradicting the serious injury determination made in July 2005 by the County Court[3]. Indeed, the tenor of the defendant's cross-examination of the plaintiff and her witnesses up until the time of the estoppel ruling was to the effect that the plaintiff was not severely impaired and had for many years been fit for suitable employment. I acceded to the plaintiff's application and discharged the jury because of these matters and the fact that under s 134AB(23) the jury could not be informed of the basis upon which the estoppel arose. In the circumstances I was of the view that a fair trial with the empanelled jury was no longer possible.

5 After the discharge of the jury, the trial proceeded before me sitting alone. Two further witnesses were called and then the balance of the reports relied upon by the parties were tendered[4].

(a) I assess the plaintiff's pecuniary loss damages at $418,500.

(b) I assess the plaintiff's pain and suffering damages at $200,000.

7 The plaintiff was born on 10 May 1949 and was 50 years of age at the time of the robbery. She left school at the age of 14. She was the eldest girl in a family of nine children. She left school to help bring up her younger siblings. The plaintiff's first job was at Coles in Footscray, on the makeup counter. At the same time she attended Footscray Tech at night, studying typing and shorthand. The plaintiff then found work as a receptionist at Victa in Flinders Lane for about 12 months. She then worked at a variety store in Altona called Delmans.

8 The plaintiff married in 1967 and had four children (Donna, Kelly, Jamie and Shannon) born in 1967, 1968, 1970 and 1973. She separated from her husband in 1972, before the birth of her fourth child. In 1974 she met Mr Alan Norris, with whom she lived until June 2005 (although, as she conceded in cross-examination, the relationship with him was in difficulty in December 1999 prior to the robbery).

9 The plaintiff gave evidence that after her children were born she found a job as a barmaid and her mother minded the children while she went to work. She said that the first job she obtained was when Jamie was three weeks old. After that she was pregnant with Shannon. Her husband left when she was about four months pregnant. After she had Shannon, she went back to work approximately six weeks later. She said she had jobs at the yacht club in Williamstown, the Whitehall Hotel in Yarraville and McDonalds in Yarraville. She said she then had various jobs at timberyards and at hardware stores. She remembered working in McEwans, Barnett Brothers in Spotswood, and at Tradesmen's Entrance in Sunshine. She said she always worked until the robbery.

10 It is appropriate at this point to make some observations about the plaintiff. The plaintiff gave her evidence in a straightforward fashion. To my observation, she attempted to give an honest and accurate account of events as she recollected them. It might be said that there were occasions when the plaintiff was more dogmatic than she should have been. For example, there were occasions when the plaintiff denied in absolute terms an ability to go to certain places after the robbery, when further cross-examination ultimately elicited a partial concession. However, to the extent it might be suggested that the plaintiff exaggerated some aspects of her evidence, such exaggerations were, in my view, relatively minor - and more than adequately explained by the psychiatric injuries the plaintiff sustained as a result of the robbery (about which I will say more below).

11 Some criticism was made of the plaintiff's case on the basis of an inability to produce tax returns for the financial years before the robbery. So far as the years ended 30 June 1997 to 30 June 1999 were concerned, the plaintiff explained the absence of tax returns by saying that an accountant had been paid to do them at the time and that she had been let down by this accountant. It was put by the defendant that the absence of tax returns should cause me to view the plaintiff's evidence about her pre-injury work history with some (if not considerable) concern. However, I am satisfied that the plaintiff's pre-injury work history was, as she described it, virtually continuous and fulltime from the time when Shannon went to school in about 1978 until the time of the robbery in December 1999. While it is true that the plaintiff did not call any employer or co-worker as to her work history prior to the robbery, ultimately this has not caused me to reject the plaintiff's evidence on this issue. The plaintiff described a work history that seemed likely having regard to her background and circumstances. There was no evidence given to the contrary. Accordingly, I accept the plaintiff's evidence in this regard.

12 In approximately 1988 the plaintiff started the business ABCD Children's Wear in Hoppers Crossing. She was there for about two years. A second shop was opened in Werribee Plaza. Ultimately the business got into financial difficulties and the plaintiff went bankrupt. She then commenced employment at Witchery in Werribee Plaza. She started as the second in charge and then became the manageress. She was there for about three years. Subsequently she commenced employment at Melbourne University as an administrative staff trainer. She worked there for about five years during the mid-1990s.

13 In 1997 the plaintiff started another business. This was a business at Ocean Grove. It was a milkbar. The plaintiff worked from 7.00 am to 7.00 pm. Subsequently, a 24 hour supermarket opened next door and the plaintiff's takings dramatically declined. She attempted to change the nature of her business into an eat in and takeaway food shop. However, this business eventually failed. As a result, the plaintiff was forced to sell her house at Hoppers Crossing. In 1999 the plaintiff came back to Melbourne. She had a couple of jobs at takeaway shops and cafes. These jobs were part-time casual jobs. One job was at Routley's Bakery working three days a week from 12.00 noon until 6.00 pm. The plaintiff described this as a "cash job".

14 The plaintiff described one of her jobs in a café in 1999 as involving hours that she could not cope with (12 noon until 6.00 pm or 7.00 pm)[5]. She said she could not cope with these hours because of "finishing that late at night, going home, cooking dinner"[6]. At that time she was looking after grandchildren "now and again" (the plaintiff has four grandchildren, Jade, Brittany, Ebony and Brooke).

15 In September 1999 the plaintiff obtained employment with the defendant as a console operator. In the weeks leading up to the robbery she worked a standard shift of four days a week. However, she said the defendant "would always ask me if I wanted to work Sunday morning or if I wanted to work at another service station on a Sunday"[7]. She said she worked on average five days per week, taking home $500 net per week when she worked the extra shift. In cross-examination the plaintiff was shown a Workers Claim for Compensation[8] completed and signed by her on 17 January 2000. In this document the plaintiff has recorded her "gross base weekly wage at time of injury (excluding overtime and allowances)" at $400. However, in re-examination[9], the plaintiff claimed that the figure of $400 was "clear money after tax" - and only in respect of the standard four shifts.

16 The plaintiff tendered an Employer Claim Report completed by an employee or agent of the defendant and dated 2 February 2000[10]. In this document the plaintiff's "pre-injury average weekly ordinary time earnings" for 32 hours are recorded as $500. The defendant (now in liquidation) apparently has no wage records. I was not invited to draw any inferences in relation to any loss or destruction of the defendant's wage records[11], and nor is it appropriate to do so. From the evidence of the plaintiff, the plaintiff's Claim for Compensation[12] and the Employer Claim Report[13] it would appear that the plaintiff was in fact earning $500 gross per week, which was approximately $400 net per week for a standard four day week. However the plaintiff also worked an extra shift - probably at least as often as not.

17 The plaintiff commenced work at 4.00 pm on Friday, 10 December 1999. At 11.40 pm another employee, Jodie, arrived. He was to work the midnight to 8.00 am shift. At about 12.15 am the plaintiff was cashing up her register in the console area. Jodie had been sweeping the floors. He brought the broom back to where the plaintiff was and used it to prop open a self-locking door. By that time the robber must have entered the station. However, the plaintiff's first awareness of the robber was a voice screaming at her "Give me the fucking money. Do you want to see if this gun's real?" At that time Jodie was standing at the console with a brush and shovel in his hand and the plaintiff was behind him counting her money. The robber was wearing a mask. The plaintiff described it as a "black horror mask, like a gorilla - it was horrid - it was horrible". The robber was carrying a gun and a green garbage bag in his other hand.

18 The plaintiff's first thought was in relation to the door that had been propped open because, as she said: "I knew if he saw that he could get in there, that he would probably come straight away in there and demand the money out of the safe and it was impossible to give him the money out of the safe"[14].

19 The plaintiff described herself as being "beside myself". She went to kick the broom out and looked up, staring straight into the robber's face. She thought "Well, I have to do this" and she kicked the broom away and the door closed. During this time the robber was screaming and swearing and "carrying on that he was going to shoot us". The plaintiff said she walked back to go into the console and realised that if she did go in there "he may shoot me because he was drug affected and I know when they are drug affected they are likely to just shoot at the first thing that moves"[15]. The plaintiff instructed Jodie to give the robber the money. Jodie managed to do that. The robber was only three feet away. Jodie gave him the money. There was only $65 plus a $5 note, which when removed from the till activated an alarm and screen. The alarm and screen having been activated the plaintiff thought that the robber would take his money and go - at least that was what she hoped he would do.

20 The next thing the plaintiff could hear was screaming and shouting "Open these doors". The robber then started shooting. The plaintiff grabbed Jodie and they ran to a toilet at the back. The plaintiff's thoughts at the time were that if the robber was shooting at them the bullets would then have to go through two walls. The plaintiff could still hear the gun going off. She does not know how many shots were fired. It appears that the robber was shooting at the self-locking doors which had been activated when Jodie pushed a security button.

21 At the time the plaintiff could hear the robber yelling "Open the doors", she thought she was going to die. She thought she was never going to see her grandchildren again. She did not know why the robber had not left. She was not aware that the doors had been locked so that the robber was trapped inside. Eventually the robber shot his way out through the (supposedly) bullet proof glass next to where the security screen had come down. After a while, when there was no gunfire the plaintiff came out. She was then subjected to abuse from a customer who had been locked in the shop with the robber. She described the customer screaming in her face saying "You fucking idiots, you fucking idiots, you locked him in the shop with us, with me". The police arrived a short time later.

22 The plaintiff stayed at the service station until 3.00 am. She went home. At 5.00 am her son and her partner asked her whether she was going to bed. The plaintiff sat up until 7.00 am. On the Saturday a counsellor organised by the defendant had been arranged to see the plaintiff. However, the plaintiff did not want to see anybody. She said "I just cried all day in bed"[16].

23 The plaintiff was due to work at 4.00 pm on Sunday, 12 December 1999. The counsellor who had been arranged said he would meet her at the service station at 4.00 pm and would stay with her for half an hour. She was concerned about what it would be like at midnight when she closed. However, the counsellor said he was unable to stay with her for that length of time and accordingly the plaintiff did not work that shift. In fact, the plaintiff did not resume employment with the defendant.[17]

24 On the day following the robbery the plaintiff was seen by Dr Glaspole (at the clinic of her general practitioner, Dr Anderson)[18]. Subsequently Dr Anderson saw the plaintiff on seven occasions between 13 December 1999 and 14 February 2000. During this time the plaintiff received counselling and prescriptions of Temazepam, Maxolon and Zoloft. The plaintiff described herself as feeling terrible during this period and just wanting to stay home and not go anywhere. She also describes hearing the robber's voice screaming, seeing the gun and seeing the horror mask. She had nightmares (in her words "absolute nightmares"[19]).

25 During this period she consulted another GP, Dr Soffer. She first saw Dr Soffer on 16 December 1999. She also saw him on 3 February 2000, 11 February 2000, 11 March 2000, 10 May 2000, 13 July 2000, 17 October 2000, 27 December 2000 and 17 January 2001. During this time Dr Soffer prescribed Temazepam and Diazepam. However, according to his report[20] the plaintiff was primarily attending Dr Helen Sutcliffe for management.

26 Dr Soffer referred the plaintiff to Dr Sutcliffe (albeit that this may have occurred because the plaintiff obtained Dr Sutcliffe's name from a union). Dr Sutcliffe is an occupational physician. She commenced treating the plaintiff on 18 February 2000. She treated the plaintiff until 2005. At that point the plaintiff largely ceased medical treatment. She says that she ceased treatment (although she still attended a bulk-billing clinic from time to time) because WorkCover ceased paying her medical bills. She did not cease treatment immediately upon WorkCover ceasing to pay her medical bills. There was a period where her former partner (Mr Norris) paid for some treatment.

27 Dr Sutcliffe referred the plaintiff to a psychiatrist, Dr David Kruse. He first saw the plaintiff on 19 and 26 October 2000. He saw the plaintiff monthly after that. He trialled various medications. He treated her regularly up until late 2003. As at January 2003 he said he would have seen her "something like 20 times in total at that point"[21]. He also saw her on 29 July 2004 and 14 April 2005. Again, treatment with him appears to have ceased because of the plaintiff's inability to pay for treatment after payments under the Act were terminated.

28 Dr Sutcliffe also referred the plaintiff to a psychologist, Ms Treena Mossop. The plaintiff first Ms Mossop on 10 March 2000 and was treated on a regular basis thereafter. This treatment continued until 25 October 2004.

29 While the plaintiff never resumed her employment with the defendant, she made an attempt about four months after the robbery[22]. She said that this attempt caused panic attacks and she started crying uncontrollably. She described the panic attacks (which have been a problem since the accident - albeit not as severe a problem as they were initially) as "just like your whole body shuts down - you shake - you perspire - you sweat - you feel like you are going to die - you are going to have a heart attack". These used to occur at the rate of three a day but now occur less frequently and in a more mild form. Other serious issues for the plaintiff since the robbery include nightmares, flashbacks and (perhaps more importantly now) significant impairments of memory and the ability to concentrate. The plaintiff used to get occasional migraines before the robbery. These increased in frequency following the robbery.

30 In 2007 the plaintiff thought she would try to do something. She thought that if she found a job it might give her confidence. She described her self-esteem as "really shattered"[23]. She enlisted with an employment agency, Salvation Army Employment Plus. They found her a job at the Heathdale Community Centre. While the plaintiff described this employment as six hours a day, two days a week from November 2007 to June 2008, the pay records of the Heathdale Community Centre suggest the plaintiff started work in late September and worked hours ranging from nine hours per week to 25 hours per week - with the average being 15 hours per week. This employment was supported employment, in the sense that Heathdale Community Centre received funding for the plaintiff's wages. The plaintiff was employed as an administration support worker. The manager of the Heathdale Community Centre, Ms Kym Monohan, gave evidence. When asked how the plaintiff performed in this employment, Ms Monohan said, "Struggled significantly. Pat had trouble focussing and keeping track on the task. We struggled a little bit having to repeat things over and over and over again, and she never ever really got the idea of what it was we were doing, so it was a constant learning experience for her. We were always teaching her the same thing over and over. She got along with the staff really well, but there were numerous other tasks that she didn't really perform well over the period that she was with us"[24]. Ms Monohan said that this was the reason they had to let the plaintiff go (notwithstanding the fact that they told the plaintiff that the job terminated because there was no more funding - in reality the plaintiff's work performance was so poor, the board of the Heathdale Community Centre did not wish to apply for further funding to employ her). It is apparent from Ms Monohan's evidence, and also from the evidence of the plaintiff's granddaughter Ms Jade MacKenzie, that the plaintiff tried very hard to perform this work satisfactorily. However, the plaintiff blames her impaired memory and ability to concentrate (brought about by the robbery) on her inability to succeed in her employment at Heathdale. The evidence of Ms Monohan is clearly corroborative of this fact.

31 Following the termination of the plaintiff's employment at the Heathdale Community Centre, the plaintiff has not engaged in employment. She describes herself as "I don't have a life. I don't want to go anywhere. I don't want to go out of the house. It was an effort to go to my eldest granddaughter's 21st, but I pushed myself because she would have been heartbroken if I didn't". She describes her grandchildren as having been her saviour and if it had not been for them, she had "thoughts of ending everything". For some years she has had grandchildren living with her. This relates to a drug problem one of her daughters has had for many years. These circumstances are some of the matters relied upon by the defendant to contend that whatever psychiatric condition the plaintiff has suffered from (or continues to suffer from), the same was not necessarily caused by the robbery. Indeed, the defendant submits that any psychiatric condition from which the plaintiff suffers was likely caused by other significant stressors in the plaintiff's life.[25]

32 The plaintiff sees herself as someone who is now unable to hold down a job because of her memory and concentration levels. She receives treatment from a local bulk-billing clinic. She still has panic attacks - although she describes them as "mild panic attacks". She says that besides having her grandchildren she has no satisfaction or joy in life. An attack was made on the plaintiff's credit, both generally and by reference to some hours of film taken of the plaintiff on 12 days[26] during the nine and a half years since the robbery[27]. While it is true that on occasions the plaintiff said in absolute terms that she did not do some of the activities shown in the videos (for example, shopping), I do not regard this as significant in the context of this case. Even after being shown film of the plaintiff shopping and having it put to her that it was incorrect to convey to the jury that she did not go shopping at all, the plaintiff said "No, I don't go shopping at all now because I can't afford it"[28]. This was no attempt to mislead the Court. Rather, it was simply an emphatic way of describing the plaintiff's impaired function as she perceives it. In my view the plaintiff gave reasonable and understandable explanations of the circumstances in which she was shown in the films (largely shopping and walking around and not appearing to be particularly happy)[29]. Having considered the plaintiff's background and circumstances and having observed the plaintiff closely in the witness box over the three days on which she gave evidence, I formed a favourable impression of her as a witness. Such attack as was made on her credit was not made out in any significant way. The plaintiff made appropriate concessions and appeared to be doing her best to give honest and accurate answers. I turn now to consider the medical evidence.

33 Dr Kruse's evidence was that the plaintiff suffered a moderately severe post traumatic stress disorder which was directly attributable to her experience in the armed robbery. He also expressed the view that the plaintiff suffered from a range of symptoms characteristic of a moderate co-morbid depression. In his report dated 15 January 2003[30] he said:

Unfortunately Ms Norris' quality of life has been significantly affected [by] the workplace traumatic experience and the resulting psychiatric disorder. She struggles to manage the demands of domestic life, and at times even the requirement to attend for medical review or psychological treatment can be overtaxing.

With Ms Norris' current and persisting level of post traumatic and mood symptomology, her prospects and capacity with regard to retraining or return to employment remain significantly impaired.

34 In his report of 5 May 2005[31], Dr Kruse said:

I would also comment that, in her current condition, Ms Norris would not have the capacity to function at the level she used to, so that her pre-injury history of 'transferrable skills' and adaptability cannot be presumed to persist. She would be quickly overwhelmed and distressed by exposure to interpersonal demand or hostility (eg. call centre or front of house/reception-type work). Her difficulties with concentration and memory would affect performance in jobs with complex demands or need for precision or organisation.

Should some form of non-demanding employment be identified, it is likely that Ms Norris' reliability as a worker would be affected by unpredictable fluctuations in her condition.

35 In his final report[32], Dr Kruse said:

It remains my opinion that Ms Norris does not have the capacity to return to her pre-injury forms and levels of employment. She also has a reduced capacity to consistently cope with the demands of retraining or deal with stressful, populace or exposed environments.

36 Dr Sutcliffe, in her reports[33]and evidence, expressed the view that the plaintiff developed a post traumatic stress disorder with associated depression and anxiety as a result of involvement in the armed robbery. Further, Dr Sutcliffe's opinion is (and has been) that the plaintiff has no capacity to undertake employment. Additionally, the plaintiff's failure to sustain her employment at the Heathdale Community Centre was a matter that supported the view that the plaintiff has no capacity to undertake employment. Indeed, Dr Sutcliffe's opinion was that the plaintiff has not had any capacity to perform proper employment since the robbery. When asked whether all of the plaintiff's symptoms were "self reported", Dr Sutcliffe said:

They are self reporting but I also observed how she could not concentrate, how her memory was poor at each interview that I had with her, and how she was so anxious. I remember at one stage she was so anxious she was shaking, having an absolute panic attack -in fact, it was more than one occasion - and trembling and overwhelmed by - feeling faint at the time and it's quite clear that that's the panic attack in process and that was observed on more than one occasion.[34]

This evidence of Dr Sutcliffe was clearly corroborative of the plaintiff's evidence, which I accept.

37 The reports of a consultant psychologist, Ms Treena Mossop, were tendered[35]. While Ms Mossop initially expressed the view that she was not "legally able to comment on impairment and hence permanency", in her latest report[36], she said:

I remain of the opinion that the emotional and psychological symptoms Pat Norris has suffered since the time of the armed hold up in 1999 have continued to impact [on] her capacity for employment. The evidence I have reviewed from the Heathdale Community [Centre] supports this opinion and it appears that she has been unable to learn the duties required of her, or to execute duties [for] which she had previously considered herself capable.

...

I formed the opinion that Ms Norris suffers from a mild to moderate major depressive disorder ... for which she is currently medicated ... Ms Norris remains significantly impaired with respect to mood, cognition, social and occupational functioning.

38 The defendant tendered reports from three psychiatrists, Dr Dush Shan[37], Dr Paul Kornan[38] and Associate Professor George Mendelson[39]. It also tendered a report from a gastroenterologist, Dr Andrew Jakobovits[40]. However, this report is of no great significance, it merely recording a history given by the plaintiff of a cholecystectomy for gall stones when the plaintiff was 25, a "prolapse repair" and a diagnosis of reflux oesophagitis in approximately 1994. While the defendant relies upon these matters as being capable of having an impact on the plaintiff's earning capacity even if she had not been involved in the robbery, there is no real evidence that these matters would have caused any significant disruption to the plaintiff's ability to earn income. However, it is to be noted that Dr Jakobovits did conclude that the robbery aggravated the plaintiff's underlying condition. He was of the impression that "her symptoms of reflux oesophagitis [had] probably been a little worse over the last two years [up to 29 November 2001] but not dramatically so and her symptoms [did] seem to correlate reasonably with the level of stress that she [was then] under".

39 Dr Dush Shan saw the plaintiff on two occasions, namely 18 July 2000 and 29 November 2004. His report of 29 November 2004 records that he saw the plaintiff for 30 minutes on that day. He has not seen the plaintiff since November 2004. In his report of his first examination he expresses the view that the plaintiff is capable of working a few hours each day at the service station on the day shift and initially not working in customer service. In his second report he expresses the opinion that the plaintiff is exaggerating her situation. In that report he expresses the opinion that the plaintiff has no incapacity for work and is fit for pre-injury duties. In his first report he makes the statement that he would expect that if the plaintiff was the owner of the petrol station instead of an employee "she would be considerably motivated to overcome any residual fears". Dr Sutcliffe described this statement as "patently stupid". While that is not necessarily the characterisation I would make of Dr Dush Shan's statement, I found his opinions to be of no great assistance. Clearly Dr Dush Shan has spent very little time with the plaintiff, seeing her on only two occasions (as compared with multiple consultations by the plaintiff's treating doctors over the years following the robbery). Further, his second consultation was very brief.

40 Dr Kornan saw the plaintiff on only one occasion, namely, 5 May 2004. He expressed the opinion that the plaintiff presented with a phobic anxiety state with some PTSD features and some depression. However, while acknowledging that the plaintiff was "sensitised to working as a service station attendant", he said she could do other employment. Further, he expressed the opinion that there were non-work related factors at work, namely the fact of the plaintiff's bankruptcy, loss of life savings, the longstanding problem with the daughter with a drug addiction, the responsibility of raising grandchildren and coping with the emotional loss of her own mother some years ago. His concluding views were:

Thus there is enough in her life to really explain some or all of her psychiatric symptoms regardless of this most regrettable incident.

In my opinion, a significant percentage of her psychiatric difficulties ... stem from personal factors in her life, and those personal stressors over the years.

...

I think it unlikely that she will admit improvement whilst litigation matters are proceeding. I would expect however that she would return to the workforce quite clearly once litigation is over if motivated to do so.

41 Whether or not there are other life factors which might be capable of explaining the plaintiff's psychiatric symptoms, the question is whether the robbery (or more particularly the admitted negligence of the defendant) was a cause of the plaintiff's condition. Again, the opinion of Dr Kornan suffers from the fact that he has only seen the plaintiff once in a nine and a half year period. Further, there is no satisfactory explanation or basis for the conclusion that the plaintiff will return to the workforce "once litigation is over if motivated to do so".

42 Associate Professor Mendelson saw the plaintiff on three occasions, namely 28 February 2005, 22 May 2008 and 29 January 2009. In his first report he said that it was his view that the plaintiff would not be able to return to her pre-injury employment or work in which she was at risk of further involvement in an armed robbery. However, he said there were some positions which she could undertake[41]. In his reports Dr Mendelson noted histories in relation to a frozen shoulder and arthritis affecting the plaintiff's right knee, left hip and left shoulder. Following his final examination he said:

[I]t remains my opinion that Ms Norris does have the capacity for suitable employment, but that it would be inadvisable for her to return to work in her pre-injury position or in any other position where there might be a likelihood of her becoming again involved in an armed robbery.

In my view Ms Norris could be described as experiencing some symptoms of anxiety as well as depressive symptoms, but in my view these symptoms at the present time do not meet the formal diagnostic criteria for any specific type of mental disorder. Thus, I consider that currently Ms Norris shows no indication that she is mentally ill or suffering from any specific psychiatric disorder, although as I have indicated above she does experience some anxiety and depressive symptoms.

Following today's re-examination it remains my opinion that Ms Norris has the capacity for suitable employment, but it would be inadvisable for her to work in an environment where there is any risk of armed robbery as this would be likely to exacerbate her symptoms of anxiety.

44 As is apparent from the brief descriptions I have given above of the plaintiff's medical evidence on the one hand and the defendant's medical evidence on the other hand, there is a substantial difference of opinion between those called on behalf of the plaintiff and those from whom the defendant has tendered reports. The opinions of the plaintiff's treating doctors have been formed over the years after considerable numbers of consultations. The difficulty for the defendant is that its experts have, by comparison, seen the plaintiff on very few occasions. Further, much of the opinion evidence is dependent upon what the individual treater or examiner makes of the plaintiff. That is, whether the doctor accepts the plaintiff's account or whether the doctor is sceptical for one reason or another. Having seen the plaintiff give evidence over the days she was in the witness box I formed the view (for the reasons already given) that her evidence should largely be accepted. A point made by the defendant is that the plaintiff cannot be as psychiatrically disabled as she claims because she has kept up her appearance and wears makeup. Doctor Sutcliffe disposed of this suggestion by referring to the difference between psychotic patients and those with other psychiatric conditions. Further, Dr Sutcliffe was able to recall one occasion when the plaintiff "arrived with her hair not neatly done and with her makeup not done, shaking and overwhelmed with the anxiety of the situation"[42]. In the end, for the reasons given above, I prefer the opinions of the plaintiff's treaters rather than the defendant's medico-legal experts[43].

45 While further attacks were made by the defendant on the plaintiff's witnesses on the basis that they did not perform or record formal mental state examinations, these attacks were without substance in the context of this case. I accept that both Dr Kruse and Dr Sutcliffe performed appropriate examinations during the periods during which they treated the plaintiff and that these examinations and their observations were capable of leading to (and did lead to) the conclusions they reached[44]. The defendant also sought to make something of the fact that Dr Sutcliffe was not a qualified psychiatrist. However, Dr Sutcliffe is an occupational physician with post-graduate qualifications in medical science with honours, a Graduate Diploma of Occupational Health, a Diploma of Medicine in Pain Medicine and a Fellowship of the Australasian Faculty of Occupational Medicine. In my view she was well qualified to give the opinion she gave concerning the plaintiff's condition and her capacity for employment.

46 For the reasons given above I find that the plaintiff sustained a post traumatic stress disorder with attendant anxiety and depression and that this condition has had a severe and major impact on both the plaintiff's personal life and her work capacity. Panic attacks and serious impairments of memory and concentration have (and remain) features of the plaintiff's condition together with flashbacks, feelings of fear and nightmares. The negligence of the defendant was a cause of these injuries. The plaintiff has been unemployable since the robbery[45]. I also find that the plaintiff's condition and unfitness for employment is likely to persist for the foreseeable future. The plaintiff gave evidence that she would have worked to age 65 or 67 "whatever the retiring age was".[46] In my view it was likely that the plaintiff would have worked to age 65. Accordingly I propose to calculate her pecuniary loss damages on that basis.

47 The plaintiff's claim for pecuniary loss damages contains the following elements:

- employer funded superannuation from contributions that would have been made in the past

- employer funded superannuation from contributions that would have been made in the future

- Fox v Wood[47] damages, the quantum of which is agreed between the parties at $8,500.

48 Consistently with what I have said above, the plaintiff has suffered a total loss of earning capacity from 11 December 1999. Of course, credit must be given for the earnings the plaintiff received in her employment at the Heathdale Community Centre[48]. The plaintiff tendered a report from Cumpston Sarjeant, consulting actuaries[49]. In that report the plaintiff's past loss of earnings have been arithmetically calculated on the bases of two scenarios: first, on the basis that the plaintiff was earning $500 gross per week at the time of the robbery; and secondly, on the basis that the plaintiff was earning $500 net per week at the time of the robbery. The amounts the plaintiff would have earned were then calculated by indexing the original amounts by reference to an Australian Bureau of Statistics publication concerning average weekly earnings for Victorians. The amount of the plaintiff's net earnings from the Heathdale Community Centre were then deducted. Performing these calculations one arrives at a figure for past loss of earnings in the sum of $244,776 (premised on an original gross weekly wage of $500) or $310,256 (premised on an original net weekly wage of $500). These figures assume the plaintiff would have worked fulltime from the date of the robbery to date.

49 Cumpston Sarjeant (or more specifically Mr Hugh Sarjeant[50]) then calculated superannuation using the method described by the New South Wales Court of Appeal in New South Wales Ministerial Corporation v Wynn[51] by attempting to work out the loss of superannuation benefits the plaintiff would ultimately have received but for her injuries and reducing that amount to a present value at the date of trial. However, such a calculation in the present economic climate involves a number of doubtful assumptions - not the least of which is the likely performance of superannuation funds over the next five years. In the circumstances the parties were agreeable to me calculating any loss of superannuation benefits by reference to the employer's contribution of 9%. That is, it was agreed that the amount of 9% of the plaintiff's gross weekly wage should be added to any net weekly loss I find the plaintiff has sustained[52]. Indeed this was the approach taken by the defendant. Adopting this approach, assuming the plaintiff was earning $450 gross per week and adopting wage rates set out in the reports of Heron Assist[53], the defendant calculated (on an arithmetic basis) the amount the plaintiff could have earned in full employment from the date of the robbery to date at $251,189. The defendant then submitted that the plaintiff should only receive 40% of this amount. This submission was made on the basis that the plaintiff would have only worked for the equivalent of 40% of fulltime work even if she had not been injured.

50 The plaintiff has satisfied me that when working a four day shift she was earning $500 gross per week and that in the weeks when she worked an extra shift she was earning $500 net per week. Doing the best I can, I conclude the plaintiff would have worked an extra shift 50% of the time (that is, every second week) - at least for the period up to when the plaintiff turned 60 (that is, up to now). It follows that the plaintiff has satisfied me that her past loss of earnings (if calculated simply on an arithmetic basis and assuming that the plaintiff would have worked fulltime) is a figure midway between $244,776 and $310,256. For her loss of employer funded superannuation arising from her past loss of earnings, it would be appropriate to add a figure of a little more than 9% of the net loss - remembering that the 9% contribution falls to be calculated on gross wages rather than net wages.

51 While the defendant suggested that whatever figure I arrived at for past loss of earnings and past loss of superannuation should be discounted by 60% to reflect the plaintiff's work history, the other stressors in her life and her other health problems and risks, the plaintiff submitted that no such discount should be made. In the end I have concluded that it would be appropriate to discount the plaintiff's past economic loss or chances that she would have been unemployed or unable to engage in employment for non-work related matters by 10%. If one picks the middle of the range between $244,776 and $310,256 (as in my view is appropriate) and adds 10% to take account of the plaintiff's superannuation loss[54] and then discounts this figure by 10%, the plaintiff's past loss of earnings and past superannuation assesses at approximately $274,000[55].

52 Whilst in respect of the past I concluded that the plaintiff would have worked an extra shift 50% of the time, in respect of the future I am not prepared to make that conclusion. I think it is likely that some time shortly after the plaintiff turned 60 she would have been more inclined to work shorter hours (four shifts per week). So far as the plaintiff's future loss of earning capacity and future loss of superannuation is concerned, I accept that if the plaintiff was now working she would be earning $645 net per week[56]. Adding 9% of what would be the gross weekly wage ($753) produces a net weekly loss of $712. The parties were agreed that the multiplier to age 65 is 224.1. For the reasons already given I find that but for her injuries the plaintiff would have worked until the age of 65. In relation to her claim for the future, it is appropriate to discount this claim for the vicissitudes (again including the prospect that the plaintiff would not have worked fulltime throughout the period) by 15%. The plaintiff's loss of future earning capacity and future superannuation is therefore $136,000[57].

53 It follows from what I have said above that the plaintiff's Fox v Wood claim will be allowed in the amount of $8,500. Accordingly the plaintiff's pecuniary loss damages assess at $418,500.

54 The effects of the injuries the plaintiff sustained as a result of the robbery have been severe over the last nine and a half years. She has suffered from the condition and symptoms which I have already described. Her suffering has been severe. While a theme of the defendant's submissions appeared to be that the consequences of the plaintiff's injuries were not severe, in my view they have had a major and dramatic effect on almost all aspects of the plaintiff's life. As her granddaughter (Jade MacKenzie) described it, prior to the robbery the plaintiff was "awesome and fun and always there emotionally". Whereas, following the robbery the plaintiff never got back to being the "fun nan" that she had been. I accept, as a fair description of the effects of the robbery, the plaintiff's evidence "I don't have a life. I don't want to go anywhere. I don't want to go out of the house". The video and DVD films of the plaintiff do not cause me to doubt the truth of this evidence, or the evidence of the plaintiff's treaters.

55 The defendant submitted that an appropriate allowance for pain and suffering damages was $70,000. The plaintiff submitted that an appropriate allowance was $325,000. In my view the range is $180,000 to $220,000. In the circumstances I propose to award $200,000.

56 I should note for the sake of completeness that I have not relied upon the estoppel created by the judgment of Judge Dove in making the findings and conclusions set out above. Further, while some of the evidence tendered in this trial might be regarded as irrelevant because of the existence of the estoppel[58], I received all of the evidence the defendant wished to tender and considered it without reference to the existence of the estoppel[59].

(a) The plaintiff's pain and suffering damages are assessed at $200,000.

(b) The plaintiff's pecuniary loss damages are assessed at $418,500.

58 It follows that the plaintiff is entitled to judgment in the sum of $618,500 reduced by the total of the amounts paid to her referred to in s 134AB(25). Further, the plaintiff is entitled to an amount for interest[60]. I will hear the parties on the question of interest, the precise form of the judgment and on the question of costs.

[1] This was the time the application before Judge Dove was heard (see s 134AB(38)(j)).

[2] See Norris v Brumar (Victoria) Pty Ltd) [2009] VSC 214.

[3] See for example T101.23-.27, T103.29-104.2, T104.14-.17, T178.26-.31 and T180.13-.14.

[4] This led to a significantly shorter trial than would have been the case had the jury not been discharged - with an attendant reduction in costs.

[11] Cf The Ophelia [1916] 2 AC 206 and CE Heath Underwriting and Insurance (Australia) Pty Ltd and anor v Daraway Constructions Pty Ltd (unreported Batt J delivered 3 August 1995).

[17] Save for an attempt which I will refer to below.

[18] See the report of Dr Anderson, which is Exhibit J.

[25] For example, the plaintiff's daughter's drug problem, the plaintiff's son's medical condition, the episode involving the plaintiff's granddaughter (described by senior counsel for the defendant in his address as "the episode in 2008"), the various financial difficulties the plaintiff has found herself in from time to time, the relationship difficulties the plaintiff experienced with Mr Norris and the effect of the deaths of close family members (the plaintiff's younger brother and the plaintiff's mother).

[26] 8 June 2004, 29 November 2004, 10 March 2005, 12 March 2005, 10 May 2005, 12 May 2005, 23 July 2005, 24 July 2005, 4 June 2008, 23 June 2008, 22 October 2008 and 23 October 2008.

[27] Indeed it would appear that surveillance was undertaken of the plaintiff on 40 days during this period.

[29] The film of the plaintiff playing a poker machine between 1748 and 1803 on 23 October 2008 was adequately explained by the unique and extremely unfortunate circumstances of that day.

[32] Dated 20 May 2009 and part of Exhibit I.

[41] Some of these were discussed in a report by Heron Assist dated 15 March 2004 - part of Exhibit 9.

[43] The strength of this conclusion is not diminished by the fact that the final examinations of the plaintiff's treaters were organised by the plaintiff's solicitors.

[44] So far as Dr Sutcliffe is concerned, see generally the cross-examination of her in relation to the undertaking of mental state examinations, where she said (at T335.7-.18) that she did undertake mental state examinations although "at times, not always, because as I said, when people present in an absolutely incoherent manner they can't answer many of the questions that you put to them, and I do tend to go through - over time I build up the diagnosis unless it is absolutely clear. To have someone undertake a formal mental state examination including a cognitive assessment, you have to have someone who is concentrating enough to answer your questions but when someone is in tears and distraught during the first visit it's often built up over some time" - this was clearly a reference to the plaintiff's first visit and subsequent visits.

[45] Notwithstanding the employment the plaintiff was able to attend at the Heathdale Community Centre - remembering that such employment was performed unsatisfactorily.

[48] Both parties conducted this case on the basis that the plaintiff's net earnings at the Heathdale Community Centre were $8,944. However, on my reading of Exhibit 4 (the Heathdale Community Centre wage records) it would appear that the true net figure was $8,249.

[51] Unreported New South Wales Court of Appeal decision delivered 11 August 1994 (see also Wynn v New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 494).)

[52] Endorsement for this approach can be found in Zorom Enterprises v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354 at [57] - [67].

[53] Exhibit 9. See in particular pp 9 and 10 of the report dated 24 July 2007.

[54] One cannot be too precise about these calculations. While adding 10% to a net figure to take into account the plaintiff's superannuation loss on past contributions might involve a small underestimation of the plaintiff's actual loss, this is as likely as not counterbalanced by assuming that the plaintiff would work an extra shift every second week for the whole of the past period (nine and a half years).

[55] ($244,776 + $310,256) ÷ 2 = $277,516. $277,516 + 10% = $305,267.60. $305,267.60 - 10% = $274,740.84.

[57] In this case I rounded the figure up to the nearest $1,000, whereas with respect to the claim for the past I rounded the figure down.

[58] See for example the second report of Dr Dush Shan wherein he expresses the opinion that as at 29 November 2004 (eight months before the hearing before Judge Dove) the plaintiff had no incapacity for work and was fit for pre-injury duties (there being no suggestion that any real recovery occurred during that eight month period).

[59] Looking at the evidence afresh on the basis that the estoppel operates to the extent set out in paragraph 3 above, I would arrive at the same conclusions and assessments of pain and suffering damages and pecuniary loss damages as those set out above.

[60] Pursuant to s 60 of the Supreme Court Act 1986 - but in accordance with s 134AB(34) of the Act.

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (100 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)