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

Case No. CI-22-00107

GIAO CAO 	Plaintiff	
		
v		
		
DIRECT RECRUITMENT PTY LTD	Defendant	

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JUDGE:	HER HONOUR JUDGE TRAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 and 13 September 2022	
DATE OF JUDGMENT:	16 December 2022	
CASE MAY BE CITED AS:	Cao v Direct Recruitment Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2273		

REASONS FOR JUDGMENT
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Subject: 	ACCIDENT COMPENSATION
Catchwords: 	Serious injury – mental or behavioural disturbance or disorder – where pre-existing mental health issues – where not reliable historian
Legislation Cited:	Workplace Injury and Rehabilitation Compensation Act 2013
Cases Cited:	Petkovski v Galletti [1994] 1 VR 436; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Noonan v Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas (2017) 262 CLR 550; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:	Leave to bring proceedings for pain and suffering damages .

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms S Gold	Slater and Gordon Lawyers	
			
For the Defendant	Mr R Stanley	Russell Kennedy	

HER HONOUR:

1	On 18 April 2018, an agitated client came into the reception area of the defendant, Direct Recruitment Pty Ltd (“the defendant”), where Giao Cao worked as a recruitment consultant.  The client was screaming abusive violent threats at the receptionist.  His tone drew Ms Cao and another co-worker from their offices and into the reception area.  The reception area was tiny, the client smelled of alcohol, appeared intoxicated and was behaving erratically.  The client drew out a knife and demanded money; he waved the knife around and told them that he wanted to cut and kill someone that day.  Ms Cao tried to stay calm and “talk him down”.  Ms Cao thought one of her co-workers was making him more agitated, so she suggested that co-worker go behind the wall.  Ms Cao remained in the room with the man.  There was no duress button in the reception area, and neither Ms Cao’s manager, nor the defendant’s head office, were answering their calls.  Eventually, Ms Cao was able to get through to the police, who attended and took the man into custody.  The entire incident took around forty-five minutes. 
2	Ms Cao claims that, as a result of this incident, she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of the definition of “serious injury” in s325 of the Workplace Injury and Rehabilitation Compensation Act 2013 (“the Act”).  She seeks leave to bring proceedings for pain and suffering damages. 
3	There is no dispute that the incident was a highly traumatic event for Ms Cao.  Nor can it seriously be disputed that Ms Cao suffered Post-Traumatic Stress Disorder (“PTSD”) as a result.  Four psychiatrists, whose expert reports were tendered in evidence, support this diagnosis, including two retained by the defendant. 
4	However, the defendant contends that:
(a)	Ms Cao suffered significant unresolved mental health issues prior to the incident, which must be taken into account in assessing the severity of her claimed injury (i.e. this is a Petkovski aggravation case);
(b)	Ms Cao is not a credible or reliable witness.  She had lied in relation to her post-injury activities and lied about her history.  She was a person who sought to obtain a financial benefit through her complaints to psychiatrists.  Her descriptions of her current symptoms were not reliable.  This undermined both her evidence in Court and the opinions of the medical experts; and 
(c)	In that context, the Court should not be satisfied that Ms Cao met the required threshold of having suffered a severe long-term mental or severe long-term behavioural disturbance or disorder. 
5	Accordingly, the defendant submitted, Ms Cao’s application for leave to bring proceedings for damages should be dismissed. 
Relevant pre-incident history
6	Ms Cao was born in Vietnam in 1977.  At the age of fourteen, Ms Cao moved to Australia and resided with her father and stepmother.  Ms Cao left high school upon finishing Year 11 and pursued tertiary studies in cosmetic tattooing.  She moved out of her family home at age eighteen.  At age twenty, Ms Cao and her de facto partner had their first child. 
7	When her first child was seven years old, Ms Cao separated from her de facto partner.  Sometime after their separation, her ex-partner ended his life, an undeniably traumatic event for Ms Cao to endure.  At the time, Ms Cao did not seek help for the feelings of depression, loneliness and confusion that afflicted her after this event.
8	Between 2013 and 2017, Ms Cao amassed a very large amount (over $100,000) of unpaid traffic-fine debt.  Her increasing traffic-fine debt, combined with symptoms of anxiety, precipitated her referral to psychiatrist, Dr Roger Chau, in 2013.  Dr Chau diagnosed her with an Anxiety Disorder.  She was given a prescription for Fluoxetine.  Ms Cao says she only took the Fluoxetine for a short time.  
9	In February 2015, Dr Chau provided a letter to Victoria Legal Aid, apparently to be used in relation to her unpaid traffic-fine debt.  In that letter, he diagnosed Ms Cao with a Major Depressive Disorder with features of panic attacks and PTSD related to the suicide of her ex-partner ten years prior.  He also noted that “Ms Cao’s psychological disturbances predate the incurring of fines by many years.  The fines certainly made her Depression worse.” 
10	In 2017, Ms Cao began work with the defendant as a recruitment consultant.  Ms Cao began to consider setting up her own cosmetic tattooing business.  She worked part time and on-call for the defendant. 
11	On 30 November 2017, her general practitioner, Dr David Wilson, provided a letter to Victoria Legal Aid in relation to the fines Ms Cao had incurred.  He noted her diagnosis of PTSD and explained that the symptoms of her illness were depression, anxiety and difficulty leaving home at times. 
12	Towards the end of 2017, Ms Cao attended court in relation to her unpaid traffic fines.  The amount due was reduced and she was placed on a payment plan.  Ms Cao claimed that this took a “big weight off [her] shoulders” and that she improved her mental health by meditating and exercising a lot.  
Ms Cao’s evidence of the impact of the incident
13	The incident occurred on 18 April 2018. 
14	On 21 May 2018, Ms Cao left her employment with the defendant and commenced full-time employment with a different recruitment agency, Octec. 
15	In around mid-2019, the police contacted Ms Cao and asked her to come to court to give evidence about the incident.  Ms Cao says that the police contacting her “brought it all back”.  She went to see her general practitioner (“GP”) and was referred to a psychiatrist.  Ultimately, she began seeing her current psychiatrist, Dr Indra Mohan, in early 2020. 
16	Ms Cao’s written evidence painted a picture of a woman who had retreated into a life of solitude after the incident, particularly after the police approached her in 2019.  She mentioned occasionally meeting people from dating apps; going out to eat a large meal after “a long time” barely eating; and some alcohol and drug use; however the overall import of her evidence was that the incident had left her highly restricted in her ability to engage in social activities or even to leave her house. 
17	Although she worked full time running her business, Ms Cao said her capacity to do so was tenuous ꟷ she suffered panic attacks at work and worried she would be unable to continue.  She claimed to have a terrible memory, to be “spaced out”.  She said she was exhausted when she returned home from work, felt like a robot, and had to pay someone to clean her house and walk her dog.  She said she had nightmares almost every night, in which she could smell the culprit.  She said she had progressed to thoughts of self-harm and suicide.  She described herself as living an “unbalanced life”, in which she would barely eat anything, then force herself to go out and eat a large meal, or binge and drink alcohol, or use cocaine.  She said, “I feel like I am standing on the edge and could fall off with the flick of a finger”. 
18	According to Ms Cao’s evidence, this was a distinct change from her life prior to the incident.  She was, she said “outgoing and social” prior to the accident.  She admitted to having had anxiety before, but said it was a lot worse now.  She said, prior to the incident, she was quite social and enjoyed restaurants and social activities with friends; but was more like a hermit now. 
19	In oral evidence, Ms Cao presented as an articulate and attentive witness.  Some of the questions that were put to Ms Cao by counsel for the defendant in cross-examination had a complicated structure, which made them difficult to comprehend; however Ms Cao exhibited a capacity to understand these questions, responding appropriately in most instances, and requesting clarification when required.  On the other hand, Ms Cao repeatedly asserted that she could not remember the answer to quite straightforward questions, such as how often she went out to restaurants, or the name of a restaurant, or who organised dinners with staff, or how often she travelled to Geelong.  Yet, when subsequently pressed to answer, she was able to provide answers to these questions. 
20	For example, Ms Cao initially stated that she could not remember the names of restaurants she had attended, nor how often she attended them.  She also confirmed, in her oral evidence, that she was “more of a hermit” than before, did not feel safe alone, was very cautious around new people and did not like going into the city unless she was with her dog or someone she could trust.  However, when pressed to answer, she admitted that she was going to restaurants about once a week, including local restaurants, such as Carosello, and restaurants in the city such as the Flower Drum, Rock Paper Scissors and Sake and Silks, sometimes with acquaintances, sometimes with staff members, and not always with her dog. 
21	Her answers shifted during the course of cross-examination in other respects.  Initially, she said that she was required to give evidence about the incident.  When questioned further, she corrected this and said she did not give evidence in the court case.  She initially denied a prior attempt to set up an eye tattooing business, but then confirmed she had a business in Windsor she had set up.  She then said, “It didn’t really get running” and that “[i]t was registered but it wasn’t operating”, before confirming that the business actually had a physical shop. 
22	The histories recorded by the treating and medico-legal practitioners, whose reports were tendered in the proceeding, were also inaccurate at times:
(a)	Her treating psychiatrist, Dr Mohan, recorded, in her report, that there was no history to suggest any depressive symptoms leading up to the incident, apart from her feeling down and not motivated at work following the death of a close family member almost twenty years ago.  This can be contrasted with Ms Cao’s admission, under cross-examination, that as recently as November 2017 she had symptoms of depression, anxiety and difficulty leaving home, and a long history in the clinical records of symptoms of depression, anxiety and PTSD, including panic attacks; 
(b)	Medico-legal psychiatrist, Dr Richard Prytula, recorded that “[s]he was well before the claim” and that “[s]he said she saw a psychologist, several years ago, for a bereavement issue in the family but is not seeing them currently”.  This can be contrasted with her multiple consultations with psychiatrist Dr Chau (described below), who diagnosed her with major depressive episodes with features of panic attacks; her admission under cross-examination, that as at January 2017 she had had depression for about ten years; and her significant issues with unpaid traffic fines;
(c)	medico-legal psychiatrist, Dr Albert Kaplan, records, in his report of 23 March 2021, that:
(i)	“as a result of the incident, she resigned two weeks later”.  However, an email dated 21 May 2018 from Ms Cao was tendered in evidence and explains that she is resigning from the defendant because she has been offered permanent employment closer to home; and
(ii)	“she was compelled to attend a hearing in late 2019 where she testified and was exposed to her assailant again”.  Although, in cross-examination, she initially said she gave evidence at court, she subsequently admitted that the case was adjourned prior to its commencement, and she did not testify or give evidence in court; and
(d)	medico-legal psychiatrist, Dr Alan Jager, records, in his report of 22 December 2021, that she had attended treating psychiatrist Dr Mohan fortnightly for the last six months, despite her having had a break in sessions with Dr Mohan of almost a year from 14 October 2020 to 1 September 2021. 
23	Medical histories are not always recorded accurately by medical practitioners.  Treating practitioners, in particular, may only focus on therapeutically relevant matters.  However, with respect to each of the above matters, the medical practitioner in question recorded a detailed and specific history, of a kind which is inherently unlikely to be the result of inadvertent inaccurate recording by a medical practitioner.  Looked at collectively, a compelling inference arises that Ms Cao is not reliable in her descriptions of her past medical history and treatment. 
24	On the other hand, Ms Cao did disclose, in her second affidavit, that she eats out and goes on some dates.  Ms Cao also readily admitted, in her written and oral evidence, that:
(a)	she was able work full time, in the recruitment industry, from shortly after the incident until January 2020;
(b)	she was able to establish and operate a cosmetic tattooing business in 2020 with a Puckle Street shopfront and a high turnover and good reputation, working effectively full-time hours, and sometimes up to ten hours per day;
(c)	she was able to organise breast reduction surgery, and to travel to the Philippines for that purpose, and care for herself there for fifteen days after having had that surgery; and
(d)	she had not taken up suggested treatment, such as EMDR and in-patient treatment (despite having herself apparently been the person who suggested in-patient treatment).
25	Although her general evidence about her symptoms was at times exaggerated and melodramatic, she did not appear, in oral evidence, to be someone who was telling deliberate untruths. 
26	I note that Ms Cao failed to call any witness besides herself.  However, she offered a reasonable explanation for the absence of evidence from her daughter and her staff.  She explained that her relationship with her daughter is strained, and that she does not wish to mix her professional and personal life by involving her staff.  I do not draw an adverse inference against her for the failure to call these witnesses. 
27	Ms Cao has been diagnosed with mental health conditions including depression, PTSD and anxiety.  She claimed to suffer memory issues as a symptom of the incident.  I accept that someone with such mental health conditions may struggle with precise recall, to the extent that their evidence of past events is unreliable and inconsistent.  I also accept that a failure to access appropriate treatment and attend appointments may be part and parcel of mental health conditions, such as depression. 
28	In careful and detailed submissions, counsel for Ms Cao submitted that Ms Cao’s behaviour in not taking up available treatment, and in pursuing her cosmetic tattooing business, was inconsistent with a view of her as a conniving and compensation-focused individual.  She submitted that, to the contrary, Ms Cao was a stoic hardworking individual who had not put in a WorkCover claim, and had not sought medical assistance in relation to the incident for over a year, and still had not claimed any weekly WorkCover payments for lost earnings.  I accept these submissions.  Ms Cao is clearly hardworking and driven to succeed in her cosmetic tattooing business.  She is to be commended for the effort which she has put into pursuing her dream of running a cosmetic tattooing business.  I accept that she has pushed through significant challenges with her mental health in order to pursue that dream. 
29	Having considered all of the above matters, I do not accept the defendant’s submission that Ms Cao is a liar.  However, I have concluded that Ms Cao’s recollection of the past is coloured by her pre-occupation with the incident, and an internal narrative that attributes all of her current symptoms to the incident.  Her evidence is also unreliable because of her memory issues.  Accordingly, her evidence of the state of her past mental health must be treated with caution.  In particular, I do not accept her evidence in relation to her past mental health, where it conflicts with the clinical records, or is unbelievable in light of those records. 
30	I have also concluded that I should carefully assess Ms Cao’s description of her current symptoms.  While I accept that Ms Cao was truthful in the specific, factual details she provided of her symptoms, I find that, as a result of her pre-occupation with the impact of the incident upon her life, her more general portrayals of herself as a “hermit” or “recluse” are exaggerated and melodramatic.  
Medical evidence
31	The following medical reports were tendered in evidence:
(a)	reports from her treating general practitioner, Dr Wilson, dated 30 November 2017 and 14 August 2020;
(b)	reports of her treating psychiatrist, Dr Mohan, dated 3 June 2022, 6 June 2022;
(c)	reports of previous treating psychiatrist, Dr Chau, dated 15 February 2015, 21 January 2017 and 6 May 2022;
(d)	report of medico-legal psychiatrist, Dr Prytula, dated 30 September 2019;
(e)	report of medico-legal psychiatrist, Dr Kaplan, dated 23 March 2021 and 22 April 2022; and
(f)	report of medico-legal psychiatrist, Dr Jager, dated 22 December 2021. 
32	In addition, clinical records were tendered from the Gladstone Park Superclinic (at which Ms Cao saw a range of general practitioners, including Dr Wilson) and Dr Mohan.  The clinical records were accepted into evidence subject to the rider that the Court would only have regard to them insofar as they were specifically referred to in evidence or submissions.  Subject to that rider, I have read and taken into account all tendered medical evidence.  I make the following specific observations in relation to each medical expert. 
Dr David Wilson 
33	Dr Wilson was the plaintiff’s GP from 2013 to 2017, and then 2019 to 2021.  He prepared a report for this proceeding dated 14 August 2020.  His report of 30 November 2017 (which was prepared at the request of Victorian Legal Aid in relation to Ms Cao’s unpaid fines) and his clinical notes of consultations by Ms Cao between 27 March 2013 and 1 September 2021, were also tendered in evidence. 
34	Ms Cao first attended Dr Wilson on 27 March 2013, where she presented as “run down”.  Dr Wilson reports that the plaintiff attributed this to her having a stressful job.  In a clinical note dated 27 May 201,3, Dr Wilson records that the plaintiff “[h]as had anxiety, depression in the past” and “[s]he would stay at home and only go out once a week to do shopping”. 
35	The clinical notes also record a prescription for Fluoxetine, 20 milligrams, on 27 November 2014 (on a review prompted by a letter from Dr Chau) and Axit (mirtazapine) 15 milligrams, on 24 April 2017. 
36	In a report addressed to Victoria Legal Aid dated 30 November 2017, Dr Wilson describes the plaintiff as having suffered depression for at least some years before first coming to see him in March 2013.  He says the symptoms of her illness are “depression, anxiety and difficulty leaving home at times”.  His clinical notes of his consultation with her on 24 November 2017 (the consultation immediately preceding the preparation of this report), record her then present symptoms as “gets anxiety, insomnia, can get panic episodes, cries for no reason”.
37	The plaintiff first disclosed the incident of 18 April 2018 to Dr Wilson in a consultation on 29 July 2019.  According to his 14 August 2020 report, this consultation was prompted by Ms Cao being contacted by police a few weeks previously and being advised that she would be required to give evidence in December.  Dr Wilson administered a K10 checklist for anxiety and psychological distress, on which Ms Cao scored 45/50.  Dr Wilson records that this was consistent with a high level of anxiety.  He provided a mental health referral to Healing Minds Psychology and prescribed her Mirtazapine, 15 milligrams, one daily. 
38	At their next consultation, on 10 December 2019, Dr Wilson diagnosed the plaintiff with PTSD and provided a further prescription for Mirtazapine, 15 milligrams, one daily. 
39	In May 2020, the plaintiff reported that she was not working, as her business had closed due to COVID-19, and that she had difficulty sleeping.  Dr Wilson referred her to her psychiatrist, Dr Mohan.  He also provided another prescription of Mirtazapine, 15 milligrams, one daily. 
40	In his 14 August 2020 report, Dr Wilson diagnoses Ms Cao with PTSD, depression and anxiety, related to the incident at work in April 2018.  However, he also notes that Ms Cao has a complex past history that includes a diagnosis by psychiatrist, Dr Chau, of major depressive episodes with features of panic attacks since her teenage years, and PTSD related to her ex-partner’s suicide ten years previously.  He also states that he is unable to comment on the likelihood and nature of any long-term deterioration.  His understanding, at the time of his 14 August 2020 report, was that Ms Cao was not currently working due COVID-19 and he thought it was possible that the lockdown restrictions may be exacerbating her anxiety and depression related to the work incident. 
41	As Ms Cao’s long-term treating general practitioner, Dr Wilson is well positioned to compare the plaintiff’s pre-incident condition with her post-incident condition.  However, his 14 August 2020 report is provided in a context of being informed that Ms Cao is not working due to COVID-19.  It is not updated to consider the following two years, including the fact that she is currently working the equivalent of full-time hours in her cosmetic tattooing business.  He is also a general practitioner, rather than a specialist psychiatrist, and he leaves to other experts the question of whether there will be any long-term deterioration in her condition.  Having said this, I accept that, as Ms Cao’s long-term treating practitioner, his conclusions as to causation provide corroboration of Ms Cao’s evidence of a significant worsening in her condition in July 2019. 
Dr Roger Chau
42	Dr Chau first saw Ms Cao on 10 July 2013 in relation to anxiety experienced in a context of accumulating traffic fines.  He prepared a report dated 6 May 2022.  In addition, letters dated 15 February 2015 and 21 January 2017 were tendered in evidence. 
43	In his 6 May 2022 report, he records that when he first saw Ms Cao:
“… she was traumatized … She lost all confidence. She was depressed and being bullied at work for 7 years. … She did not sleep well. She was afraid to go out. She had no contact with family and friends … She was mentally exhausted at the end of the working week.”
44	He noted that she failed to keep a follow-up appointment, and he next saw her on 26 November 2014.  He explained that the reason for this appointment was:
“… because Victoria Legal Aid requested a psychiatric report for her traffic fines and it was hoped that at the time of the offenses, Ms. Cao was in a depressive state of mind.” 
45	Although these consultations were not noted in his 6 May 2022 report, it appears he also saw Ms Cao on 31 December 2014 and 9 February 2015.  On 15 February 2015, he provided a report to Victoria Legal Aid.  In that report he recorded:
“Ms. Cao lost all self confidence; she could not sleep well; she used gambling as a well as escape from reality: she was going out a lot with friends, and even going out for the sake of going out. She did not seek psychiatric help because she was too busy with her employment. She felt the work place was bullying her. She became more and more depressed, isolated, lonely, depressed and confused.
For the next 10 years, Ms. Cao was very depressed. She quitted her job working at a Disability Section of the Victorian Government, after 7 years in the job. She did a series of short term jobs, the longest job she held was for 1 year. When her depressed was at its lowest point, she was afraid to go out and stayed home by herself, she was feeling dizzy, and light headed, she had panic attacks. she lost all contact with friends and family fora few years. She could hardly get out of bed. She had suicidal thoughts. She was very absent minded and spilling coffee on floor because she had so many negative thoughts in her head. She describes herself to be ‘mindless’.”
46	Dr Chau listed her symptoms as:
“Depressed and anxious mood, Lost of concentration, Loss of motivation.  Perceiving everything around her to be negative.  Guilt.  Helplessness, Hopelessness, Insomnia, hand shaking, dizzy spells, tearfulness, socially withdrawn.” 
(sic)
and noted that, as at 9 February 2015 “many of the symptoms I listed in answer 4 still persist”. He also noted that she was taking Fluoxetine, 20 milligrams daily, for depression. 
47	In his letter to Victoria Legal Aid, Dr Chau diagnoses Ms Cao with:
“Major Depressive Episodes with features of panic attacks on and off since her teenage years.  Post Traumatic Stress Disorder since viewing her ex-husband[’s] condition at Intensive Care Unit 10 years ago.” 
48	He concludes:
“The accumulation of fines is just the tip of the iceberg.  Childhood neglect and abuse, maladaptive coping mechanisms need to be corrected, correct distortion of life situations, are all long term problems that need resolving with psychotherapy.”
49	A letter from Dr Chau to Ms Cao’s general practitioner dated 23 January 2017 was also tendered in evidence.  He records that Ms Cao told her she got a good result from the provision of his report dated 15 February 2015, as “she got off the fine”.  He records that:
“Ms Cao has a long standing psychological issue with relationship, occupational and financial problems. The prognosis of her anxiety depression is going to be chronic.”
50	Returning to Dr Chao’s 6 May 2022 report, he said he saw her on two subsequent occasions, on 10 November 2015, requesting a Centrelink Medical Certificate; and on 23 January 2017 “because Centrelink was pushing her to find work”.
51	He concluded:
“I cannot ascertain how factual is the information provided by Ms. Cao and therefore I cannot form a reliable opinion upon Ms. Cao. 
 No meaningful doctor-patient relationship was established with Ms. Cao.” 
52	It is difficult to know what to make of Dr Chau’s report and letters.  On the one hand, his report of 6 May 2022 says that no meaningful doctor/patient relationship was established and he is unable to form a reliable opinion about Ms Cao.  On the other hand, his previous letters provide a number of positive (and significant) diagnoses. 
53	In the circumstances, I am not prepared to accept Dr Chau’s formal diagnoses as reliable.  However, I rely on his contemporaneous reports as evidence that Ms Cao has, in the past, reported significant symptoms of depression and anxiety on occasion, including panic attacks, trouble sleeping, difficulties leaving the house, and difficulties with traffic fines, and that these symptoms were viewed as serious enough to justify a prescription for Fluoxetine, 20 milligrams daily, and therapy.
Dr Indra Mohan
54	Dr Mohan is Ms Cao’s current treating psychiatrist.  She first reviewed Ms Cao on 24 June 2020 and provided three reports in this proceeding:
(a)	a report dated 26 August 2020;
(b)	a report dated 3 June 2022;
(c)	a report dated 6 June 2022.
55	In addition, her letter to Dr Wilson, dated 24 June 2020, and a typed transcription of her clinical notes from a consultation on 18 July 2022, were tendered in evidence. 
56	Dr Mohan records a diagnosis for Ms Cao of PTSD, with comorbid depressive symptoms and a Generalised Anxiety Disorder, in relation to the incident.  She states, in her report of 26 August 2020, that “[t]hese symptoms appear to be in relation to the incident at her workplaces almost two years back”. 
57	In Dr Mohan’s 3 June 2022 report, she states that: 
“I do not believe she has the capacity for pre-injury work
 ….
 … she continues to struggle with anxiety, she is struggling to do chores, does not regularly look after herself and she continues to have nightmares, remains depressed, struggles with motivation and struggles with concentration.  I do not believe that she can consistently work generally.”
58	She notes that Ms Cao was on mirtazapine, but that it made Ms Cao drowsy, and she did not like it.  As a result, Dr Mohan prescribed Sertraline, 50 milligrams, and Melatonin, 2 milligrams at night. 
59	In her 6 June 2022 report, she states:
“She is continuing to struggle with isolation, has lowered mood, marked anxiety and had panic attacks a few times at work that she had to leave and cancel the clients.  She struggles with broken sleep, tends to have nightmares, can easily startled (sic) by some of the triggers and uses her puppy as a comfort object and goes out mostly to every place with the puppy except work.
On Saturday, she was feeling quite low and took 200 mg Sertraline but most days she takes 100 mg and has been fairly adherent to it and noted that it helps with anxiety and sense of panic and wants to continue even though she has been struggling with grinding of her teeth and uses a partial denture.  She has a close friend who is a psychiatrist who helps her.  She isolates herself, does not cook, does not do any household chores, is usually dependent on Uber, had a cleaning lady and has got a dog walker.” 
60	As I have noted above, in her 26 August 2020 report, Dr Mohan attributes Ms Cao’s current symptoms to the incident.  However, in a letter to Ms Cao’s general practitioner dated 24June 2020 (and also in her report of 3 June 2022), Dr Mohan records that :
“There is no history to suggest any depressive syndrome leading up to the accident however almost 20 years ago, after losing a close family member, she felt down and felt not motivated at work for some time. … .” 
61	As I have already noted, this is not an accurate history of Ms Cao’s long history of depression and anxiety, which on Ms Cao’s own admission, manifested as recently as November 2017.  No evidence was provided that this inaccurate history was ever corrected with Dr Mohan.  In view of this, I do not accept that Dr Mohan’s views that Ms Cao’s current symptoms relate to the incident are reliable. 
62	I do accept, however, that Dr Mohan as a treating psychiatrist, is well placed to give evidence about the current state of Ms Cao’s mental health.  I also note that she has recommended ongoing therapy for Ms Cao; prescribed significant and increasing antidepressant medication (now 150 milligrams of Sertraline per day) for Ms Cao; and recommended Ms Cao undergo Eye Movement Desensitization and Reprocessing therapy. 
Dr Richard Prytula
63	Dr Prytula is a medico-legal psychiatrist, retained by the defendant, who examined Ms Cao once in person on 30 September 2019.  He was not provided with Ms Cao’s clinical records and does not record any of Ms Cao’s pre-existing mental health issues in the history he takes.  To the contrary, he records that “[s]he was well before the claim” and that “I did not obtain any indication that there were any significant non-work-related factors”.  He diagnoses Ms Cao with PTSD and a Generalised Anxiety Disorder with significant depressive symptoms, which, he says, is directly related to the incident.
64	I do not consider that his diagnosis, or opinion that Ms Cao’s condition is work-related, is reliable in a context where he has only seen her once and has not been provided with an accurate history of Ms Cao’s significant pre-existing mental health issues. 
Dr Albert Kaplan and Alan Dr Jager
65	Dr Kaplan is a medico-legal psychiatrist, retained by Ms Cao, who interviewed Ms Cao via videoconferencing on 15 March 2021, and again on 13 April 2022, and prepared reports dated 23 March 2021 and 22 April 2022. 
66	Dr Jager is a medico-legal psychiatrist retained by the defendant, who interviewed Ms Cao by Skype on 7 December 2021, and prepared a report dated 22 December 2021. 
67	Dr Kaplan diagnoses Ms Cao with PTSD as a result of the incident.  In his second (and most recent) report, he notes that, although she continues to work as a tattoo artist and manage her tattooing business:
“… She probably currently has a limited capacity to perform her current work or any other work.  She is probably currently only capable of working on a part-time basis. … .”
68	He also concludes that:
“… Ms Cao’s psychiatric condition has had a major impact upon her social life, her relationships with the people around her, her recreational activities and her general quality of life and this incapacity is likely to persist for a prolonged period of time.” 
69	He recommends that Ms Cao consult her psychiatrist on a fortnightly basis and have a review of her antidepressant medication.
70	Dr Jager diagnoses Ms Cao with Chronic PTSD and exacerbation of Chronic Major Depressive Disorder.  He recommends continuation of psychiatric therapy and use of high-dose antidepressant medication, a short acting sedative, alpha-blocking medication for nightmares, group psychotherapy, and adjunctive treatment using measures such as prolonged exposure therapy, EMDR and equine therapy.  He noted that, given the severity of her symptoms:
“… it is surprising that she reports that she works full-time in her own business. It would not be surprising if she decompensated and developed incapacity.”
71	As said by the Court of Appeal in Petrovic v Victorian Workcover Authority: 
“… the opinion of any particular expert opinion … is usually only as good as the underlying history upon which it is based.” 
72	I have found that Ms Cao is an unreliable historian in relation to her past mental health issues.  I have also found that she has a tendency to exaggeration and melodrama in her more general descriptions of her symptoms.  However, both Dr Kaplan and Dr Jager were provided with Ms Cao’s clinical records; so, unlike Dr Prytula and Dr Mohan, had a more complete history of Ms Cao’s pre-existing mental health issues.  Dr Kaplan’s report does still contain some inaccurate history, as it records that Ms Cao resigned from her employment as a result of the incident, and that she obtained employment about a month after resigning, whereas, in fact, she left employment with the defendant in order to commence employment at Octec.  However, overall, both Dr Kaplan and Dr Jager took into account detailed and relevant information about Ms Cao’s history of mental health issues. 
73	I also accept that psychiatrists such as Dr Jager and Dr Kaplan are skilled at assessing a patient with memory issues or a pre-occupation with the impacts of a particular incident; as well as interrogating the consistency of a patient’s reported symptoms with the diagnosis under consideration and their objective observations.  Indeed, Dr Jager noted that Ms Cao’s thinking was “characterised by a pre-occupation with the changes she has undergone since the incident of 2018” and both Dr Jager and Dr Kaplan noted difficulties with memory.  Further, both Dr Jager and Dr Kaplan observed objective signs consistent with their diagnoses, such as slowed thought stream, glum and unreactive emotional tone, and anxiety. 
74	If it were otherwise, a party relying on a severe mental disorder might be placed in an almost inescapable Catch-22 – their mental disorder being so severe that it impacts on the reliability of their self-reported history; but that very lack of reliability held against them in assessing the veracity of the diagnosis of their mental disorder. 
75	In all the circumstances, I found the consistency of opinion of Dr Kaplan and Dr Jager compelling, particularly when also considered in the context of the opinions of Dr Mohan and Dr Wilson.  I accept Dr Kaplan and Dr Jager’s diagnosis of Ms Cao as suffering chronic PTSD as a result of the incident.  I also accept Dr Jager’s further diagnosis of aggravation of Chronic Major Depressive Disorder as a result of the incident. 
Has the Plaintiff suffered a severe injury?
76	Ms Cao claims that, as a result of the incident, she has suffered a mental or behavioural disturbance or disorder which is “severe” with respect to its pain and suffering consequences.  She does not rely upon loss of income earning capacity consequences. 
77	By using the word “severe”, Parliament has set a standard which is higher than “serious” ꟷ in other words, Ms Cao must establish that the pain and suffering consequences are more than significant, more than marked and more even than very considerable.  They must be “severe”.
78	In assessing the pain and suffering consequences to Ms Cao, the Court must identify, and bring to account, all relevant symptoms and consequences.  The nature of treatment received is one relevant factor.  Other relevant criteria include the severity of Ms Cao’s symptoms, the severity of the consequences for her, and the extent to which those symptoms and consequences inhibit her daily activities, family life, social life and educational pursuits.  Being prevented from pursuing a career which Ms Cao found enjoyable may also be a relevant pain and suffering consequence.  
79	Ms Cao must also establish that her mental or behavioural disturbance or disorder is permanent, in the sense that it is likely to last through the foreseeable future. 
80	Ms Cao admitted, in cross-examination, that as at November 2017, only five months prior to the incident, she had symptoms of depression and anxiety, and difficulty leaving home.  She admitted to ten years of depression.  In the five years prior to the incident, her clinical records and the reports of Dr Chao and Dr Wilson include reference to panic attacks, difficulty leaving home, and insomnia, as well as anxiety and depression. 
81	Ms Cao asserted that, upon the fines’ issue being resolved, her mood, and other symptoms, dramatically improved.  In light of my concerns about the reliability of her evidence, I do not accept this evidence.  The fines were reduced, and a payment plan instituted; they were not entirely forgiven.  In any event, it is apparent from the reports of Dr Chao and Dr Wilson, that the fines were symptomatic of deeper longstanding mental health issues suffered by Ms Cao.  It is not credible that the mere reduction of stress associated with the institution of a payment plan would wholly resolve these mental health issues. 
82	As Ms Cao had pre-existing mental health issues, the Court must only look at the extent to which Ms Cao’s condition has worsened as a result of the incident.  It must compare her pre-incident state with her post-incident state.  I have accepted, on the basis of the tendered medical evidence, that Ms Cao has suffered PTSD and an aggravation of her pre-existing anxiety and depression, as a result of the incident.  However, Ms Cao bears the burden of establishing that the pain and suffering consequences of this PTSD and aggravation of her pre-existing depression reach the required threshold of “severe”. 
83	I find that, as a result of the incident, Ms Cao:
(a)	Suffers frequent intrusive thoughts and flashbacks to the incident;
(b)	Has nightmares related to the incident on an almost nightly basis; 
(c)	Is fearful of strangers and experiences significant anxiety about leaving the house; being in public places; performing activities such as grocery shopping; and attending social functions.  However, I do not accept that she can fairly be described as a “recluse” or “hermit”.  Ms Cao is able to go on occasional dates and to other social functions, such as work dinners and birthday celebrations.  She regularly (as much as once a week) eats a meal at a restaurant, although I accept that this is often because she feels unable to cook for herself.  I also take into account that she has had difficulties leaving the house and engaging in social functions at times in the past;
(d)	Has very disturbed sleep, although I take into account that she has had trouble sleeping at times in the past;
(e)	Has had some increased thoughts of suicide and self-harm, although I take into account that she has also had periods in the past where she has had thoughts of suicide and self-harm;
(f)	Suffers panic attacks at work, although I take into account that she has suffered panic attacks in the past; 
(g)	Suffers memory issues and, at times, has a slow-thought stream and glum and unreactive tone;
(h)	Requires increased assistance in performing daily tasks such as housework and walking her dog;
(i)	Has been prescribed, and takes, significant prescription antidepressant medication on a daily basis.  I take into account that Ms Cao has, on at least two occasions in the past, been prescribed antidepressants, however I accept that she was not on antidepressants at the time of the incident and has not, in the past, taken antidepressants for such a prolonged period, or at such significant doses;
(j)	Requires ongoing therapy from a psychologist or psychiatrist;
(k)	Has been recommended for EMDR treatment and may require in-patient hospital treatment, which she has not yet taken up;
(l)	Can no longer work in the recruitment industry, an industry in which she worked for many years; and which she found rewarding and enjoyable;
(m)	Was able to pursue her dream of setting up a cosmetic tattooing business and is currently able to run that business, but I accept the evidence of Dr Jager and Dr Kaplan that her capacity to continue to do so is tenuous by reason of the PTSD she has suffered as a result of the incident; and
(n)	Has increased her usage of alcohol and illicit drugs as a form of self-medication (although she has previously used alcohol and illicit drugs).
84	Ms Cao may have some improvement with treatment (particularly EMDR and therapy).  However, I accept, on the basis of the evidence of Dr Mohan, Dr Jager and Dr Kaplan, that Ms Cao’s symptoms are likely to continue through the foreseeable future. 
85	I note that Ms Cao was able to travel to the Philippines and care for herself through significant breast reduction surgery.  I also note that Ms Cao has shown great tenacity and resilience in setting-up and running her cosmetic tattooing business.  I have taken particular care to have regard to my concerns that Ms Cao is not a reliable historian with respect to her previous mental health issues; and that she has a tendency to exaggeration and melodrama when describing the impact of the incident upon her in general terms. 
86	However, I have not found that Ms Cao tells deliberate untruths.  She is seeking leave with respect to pain and suffering damages only ꟷ her claim does not rely upon proof that she has suffered a particular loss of earning capacity.  I am also conscious that Ms Cao should not be penalised for her stoicism in pushing through her symptoms, even beyond the extent which may be advisable, having regard to the severity of the condition diagnosed unanimously by the psychiatrists.  I accept that the severity of Ms Cao’s symptoms is such that it impacts her capacity to function on a daily basis and with respect to all aspects of her life – recreational, interpersonal, work-related and capacity for self-care.
87	Having taken into account all of the above matters, I am satisfied that the pain and suffering consequences of the worsening of Ms Cao’s mental health as a result of the incident are more than “significant”, more than “marked” and more, even, than “very considerable” when compared to other cases in the range of possible mental or behavioural disturbances or disorders.  I am satisfied that they are “severe”. 
88	I will grant Ms Cao leave to bring proceedings for pain and suffering damages. 
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