IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No.  CI-21-04870

DEIRDRE JESSICA MCINTOSH	Plaintiff	
		
v		
		
PENINSULA HEALTH
(ABN 52 892 860 159)	Defendant	

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JUDGE:	HER HONOUR JUDGE MYERS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 and 11 May 2023	
DATE OF JUDGMENT:	22 June 2023	
CASE MAY BE CITED AS:	McIntosh v Peninsula Health	
MEDIUM NEUTRAL CITATION:	[2023] VCC 987		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION	
Catchwords: 	Serious injury – pain and suffering – mental or behavioural disturbance or disorder
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013 
Cases Cited:	Petrovic v Victorian Workcover Authority [2018] VSCA 243; O’Donnell v Reichard [1975] VR 916; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Humphries and Anor v Poljak [1992] VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas [2017] 161 CLR 550; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:	Proceeding dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr D J James	Hymans Solicitors	
			
For the Defendant	Ms F Blair	Hall & Wilcox	

HER HONOUR:

Introduction
1	Ms Deidre McIntosh, the plaintiff, is a fifty-three-year-old medical receptionist.  
2	The plaintiff began working for Peninsula Health, the defendant, in 1997.  She worked for the defendant for over twenty years, with an absence in 2013/2014 when she was employed by the Health Services Union (“the HSU”).  The plaintiff’s most recent employment with the defendant was as a patient services assistant.  
3	The plaintiff claimed that during 2019 she was bullied and harassed by her supervisor and has consequently developed a chronic anxiety disorder.
4	The plaintiff seeks the leave of the Court to bring a common law proceeding for pain and suffering damages pursuant to paragraph (c) of the definition contained in the Workplace Injury Rehabilitation and Compensation Act 2013, that is, a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
5	The legal principles are well known and were not in dispute.
6	There was no issue that the plaintiff suffered a compensable psychological injury arising out of her employment with the defendant.
7	The defendant said that the plaintiff was not a reliable witness.  The defendant further contested the application on the basis that the impairment consequences of the plaintiff’s psychological condition were not permanent and, that they were not “severe”.
8	For the reasons that follow, I find that the plaintiff has not satisfied her onus of establishing that she suffers permanent impairment consequences of her mental or behavioural disturbance or disorder arising out of her employment with the defendant that are “severe”.
Background
9	The plaintiff is a mother of three adult children.  She undertook various roles in hospitals and aged care during her working life.  
10	The plaintiff’s initial role with the defendant was as a kitchenhand.  However, she undertook additional training in 2005 and became a ward clerk.
11	The plaintiff was an active member of the HSU for many years.  In about 2013, the plaintiff left the defendant’s employ and took on a full-time role with the HSU as an organiser.  This employment ceased in 2014.  The plaintiff’s unfair dismissal claim against the HSU concerning her termination was determined in her favour by the Fair Work Commission in September 2014.  The circumstances surrounding the cessation of this employment were a cause of considerable distress to the plaintiff.  
12	The plaintiff returned to Peninsula Health in 2014, in the role of a patient services assistant at the Frankston Hospital.  She generally worked 36 hours per week.
13	In 2019, a new supervisor was appointed.  The plaintiff alleges that this supervisor bullied and harassed her, causing her psychological injury.  The plaintiff went off work on 17 July 2019.
14	On 30 July 2019, the plaintiff lodged a WorkCover claim, which was rejected.  
15	The plaintiff attended a psychologist, Ms Fran Malcolm, for treatment of her psychological condition on five occasions between June and August 2019.
16	In about September 2019, the plaintiff resumed work for the defendant at its Golf Links rehabilitation centre, performing alternate duties.  She subsequently claimed to have suffered a knee injury at work on 23 September 2019.  She submitted a WorkCover claim in respect of that injury and ceased working for several weeks.  That claim was rejected because of alleged discrepancies in the plaintiff’s account of the happening of the knee injury.  
17	The plaintiff resumed work in November 2019 but was stood down shortly thereafter pending an investigation into irregularities with the plaintiff’s knee injury claim.  The outcome of the investigation was that the plaintiff’s employment was terminated on 31 January 2020.  
18	The plaintiff brought an unfair dismissal claim against the defendant in respect of the termination of her employment.  That claim was resolved by agreement between the parties in April 2020.
19	In February 2020, about three weeks after leaving the defendant’s employ, the plaintiff obtained casual work as a medical receptionist with Frankston Medical and Dental Clinic (now known as Young Street Medical and Dental Clinic).  She worked an average of 25 hours a week.  
20	The plaintiff has worked for a number of general practitioner clinics since that time as a medical receptionist.  
21	Currently, the plaintiff works approximately 50 hours a week for three employers as a medical receptionist:
(a)	27-37 hours per week for Dedicated Medical Centre (across two sites);
(b)	Approximately eight hours per week for Mount Eliza Village Clinic; and 
(c)	Approximately five hours per week for Young Street Medical and Dental Clinic.
22	The plaintiff has had limited treatment for her psychological condition (including the five sessions with Ms Malcolm, psychologist, in mid-2019).
23	When she swore her first affidavit on 21 June 2021, the plaintiff deposed to the fact that WorkCover had just agreed to fund some further counselling, which she intended to have.  However, the plaintiff did not have any counselling in 2021.  It was not until September 2022, that the plaintiff began attending Grant Waters, counsellor.  
24	The plaintiff was prescribed Zoloft between May and September 2019.  Thereafter, no medication was prescribed for the plaintiff’s mental health condition until her general practitioner (“GP”), Dr Damian Flanagan, began prescribing Lexapro on 13 September 2022.   The plaintiff continues to take that medication.
The Plaintiff as a witness
25	The plaintiff found the process of giving evidence difficult.  She was a poor historian and rather garrulous.  This accorded with the manner in which the plaintiff had presented to the medico-legal examiners.  Dr Lester Walton, consultant psychiatrist, noted the plaintiff was a quite markedly vague historian.  Dr Steven Adlard, consultant psychiatrist, reported that the plaintiff appeared to have difficulty remembering the specifics of her complicated history.
26	After making an appropriate allowance for the plaintiff’s diagnosed Adjustment Disorder, I find that her evidence was unsatisfactory on a number of matters: 
(a)	The plaintiff said that she had “lost her financial independence” and moved in with her parents in early 2023 because of her psychological condition. However, the plaintiff’s earnings from her employment as a medical receptionist have been higher than her pre-injury earnings from her employment with the defendant.  It became apparent in the plaintiff’s evidence that unrelated matters such as rising interest rates affecting her mortgage repayments, and increased energy prices, were the precipitating cause of the plaintiff’s significant financial difficulties in mid-2022; 
(b)	The plaintiff’s viva voce evidence regarding her panic attacks was essentially unresponsive as to the course they had taken; 
(c)	The plaintiff deposed that she was “robust psychologically” prior to the alleged bullying and had not had a prior psychological illness.  However, the plaintiff accepted in cross-examination that she had significant problems arising from the cessation of her employment with the HSU in 2014 for which she consulted her GP and was prescribed Temazepam.  Further, when describing her pre-injury health to her GP in May 2019, it was recorded that the plaintiff had described a past history of depression.  The plaintiff said she could not recall saying that to her GP, but accepted that at times she had been stressed, tearful, sad, and traumatised; 
(d)	The plaintiff implied in her affidavit sworn on 21 June 2021 that she experienced weight gain because of the loss of her employment with the defendant, requiring the prescription of Duromine.  However, the plaintiff had struggled with weight issues since 2011, and had been prescribed Duromine from time to time over the years since then;
(e)	When asked about the extremely limited attendances for treatment for her mental health condition between September 2019 and September 2022, the plaintiff said:
“I thought things – I thought things would get better after the Fair Work thing.  I thought once it was behind me it would get better but nothing got better, it was a steady decline that I wasn’t aware of and it was by the demands of my family, after putting up with me for so long, they made me go.”
The plaintiff’s evidence was that every time she attended her GP she was in tears.  She disputed that she only mentioned mental health issues to her GP twice, despite ten to thirteen attendances during 2020.  Whilst I accept that clinical records must be treated with caution, many of the attendances in 2020 note that the plaintiff was “feeling well” or “feeling okay”.  In those circumstances, I find it is unlikely that the plaintiff reported any significant mental health issues on those occasions.  Whilst I accept that a failure to access treatment may be a feature of a mental health condition, here I find that it is more likely that the plaintiff was busy with work, and she did not feel that she required medical assistance for her psychological condition;
(f)	The plaintiff gave inconsistent evidence regarding making mistakes in her work as a medical receptionist.  In her affidavit sworn on 5 May 2023, the plaintiff described making invoicing and appointment errors.  Initially in her viva voce evidence, the plaintiff was reluctant to accept that she does a good job as a medical receptionist.  The plaintiff conceded that she does a reasonable job in her work but could be a little bit forgetful.  She said her concentration was not perfect, but most of the time she was able to correct her own errors. When specific instances were relayed by the plaintiff, it was clear that she was referring to relatively isolated occasions – for instance she scheduled an appointment for the wrong patient once; one night she forgot to set the alarm; on another occasion she did not lock the outer door.  This is consistent with the plaintiff’s account to Dr Walton that “she makes minor mistakes only at work and she actually finds that focussing on her work tasks is a useful distraction from her other problems;”
(g)	The plaintiff gave inconsistent accounts as to the reasons why she stopped attending the psychologist, Ms Fran Malcolm in 2019.  In her first affidavit, she said it was because of the cost.  This is also the reason the plaintiff gave to Dr Walton when she first saw him in March 2021, and the reason she gave to Dr Adlard in March 2023.  In her viva voce evidence, she said it was partly the cost, partly because the sessions were not helping and partly because she was embarrassed to go; 
(h)	The plaintiff presented florid descriptions of her impairment consequences which were inconsistent with the reality of the impairment consequences.  For example the plaintiff referred to having “shut down” socially, despite maintaining contact with her family, and some friends.  By way of further example, she deposed to doing whatever she could to avoid people who work at Frankston Hospital.  However, the plaintiff told Dr Adlard she continues to have contact with her former work colleagues every two or three months but said that could be a “trigger”. 
27	In light of the above, I find the plaintiff’s evidence as to past events and the extent of her current symptoms unreliable.  
28	I respectfully adopt what was said by Beach, Kaye and Niall JJA in Petrovic v Victorian Workcover Authority as follows:
“As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding.  This is particularly so in cases involving psychiatric injuries.  Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account.  Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
Evidence not called
29	It was apparent during the plaintiff’s evidence that she has a close relationship with her mother.  The plaintiff made repeated references to the fact that her mother could say what happened at her GP appointments as she would always attend with her, and her mother could attest to how the plaintiff was from time to time. 
30	The plaintiff’s mother was present in Court during the plaintiff’s evidence.
31	The plaintiff did not tender any affidavit from her mother, and no explanation was given for the failure to call her.  
32	In the circumstances, I infer that the evidence of the plaintiff’s mother would not have helped the plaintiff’s case.  I take this into account in deciding whether to accept evidence about matters concerning which the plaintiff’s mother could have spoken.
The Plaintiff’s claimed impairment consequences
33	In her first affidavit, sworn on 21 June 2021, the plaintiff deposed to the following impairment consequences: 
“83.  As a result of the bullying that I received, I continue to suffer intermittently from high levels of anxiety and depression.  I have found that I have trouble enjoying or taking pleasure from any of the things that I used to do.
 84.	I had always been a positive, friendly and happy person and feel that I am now no longer the happy and positive person I used to be prior to my work injury.  I feel anxious and depressed most days.  
 85.	My anxiety sometimes escalates into full panic attacks, although these are thankfully less frequent than they used to be.  When they occur, I completely freeze and find I am unable to do anything.
 86.	I have feelings of hopelessness in that I just don’t feel there is any point to anything anymore.  I wonder where my life went and how I ended up this way?
 87.	I do not have suicidal ideation, as I would not go through with such a thing or place that burden onto those I love.  It appears likely my father took his own life when I was 25 years old and I would not want that burden for my children.
 88.	I used to enjoy having people come over to visit and now tend to avoid those interactions if I can help it as they take too much mental effort and they just make me anxious instead.
 89.	I am now difficult to be around because I feel so down, and so I tend not to want to socialise and therefore as a result, a lot of my friendships have fallen by the wayside, and this saddens me greatly.  I have become withdrawn from everyone including my children.
 90.	I worry about the effects of my depression and anxiety on Connor [the plaintiff’s son] and feel it is unfair for him to have to go through this.  I fear Connor is becoming depressed and anxious as a result of all this and this is of huge concern to me.
 91.	My sleep has been greatly affected by the work injury.  I rarely get a good night’s sleep.  I struggle to get past the feelings that rise up because of being treated in such a manner at a workplace I gave so much of my life to.  I can now no longer sleep as soundly as I used to, and it sometimes takes me until the early hours of the morning to fall asleep, because I ruminate over the unfair treatment I received at work and the significant change in my life since that time.  I have in the past resorted to the occasional cannabis to relax me to the point where I am able to get off to sleep.  But I don’t use it any more really.
 92.	I find that I have very poor concentration and memory retention and I am very often distracted by thoughts related to incidents that occurred, even when working for other employers.  I try to hide it as best I can and feel I have to pretend to be someone else in order to get through.
 93.	The work injury has now caused me to lose much of my self-confidence.  I believed in my abilities and myself.  Although I have since gained alternative employment, I don't feel the same way now.  I frequently doubt myself and I worry about how I am perceived by others all the time.
 94.	I used to be a confident and outgoing person.  I now have no confidence in myself or my abilities and I spend a lot of mental energy preparing myself to manage situations where I need to interact with other people.  I feel totally devalued.  I therefore tend to avoid any social interactions apart from attending work, which I can't avoid as it is necessary to keep a roof over our heads.
 95.	I try to manage my anxiety and stress levels on a daily basis, but I am not particularly successful.  It is an ongoing thing that I struggle with constantly.  I feel more comfortable when I am working.  The anxiety is worse when I go home and have time to think.  
 96.	I feel constantly tired and low in motivation as a result of the worry and ruminations.  The anxiety and panic tend to re-emerge without warning, and I find myself crying quite a lot of the time.  I now constantly struggle with feelings of worthlessness and pointlessness.
 97.	Whilst working at Peninsula Health Frankston I was so stressed that I found I could not eat and as a consequence lost weight.
 98.	My employment role with Peninsula Health was a particularly physical one which tended to assist me to maintain a level of physical fitness.  I am no longer able to maintain that level of physical activity
 99.	The consequent lack of regular exercise that my body was used to during the course of my employment, coupled with my low motivation for physical activity, has meant my weight has become a huge concern and caused serious health issues for me.  I am currently trying Duromine weight loss medication as prescribed by my doctor to try to counteract the weight gain.
100.	I am now easily agitated and annoyed by trivial little things, which normally would not have bothered me.  I find I have no sense of the future being better and no purpose.  It is a huge effort to keep on top of everything.
101.	I feel teary and sad a lot of the time.  I also feel very flat and down, although I really try to keep my spirits up, so I don’t fall into a heap, particularly for Connor’s sake.  I also have a lot of feelings of fear about to tomorrow, about the future.
102.	I am very distressed by events that occurred and the aftermath which has caused my life to be turned upside down.  I now do not have confidence in myself or the future.”
34	In her second affidavit, sworn on 5 May 2023, the plaintiff deposed to her symptoms having improved slightly since taking Lexapro.  She said the following about her continuing impairment consequences:
“3.	My memory has become unreliable, I have trouble recalling events, dates, times and appointments.  I have missed more than one appointment with my Counsellor, and on occasions I have arrived on the wrong day.  
 4.	My concentration is faltering, at work I sometimes invoice the patient when they should be sent to Medicare, this has been brought to my attention by the Practice Manager or when I reconcile the billings at the end of the day.  
 5.	At times I have made appointments for patients with the wrong Doctor.  On occasions when scheduling appointments I make them for the wrong patient as that patient has a similar name to the proposed patient.  It’s not until when the patient turns up for their appointment that I realise my lapse in concentration.  
 6.	I struggle to fall asleep and when I do fall asleep it is a broken sleep, I usually get up 2 to 3 times a night.  When I eventually fall asleep and wake up in the morning, I feel tired and sluggish which affects my concentration and carrying out my daily activities.  
 7.	On some occasions when I am at work I try to sleep in my car during my lunch break to catch up on sleep.  I set my alarm to wake me up before my lunch break is over.  At work I am entitled to a 30 minute lunch break.  
 8.	I have lost confidence in my own judgment; I feel as though all the decisions I have made led me to where I am now.  
 9.	After the way that I was treated at Frankston Hospital, I am highly suspicious of people, especially in a work environment.  I find that I am closed off because I think that other people want to use me for their own ends.  I don’t want any of my personal information or anything I have said to be used against me as it was when I worked for Peninsula Health.  
10.	Since ceasing employment with Peninsula Health I am no longer socially active.  I find that I do not want to be around people or engage with anyone.  I used to socialise with friends on a regular basis, I had a large friendship group, I felt lucky to have the friends I did.  On the odd occasion when a friend convinces me to go out, I find that I am a spectator, I just sit back and watch everyone else wanting to go home.  
11.	Even if I was able to socialise on a regular basis, I would not have the energy to do so.  I am working at three different medical centres, Dedicated Medical Care, Young Street Medical and Dental and the Village Clinic, in an attempt to stay afloat financially.  When I come home, I am so tired I just lay on the couch.  
12.	I no longer engage with people socially because I have become self-conscious, I think that people are comparing me as I am now to the person I was before, bubbly, sociable and outgoing.  I think I look and feel miserable.  
13.	In May this year I travelled to Townsville for a holiday and to catch up with an old friend.  This friend has been nagging me to visit for over a year.  I went on the advice of my Counsellor/Therapist, Mr.  Grant Waters, he said that if I do not take any time off, I am likely to burn out.  My friend has noticed the change in my behaviour and attitude, she keeps asking for when the “old Dee” will be back? 
14.	I do whatever I can to avoid going to the Frankston Hospital and the people who work there, because driving past the Hospital and seeking people who work there makes me severely anxious and nervous.  I avoid driving past the Frankston Hospital, even if driving to avoid the Hospital takes longer than driving past it.  
15.	I avoid at all costs talking about my time and the way that I was treated by my colleagues when I worked at the Frankston Hospital because thinking about these events leads me to having breakdowns where I cry uncontrollably.  The duration of my WorkCover claim has been hard as the events from my time at the Frankston Hospital are always brought up, unlike my Unfair Dismissal claim, which resolved quite quickly.  
16.	In April 2021 my sister was admitted to the Frankston Hospital with abdominal pain while pregnant.  My mother could not attend to my sister as she was suffering from a debilitating migraine, so she telephoned me asking me to go to attend to my sister.  I told my mother I could not go after the way I was treated there and the way seeing the building makes me feel, we ended up having an argument on the telephone.  I did not go to see my sister on that occasion.  
17.	When my sister was admitted again in July 2021, I did end up visiting her at the Frankston Hospital, as I wanted to avoid an argument with my mother.  When I was leaving after the visit I ran into old work colleagues, ones that I was friendly with.  While speaking to them I was anxious, nervous and fidgety, I kept edging my way towards the exit as I wanted to leave as quickly as possible.  
18.	Thinking about the situation and how I was treated while employed with Peninsula Health brings me to tears.  I think about how I was treated and what I have lost, I was an independent person before, my happiness was taken away from me, I think about the person I was before, all the friends I have lost as majority of my friends worked at the Hospital.  This depresses me.  
19.	I feel like a failure, and I have lost my financial independence, I have had to move back in with my parents as I rented out my house as I cannot afford the mortgage and utility bills.  I had a house, now I just have a room.  My situation now makes me feel like a burden to everyone around me.”  
35	Before moving to the issues raised for determination, this is a convenient point to consider the medical evidence tendered by the parties.
The medical evidence
Ms Fran Malcolm, psychologist
36	The plaintiff tendered a report from Ms Malcolm dated 18 July 2019. 
37	This report was written at a time when the plaintiff was still employed by the defendant but off work.  She had submitted a WorkCover claim in respect of bullying and harassment.
38	The plaintiff told Ms Malcolm that she was constantly crying, had poor memory and concentration and dreaded the thought of going to her workplace.  Ms Malcolm recommended the plaintiff go on to WorkCover for her depression and anxiety.
39	Given this report is now more than three years old, it is of limited assistance in determining the plaintiff’s current psychological condition.
Mr Grant Waters, counsellor/therapist
40	The plaintiff tendered a report from Mr Waters dated 10 April 2023.
41	The plaintiff first consulted Mr Waters in 2011 for relationship counselling with her then husband.  She was referred back to him by her GP in about September 2022 (the referral letter was not tendered by the plaintiff).  Since that time, the plaintiff has had eleven counselling sessions with him.
42	Mr Waters’ report did not mention the difficulties the plaintiff experienced in her employment at the HSU.  
43	Mr Waters has been treating the plaintiff with cognitive behavioural therapy for an Adjustment Disorder with associated generalised anxiety and depression.  
44	Mr Waters opined that the plaintiff “will need to continue with regular psychological support for at least the next 6-12 months, with periodic reviews after this period”.
45	Whilst Mr Waters’ report outlined the symptoms the plaintiff reported to him, it does not include a mental status evaluation.  Given my findings regarding the plaintiff’s reliability, the absence of such evaluation means that this report is of limited assistance to the consideration of the plaintiff’s application.  Further, there is no indication in the report as to the progress, if any, the plaintiff has made with treatment.  
Dr Lester Walton, psychiatrist
46	The plaintiff tendered four medico-legal reports from Dr Walton dated 22 March 2021, 30 August 2022, 30 March 2023 and 26 April 2023.  Dr Walton examined the plaintiff on three occasions in a two-year period, on 11 March 2021, 23 August 2022, and 28 March 2023.
47	In his first report, Dr Walton noted that the plaintiff was a “quite markedly vague medical historian and not only do I not have a precise chronology, but I am not confident as to its accuracy”.
48	Dr Walton noted that the plaintiff reported no earlier psychiatric history to him, although she reported having had some temporary marital counselling in the past.  
49	The plaintiff reported feeling ongoing anxiety and occasional panic attacks.  She reported reduced motivation, forgetfulness and difficulty getting to sleep.  She had separated from her husband in about 2016 and was finally divorced in 2020.
50	On mental status evaluation, Dr Walton opined that the plaintiff “was a rather garrulous and somewhat disorganised conversationalist with pressured speech and recurring tearfulness”.  Simple clinical testing revealed no obvious cognitive deficit on a background of normal intelligence.  There were no psychotic features.  
51	The plaintiff told Dr Walton that she was particularly concerned about her precarious financial situation.  He noted that she described a marked disinclination towards social involvement.
52	Dr Walton’s diagnosis was that the plaintiff was suffering from a Generalised Anxiety Disorder.  He recommended that the plaintiff should continue with psychological counselling and mood stabilising medication but noted she was reluctant to do so.  He concluded his report as follows:
“It would be of assistance to Ms McIntosh if her claim can be settled speedily, not only in terms of lowering her overall levels of anxiety but also producing some financial clarity.”
53	In his second report dated 30 August 2022, Dr Walton noted that the plaintiff was rather disorganised in her provision of information, but less so than previously.  He noted that the plaintiff had recently had one meeting with a counsellor, and anticipated weekly consultations in the future.
54	The plaintiff’s reported symptoms were that she remained prone to anxiety of panic proportions once or twice a week.  There was a background of poor self-confidence, and she described being particularly prone to anxiety when alone and “over-thinking”.  The plaintiff reported not being especially aware of depressed mood, but highlighted a lack of motivation, and persisting difficulties with sleep.
55	The plaintiff told Dr Walton that she was averaging 50-60 hours’ work per week as a medical receptionist.  She reported having relatively little time for social and recreational pursuits but enjoyed visiting her young niece and had contact with her mother twice a week.  She reported that she had otherwise “shut-down” socially.
56	Upon mental status evaluation, the plaintiff presented in a similar manner as previously, although somewhat less distressed.  Dr Walton opined that the plaintiff exhibited clinically significant anxiety.
57	Dr Walton’s diagnosis remained the same but he opined that there had been a modest improvement overall and that it appeared likely there would be a long-term mood disturbance.  Dr Walton again recommended the plaintiff be prescribed a mood stabilising medication.
58	Dr Walton examined the plaintiff most recently on 28 March 2023.  The plaintiff reported that she had started taking Lexapro “apparently prompted by Ms McIntosh’s panic attacks becoming worse”. The plaintiff reported that she continued to suffer panic attacks two or three times a month.  She described depressed mood and diminished motivation.  The plaintiff reported that she made minor mistakes only at work.
59	Dr Walton’s diagnosis was unchanged, but he noted there had been a slight improvement since last seen.  He was, however, of the view that the plaintiff’s condition had substantially stabilised.  Dr Walton opined “I suspect that she will require professional mental health assistance for some years to come”.
60	Dr Walton’s most recent report was a supplementary report prompted by the provision to him by the plaintiff’s solicitors of information relating to the plaintiff’s difficulties whilst at the HSU.  The information did not cause Dr Walton to change his opinion.  
Dr Nicole Phillips, psychiatrist
61	The defendant tendered a medico-legal report from Dr Phillips dated 22 August 2019.  
62	As with Ms Malcolm, this report was obtained at a time when the plaintiff was still employed by the defendant and was off work.  She had submitted a WorkCover claim for bullying and harassment.  
63	On mental state examination, Dr Phillips found the plaintiff to be moderately anxious, with a depressed affect.  There was no suicidal ideation, no psychotic symptoms, and no formal thought disorder.  Formal cognitive testing suggested a degree of cognitive dysfunction.
64	Dr Phillips diagnosed an Adjustment Disorder with a Depressed and Anxious Mood.  She noted that the plaintiff’s symptoms were relatively persistent and moderate in severity.  The plaintiff had not worked since 17 July 2019, and Dr Phillips was of the view that the plaintiff had no current work capacity.
65	Given that this report was written in 2019, it is of limited assistance regarding the plaintiff’s current psychological condition.
Dr Steven Adlard, psychiatrist
66	The defendant tendered a medico-legal report from Dr Adlard dated 7 March 2023.
67	Dr Adlard was provided with the plaintiff’s first affidavit, Ms Malcolm’s report and notes, the first two reports of Dr Walton, various employer documents, and the clinical records of Hastings Family Medical Centre.
68	The plaintiff reported to Dr Adlard that she was working about 50 hours a week over seven days as a medical receptionist, across three jobs.  She described finding counselling sessions with Mr Grant Waters to be helpful.  She had also found an antidepressant helpful.
69	The plaintiff told Dr Adlard that she was able to function with her work.  Outside work she preferred to be by herself.  She described becoming anxious in social situations.  The plaintiff said that she enjoyed spending time with her young niece and was trying to reconnect with her children.  Her eldest child had bought her a motorbike and she was excited at the prospect of getting on it.  The plaintiff described sleep difficulties which had improved somewhat since being prescribed medication.  She thought her memory was not as good as it used to be but did not describe any concentration problems.  The plaintiff told Dr Adlard that she contacted her former Peninsula Health work colleagues every two to three months.
70	Dr Adlard opined that the symptoms described by the plaintiff of some nausea when anxious, and occasional shortness of breath and light-headedness (which the plaintiff said she had not experienced for a while) were not full-blown panic attacks.  
71	On mental state examination, Dr Adlard noted that the plaintiff was co-operative and open.  Her mood was mostly anxious, and she was tearful on one occasion.  Dr Adlard opined that “Overall, she presented mainly as mildly anxious and to a lesser extent depressed, also to a mild degree”.  There was no formal thought disorder.  Her attention and concentration appeared good, although Dr Adlard noted that she had some difficulty remembering the specifics of her complicated history.
72	Dr Adlard diagnosed the plaintiff as suffering from a relatively mild Adjustment Disorder with Anxious Mood, which had improved with psychological treatment, medication, and the passage of time.  Dr Adlard opined that the plaintiff’s overall level of function was reasonably good.  He thought that the ongoing legal proceedings were delaying the plaintiff’s recovery.  He expected that once the legal proceedings ended, she would continue to improve and move towards resolution in twelve months.  He opined that the plaintiff would likely not require an antidepressant or counselling after twelve months.  She did not need to consult a psychiatrist.
Conclusions regarding the medical evidence
73	The plaintiff did not tender any report from her GP.
74	The plaintiff has not been referred to a psychiatrist for treatment of her psychological condition.  
75	On the evidence, the plaintiff has either an Adjustment Disorder or Anxiety Disorder.
76	Dr Walton has had the advantage of seeing the plaintiff on three occasions and being able to assess her progress.  I accept his opinion that the plaintiff has improved between each assessment.  
77	It does not appear that any of the medical practitioners were provided with a complete history or all relevant documents, but the documents provided to Dr Adlard gave him the most fulsome history overall.  In particular, Dr Walton was not provided with any affidavit of the plaintiff, documents regarding the plaintiff’s employment with the defendant, or the clinical records of Hastings Family Medical Centre.  In those circumstances, I prefer the opinion of Dr Adlard, who did have the benefit of that information.  
78	I accept the substance of the recent mental state examination of Dr Adlard.  That is, that the plaintiff is mildly anxious and mildly depressed, but has no psychotic features, no obvious cognitive deficit, no formal thought disorder and good attention and concentration.  I accept his opinion that the plaintiff’s condition is likely to improve further with the resolution of her legal proceedings.  Dr Walton also held this expectation. 
Is the Plaintiff’s psychological disturbance permanent?
79	The defendant submitted that the plaintiff had not established that her psychological condition is likely to persist through the foreseeable future.  The primary basis for this submission was that the plaintiff only restarted treatment for her condition in September 2022.  Since that time, the plaintiff had experienced an improvement in her condition.  
80	In his report dated 30 March 2023, Dr Walton opined that the introduction of counselling and an antidepressant had precipitated an improvement of “quite modest proportions” and that he had “no doubt that there will be long-term psychiatric symptoms”.
81	Dr Adlard was more optimistic as to the extent of improvement likely with treatment and the resolution of litigation.  
82	On the basis of the whole of the evidence, I find that there is likely to be a continuing improvement in the plaintiff’s condition, but it will probably not be a significant improvement.  The plaintiff has experienced psychological symptoms since 2019.  She improved in the absence of treatment between 2019 and 2022.  Her improvement since treatment restarted in September 2022 has been modest.  I find that is likely that the plaintiff will continue to suffer mild symptoms of depression and anxiety through the foreseeable future.  On that basis, I find that the plaintiff’s injury is permanent in the requisite sense.
Are the impairment consequences of the Plaintiff’s mental or behavioural disturbance “severe”?
83	The consequences of an injury are “serious” if, when judged by comparison with other cases in the range of possible impairments or losses, they can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.  As this is a paragraph (c) case, the plaintiff must establish that she has a permanent severe mental or permanent severe behavioural disturbance or disorder.  The word “severe” has been held to have a meaning which is stronger in terms of significance or gravity than “serious”.
84	In assessing the severity of the impairment consequences of the plaintiff’s psychological condition, I must identify and bring to account all the factors which emerge on the evidence as relevant to the assessment. 
85	The extent of treatment the plaintiff has undergone for that condition is just one circumstance.  
86	Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained.
87	I find that the plaintiff is suffering from an Adjustment Disorder with Depressed and Anxious Mood.  She has reduced her social interaction, but I do not accept that the plaintiff has “shut down” socially as she claimed.  She experiences reduced motivation.  She has disturbed sleep, although this has improved in recent times.  She often avoids driving past Frankston Hospital, but still does so from time to time.  She continues to have contact with former Peninsula Health colleagues.  She can get flustered, and teary at times.  She has occasional feelings of panic, although she does not have full-blown panic attacks.  
88	The plaintiff has not had, and does not require, treatment from a psychiatrist.
89	The plaintiff takes an anti-depressant daily for her condition and is consulting a counsellor on a regular basis.  This level of treatment is required for a further six to twelve months.  
90	The plaintiff has retained the capacity to work more than full-time hours.  She has been in essentially continuous employment since ceasing work for the defendant in January 2020.  It is work that the plaintiff has secured on the open labour market.  She currently works more than 50 hours per week in a public facing, busy and responsible position as a medical receptionist for three different medical practices, in four separate locations.  I find that the plaintiff is effective in the performance of her work but makes minor mistakes from time to time.  She works longer hours and earns more money now than she did when working for the defendant.  
91	The plaintiff retains the capacity to care for herself, perform domestic activities, socialise with her family and some friends, drive, and travel.  Whilst I accept that she does experience some lack of motivation in relation to these activities, I find that lack of motivation is modest.  Furthermore, given the long hours the plaintiff works, her opportunities for more significant socialising are limited.
92	I find that the impairment consequences of the plaintiff’s psychological condition may be considered to be significant.  However, in undertaking the value judgment required of me and bearing in mind the whole of the evidence, I am not persuaded that those consequences could be described as “at least very considerable”, and they do not meet the higher test of “severe”.
Conclusion 
93	The plaintiff’s application is therefore dismissed.
94	I will hear the parties on the issue of costs.
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