T (by her Litigation Guardian, her mother) v Return to Work Corporation of South Australia [2025] SAET 27

1. Much of the background information and medical treatment received by the Applicant is uncontroversial. Where controversy arises as to the causes of the Applicant's condition this will be discussed in considering the lay evidence.
2. The Applicant has an extensive history of some degree of psychological illness, although the information concerning diagnosis and symptoms is sparse. Medical notes[2] from the practice of the Applicant's former general practitioner, Dr J, reveal that at least from 12 July 2001 the Applicant was regularly being prescribed antidepressants of various kinds.
3. The Applicant's mother says that in approximately the late 1990s the Applicant was diagnosed with obsessive compulsive disorder. The Applicant confirmed in her evidence that her regular general practitioner in the regional town, Dr J, had been prescribing antidepressant medication for some time prior to 2010 and even when she was living in Adelaide as a student. The medical notes may point to some temporary gaps in prescriptions for antidepressants but it is not clear whether there were repeat prescriptions or whether prescriptions were obtained from another source.
4. In his evidence to the Tribunal Dr J said that the notes which formed Exhibit R7, with respect to early dates, were just a summary representing a time when information was transferred to a computer system from written notes. His recollection was that a prescription for Luvox on 12 July 2001 was a continuation of treatment from either a specialist or a previous doctor as he did not normally prescribe Luvox as a first-line treatment.[3] The antidepressants were prescribed for anxiety, depression and a primary diagnosis of obsessive compulsive disorder.
5. Even using the date of 12 July 2001, the Applicant was at that time only 13 years of age but in receipt of antidepressant medication and possibly even before that date. Dr J made somewhat cryptic references to the Applicant being treated by a Dr Cockington who was a paediatrician and the Director of the Women's and Children's Hospital looking after complex problems.[4]
6. Despite these difficulties the Applicant proved to be a good student, she moved to Adelaide to attend the University of Adelaide in about 2007, eventually graduating with a double degree in psychology and social work.
7. Unfortunately whilst at University in early 2008 the Applicant was sexually assaulted.[5] Following this assault, as might be expected, the Applicant was treated by a psychiatrist with antidepressant medication. According to the Applicant's mother she moved home after the assault and after three to four months had recovered to the point where she was able to move back to Adelaide and complete her studies.
8. The general practice notes also make reference from time to time to psychological symptoms, for example a note made on 25 July 2011 "? anxiety attacks"; "better if she is on her own", reference to seeing a psychologist in various notes October 2011; "anxiety during anniversary of attack" on 9 May 2012, reference to depression after recent death of grandparents, 16 October 2012. On 21 May 2013 there is a note relating to anxiety level as high and taking 300 mg of Effexor antidepressant. There is a reference to a panic attack on 17 June 2013 and to compulsive behaviour and panic attacks on 9 July 2013. On 30 June 2014 there is note that the Applicant fainted at work, had central chest pain. From time to time there was reference to mood swings.
9. In around 2012 the Applicant was diagnosed with epilepsy. She was diagnosed after focal seizures with impairment of consciousness and treated by Associate Professor Andrew Lee, neurologist.[6]
10. The Applicant's epilepsy condition seemed to be controlled with medication and after a period without seizures she was able to resume driving a motor vehicle from September 2015.[7]
11. The notes also allude to a diagnosis of essential tremor treated by medication.[8]
12. Some time in 2011 the Applicant commenced employment with what I will describe as a youth services organisation working with troubled young people in various schools in the region. She continued with this work until February 2019. The Applicant says that this job took a toll on her emotionally, that she sometimes felt helpless when attempting to assist the young people and sometimes she felt scared. She also said that she was bullied by fellow workers. These matters are controversial and I will return to them later in this judgment.
13. Events immediately following the incident on 1 February 2019 and the course of treatment are not controversial.
14. The youth organisation employing the Applicant operated in the region of South Australia where she resided. Unfortunately this organisation, which sounds as though it may have been an incorporated association, has been wound up or put in administration. There was no direct evidence from the employer presented in the case. There is a worrying lack of evidence about the circumstances of the Applicant's employment, but it seems to be accepted that the Applicant was one of a number of people, mostly women, working with troubled teenage students in various regional schools. The organisation had an office base, but the Applicant says much of her time was spent driving to schools in the region and having direct contact with these students and mentoring them, attempting to engage them with various programs that might be of assistance to them.
15. In summary the Applicant complains that she found the job stressful, tiring, at times the troubled students engaged in frightening violent behaviour, she had an excessive workload, she felt disappointed that her efforts to assist the young people were often unsuccessful and that she felt bullied by others at work, in particular managers or other workers who I will refer to as B, M and C, all women.
16. Despite these difficulties the Applicant remained in that employment until her last day at work, 1 February 2019. The events of that day do not seem to be controversial although the source of the information is not always clear.

1. The Applicant's mother made an injury notification call to the Compensating Authority's agent on 26 February 2019, presumably based on what she had been told by her daughter. The injury was described as concussion caused by the Applicant hitting her head on the edge of a car door. She had arrived back from a meeting on that day and was in the staff car park. She bent over to pick up something that she had dropped and hit the right side of her head on the car door. It appears there were no witnesses to this event. However, B her manager, had made a similar telephone injury notification on 14 February 2019.[9] It is not clear whether these details came to B from the Applicant or her mother.
2. The Applicant herself said in her affidavit of evidence that she could not remember much from the day that she banged her head at work. Her affidavit continues, apparently on the basis of a reconstruction based on her usual practice. She says:
   1. I know that I was travelling in my car to see troubled students and would, as I always was, stressed before seeing them, and even more stressed after I had met with them.
   2. I would have travelled back in the car and would have been thinking specifically about the issues that had been raised. I would usually go over and over things in my head when I was driving and it did make me feel sick sometimes.[10]

I found these remarks very revealing on the question of causation.

1. The Applicant's mother is her litigation guardian in respect of these proceedings. Her mother says she was appointed as such because the Applicant was not able to effectively instruct her solicitors in relation to the litigation because of her psychiatric condition. Included in the evidence was an order from the South Australian Civil and Administrative Tribunal, being an administration order under the Guardianship and Administration Act, s 35 naming the Applicant's parents as full administrators of her estate.[11] This may well explain deficiencies in the Applicant's affidavit of evidence, which is very brief and lacking in important detail.
2. The Applicant did give oral evidence over two days. The Applicant was sometimes distressed during the giving of evidence and on two occasions her evidence was interrupted by what I can only describe as the Applicant suddenly starting to wail, very loudly, at which point her father who was present in the Court would run to her to comfort her. Eventually she would calm down and the trial could resume. On other occasions there were significant pauses before she commenced an answer or part way through an answer. She sometimes apparently had difficulties in finding words or expressions that were appropriate.
3. By the time the Applicant gave oral evidence she said she had remembered a lot more about the day that she hit her head. She said that this was a Friday and she was the only one who worked on Fridays. She had been at a school, purchased something to eat from a café. It was "3.00 or something"[12] and she had not eaten. When she got back to the car park she had lots of folders. She got out of the car, walked around and started to pick up folders from the seat next to her and dropped her pen. She bent down to pick the pen up and slammed her head on the corner metal part of the car door. She said it really hurt and her neck hurt too. She said she was a bit dazed and grabbed her things. She said that when she got home she rang her father to tell him she would not be there for dinner and she then slept.
4. How it is that on 1 July 2022, the date of her affidavit, the Applicant could have no memory, but at trial on 8 February 2023 she did, was not explained other than by reason of her fluctuating mental condition. On occasion I thought her memory lapses were strategic.
5. The narrative is then taken up by the Applicant's mother in her affidavit evidence.[13] The Applicant's mother says that the day after the incident the Applicant came to the family home at about 10:00am saying that she thought she had concussion and that her head hurt. The Applicant's mother said that she felt her head and there was a swelling. The Applicant's mother believed that the Applicant was not well and was concerned that she was going to have an epileptic seizure. She then witnessed a very strange episode, the Applicant seemed possessed, she lunged forward, was making deep animal-like noises, her eyes were bulging and her tongue was hanging out. She was vomiting. An ambulance was called and the Applicant was taken to the Emergency Department at the local hospital. She kept making high-pitched noises and was not communicating.
6. The Applicant's neurologist, Associate Professor Lee, was contacted and she was flown to the Royal Adelaide Hospital but released later that night. On 5 February 2019 her family took her home. A local doctor gave her a sick certificate for a week. The Applicant's mother says that after a week of rest the Applicant went back to work on Monday and the students came in and she started making this enormous noise and had another episode. Quite how the Applicant's mother observed this was not explained. There is no other corroboration that I could find of a return to work.
7. The Applicant was taken again to the local clinic and admitted to the local hospital. The Applicant's mother, having spoken to Associate Professor Lee, eventually took the Applicant to Adelaide for an MRI scan at the Wakefield Hospital. By this stage, according to her mother, the Applicant could not communicate or feed herself or do anything.
8. The Applicant's mother gave a history to Associate Professor Lee that the Applicant had been dealing with bullying and harassment at work and that in her view this explained her condition.
9. The Trial Book contained a referral letter from Associate Professor Lee to Dr A, psychiatrist. Dr Lee relates that he had previously diagnosed focal seizures, that the Applicant had been recently under his care with intermittent cognitive disturbance and low blood pressure. He had determined that she did not have an organic presentation, but that he was concerned about her mental health. He did not believe that she had post-concussion syndrome, hence his referral to a psychiatrist.[14]
10. Certificates from Dr A show a diagnosis of post-concussion syndrome with associated adjustment disorder.[15] This explains the Respondent's determination of 13 March 2019 accepting the claim for compensation for post-concussion syndrome. I will return to Dr A's evidence later regarding this apparent disagreement on diagnosis.
11. Thereafter and at least until the completion of the trial the Applicant underwent a number of admissions to the Adelaide Clinic under the care of Dr A. The first admission appears to have been from 16 March 2019 to 27 April 2019. Subsequent admissions followed in July 2019, September 2019, December 2019, April 2020, March 2021, February 2022, October 2022 and May 2023. The duration of admission varied from a couple of weeks to a matter of months.
12. On 2 December 2019 the Applicant's mother made a further notification to the Compensating Authority, this time as to depression. At that time the Applicant was about to be re-admitted to the Adelaide Clinic. There had been previous attempts at suicide by overdose and there was suicidal ideation. Shortly after the Respondent made a determination on 4 December 2019 accepting a claim for compensation for major depressive disorder as a consequence of post-concussion syndrome.[16]
13. A few months prior to the expiry of 104 weeks of compensation payments, on 1 December 2020, the Applicant's solicitors wrote to the Compensating Authority seeking that the Applicant be taken to be a seriously injured worker on an interim basis pursuant to s 21(3) of the RTW Act. This resulted in a determination declining to treat the Applicant as seriously injured.
14. On 1 April 2021 the Applicant's solicitors lodged a claim for compensation for a psychological injury based on stress at work.[17] This claim was also rejected on the basis that there was no substantial evidence to show that there was bullying arising from the employment or that the work stress was the significant contributing cause.

The Applicant's evidence as to the cause of her psychological condition

1. The Applicant's evidence as to cause was a little hard to pin down. She clearly blamed work for her problems. Firstly that the work itself was stressful but more particularly that she had been bullied by her manager B and co-workers M and C.
2. The Applicant's explanations for the stressors of the work is that by its nature it took an emotional toll on her because she was interacting with children who had significant problems, including their home life or with learning disabilities. She said that she felt scared going into the homes of some of her clients. She recalled attending a home where she believed drugs were being grown in sheds on the property. She said that her work ethic was extreme, that she did not recall ever taking a lunch break and was constantly tired. She complained that she was never offered any counselling for violence that she was exposed to or for the day-to-day stressors of her job.[18] She asked her employer for supervision because of the stressful work.[19]
3. The Applicant recalled one event at a local school where a teenager pulled a knife in the classroom and another where a child picked up a chair and was going to use it as a weapon when she was in the classroom. On cross-examination it appears that the Applicant was not directly threatened and one event occurred in the early days of her employment and another maybe in 2015.[20] One of the Applicant's former clients took her own life, which upset her.
4. Despite all this she says she enjoyed her job, and her history to doctors was that she was successful at work.[21] On the other hand, in seeming contradiction, she says that it "used to tear my heart out working with these children over time but still not seeing change or any sufficient change for it to make a difference".[22] She said that work problems piled up and she tried to deal with them herself. There was seemingly no recognition by her that she might not be suited to this type of work.
5. The Applicant, and in particular her mother, concentrated on allegations of bullying by fellow employees. I make the reference to the Applicant's mother because although nearly all the evidence from her on this point would be hearsay, it nonetheless seems most of the history given to doctors came from the Applicant's mother, rather than from the Applicant directly.
6. In the Applicant's affidavit she complains that three employees bullied her regularly. She said that she had tried to shut out a lot of the information relating to the bullying. She said that on one day C threatened her saying that she would "bash my head in" if the Applicant were to report anything adverse about her. The Applicant said that she feared C. In cross-examination, her evidence about why this threat was made was vague and unconvincing.[23] She could not remember what led to this outburst.
7. The Applicant related a particular episode about B which I found rather strange. The Applicant admitted that she had made a suggestive remark about B's adult daughter's surname. She said that she did not mean to be hurtful. B responded by shouting at her and saying that she was disgusting and rude. Given the nature of the remark it is unsurprising that B would be upset. Whether there was an element of over-reaction by B I cannot tell. It seems unusual that the Applicant could cite this as evidence of bullying from B and seems to indicate a failure to understand the import of her own remarks and a general lack of insight into her behaviour.[24]
8. The Applicant says that B and M often commented adversely about her clothing and manner of dress. She said she was well dressed. She felt that they were ganging up on her and found it hurtful. She remembered B saying that she had no resilience and that B would not have employed her to undertake counselling when she needed it herself. The Applicant was very hurt by this. She related a meeting at a café where B and M "got stuck into me verbally". She says that this happened on many occasions but they blur into one. She says they criticised her for telling her mother her work problems and because she could not deal with them herself.
9. The Applicant remembers being told at some point that M had died. She could not recall when this was but it was agreed that it occurred in 2016.[25] The café meeting must have occurred before M's death. After M died the Applicant's workload increased and she fell behind with her work. Although a new worker started she still felt overwhelmed by responsibilities. She had to train new staff and correct their written work.
10. Yet despite this the Applicant described her work as her world, and C and B as her only friends.[26]
11. In the Applicant's oral evidence there seemed to be some confusion as to whether or not it was B or M who complained that the Applicant had no resilience.[27] She gave rather confusing evidence about asking her Manager B, for supervision from the day she got there, but B would not do that and said it was too expensive. I do not think the Applicant in fact meant supervision by her employer, but some kind of training and counselling and help coping with the job, looking at her case notes and help with how to do things better.[28]
12. The Applicant spoke of performance reviews with B on an annual basis and said that B told her she was doing well. The Applicant did not give any evidence about poor performance management.[29] I find this aspect of her evidence rather contradictory to her request for counselling.
13. The Applicant says that the work injury has ruined her life. She cannot read or write properly. It takes a long time to read and write when she must do it. She is able to use her mobile phone to communicate with assistance of predictive text for short messages. She has problems trying to explain things, even simple things. She needs constant care and cannot be alone.[30] Although before 1 February 2019 the Applicant had her own home, she spent a lot of her time at her parents' house. Her home has now been sold and she now resides with her parents.

1. Evidence was taken from the Applicant's mother who testified that her daughter was a happy child full of personality. She said that aged 11 or 12 the Applicant was taken to her GP and mentioned counting objects on the ceiling. She was diagnosed with mild OCD and prescribed medication. The evidence from the Applicant's mother minimised any psychological issues at this point.
2. The Applicant's mother acknowledged that after the sexual assault the Applicant returned home in order to recover with the support of her family. She said that after three or four months the Applicant was able to return to Adelaide and complete her studies and that when she returned home to work with the employer she was "back to the outgoing, bubbly and confident person she had been prior to the assault".[31]
3. The Applicant's mother noticed a change in personality about six to twelve months after she had moved out of home and bought her own house which was in around 2013-2014. She was not as happy and carefree. The Applicant's mother said that the Applicant had told her she was struggling with bullying at work. The Applicant had persuaded her mother not to confront anybody at work but on one occasion the Applicant's mother rang B to understand what was going on following her daughter's advice that B had blocked her on Facebook. It did not seem that this was satisfactorily resolved.
4. The Applicant's mother also gave evidence about a meeting arranged by B with the Applicant at a local cafe. The Applicant was nervous and tearful about this meeting so her mother drove her to the restaurant and waited down the street in her car. According to the mother, the Applicant rang about 15 minutes later, she was crying and upset, but again did not want her mother to do anything about it.
5. The Applicant's mother said that even after moving out of home the Applicant would drop by for dinner and would occasionally stay overnight. She talked about the problems she was having at work which seemed to make her upset. By around 2017 she started to lose a lot of weight and her hair had begun to fall out. She was often in tears. The Applicant's mother begged her to quit work, but she would not. There were days when the Applicant would not get out of the shower to go to work. The Applicant's mother said that she wanted to intervene (presumably by saying something to the people at work) but the Applicant did not want her to. It was clear the Applicant's mother was becoming increasingly worried about her by about 2017.
6. The Applicant's mother said that occasionally she would attend with the Applicant when she saw her general practitioner, Dr J, and every time she did so the Applicant and Dr J talked about the bullying at work. Sometimes this was raised by Dr J, and on one occasion he said the Applicant needed to take time off from work.[32]
7. The Applicant's mother's affidavit which comprised Exhibit A5 was poorly drafted. It contained large sections of hearsay which was redacted from Exhibit A5 before its admission into evidence. At the commencement of her evidence the Applicant's mother advised of some changes and corrections to the affidavit. In paragraph 81 of her affidavit the Applicant's mother referred to a card sent from the Applicant's co‑worker C apologising for threatening the Applicant. The card was said to be annexed the affidavit of the Applicant's mother. It was not. When she gave her evidence a photocopied document said to be of the card was produced to the court.[33] On the card C apologies for yelling and threatening the Applicant.
8. In cross-examination the Applicant's mother gave some rather confusing evidence about the timing of events. She agreed that the episode where she took her daughter to the restaurant for the meeting with B, and as it happened M, took place before M died. She disagreed that this took place early in the period of employment in about 2011 and said that her daughter's memory was unreliable, as was hers.[34]
9. Under cross-examination the Applicant's mother also spoke about visits to Dr J at which there was discussion about things going on at work and that was well before M died.[35] It could be a year after the Applicant started work there. She also said that she spoke to Dr J about what was happening with her daughter at work well before the episode at the restaurant.[36] I found it unusual that the Applicant's mother said that she would attend appointments with her adult daughter and Dr J. Her reason was that she was concerned about her daughter getting ill, losing weight and being distressed.[37]

1. The Applicant's former general practitioner Dr J gave evidence in effect as a lay witness rather than an expert. He was giving evidence principally concerning history relayed to him as to the Applicant's problems at work.
2. The Trial Book contained a brief note of Dr J to the Applicant's solicitor of 30 April 2022. This seemed to be in response to questions as to a lack of reference in his practice notes to bullying, harassment and other problems caused by the Applicant's work. He refers to what he describes as a head injury in February 2019, but that during the period of nine years before the accident he saw the Applicant for various conditions and there was a significant amount of mental and emotional trauma at her workplace. He said that this was not recorded as work-related "initially". He said the Applicant was unwilling to pursue a work-related injury as "she was well loved by her clients and very keen to pursue her career in this field. As such there are not written records of specific triggers and diagnoses, but she has been referred for further management in the past and they are listed below".[38]
3. The references Dr J makes are to mental health issues including panic attacks and a mental health plan done in July 2013, but there is no reference that I could find to problems at work. The other references by Dr J are to a neurologist, Dr Andrew Lee, discussed earlier and to a psychiatrist, Dr Barry Rowe, seen before the Applicant commenced work with the youth service.
4. Dr J also swore an affidavit of evidence on 3 February 2023.[39] That affidavit annexes a report of the doctor to the Applicant's solicitors dated 17 November 2022. Dr J says that the last time he saw the Applicant was in 2016. He was not treating her at the time of the head injury in February 2019. Again, he makes reference to complaints and treatment for various mental health conditions including anxiety attacks and also with neurologist Dr Lee and asserts again that there was mental and emotional trauma at the Applicant's workplace. He said that this was "noted at the surgery and also on casual conversation with her mother and the Applicant" but no records were made.
5. Dr J also states that the Applicant's mother who is his friend and a patient had brought up the Applicant's work situation when she saw him at the practice. He seemed anxious to support the Applicant in her litigation. In his affidavit he said that he was not sufficiently concerned about the Applicant's mental health to cause him to take any further action when she did not want these matters recorded in his notes. Generally he thought that up until 2016 (when he ceased to treat her) that the Applicant was coping.
6. Also in evidence was a screen shot of SMS messages between Dr J and the Applicant of various dates from 18 December 2015 to 21 December 2015 basically to the effect that the Applicant "did not want to go down the path of WorkCover".[40]
7. In cross-examination Dr J agreed that a lot of his information about problems the Applicant was having at work was provided by the Applicant's mother.[41] He agreed that the Applicant's mother was a good friend but maintained he was telling the truth and if it was a matter of objective evidence he would have to say so.[42] In respect of various entries in his notes about attendances for mental health he agreed that these occurred in the context of the Applicant's pre-existing anti-depressant treatment for OCD and in light of the assault.[43]
8. Dr J agreed that he had not recorded anything to do with work-related issues in the notes. When asked if he would have recorded any work-related issues that were serious concerns he replied that if the patient did not want anything mentioned that might jeopardise her future career then he would look after the desires of the patient. When pressed that the fact that the Applicant did not want to proceed with a WorkCover claim as described in her text message, would not inhibit recording work-related problems in her notes, he said he would only mention it or record it if the Applicant wanted it recorded or if it was serious enough even without her consent, "I have to make a report". He did not explain to whom such a report would be made.[44]
9. Later, in response to a question from me as to why he would not make a note about a work problem that was part of a history he took on consultation, Dr J seemed to be saying that it depended on the reason for contact. If it was following up of general mental health and physical illness and it was not the primary reason for the visit.[45] I found this answer somewhat at odds with his earlier evidence and evasive.
10. I did not find Dr J to be a very impressive witness. It was clear that most, if not all, of the information that he had about the Applicant's alleged difficulties at work came from the Applicant's mother and this is the reason why there were no references in the notes. The only piece of evidence corroborative of something happening at work was the text messages in December 2015, several years before the Applicant ceased work and not something that she chose to take further. I think Dr J's evidence was couched in a partisan fashion and I do not accept there was any complaint about work made directly to him by the Applicant apart from the time of the text messages in December 2015. If there had been complaint about work he would have made a note.
11. The Applicant has complained about bullying in the workplace from soon after the events of 2 February 2019. Reference is made in the report of Associate Professor Andrew Lee of the Applicant having undergone bullying at her workplace over the last ten years and having developed severe depression. This information apparently came from the Applicant but subsequently medical reports from non-treating psychiatrists record most of the history as coming from the Applicant's mother. I will return to this topic when considering the evidence from each of the medical experts.
12. One element of the history to Dr A, was that the Applicant persisted at the workplace because she wanted to keep her job and her manager was due to retire and she was due to take over her job. No corroboration for this assertion has been produced in evidence. In light of the extent of symptoms described by the Applicant's mother, even prior to 1 February 2019, I think this promotion is unlikely.

Evidence concerning the Applicant's current symptomology

1. Under cross-examination the Applicant added to her evidence about her current mental health. She repeated that she needed constant care and that she did not like being alone, not knowing where her parents were. She must know where they are. She could go outside the home and get a coffee, get her tablets or a cool drink. She was able to go and get these things by herself if she was having a good day. She mentioned a café run by friends where she used to go, but that had been sold and she now goes to a different café where she had a particular spot where she can sit alone. She said that she become nervous and anxious having people around her.[46]
2. The Applicant's mother said that she needed to know where the Applicant was at all times.[47] This was in contrast to her affidavit which said that she needed to be with her 24 hours a day, seven days a week in case she tries to harm herself or displays unpredictable behaviour.[48]
3. The Applicant's mother later described a typical day:

Yes. On the days that we can actually - well I can, [her father] is at work. On the days that I can actually get her out of bed, which is not (sic) easy feat. She will get dressed without a shower. And take herself down to - walk down to the coffee shop to get herself a coffee. If she's got to pick something up at the chemist, she'll go there, because all the girls know her there. Then she'll walk home. Sometimes I'll have to pick her up. She'll ring me, she can't get home, she doesn't feel well, whatever reason.

She'll come home, she'll put her coffee in the lounge, go in her bedroom, put on the tracksuit, put on a hoodie, curl up on the lounge, sit there for half an hour, then pick up her coffee, then go to her room, and stay in her room until her dad comes home. Where I tell him to get her out bed. She hasn't eaten all day, she has to eat. And we force her to get up about 6.30. Some nights to have dinner with us, we make her sit with us to eat a meal. Eats her meal, and she's gone back to bed. She'll have a shower, go back to bed. That's a typical day for [the Applicant]. That's not every day, but that is a typical day. That's what I fight with every day.[49]

1. The Applicant herself gave a more restricted description. When asked if she was regularly able to go for a walk to get a coffee she replied that she was fighting between taking all her tablets (presumably self-harm) and getting out of bed; walk to get a coffee or call dad and go to the clinic (presumably the Adelaide Clinic). The Applicant said that walking was not really high on her agenda lately.[50] She agreed that sometimes she drove a car to get a coffee. Sometimes she got her medication by herself, sometimes with her father. Sometimes she was able to go the supermarket by herself depending on her mood. She denied being able to go to a netball game to watch because there were too many people around. At first she denied that she was able to go to a school sports carnival to watch. When pressed she said that she did not know but did not think so. When pressed again she admitted that she went to her nephew's sports day. She did not know when it was, but she went with her mother.[51] The Applicant agreed that there were lots of other people at the sports carnival although she said that she sat down like one of the kids so that she could not be seen. She admitted to being at the sports carnival for a number of hours.

1. As part of cross-examination the Applicant was shown surveillance film taken on various dates in late March/early April 2022 and again dates in late December 2022 and late January 2023. The latter just before the commencement of the trial. Once she realised that surveillance had been undertaken the Applicant became very angry.
2. On 29 March 2022 the Applicant was observed driving from her residence in a white car to a school sporting carnival at a local oval, arriving at about 9:15am. Between that time and 2:20pm the Applicant was intermittently observed sitting and standing at the sports carnival, conversing with others, drinking and using her mobile phone. There were many people at the event, young children as well as adults, apparently friends and family of the young students. At 14:22 the Applicant was observed walking to her vehicle and driving home.
3. The Applicant agreed she was depicted in the film and she said her mother was present as well as her sister and nephew who was competing in events. She agreed that the carnival was noisy with children running around. There are times when she was with her sister and her nephew and a brief period of time when she was with her mother. But there were also times when she was walking on her own around the sports carnival.[52] She agreed that at one point she was sitting under a red tent with her sister and others eating lunch. She seemed to cope with the people around her and did not seem to be distressed or upset.[53]
4. On 30 March 2022 the Applicant was briefly observed in the driveway of her residence.
5. On 31 March 2022 the Applicant was observed driving a white car to a local café, returning to her vehicle with a takeaway beverage and returning home. Later she was observed in the driveway and a passenger in a vehicle, again seen later in the day in Adelaide where she was observed to attend an address in the CBD for a doctor's appointment.
6. On 1 April 2022 the Applicant was again observed in the white car driving to a supermarket where she made a small number of purchases and stood in line to pay at the cashier. She was then observed walking back to her car, driving to a bakery and returning home. These events took place over a period of approximately 45-50 minutes.
7. On 2 April and 5 April 2022 the Applicant was observed very briefly in the driveway of her residence on each day.
8. Further surveillance was undertaken between Thursday 14 April 2022 and Monday 18 April 2022. On 16 April 2022 the Applicant was observed in her vehicle in the main street of her town and seemed to be using her phone.
9. On 18 April 2022 the Applicant was briefly observed in the driveway of her home.
10. Further observations were undertaken on Monday 19 December, Wednesday 21 December, Friday 23 December, Thursday 29 December and Saturday 31 December 2022.
11. On 19 December 2022 the Applicant was depicted attending at a local sailing club and conversing with a young women, later confirmed to be the Applicant's sister. She continued to stand and converse with her sister between approximately 11:58am and at least 12:49pm. The Applicant admitted that she had driven to the sailing club by herself. At one point she was seen to be engaged with her Apple watch and said that she had attended the sailing club because her young nephew was having his first swimming lesson. From time to time parents and other children were in the vicinity of the Applicant.
12. On 21 December 2022 the Applicant was observed for a period between approximately 9:30am and 10:00am walking from her residence to the main street of the town, placing an order at a café and waiting for her order to be filled before walking home. Again the Applicant identified herself as appearing in the video.
13. On 26 January 2023 the Applicant was observed using her telephone as she walked from her residence to a different café in the town. She placed an order and interacted with sales staff before walking back home.
14. On 28 January 2023 the Applicant was observed browsing and shopping at a supermarket in the town, paying for her items at the checkout and then attending a different café in the town centre where she sat at a booth, conversed, smiled and laughed with staff at the café. At one point she was chatting with a female member of staff, but at some time a man came from behind the counter and gave her a kiss on the cheek. This activity took place over a period from 1:20pm to 3:50pm when the Applicant returned to her vehicle and drove home. It was on this day that the Applicant purchased a gift card and flowers at the supermarket which she apparently gave to the people at the café. The Applicant explained this behaviour by saying that she had bought the flowers and the card to give to her friends at the café because on an earlier occasion when she had an episode which sounds a bit like a panic attack she had barged behind the counter of the café and taken a drink from the fridge.
15. On Sunday 29 January 2023 the Applicant was observed driving from her home to another residence in the town and was seen sitting on the front verandah with two other women conversing for some time, including smiling and laughing from time to time. This activity took place between 11:22am and 2:30pm when the Applicant walked to her vehicle and drove to her home.[54]
16. It was put to the Applicant in cross-examination that what had been shown on the film, being able to attend the sports carnival and to go out into the community was in contrast to what she had told the court and what she had told the doctors, in particular Drs Bem and Khalid, psychiatrists who had examined her with a view to estimating the degree of incapacity and impairment that she suffered. She agreed that she told the doctors that she was unable to do these sorts of things,[55] but said that she had told her doctor, Dr A, about what she was able to do and that one of his treatment goals towards independence was for her to go and get a coffee for herself each day.
17. The Applicant recalled that she had been interviewed by Dr Bem via a Facetime meeting in September 2021. She said that she could not remember all of that conversation. Her mother had attended with her and provided much of the history to the doctor. Her mother had said that the Applicant could not tolerate loud noise or other environmental stimulation and she agreed that that was true. She did not have a convincing explanation as to why it was the case that she could attend the sports carnival with lots of noise and people around her for some hours.[56]
18. The Applicant maintained that she could not tolerate family dinners when her sister and nephew were present, but said that at the sports carnival she did not have to focus on noise and could zone out.[57] I found this an unconvincing explanation.
19. In particular the Applicant did not have a convincing explanation as to why she did not relate to Associate Professor Khalid who saw her two days after the sports carnival that she was able to attend such an occasion for an extended period of time. Instead Associate Professor Khalid was told that she lies in bed all day because she feels depressed. Again she claimed that she could not remember the conversation with Associate Professor Khalid.
20. The Applicant asserted that the times shown on the footage when she was out and about in town were a small fraction of the number of days that she was in bed. She also asserted that whilst at the sports carnival she was trying to think of ways to end her life.[58]
21. Re-examination took place some weeks after the initial evidence from the Applicant and after her solicitor and counsel had taken instructions. The basic theme of re-examination was that the video taken showing her outside of the house was on a good day for her, but that in any event her interactions with people outside of her family were quite restricted. She became quite emotional with an episode of wailing when describing that it was important to her to attend her nephew's sports day because the chances are that he was likely to be the only member of the next generation of the family.[59] She said that it was easier for her to deal with a number of people at the sports carnival because it was outside on an oval as opposed to a number of people in a room when she tended to get a massive headache.[60]
22. Throughout the re-examination and indeed all of her evidence the Applicant was quite articulate, albeit with some word finding issues. She endured quite lengthy periods in the witness box and her memory appeared to be much better than when she swore a rather brief affidavit in July 2022.
23. Two affidavits were produced by the Applicant which related to the video evidence. The first from ME, the former proprietor of a café in the Applicant's town who came to know the Applicant after the incident in February 2019. She had heard that the Applicant had had an accident which affected her mental health. When the Applicant first came to the café she appeared to be uncertain, shaky and panicked. On one occasion she was trying to talk but could not get the words out. She had become panicked and she lost the keys to her car. Sometimes she would ask to sit in the staff only area of the café which was quieter. ME said that the Applicant became friendly with her daughter G. After the café had been sold ME invited the Applicant to her house as a way of keeping in touch. She said that the Applicant had come over sporadically, maybe once every three months. ME said that on 29 January 2023, the occasion shown in the film, that the Applicant had brought some handbags with her as suggestions for her to use at an upcoming wedding.
24. A further affidavit was produced from L, the co-owner of a café/pizza restaurant where the Applicant was seen to attend. She said that one of her employees, G, was known to the Applicant. As L had suffered from epilepsy and came from a family that had struggled with mental health she felt empathetic towards the Applicant and tried to take care of her when she attended the café. She said that some days the Applicant was talkative and other days it was difficult for her to communicate. Sometimes there were weeks at a time when they did not see the Applicant at all. L described an incident on 27 January 2023 when the Applicant rushed in and grabbed a soft drink out of the fridge and immediately began drinking it. She was shaking. L took her to the back of the restaurant in the staff only section where she would be away from strangers until she recovered. The next day the Applicant had bought her flowers and chocolates to thank her. This accords with the Applicant's version of events.
25. The Applicant's mother attempted to minimise the effect of the activities shown on the video by saying that the Applicant had an occasional good day which did not mean that she stayed out of bed, but was a day when there was not a catastrophic event. She did agree that about 50% of the time, or a little bit more, the Applicant was able to go for a walk to a coffee shop and get a coffee in the morning.
26. The Applicant's mother maintained under cross-examination that there had been an error in her original affidavit when she said that someone needs to be with the Applicant all the time and that it should have read that she needed to know where the Applicant was at all times.
27. I found that the surveillance video revealed some occasions when the Applicant was able to do more for longer periods of time than stated to the doctors.

1. As well as medical reports oral evidence was taken from three psychiatrists, Dr A, treating psychiatrist, and Drs Bem and Khalid.

1. In addition a report from Mark Reid, a neuropsychologist dated, 8 July 2020 was received into evidence.[61] Mr Reid was not required for cross-examination. However I found his observations and conclusions of interest. He was asked to see the Applicant on two occasions while she was in-patient at the Adelaide Clinic on referral from Dr A. He first saw her on 11 December 2019 and was able to take something of a history but she was too agitated and unsettled to undertake a neuropsychological assessment. He noted the background history of a quite minor blow to the head without convincing features of a more severe acquired brain injury. At this initial meeting the Applicant suggested to Mr Reid that she was an intelligent young lady who had worked very hard to prove to herself that she was competent and successful. She told him that her work was her life and that she had no interests outside of work. She described some apparent lack of support within her job role and alluded to some bullying at work. She told Mr Reid that she had proved to herself that she was good at her job, but she had come under increasing levels of stress. The fact that her employer was no longer operating seemed to add to her distress. She indicated that she had no friends other than her former work colleagues and not one of them had inquired about her health.
2. The Applicant told Mr Reid that she was very fearful of the future with no job, no friends and continuing to live under the care of her parents. The initial impression was that her symptoms were not particularly consistent with an acquired brain injury, rather it was a psychological reaction to a number of issues in her workplace with the relatively mild blow to the head being the final straw leading to emotional decompensation.[62]
3. At the time of the second assessment on 17 June 2020 Mr Reid was able to undertake a neuropsychological assessment. I note that he took a history that the Applicant was fearful that she had lost her independence, having studied hard and worked hard and this was all taken away from her as a result of the blow to the head. She remained largely incapable of undertaking a wide range of tasks and was cared for by her parents. She tended to socially isolate. He described her behaviour as regressed. He described some neuropsychological dysfunction including markedly reduced working memory span and hesitant and delayed speech and although some features of the dysfunction related to executive skills mediated by the frontal lobes of the brain, the overall clinical picture was not consistent with a mild or concussive level of head injury.[63] He thought it was probable that psychological features including agitated depression and at times catastrophic reactions had led to the impairment.
4. In a later brief report of 5 November 2020[64] Mr Reid added that the incident involving the blow to the head does appear to be a contributing factor to the psychological condition but he was unable to attribute the Applicant's problems to such a mild injury.

1. Psychiatrist Dr A has been the Applicant's treating psychiatrist since March 2019. He has provided her at various times with certificates of incapacity for work. Despite the opinions of Drs Lee and Reid, Dr A describes the cause of incapacity for work as head injury and depression secondary to post‑concussion syndrome in various certificates. Sometimes he refers to acquired brain injury complicated by depression.[65]
2. In a report to the South Australian Civil and Administrative Tribunal in support of an application by the Applicant's parent for a guardianship order Dr A describes the Applicant's condition as "acquired brain injury, severe depression, complex partial seizures".[66]
3. In his first report of 18 June 2019[67] Dr A described the typical symptoms and presentation which have persisted with some fluctuations. The Applicant was described as extremely depressed with irritability, self-blame and intrusive suicidal thoughts. She was frequently tearful, regressed and child-like, extremely anxious. She could not cope with change and she had catastrophic reactions to situations where she felt not in control. By June 2019 she was said to be too anxious to be on her own in public, could not drive safely for more than a few kilometres because of inattentiveness, she could not see a future for herself.
4. In that report Dr A diagnosed severe major depression with a past history of obsessive compulsive disorder and post-traumatic stress from which, he said, the Applicant had made a full functional recovery. Under the heading of "Work Related Factor" he said that the Applicant's depression was caused by a post-concussion syndrome which occurred from a head injury.
5. In the next report, 28 April 2020,[68] Dr A noted that he had revised his diagnosis to severe depression as a sequelae of the head injury. Severe depression continued to be the primary diagnosis.
6. In a report of 25 March 2021[69] Dr A referred to an extreme catastrophic reaction following a minor traumatic brain injury. He diagnosed severe depression and post-concussion syndrome. He described precipitating causes of the depression as a build-up of severe work stress and the head injury. He described the predisposing causes of depression to be the past history of OCD and stress reaction and the prior diagnosis of focal seizure disorder. He also referred to a family history of depression. He also described the mild traumatic brain injury as causing a post‑concussion syndrome because it occurred in the context of long standing work stress and lack of support and the post-concussion syndrome was the final precipitating factor which led to severe depression.
7. These descriptions as well as the diagnoses, recorded in work capacity certificates, perhaps unsurprisingly led to some confusion and apparently were the rationale behind the acceptance of a claim for post-concussion syndrome and a major depressive disorder as a consequence of post-concussion syndrome.
8. In examination in chief Dr A was directed to this issue. He agreed that he made a distinction between precipitating causes and pre-disposing causes. He explained that post-concussion syndrome was a messy diagnosis which has been abandoned in DSM-5. He described this as a pure mental injury. He said that Associate Professor Lee had used the term differently. Associate Professor Lee had meant that there was no neurological damage.[70] Dr A also said this:

The injury was a strike to the head that which, in that instant, activated a mental representation of physical harm to her brain at a pre-conscious level. Something that's not subject to conscious control. So anything that activates that core belief that she's got that her brain won't work will trigger these symptoms and her brain doesn't work. And so she had this catastrophic reaction - which in the older terminology would by hysterical conversion. ... She's got a functional neurological disorder driven by the blow to the head and the core belief that she's got a brain injury and that her brain won't work. ... Her depression is secondary to a functional neurological disorder - neurocognitive disorder - which has persisted.[71]

1. When directly asked about the use of the phrase "acquired brain injury" Dr A described this as acquired functional neurocognitive disorder.[72] I found this explanation confusing, that the apparent description of a physical injury was really functional.
2. Dr A explained that the Applicant was a chronically anxious person and that pre-disposed her to the catastrophic conversion reaction and the development of a functional neurocognitive disorder in response to a minor head injury.[73] He agreed that anxiety was a pre-disposing factor to the development of this disorder and when the Applicant struck her head on the car door that triggered a catastrophic conversion reaction.[74] If she had not hit her head her present condition would be unknown.
3. Later, and even more confusingly, Dr A described his diagnosis of severe depression as a sequelae of the head injury, being the same thing as saying it was a sequelae of the post-concussion syndrome.[75]
4. Dr A appears to have accepted uncritically the Applicant's history of stress at work, particularly being criticised, laughed at, ridiculed and over-worked in a situation where others were not pulling their weight.[76] He did say that he had a history of work stress from the Applicant from his first interactions with her, but that most of it had come from her parents including an A4-sized piece of paper cataloguing the work stress that they had learnt of, presumably from the Applicant.[77]
5. Dr A did seem somewhat surprised at the history of pre-injury, and indeed pre-employment, consumption of antidepressants. The history he recounted in his first report of a short course of antidepressants at age 15 for OCD symptoms restarted after sexual assault[78] was different from what he had learned in the GP notes just before he gave his evidence.[79]
6. As to her current state Dr A said that the Applicant's condition relapsed after she gave evidence at trial, particularly, as he put it, with seeing video material that attempted to show she was really well and lying. He said that the worst thing for her was the assumption that there is nothing wrong with her.[80] There had been further admissions to the Adelaide Clinic since she gave evidence. To the extent that he was critical of the Respondent and the trial process, I consider the Respondent was entitled to seek an explanation for the observed behaviour and that the conduct of the Respondent and its counsel was reasonable.
7. By the time they gave evidence at trial the doctors had viewed the video film. This was in part the subject of Dr A's further report of 12 September 2023.[81] Overall Dr A minimised the effect of activity shown on the video in relation to the Applicant's capacity and level of impairment. He rightly pointed out that there had been an admission to the Adelaide Clinic in February 2022 with discharge eight days before the sports carnival. There was admission in October 2022 for treatment of severe depression and anxiety, that is between the intervals of surveillance. He thought the activity entirely consistent with her presentations to him and his understanding of her level of activity.[82] He thought the social interactions with family and friends was an encouraging development but did not mean that she was not severely depressed. He noted that she had been encouraged to go out, talk to her friends and buy a coffee both by himself and the occupational therapist.
8. Dr A commented that where the film showed the Applicant to be looking at her phone for extended periods that this showed a level of concentration that he had not expected but was encouraged by. He thought that what was shown on the film was consistent with a functional neurocognitive disorder which fluctuates in severity.
9. My impression of Dr A's evidence was that he was concerned to maintain a helpful therapeutic relationship with the Applicant and for this reason accepted at face value what he was told by the Applicant and her parents, and her explanations as to what was shown on the film.

1. Dr Bem was asked to provide a report by the Applicant's solicitors and to include his assessment of her whole person impairment (WPI) in accordance with the Impairment Assessment Guidelines (the IAG) and in particular the GEPIC Guidelines for Assessing Whole Person Impairment for a Psychological Injury (GEPIC).
2. Dr Bem provided a detailed report including a history obtained primarily from the Applicant's mother during a virtual examination conducted via FaceTime at which the Applicant's mother was present at least for the majority of the time. History provided by the Applicant's mother included that the Applicant often visited the family home after a work shift in a distressed and teary state complaining about alleged bullying at work. However, the Applicant coped admirably with this and loved working with the students.[83] The Applicant apparently agreed with these comments. This is distinct from other evidence from both these witnesses.
3. Overall the Applicant considered herself to be in a relative stable psychological state when the work injury occurred with a catastrophic downturn in her mood thereafter. Again, this is contrary to other evidence from the Applicant and her mother.
4. At one point in the examination the Applicant's mother made this statement to the doctor:

Our lives have been turned upside down. I don't get to have a life anymore.[84]

1. The Applicant minimised symptoms of PTSD connected with the previous sexual assault and later in the report Dr Bem described her as a high functioning individual prior to the work injury, the pre-existing psychiatric history notwithstanding.[85] At least this was the history given to him.
2. Dr Bem diagnosed a severe major depressive disorder with anxious distress. He thought the Applicant's personality style to be histrionic with possibly borderline colouring.[86]
3. Similarly to Dr A, Dr Bem struggled with concepts of cause and the relationship of the psychological condition to the physical injury, if any. Dr Bem said that the Applicant was cooperative but struggled to articulate a coherent history. She appeared agitated, was irritated with her mother at times and he found her rather childlike and regressed in manner.[87]
4. Dr Bem thought that the psychiatric condition appeared to have been triggered by the 2019 work injury and that it had such a devastating psychological decompensation was difficult to comprehend except to say that the Applicant was in a heightened state of vulnerability beforehand due to the history that she gave. He did note that there did not appear to be any physical or neurological injury of any significance. He said:

Although her downturn was temporally related to the head injury/post concussion syndrome, neither Mr Reid or Prof Lee thought her to be suffering any significant head trauma or cognitive impairment secondary to the injury. On the basis that any physical/neurological injury was negligible, or even non-existend, one can argue that the psychiatric injury is an example of pure mental harm, albeit triggered by a relatively benign head bump".[88]

1. Dr Bem concluded with a brief summary of a GEPIC assessment. He put the Applicant in median Class 3 in the severe range, i.e. 36%-40% of which 5% should be deducted on the basis of pre-existing depression leaving her with a WPI in excess of 30%.
2. Before he gave evidence Dr Bem had viewed the film and discussed it with the Applicant's counsel. He did not think there was anything damning in the footage that would cause him to change his opinion. He provided a report of 7 August 2023 prior to giving oral evidence.
3. Dr Bem admitted that he had not completed the GEPIC worksheets required under the IAG and that he had not given any detail in his report when allocating various classes to the various areas of mental function assessed. Nor had he included in his report anything about the severity particular to each particular class.[89] He said that as he was completing an informal assessment he did not think that it was necessary, he had made calculations in his head.
4. In examination in chief when he was advised as to the oral evidence of the Applicant's mother as to her daughter's state of mind in the twelve months prior to February 2019, including losing weight, hair falling out, often in tears and not wanting to go to work, Dr Bem said that suggested a greater level of disturbance or dysfunction than he had elicited during his examination.[90]
5. Dr Bem thought it was very unusual to require a month-long psychiatric admission, let alone the number of admissions in the space of 12-18 months. He though this emphasised the gravity of the diagnosis,[91] really despite activity shown on video.
6. Dr Bem acknowledged that much of the history he obtained was from the Applicant's mother and ideally he would prefer an in-person assessment with the Applicant alone.[92]
7. Dr Bem struggled to explain why if the bullying incidents were remote in time from the incident in February 2019 and how that impacted on his assessment, but he said that he did not place much weight on the history prior to the 2019 incident.[93]
8. Dr Bem was aware that the Applicant had been on a course of antidepressants at least since the sexual assault but did not think that required any greater deduction in his assessment because the Applicant had been stable during that period of time, although receiving psychological treatment and medication. In those circumstances no deduction should be made.[94]
9. Dr Bem wrestled somewhat with the concept of consequential mental harm, but it seems he thought it difficult if not impossible to suggest the mental harm was consequential if there was no actual organic injury of note and that was the case here.[95] The psychological presentation was consequential on the Applicant hitting her head on the car door from a timeframe perspective, not otherwise.[96]
10. In Dr Bem's view the Applicant had almost a conversion reaction or a functional sort of neurological disorder reaction given the level of hysteria and other symptoms not explained by a bump on the head.[97] The bump on the head was in some ways symbolic, there were deep-seated psychological factors that created the catastrophic deconstruction of the Applicant's mental state.[98] This could be explained by a psychological vulnerability or susceptibility at an unconscious level.[99]
11. Under cross-examination Dr Bem made some limited concessions as to the contrast between the history from the Applicant and attendance at some of the events depicted in the film. However he maintained that the Applicant's symptoms fluctuated and where there was sufficient motivation to do something out of the ordinary such as going to the sports carnival to see her nephew, she could do this. It did not affect his assessment either in the classes assessed or the range of severity.[100]
12. Finally when I asked the doctor about the remarks made by the Applicant's mother in the Applicant's presence, and he was asked further about the mother's influence, Dr Bem said that he had the impression that the Applicant's mother was a strong personality and playing an active part in the care of the Applicant and that remarks made by the mother were likely the result of frustration, sadness and grief.[101]

1. Associate Professor A Khalid reported to the claims agent on 12 April 2022[102] after a medico-legal examination on 31 March 2022. It is notable this examination took place two days after the Applicant attended her nephew's sports carnival as depicted on the surveillance film.
2. The Applicant's mother was present throughout the examination and contributed to the history. The history included allegations as to bullying at work, although the allegation concerning C again made little sense as to the motivation. The Applicant said that she had been talking to M who left the office and C came in. She said that C slammed her hand down and swore at the Applicant saying "I will bash your head in" if you contact M or B. This was said to have occurred around 2017.[103] There was seemingly no explanation as to the motivation for C's anger and it must have occurred at an earlier date because it was accepted that M had died in 2016.
3. The Applicant asserted that she had told her general practitioner about the problems at work but that she could not remember whom. Again there was the assertion that a week before 1 February 2019 B had spoken to her and C and offered the managerial position to C. The Applicant asserted that C was less likely to take it and instead the Applicant was going to take the job and start it the week after she had injured herself.
4. As to current symptoms the Applicant said that she lays in bed all day because she feels depressed. That she has no control of her emotions. That she can become really angry especially towards her mother. She said that she lives with her parents and her mother is her carer. She said that she could not stand a tiny bit of light. She has got new glasses but she cannot see and she cannot read. She has a problem with hearing. She cannot sit in a room full of people. She said that the medications make her drowsy, she falls in the shower and that she washes her hair every two to three weeks.[104]
5. Associate Professor Khalid concluded that the Applicant was markedly anxious at the examination, was tearful and was sobbing throughout the interview. His diagnosis was major depressive disorder on the background of pre-existing obsessive compulsive disorder since childhood and post‑traumatic stress as a result of sexual assault in 2008. He thought the major depressive disorder started on 1 February 2019 as a result of her minor concussion which he agreed with Dr Bem was a catastrophic reaction to a minor incident. Although the Applicant mentions work related stress contributing to her major depressive order, he clearly discounted this because of the lack of evidence in the GP medical records (which he had been sent) to suggest that she was experiencing psychiatric symptoms. In addition she had continued working and had not sought any psychiatric or psychological help in relation to the work stress before the accident.[105]
6. Associate Professor Khalid reported that the Applicant experienced the catastrophic reaction in the form of a major depressive disorder triggered by the events of 1 February 2019 when she struck her head on a car door, on a background of obsessive compulsive disorder since an early age and post-traumatic stress as a result of sexual assault. He therefore concluded the major depressive order is consequential mental harm, not pure mental harm. He agreed with Dr Bem's assessment as to placing the Applicant in median Class 3 with a range of 36%-40% WPI, but he would deduct 10% on account of the pre-existing conditions with the remaining 30% being consequential mental harm.[106]
7. Prior to giving evidence Associate Professor Khalid viewed the video film. He particularly noted the Applicant's attendance at the sports carnival, some two days before his examination, and that she appeared at this event to be well groomed, calmed, relaxed, conversing with other people and using her mobile phone. He noticed other parts of the film where she had been seen going out and driving her car. He contrasted this with the symptoms she described two days later and found the video film was inconsistent with that history, such that he thought that she had exaggerated her symptoms and restrictions so that her impairment level would be significantly lower, albeit that it was consequential mental harm.[107]
8. Associate Professor Khalid was then provided with the transcript of the Applicant's oral evidence noting the explanations provided by the Applicant. This did not alter his opinion regarding her condition and level of impairment.[108]
9. Like his fellow specialists, I do not believe Associate Professor Khalid really came to grips with the role of the bump to the head in the aetiology of the Applicant's present condition. It seemed to me that he had formed the view that if there was a physical injury first that any subsequent psychiatric problem must amount to consequential mental harm. He also described the physical injury as post-concussion syndrome and secondary symptoms of depression emanating from that.[109] He echoed the early certification of Dr A and the terms of the determination.
10. Associate Professor Khalid described a situation of a pre-existing vulnerability and some event which triggers psychological decompensation as when the worker realises they have got symptoms. The striking of the head on the car door precipitates and causes the psychological condition.[110]
11. Associate Professor Khalid commented on the complexity of the matter and when asked about Dr A's diagnosis of the functional neuro-cognitive disorder he said that he did not have enough time to think about it but there had been mention of a histrionic personality and borderline personality disorder.[111]
12. As to the extent of overall capacity Associate Professor Khalid remained steadfast in his view that whilst the severity of the symptoms of depression can fluctuate over periods of weeks and months, there was inconsistency between what he saw on the film of the Applicant's activities at the sports carnival and what she told him of her symptoms two days later. He was also clear that the deduction for the pre-existing condition after considering the medical records and the severity of the Applicant's symptoms as documented by Dr J, he thought a 10% deduction would be reasonable and that 5% was low.[112] He remained of that view under persistent cross-examination.

1. The Respondent asserts that the Applicant's claim for compensation for psychological injury, as pure mental harm, is statute barred pursuant to s 30(1) and (2) of the RTW Act, by virtue of the claim not being filed until 1 April 2021 and therefore outside the prescribed period as required by the section. The Respondent further asserts that it has been substantially prejudiced by the late lodgement of the claim. This assertion is made against the background of a series of events which the Respondent says speaks to the prejudice suffered by it and disingenuous assertions by the Applicant.
2. It will be recalled that there were two injury notifications made after the events of 1 February 2019. The first from the employer on 14 February 2019 and the second from the Applicant's mother on 26 February 2019. That led to a determination accepting the Applicant's claim with the injury described as post-concussion syndrome. A further injury notification was made by the Applicant's mother for depression on 2 December 2019 and this referred to admissions to the Adelaide Clinic and suicide attempts, but no mention was recorded of any stress at work or bullying in the course of the employment. It seems that there was nothing in the certificates of Dr A or in his early reports mentioning stress at work or bullying, although his evidence was that had been part of the history obtained from the Applicant from early consultations. A determination of 4 December 2019 accepted the claim for major depressive disorder "sustained as a consequence of the post-traumatic concussion syndrome injury that occurred on 1 February 2019". This was not challenged.
3. By letter of 21 July 2020 the Applicant was informed that income support would cease on 28 January 2021. This prompted a letter from the Applicant's solicitor of 1 December 2020 making an application for the Applicant to be treated as a seriously injured worker on an interim basis. This was rejected in a determination of 14 January 2021 resulting in one of the Applications for Review before me.[113] The reconsideration of the determination included the assertion that s 22(8)(e) of the RTW Act provided that impairment that results from consequential mental harm is not to be regarded when assessing WPI. The Respondent says that it was only after the reconsideration that a claim form dated 1 April 2021 was completed by the Applicant's solicitors claiming psychological injury from "stress at work". No further detail was provided at that stage and nothing about bullying. The Respondent stresses that no allegation was made at any point in time prior to the unsuccessful application for interim seriously injured worker status, to the effect that the Applicant suffered from stress or bullying during her employment prior to striking her head on the car door on 1 February 2019.
4. The Respondent further asserts that the Applicant cannot make use of the exculpatory provisions in s 30(3) of the RTW Act.
5. Relevantly s 30 provides as follows:

(1) Subject to this section, a claim under this Part -

(a) must be made in a manner and form approved by the Corporation; and

(c) must be supported by a certificate in the designated form by a designated person certifying -

(ii) the probable cause of the injury so far as that is ascertainable by the designated person;

(iii) if the claimant claims to be incapacitated for work - the claimant's current and likely future capacity;

(iv) any other matter specified by the Corporation with the approval of the Minister.

(2) If a notice of an injury is required under this Act, a claim may not be made in respect of that injury unless notice of the injury has been given as required.

(3) Despite subsections (1) and (2) -

(a) the absence of, or a defect in, a notice of injury is not a bar to the making of a claim if -

(i) the proper determination of the claim has not been substantially prejudiced; or

(ii) the failure to give the notice, or the defect in the notice, was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause; and

(b) a failure to make a claim within the prescribed period is not a bar to the making of a claim if -

(i) the proper determination of the claim has not been substantially prejudiced; or

(ii) the failure to make the claim within the prescribed period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause.

prescribed period, in relation to the making of a claim under this section, means the period of 6 months commencing on the day on which the entitlement to make the claim arises.

1. In support of its assertion as to prejudice the Respondent refers to two affidavits regarding its attempts to locate witnesses and investigate the Applicant's assertions as to stress at work and bullying. The first is an affidavit of Madeline Ilee, a claims officer with the Respondent's claims agent Gallagher Bassett. She instructed a firm of investigators, MJM Corporate Risk Services, to attempt to locate the witnesses identified by the Applicant in her affidavit of 1 July 2022. By that time the employer was said to be "in liquidation". The investigators were asked to attempt to locate manager B and fellow employee C. Annexed to the affidavit of Ms Ilee were reports from the investigators who had attempted to locate the witnesses by using telephone numbers for the employer, Google and Facebook searches which seem to have been conducted from the offices of the firm of investigators. [114]
2. Attempts were also made to contact the local school principal named by the Applicant in her affidavit as someone who witnessed violent student behaviour. Again attempts were made to contact this witness via email through the education department. No responses were received to emails and Facebook messages.
3. Part way through the trial the Respondent tendered an affidavit of Graham Bell, an investigator for Allied Universal Compliance and Investigations, who again made attempts to contact B, C and the school principal. Through phone calls and email messages Mr Bell was able to contact the school principal who had a vague idea about the very small town where B resided and eventually a post office box address for B was located and it was thought that B might be working at a local primary school. Further telephone calls to the primary school and letters to the post office box address did not result in any further contact from B.
4. Mr Bell later contacted the liquidators appointed to the employer and made a request in writing for records of contact details of B or C. A response was received that one of the two had been in contact with liquidator but did not consent to their contact details being provided to the investigator.[115]
5. The Respondent complains that certainly prior to her cross-examination the allegations made by the Applicant were vague and imprecise as to the identity and timing of those who were alleged to have bullied her. There was no supporting documentation relating to any of the incidents. I agree that the Respondent and indeed the Tribunal, have been hampered in attempts to investigate and understand the Applicant's allegations by reason of the failure or inability of the Applicant to provide detail and the winding up or liquidation of the employer organisation. However I do not consider that this amounts to substantial prejudice as described in s 30 of the RTW Act because I do not consider the efforts of the Respondent to locate the witnesses or find documentation regarding the Applicant's employment as sufficient. All the investigations seem to have been conducted remotely from the country region where the Applicant lives and worked. It is unsurprising that potential witnesses, when contacted via email, Facebook or even a letter, might be hesitant to respond.
6. The situation really requires personal attendance of investigators knocking on doors equipped with identification, evidence of their licence and authority from the Respondent, Return to Work Corporation of South Australia, to undertake enquiries. Having discovered a GPO box number in a very small town, it should not be difficult to find the address of B. If B remained uncooperative upon a personal attendance then having been located B could have been the subject of a summons to give evidence.
7. In addition to my knowledge no request was made to summons documents from the liquidator or administrator that related to the Applicant's employment or might have given addresses of B and C.
8. At the end of the day the Respondent cannot successfully assert substantial prejudice if they have not made relatively simple and inexpensive attempts to find this information.
9. Nor do I think there is anything in the Respondent's argument that no valid reason or "other reasonable cause" was provided by the Applicant for her failure to notify of a claim for psychological injury owing to stress at work at an earlier time. This is because the earlier reports and certificates of Dr A did not make any reference to this issue or a different diagnosis to that provided by the Applicant's mother to the Respondent. There was clearly some confusion about the diagnosis but this emanated not from the Applicant, but Dr A. Mention was made in the report of Associate Professor Lee of 19 February 2019, but this was a letter addressed to Dr A, not to the Applicant or her mother. It seems that the Applicant and her parents had been giving a history of bullying to at least Drs Lee and A at an early stage, but this had not been mentioned in the reports and was not an obvious part of Dr A's diagnosis on the which the early determinations were made.
10. The Applicant argues that the Respondent had notice of the diagnosis of depression at least by 2 December 2019 and that the Respondent had for some time been paying medical expenses knowing that Dr A had diagnosed severe major depression. The Applicant also points to the fact that no factual investigation was undertaken by the Respondent prior to its determination of 30 June 2021.
11. The Applicant further asserts that the pure mental harm claim was made two months after the period of entitlement arose being 21 January 2021, 104 weeks from the commencement of injury. I do not agree that this is when time commenced. The pure mental harm claim must commence on 1 February 2019 when incapacity commenced. The claim was made outside the prescribed period. The only question is whether or not the exculpatory provisions in s 30(3) of the RTW Act apply.
12. In my view the failure to give notice at an earlier time is accounted for by mistake or other reasonable cause as I do not consider the Applicant or her family could be expected to understand the implications of failing to make a further claim or agitate a dispute given the information and opinion of Dr A relied on really by both parties. The claim for pure mental harm is not statute barred.

1. The Applicant raised issues concerning the scope of proceedings and the extent of the Respondent's case. The Applicant says the Respondent confined its case to; the question as to whether the Applicant's claim for compensation for pure psychological injury is statute barred; whether the cause of the psychological injury is the incident involving the car door alone or whether it is caused by work stress prior to 1 February 2019 and whether, if the cause of the psychological injury is the incident involving the car door, the psychological injury is merely consequential mental harm.
2. The Applicant says that the Respondent did not contend that the Applicant's psychological injury had not or would not result in permanent impairment or that the degree of WPI was not likely to be 30% or more. The Applicant says this only became clear when the video surveillance material was introduced by the Respondent to support, not only arguments about the reliability of the Applicant's evidence, but as to the fact and degree of WPI from psychological injury.
3. The Applicant says that there is authority that the parties cannot change the case they have committed to in documentary form before the trial and adopted during the hearing after all evidence from the Applicant had been received. The Applicant refers to references to the impermissibility of such "litigious plasticity" in Brown v Department for Education.[116]
4. The first issue described in the Respondent's Statement of Facts, Issues and Contentions is:

Whether the applicant is to be taken as a seriously injured worker on an interim basis pursuant to section 21(3) of the Act.

1. I think this is enough to put in question the degree of permanent impairment from any pure psychological injury.
2. The Applicant bears the burden of proof on her s 21(3) application. Of necessity this includes convincing the Tribunal on the balance of probabilities that the Applicant's injury will result in permanent impairment and that it appears that the degree of WPI is likely to be 30% or more. It is true that the Respondent's Statement of Facts, Issues and Contentions is not particularly fulsome, but in my view it does enough to put these matters in issue. It would be difficult for the Respondent to give much greater detail without disclosing the existence of the surveillance film before the cross-examination of the Applicant.
3. This is not a case where the Respondent is amending its case to assert a new or different issue. Moreover because of the way the evidence was given there was enough time between the conclusion of the Applicant's evidence and evidence from the medical experts for further reports to be provided and proofing by counsel. There was no application to adjourn or to reopen by the Applicant. Rebuttal evidence in the form of affidavits from ME and L were received after the conclusion of the Applicant's evidence.
4. In Brown the Applicant initially claimed to have sustained an injury to the brain but proceeded to trial only on a claim for a psychiatric injury. It was not until the closing address by the Applicant's counsel that it was submitted that it was open to the judge to find there had been a physical injury to the brain. The Full Bench of the Tribunal upheld the trial judge's refusal to consider physical injury as the change was made too late. The judge was entitled to refuse permission for the case to be recast. Brown can be distinguished from the case at bar.

1. I have found this a very difficult matter to decide. There are several reasons for this. They include the lack of evidence about the Applicant's employment, the difficulties that I have with the evidence from the Applicant and her mother and the confusing medical evidence as to causation. I have had to do the best I can with the evidence before me.
2. I accept that the Applicant has a very serious mental illness, and that this illness has caused incapacity for work. However the very nature and degree of the illness makes her evidence unreliable. It is clear that she has had psychological problems for a number of years, in varying degrees, probably going back to childhood. The origins of her present illness seem to have built up over a number of years. In my view her perception of events at work leading up to 1 February 2019 is coloured by her illness. It makes her an unreliable narrator. In addition her evidence as to bullying at work is vague and sparse with a few events more vividly recalled, but those events for the most part occurring earlier in her employment or before the death of M in 2016. Her memory is also affected by her illness.
3. The Applicant's understanding of her capacities may also be affected by the nature of her illness, in that she tends to catastrophise and believes that she has a physical problem with her brain. Most of the history provided to doctors comes from her parents and it is not clear to me whether the history that is given directly by the Applicant is always her recollection or reconstructed memory after hearing what her parents have said or written. Of course their information in very large part is hearsay. All of this makes me cautious as to the reliability of the Applicant's evidence unless corroborated by another source.
4. I also have concerns as to the reliability of the evidence from the Applicant's mother. The Applicant's mother is clearly very anxious as to her daughter's health and ongoing incapacity. She seems to be frustrated by the difficulties of supporting and caring for her daughter in her illness and is understandably anxious about her daughter's future and provision for her ongoing care. I think this makes her very motivated to see her daughter's claims succeed and to blame the employer for causing her daughter's predicament. She focuses on allegations of bullying rather than the Applicant being vulnerable to stress.
5. I am concerned that the Applicant's mother, and indeed Dr J, have not given a fulsome account of the Applicant's mental health even prior to starting with the employer. That is I am concerned at the paucity of evidence concerning the nature and extent of any psychiatric condition going back to childhood and including around the time of the sexual assault, that necessitated the ongoing prescription of antidepressants. The information contained in the GP notes surprised Drs Bem and A.
6. In addition the picture of current symptomology presented to Drs Bem and Khalid by the Applicant and her mother is quite bleak in contrast to what was shown in the surveillance film and admitted in evidence. I think the Applicant's mother was concerned to emphasise the worst aspects of the Applicant's condition to maximise the impairment assessment and the financial benefits that follow.
7. I am also cautious in accepting entirely the evidence of Dr J. I have already commented on the partisan nature of his evidence owing to his relationship with the Applicant's family. I think he was concerned to assist the Applicant with her claim as much as he could rather than being an objective observer.
8. I am also cautious about accepting the opinion evidence of Dr A. As a treating doctor his priorities are the treatment and wellbeing of his patient in circumstances of repeated admissions to the Adelaide Clinic and severe symptoms including overdoses of medication and attempts at suicide. He is rightly concerned to preserve a strong therapeutic relationship. The confusing descriptions he gave as to the diagnosis and the frankly unsatisfactory explanation for the use of terminology produces a lack of confidence in his opinions as to the aetiology of the problem. I am concerned that his support of his patient has led him to be less objective as to the Applicant's capacity and degree of impairment.
9. Generally speaking I was more impressed by Dr Bem's evidence as to diagnosis and causation and Associate Professor Khalid's evidence as to degree of impairment for the reasons discussed above.

1. It is now necessary to determine exactly what the Applicant suffers from, the cause or causes and relationship, if any, to work. I accept that the Applicant hit her head on her car door on 1 February 2019 and that would have caused some symptoms including perhaps a headache, dizziness and haematoma. The Applicant's counsel submits that there is no doubt that hitting her head on the car door was causative of the Applicant's major depressive disorder based on the timing of onset and the medical evidence supports this analysis. I am not certain that this is the correct way to describe things.
2. The original acceptance for post-concussion syndrome and an adjustment disorder was based on the certification and earlier reports of Dr A. I have already described how he uses the "post-concussion syndrome" differently from others, in particular Dr Lee and Mr Reid. Post-concussion syndrome describes the condition where there are persistent post-concussion symptoms which can linger for weeks, months or years after a concussion including headaches, dizziness and difficulty concentrating There are seemingly physical and psychological symptoms as well as cognitive symptoms. It would seem to imply the Applicant suffered a concussion but not every bump on the head results in a concussion. I am not certain that this is what occurred here.
3. The use of the word "syndrome" denotes a situation where the aetiology of the condition is not well understood.
4. In my view, if a post-concussion syndrome can be described, at least in part, as a psychical condition that major depression which flows from this must be a consequential injury or consequential mental harm. Consequential mental harm is defined in the RTW Act in s 4:

consequential mental harm means mental harm that is a consequence of bodily injury to the person suffering the mental harm;

1. This is in contrast with pure mental harm also defined in s 4:

pure mental harm means mental harm other than consequential mental harm;

1. There seems to be little discussion in the case law as to how to differentiate between consequential mental harm and pure mental harm. Consequential mental harm is compensable if consequential to a compensable physical injury. A claimant does not have to overcome the hurdles contained in s 7(2) of the RTW Act. That is confined to pure mental harm.[117] The problem for the Applicant is that it is only pure mental harm that can be assessed for WPI pursuant to s 22(8)(e) of the RTW Act.
2. It does appear that consequential harm is perceived a sequelae to a physical injury. To the extent that any psychological condition was consequent on the injury to the head instead of merely occurring at about the same time as the injury to head, then it is consequential mental harm. It might be, for example, that the Applicant became anxious that she had caused herself some serious damage to the brain as a result of the hit on the head. This is in the context of her being an anxious person by disposition and having a history of neurological disorders diagnosed by Dr Lee. In other words she worried about a more serious injury and this developed into a psychological condition. This may be part of the picture here.
3. The real contest in this matter is whether or not there is a psychological injury directly caused by work, that is the subject of the second claim. To the extent that the major depressive condition is mediated by the physical blow to the head, which seems to the view of some of the doctors at least some of the time, then in my view this is consequential mental harm.
4. However I do in the end accept that the Applicant should succeed in relation to the second claim, the claim for pure mental harm, arising from her work and that her employment was the significant contributing cause of the injury. In my view the most likely thing is that both a consequential and a pure mental harm injury occurred at around the same time. On my analysis the pure mental harm injury is the more significant. This accords generally with the evidence of Dr Bem.
5. My conclusions are not based on an acceptance of all that the Applicant says about events at work. Rather I think that her condition arose over a long period of time because the Applicant had difficulty coping with the work she was undertaking.
6. There is a lot of evidence to suggest the Applicant was deeply invested in performing her job well. Much of her self-worth was connected with the job. She seemed to have few friends outside family and people at work. It seems clear that from the beginning she had difficulties in adjusting to the youth work. Whilst she and her mother have asserted to doctors that she was very good at her work and everybody loved her, other evidence belies these statements. Her complaints about a lack of counselling, debriefing or supervision which seem to go back to the beginnings of her employment, to me are indicative of a person who is struggling.
7. Comments by supervisors to the effect that she lacks resilience to the point that she would not have been hired if this had been known, fit with this analysis. I accept that something of this sort was said to the Applicant.
8. The Applicant's own evidence as to the stresses she commonly felt at work add to this picture.
9. It seems to me that a person prone to anxiety may well encounter some difficulties in working with disaffected youth. In short, it seems to be a rather stressful occupation for someone without robust mental health. I accept there were some situations that the Applicant faced at schools where she witnessed violence or was afraid, although these situations seemed to be limited in number and the timing of them is obscure. I also accept that there was probably an element of a difficulty with increased workload, especially after the death of M and when having to train new employees. Whether this was an objectively excessive workload or simply the Applicant's perception I cannot tell. She seems to have been rather obsessive about her case notes.
10. I am not convinced that there was any systematic bullying and harassment at work from B or M. The only real corroboration of anything untoward of this nature is the card from C. Clearly there was at least one incident where C's behaviour towards the Applicant, described by C herself as yelling and threatening, was of concern and I accept that this is one event which added to the Applicant's stress. However I do not find the other complaints about bullying to be compelling. The invitation the café where the Applicant was spoken to by B and M must have occurred before M's death in 2016. To arrange such a meeting outside the workplace seems to me likely to be an attempt, perhaps a clumsy one, to have a discussion about a sensitive topic in a more relaxing atmosphere, or perhaps where there were witnesses. The fact that the Applicant was upset after the meeting does not necessarily mean that there was an episode of bullying. I suspect it is more likely to represent an attempt to discuss her work practices and performance. However there is not sufficient evidence for me to make a positive finding of this nature.
11. Complaints that the Applicant was bullied about her nice clothes, her fashion sense and her immaculate appearance seem to me far-fetched and illogical. I think much of the Applicant's perception as to what was going on was increasingly corrupted by her developing mental illness. In short while it is possible that there was some bullying behaviour at work I am not satisfied that the Applicant has proved this to the required standard, on the balance of probabilities.
12. One may well ask why the Applicant remained in employment for as long as she did if these problems were developing and if she had difficulty with the stressors of the work generally. Certainly her mother was urging her to leave. The Applicant does seem to be a fairly obsessive and determined person and I think she would struggle with any admission that the work was too much for her, so that she persisted despite, or indeed perhaps because of, her mother's pleas to leave the job.
13. I remain uncertain as to whether or not the Applicant's assertion that she was due to take over the manager's job shortly after February 2019 is in fact true. It might be that this prospect was overwhelming and added to her stress or it may be an element of distorted perception.
14. I have found it very difficult to make findings on the basis of the limited evidence that I have before me as to what really happened at work because of the lack of any evidence from the Applicant's fellow employees, in particular the supervisor B. There is no counterpoint by which to easily judge the truth and accuracy of the Applicant's somewhat vague and sparse assertions. Despite this, I am convinced on the balance of probabilities that the Applicant's major depression order is causally related to her employment and directly so. There was clearly a build-up of symptomology over probably a twelve month period before 1 February 2019, including sleeplessness, loss of appetite and not wanting to go to work, as well as tears, exhaustion and other physical distress. Whilst I am cautious about accepting all that the Applicant's mother says about this, I accept something was happening before 1 February 2019. There is no evidence before me of any extraneous cause other than work for the "massive decompensation" that occurred within 24 hours of that minor accident.
15. The doctors describe the bump on the head as merely a trigger to the mental breakdown that followed. If it is a trigger it is a hair-trigger. So great and immediate was the increase of psychological symptoms that I accept that things had built up to such an extent that it would have occurred sooner or later in any event.
16. In coming to these conclusions as to cause I have not accepted the evidence of Associate Professor Khalid that it is all consequential mental harm because it is consequential to the head injury. It seems to me that Associate Professor Khalid is constrained in his thinking by a chronological sequence that begins with the head injury, excludes pre-existing symptomology and a state of affairs that he assumed from the letter of request that he did not think critically about. He was told that it was a consequential injury and he accepted that.
17. For a psychiatric injury to be compensable the requirements of s 7(2)(b) of the RTW Act must be satisfied. That is to say the psychiatric injury must arise out of or in the course of employment and the employment was the significant contributing cause of the injury. The question of the use of the definite article in s 7(2)(b) in relation to psychiatric injury, but not in s 7(2)(a) in the case of physical injury, was considered by the Full Court of the Supreme Court in The State of South Australia (in right of the Department for Education) v Van Hattem (No 2).[118] The Court found that a psychiatric injury will be compensable under s 7(2)(b) if employment is the most significant or most important contributing cause of the injury. The evaluative task that I must consider is not just whether employment is a significant cause of the injury, but to go further to identify it as the most important or influential of the contributing causes. In this case really the only cause of the pure mental harm illness is the employment. Whilst it is clear that the Applicant's pre-existing conditions played some role, at least predisposing her to psychological injury, it is not suggested that this was the sole or even most significant cause.
18. I find therefore that the Applicant sustained a psychological injury on 1 February 2019 arising out of her employment and that employment was the significant contributing cause.
19. There is no evidence or argument before me that the disqualifying provisions in s 7(4) of the RTW Act apply in this situation.
20. I also find that the Applicant has been incapacitated as a result of this pure mental harm injury, at least for the period of 104 weeks after 1 February 2019.

1. In order to be taken to be a seriously injured worker on an interim basis pursuant to s 21(3) of the RTW Act the Applicant must establish that the injury or injuries will result in permanent impairment and that the degree of WPI is likely to be 30% or more.[119]
2. I accept that the Applicant is likely to establish the major depressive disorder has resulted, or will result, in permanent impairment. Both Drs Bem and Khalid have given an indicative assessment of 30% or more at least before any deductions. But here we must deal with the video surveillance in the light of my findings as to the reliability of the evidence of the Applicant and her mother. When considering the evidence of Drs Bem and Khalid it is clear to me that the Applicant and her mother were consciously giving a history and describing symptomology that was persistently bleak. It was a description of the Applicant at her worst when the reality is that her condition fluctuates.
3. That the Applicant's condition fluctuates was indeed the evidence of Dr A. Somewhat ironically it seems that she is at a high point in the cycle, at and immediately after discharge from hospital. Dr A said:

The pattern of her admissions was for her to come in in a real state of distress and over reactivity - and then by the time of discharge she could interact and was smiling and going from the clinic on her morning walks and buying a coffee and coming back and having a chat with the staff. And we would consider her to be well and we'd discharge her. And then within weeks, she'd be in a state of acute distress again and no better off than before.[120]

1. My reaction to viewing the surveillance film was more in accord with that of Associate Professor Khalid than that of Drs Bem and A. It showed the Applicant able to leave the house, go to the shops and cafes and make transactions and especially at the sports carnival interact with others, be present in large crowds for four to five hours. The Applicant is able to visit, admittedly a limited number of friends, and interact with them again for up to a couple of hours. Whilst the video of the sports carnival did not show the Applicant to be particularly animated or talkative, she did interact with others, appeared calm and not in any distress. I do not accept that the Applicant only attended on the basis of some duress as suggested by Dr Bem. She was more likely to just stay home if she was so inclined or not stay for five hours.
2. Whilst there is some mention of trips to purchase a coffee, the extent of activity shown in the surveillance film was not disclosed to Drs Bem and Khalid. Dr Bem expressed some surprise at the extent of activity, but Associate Professor Khalid was clearly more troubled about the contrast between the level of complaint and capacity shown in the film, particularly considering he examined the Applicant only two days after the sports carnival. I find this particularly troubling. I do not accept that neither the Applicant or her mother could not think it relevant to describe such an event, even if portrayed as a rare. I find that this is a deliberate omission to the history.
3. Whilst I accept that the Applicant's condition fluctuates and probably most of the time she is distressed isolates and neglects self‑care, I am not confident that the Applicant or her mother gave an accurate representation of the extent of fluctuating capacity. A future assessor would need a degree of corroboration from other objective sources to get an accurate view of the extent of capacity on good days and bad. This means that I am not confident in the assessments that have already taken place as to the appropriate classification in each of the mental function sections in the GEPIC scale, although I accept that there will be a fairly significant WPI percentage.
4. As to the matter of deduction for prior or pre-existing impairment and what impairment for an unrelated cause, this question may well be affected by the terms of my decision as to the causes of the major depression. To the extent that I have largely discounted bullying and harassment at work as a cause, apart from the incident with C, may speak to the relevance of the degree of pre-existing impairment. The extent to which the stressors of work affected someone with ongoing issues with anxiety and depression, as well as a diagnosis of obsessive compulsive disorder and a prior diagnosis of PTSD, may well affect the level of deduction of an assessor.
5. An assessor will have to discount any impairment from consequential mental harm and neither Dr Bem nor Associate Professor Khalid really came to grips with this issue.
6. Moreover it may be that there is more information to be obtained as to the original circumstances relating to the prescription of antidepressants which is relevant to the degree of pre-existing impairment.
7. If the Applicant's condition has worsened since she gave her evidence and because of the trial or litigation process, and if this has resulted in permanent impairment, this raises questions as to compensability under s 7(4)(d) of the RTW Act and might affect the level of deductions.
8. Even if one assumes an assessment at median class 3 mid-range with a starting WPI of say 35%, if there is a deduction of 10% this would bring the assessment below the 30% threshold.
9. This means that I do not have the requisite degree of confidence, that on the balance of probabilities, it appears likely that the Applicant's degree of impairment before deduction is likely to be 30% or more or that it is likely that the amount of deduction would be no more than 5%.
10. I cannot find that the Applicant should be taken to be a seriously injured worker on an interim basis pursuant to s 21(3) of the RTW Act. This does not prevent her from, at the time of her choosing, undertaking a GEPIC assessment pursuant to s 22 of the RTW Act in order to determine whether or not she is a seriously injured worker having an assessment of impairment of 30% or more.
11. I will hear the parties as to the form of the orders and on the extent of publication of this decision.

[1] The diagnosis of post-concussion syndrome seems to be incorrect according to the Applicant's neurologist Dr Lee and did not form the basis of her case before me.

[4] Tr p 343.40-.45. There were references to written notes that might contain reports from this doctor and indeed others. Such written records were not in evidence before me.

[5] As far as I understand no-one was ever charged with the offence but the fact of sexual assault was in no way challenged by the Respondent.

[6] Exhibit A1 p 83. Report of Associate Professor Lee.

[7] Whilst I mention 2012, this may be an error on the part of Associate Professor Lee as the general practitioner's medical notes refer to discussions with Dr Lee in 2014.

[8] General practice notes 2 October 2013 and 12 November 2012.

[15] See Work Capacity Certificates, Trial Book pp 157-168. Some certificates refer to acquired brain injury complicated by depression and depression secondary to post-concussion syndrome.

[18] In contrast the mother maintained that the Applicant absolutely loved her work. Tr p 231.5.

[19] Exhibit A1 p 51, Applicant's affidavit at [16].

[22] Exhibit A1 p 50, affidavit at [7].

[24] She places this event in early 2011.

[30] Tr p 51, Exhibit A1 p 52 at [53].

[54] The surveillance video and the investigator's report formed part of the affidavit of the investigator, Exhibit R2.

[104] Exhibit A1 p 145. The Applicant later contended that the doctor had misunderstood some of these comments and they were not as exaggerated.

[111] Tr p 383. I think referring to comments by Dr Bem.

[114] Just whether these offices were in South Australia or interstate is not clear.

[116] [2023] SAET 32 at [14]- [15] per Dolphin PJ.

[117] See Roberts v State of South Australia [2016] SAET 58 and on appeal [2017] SAET 36.

[118] [2020] SASCFC 45.

[119] See Topsfield v Return to Work SA [2020] SAET 11, in particular [28]-[33].