Plaintiff v Defendants

Plaintiff v Defendants - [2008] VSC 150 - VSC 2008 case summary — Zoe

[94]

14 Mr Gorton submitted that the Panel acted on the basis that the (present) plaintiff agreed "the initial event" occurred as alleged by the fifth defendant. The initial event was not defined but the Panel's reasons suggest that it involved the Customs interview and consequent extreme distress, inability to sleep, shock and being overwhelmed. The plaintiff disputed that the fifth defendant's reaction to the Customs interview had any continuing effect on the fifth defendant and asserted that she refused counselling on two occasions, attended her general practitioner two days later and did not mention the Customs interview or her reaction to it when discussing her emotional problems. She did not complain of emotional problems relating to the Customs interview in thirty-five visits to her general practitioners in the next 2 ½ years. The Panel has not given consideration to the fifth defendant's conduct inconsistent with her complaints. If it has considered that conduct it has given no reasons to explain why it was disregarded. The Panel considered the "nature of the worker's employment" and the "stressors which arose in the course of her employment" in reaching its conclusion. The Panel has not identified what factors comprise those two considerations. The fifth defendant identified various stressors in the section 65 (6A) Statement and in the plaintiff's submission. Those stressors were alleged to include stresses of long hours, fatigue and inter personal difficulties with staff members. The plaintiff made submissions to the Panel, supported by statements from seven witnesses said to have stressed the fifth defendant. Each witness disputed her version of events. The plaintiff disputed suggestions by the fifth defendant concerning long hours, lack of sleep, loneliness and jet lag. Details of her duties and rostering were supplied to the Panel in the plaintiff's submission. The Panel has not identified the work characteristics and stresses it based its opinion on. It has not had regard to the evidence which disputes work stresses affecting the fifth defendant. If it has considered the plaintiff's submissions it has given no reasons to explain why those submissions and facts were disregarded. Finally, it is not apparent, not can it be inferred, that the Panel has given proper consideration to the plaintiff's submissions. A statement that the submissions have been considered without any reference to relevant individual parts of the submission, and without any explanation as to why the submissions did not effect the outcome of the Panel deliberations, cannot lead to the conclusion that any or any proper consideration has been undertaken.

[96]

16 As I have said, I have read all the material which the Panel stated in its Schedule of Attachments it had taken into account in forming its Opinion. There was a gulf between what the fifth defendant alleged and what the plaintiff's witnesses alleged as to numerous incidents, their causes and their sequaelae. The data has helpfully been reduced by the plaintiff's practitioners to a schedule (placed on the court file) of six areas. The high watermark of difference in my view is the matter in which the fifth defendant asserted that she was humiliated by having to "spend 1 ½ hours on my hands and knees in a rubbish bin looking for a piece of plastic we did not need" (her statement page 11) when in fact the piece of plastic was a passenger's credit card thrown away by the fifth defendant (statement of Ms K Okely 8 March 2006: page 1; and in a 25 minute search: page 2). Many other differences may fairly be said to be differences of opinion or perception. Mr O'Loghlen, who with Mr McDonald appeared for the fifth defendant, before me relied upon the report of Dr V Botvinik, psychiatrist retained by the plaintiff, of 17 August 2005 that the fifth defendant was "suffering from symptoms of major depression" (page 8) and that the heroin search episode on 27 July 2002 "was the trigger for the current depression" (page 8). He stated that "we are dealing with a combination of pre-existing depression, which has been currently triggered by her employment as a long-haul flight attendant" (page 8). He further stated that the injury sustained from the heroin search episode "significantly contributed to (her) pre-existing condition" (page 9). To that submission, Mr Gorton replied that Dr Botvinik made his diagnosis on the basis of the truthfulness of the history given to him by the fifth defendant ("I do believe that she presented as a decent and honest person and I personally did not have any reason to mistrust this worker" - page 9) and that he did not have the substantial countervailing material as to the fifth defendant's credibility which the Panel had before it. In the end, having reviewed all the material as to reasons (not as to merit) the bedrock has not shifted: the demonstrated trauma of the 27 July 2002 heroin search incident. And the plaintiff does not dispute that incident. It is stated in graphic detail at pages 2-7 of the fifth defendant's witness statement. In it she set out how at the conclusion of her first long haul flight with the plaintiff she was isolated and extensively detained by Customs and her belongings searched for heroin and then released with an apology. As to the chronological contention of the plaintiff (that the fifth defendant did not manifest symptoms or complaints early to her general practitioners), the conditions found by the Panel are developmental, not immediate.

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Judgment (117 paragraphs)

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Legislation Cited (5)

Cases Cited (6)