STU v JKL (Qld) Pty Ltd[2016] QCAT 505

REASONS FOR DECISION

1. [1]
   On 24 December, 2015 an Appeal Tribunal ordered that the original decision in this matter, made 29 August, 2015 be set aside and that the proceeding be remitted to the Tribunal, constituted by a different Member for re-hearing. The re-hearing took place on 18, 19 and 20 May, 2016.
2. [2]
   In accordance with the Order of Senior Member Endicott, made 27 February, 2013, this decision has been de-identified.  That has necessitated the substitution of parties’ names throughout this decision. Where it has been necessary to substitute a party’s name in a quotation of direct speech, the name is underlined.

Evidence at the re-hearing

3. [3]
   The material admitted into evidence at the re-hearing is set out in the Order made 22 February, 2016. The Order includes evidence and the transcript from the initial hearing.  The parties have filed further material on which they rely, which are exhibits in the proceeding.  Additionally, oral evidence was given at the re-hearing by the Applicant, her mother, Dr Beech and Dr Mungomery.
4. [4]
   The parties agreed at the commencement of the re-hearing that paragraphs 17, 18 and 19 of the Applicant’s affidavit, Exhibit 7 are removed from evidence. Paragraphs 16, 20, 21, 22, 23, 24 and 25 are re-instated as evidence.
5. [5]
   Senior Counsel for the Third Respondent put a position agreed with Senior Counsel for the Applicant, in relation to matters referred to in reports of Dr Mungomery and Dr Beech, as follows:

   1. Exhibit 11, report of Dr Quentin Mungomery, paragraph 14 – it is accepted by the Applicant that she said words to Dr Mungomery to the effect of what is recorded in paragraph 14;
   2. Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2014, paragraph 8 -  it is accepted by the Applicant that she said words to Dr Mungomery to the effect of what is recorded in paragraph 8 and that those words were said in August, 2011;
   3. Exhibit 39, report of Dr Beech, dated 14 March, 2016, page 4, line 180 -  it is accepted by the Applicant that she said words to the effect of what is recorded in the paragraph from line 180, save for the last sentence commencing “There had not been…”
6. [6]
   The Second Respondent was served with the application.  He has filed no material, did not appear at the re-hearing and has taken no part in any of the proceedings. He was informed of the hearing dates.

Applicant’s case

7. [7]
   Upon the re-hearing, the Applicant seeks findings that:

   1. The Second Respondent’s behaviour towards her on 1 December, 2010 constituted unlawful sexual harassment pursuant to chapter 4 of the Anti-Discrimination Act 1991 (the Act);
   2. She suffered a psychiatric injury in the form of Post-Traumatic Stress Disorder and a Depressive illness which was contributed to in a material degree by the sexual harassment of her by the Second Respondent.  Further, that the psychiatric injury rendered her totally unfit for work until mid-2015 and had other significant effects on her.
   3. The Third Respondent, is vicariously liable for a contravention of the Act by the Second Respondent, pursuant to s 133 of the Act;
   4. The Second Respondent and the Third Respondent are jointly and severally liable for the Second Respondent’s contravention of the Act on 1 December, 2010;
   5. The Second Respondent and the Third Respondent must pay her compensation and costs.
8. [8]
   The Applicant no longer pursues a claim against the First Respondent.

Third Respondent’s case

9. [9]
   The Third Respondent records in its submissions that it accepts the Second Respondent’s conduct in sexually assaulting the Applicant on 1 December, 2010, amounted to sexual harassment of the Applicant within the meaning of section 119 of the Act.^[1]
10. [10]
    The Third Respondent submits that:

    1. it is not vicariously liable for the Second Respondent’s conduct on 1 December, 2010, within the meaning of section 133(1) of the Act;
    2. if it is vicariously liable for the conduct of the Second Respondent (which is denied), then any compensation payable to the Applicant must be reduced on the basis that the Applicant’s evidence lacks veracity, the loss claimed is exaggerated and she has failed to mitigate her loss;
    3. only 50% of the Applicant’s psychiatric injury and any impaired working capacity had a causal connection to the sexual assault by the Second Respondent. It says that other pre-existing psychiatric conditions and events and subsequent circumstances contributed to her injury and inability to work.

Finding in relation to sexual harassment

11. [11]
    The sexual harassment of the Applicant by the Second Respondent on 1 December 2010 is set out in her affidavit sworn 4 February 2013 (Exhibit 7).  In summary, the Applicant says that she retired to sleep in her bedroom in Unit 402 of The Hotel apartments, on the first night of her accommodation in that Unit, which she was to share with the Second Respondent.  The Second Respondent occupied a separate bedroom. At 5 am on the morning of 1 December, 2010 she awoke to find the Second Respondent in her bedroom. He was naked.  He touched her body including her upper thigh and groin and attempted to remove her underpants. The Applicant asked him to stop and to leave the room.  She broke down crying. The Second Respondent left the room, saying words to the effect: “I’ll let you get changed”.  He returned saying: “this can be our little secret”.
12. [12]
    I accept the account of the event given by the Applicant and find that the event occurred as she described in Exhibit 7. The Second Respondent has given no evidence in the proceedings of his version of events. The Third Respondent has acknowledged his conduct amounts to sexual harassment under the Act.
13. [13]
    I find that the events as described by the Applicant meet the definition of sexual harassment in s 119 of the Act.  I find that the Second Respondent subjected the Applicant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature with her.  I find that a reasonable person would have anticipated the possibility that the Applicant would be offended, humiliated or intimidated by the conduct.

Is the Third Respondent vicariously liable for the actions of the Second Respondent?

Background facts

14. [14]
    I find on the basis of the undisputed evidence and the parties submissions that as at 1 December, 2010:

    1. the business of the Third Respondent was the management and operation of hotels and resorts, including The Accommodation, The Complex and The Hotel.
    2. The Third Respondent managed the caretaking services for The Hotel.
    3. The First Respondent was a wholly owned subsidiary of the Third Respondent and one of the JKL group of companies.
    4. Mr CD was the sole Director of the First Respondent. He was a Director of the Third Respondent and the Chief Executive Officer of the Third Respondent. He was the Chief Executive Officer of the JKL group of companies.
    5. At the request of Mr CD, the Applicant was employed on 9 August, 2010 by the First Respondent as a guest service agent at The Accommodation.
    6. The First Respondent supplied labour to the Third Respondent at certain properties managed by the Third Respondent.
    7. The Applicant remained employed by the First Respondent until termination of her employment on 1 February, 2011.
    8. By early November, 2010, there was no on-going employment for the Applicant at The Accommodation. At the request of Mr CD a suitable position was sought for the Applicant. A position was found at The Complex, Brisbane as a guest service agent. The Applicant agreed to commence in that position on 1 December, 2010.
    9. The Second Respondent, the night caretaker of The Hotel, occupied Unit 402. It is a two bedroom Unit. The second bedroom was unoccupied.
    10. Mr CD, suggested to the Applicant that she reside free of charge in Unit 402 of The Hotel to assist her in moving to Brisbane to take up the job at The Complex. Mr CD spoke to the then occupant of the Unit, the Second Respondent and to a Human Resources officer of the Third Respondent to put in train a meeting between the Second Respondent and the Applicant, for the purpose of ensuring they were comfortable to share the Unit together. There is a dispute between the parties as to the significance that can be attached to Mr CD’s efforts. This is discussed later in the decision.
    11. The Second Respondent and the Applicant spoke over the telephone. They met on 30 November, 2010. After that, the Applicant moved into  Unit 402 on 31 December, 2010.
    12. The Applicant entered into no written tenancy agreement.
    13. The Second Respondent was engaged as a contractor to the Third Respondent pursuant to a verbal agreement made with Mr CD, for the provision of certain services as a caretaker. There is a dispute between the parties as to when the Second Respondent’s services were being provided.  That is dealt with later in the decision.  However, broadly, the services included attending to any issue which arose in the building between 10.00 pm and 6.00 am each day, including:
        • attending reception before 10 pm to be advised of any late check ins to whom he must attend once reception staff left at 10pm;
        • answering his work provided phone between 10pm and 6am.  The caretaker’s contact details were available at The Hotel in the event of an urgent request or an emergency.  He was required to assist the person who had called;
        • to look into any alarm and if necessary implement emergency procedures;
        • to report to reception staff at 6 am in relation to contacts during the previous evening and early morning.
    14. In consideration for these services, the Second Respondent lived in Unit 402 rent-free. The Third Respondent paid his electricity and phone costs. There was no written tenancy agreement.
    15. The Third Respondent had control of Unit 402 as part of its management and caretaking role with respect to The Hotel.

Anti-Discrimination Act 1991 – Vicarious liability

15. [15]
    Section 133(1) of the Act provides that if any of a person’s workers or agents contravenes the Act “in the course of work or while acting as an agent” the person is jointly and severally liable with the worker or agent for the contravention.
16. [16]
    Section 133(2) provides that it is a defence if the respondent proves on the balance of probability that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
17. [17]
    “Work” is defined in the Act to include work under a contract for services.

Issues in dispute – vicarious liability issue

18. [18]
    The Applicant relies on the facts set out earlier in this decision.
19. [19]
    The Applicant submits that:

    1. the sexual assault occurred during the Second Respondent’s on-call period, in the course of his work for the Third Respondent;
    2. the authorities demonstrate that in applying a liberal construction to vicarious liability provisions in anti-discrimination statutes, a sufficient nexus may be established between the sexual harassment and the work of the perpetrator even in circumstances where the perpetrator is not directly engaged on the activities of the work at the time of the contravening conduct;
    3. the sexual assault was inflicted by the Second Respondent in his place of work;
    4. she was an employee of the First Respondent, a subsidiary of the Third Respondent, and was staying in the Unit provided to the Second Respondent at The Hotel, in connection with her employment. The Third Respondent through Mr CD arranged the accommodation to facilitate her taking up employment at The Complex in Brisbane;
    5. but for her employment, she would not have been in Unit 402 at the time the sexual assault took place.
    6. The Third Respondent is vicariously liable for the Second Respondent’s contraventions of the Act as the Second Respondent was a worker engaged by the Third Respondent and the contravention occurred in the course of his work with the Third Respondent.
20. [20]
    The Third Respondent has submitted that there are four matters in dispute as to the vicarious liability issue.  Those matters are:

    1. whether the Applicant’s accommodation in the spare bedroom in Unit 402 was a condition of her employment with the First Respondent and whether the Applicant was required as part of her employment to reside at Unit 402;
    2. whether the Applicant, as part of her employment with the First Respondent was to be trained to perform caretaking duties at The Hotel;
    3. the nature of the services provided by the Second Respondent to it, and when, how and why those services were performed by the Second Respondent; and
    4. whether the Second Respondent’s conduct at approximately 5.00am on Wednesday, 1 December, 2010 occurred in the course of his work as caretaker for the Third Respondent.
21. [21]
    The Applicant has not submitted in the re-hearing that she was required to reside at Unit 402 as part of her employment.  She says that “but for” her employment by the First Respondent she would not have been at the Unit. The Applicant does not submit at the re-hearing that she was to be trained as a caretaker.
22. [22]
    The Third Respondent notes that these two issues are not pursued in the re-hearing.
23. [23]
    Despite this, the Third Respondent requires an examination of all of the evidence to determine how and why the Applicant came to be in the spare bedroom in Unit 402, when the Second Respondent assaulted her. It seeks to demonstrate that it was not and never could have been truthfully asserted, that it was a requirement of the First Respondent that the Applicant reside in Unit 402.  It submits that the evidence of the witnesses for the Third Respondent must be believed in preference to the evidence of the Applicant.
24. [24]
    In support of this submission, the Third Respondent asserts that the Applicant’s case in the re-hearing is narrower than run in the first hearing. It submits that the narrowing of the case necessarily arose as a consequence of the evidence given by the Applicant at the first hearing, which lacks credit.

Requirement to reside at Unit 402

25. [25]
    I disagree with the Third Respondent that there has been a narrowing of the case as first put. I do not agree that the Applicant’s case as first put, involved an assertion that accommodation at The Hotel was provided to her by the First Respondent as part of her employment at The Complex or that she was compelled by the First Respondent to reside at the apartment. I have referred to the submissions of the Applicant made at the first hearing and note that they are in the same terms as the submissions made in the re-hearing, set out above.^[2]
26. [26]
    The Third Respondent refers to paragraph 3 of the Applicant’s Contentions, as support for what it says was the Applicant’s broader case as first put.  Paragraph 3 of the Further Amended Contentions sets out information given to the Applicant by Ms S, Human Resources officer in a telephone conversation about arrangements for her move to Brisbane to take up work at The Complex.  Paragraph 3 nowhere asserts that Ms S said the apartment was provided as “part of her employment” or that she was “compelled to reside at the apartment”.  Those words are an interpretation of the contentions, made by the Third Respondent.  Ms S did not give evidence inconsistent with the conversation relayed in the Contentions. The words used by the Third Respondent do not appear in the submissions of the Applicant at either the first hearing or the re-hearing.
27. [27]
    The Third Respondent also refers to the Applicant’s statement of evidence (Exhibit 7) as support for what it says was the Applicant’s broader case as first put.  The Applicant sets out the effect of a conversation she had with Mr CD and Mr A, Chief Operations Officer of the JKL group of companies, in early November, 2010.  As the Applicant presents the conversation, she was being actively encouraged to take up the role at The Complex in Brisbane and to take advantage of the opportunity to live at The Hotel. She expressed the opinion that “It was presented to me as a requirement that I live with the Second Respondent”.
28. [28]
    I am asked to find that the Applicant was not being truthful in giving that evidence.
29. [29]
    I consider that evidence to be a statement of the Applicant’s understanding of the conversation.  I have no reason to doubt that it was her genuinely held opinion. 
30. [30]
    Mr CD’s evidence is relevant as to how she could have come to the view expressed in her affidavit. Mr CD agreed in cross-examination at the first hearing that he was encouraging the Applicant to take up the position at the Complex.^[3] Mr CD gave evidence in cross-examination that because the company had spent a considerable amount of time getting her to a position, she did have to start working for the company.^[4] He affirmed that she was to be transferred to Brisbane and that there was no other alternative.^[5] When the Applicant raised concerns about accommodation in Brisbane he considered options to get her established in Brisbane, including arranging for her to live with the Second Respondent at The Hotel. His evidence is:^[6]

I then thought about the Second Respondent as maybe an option.  It was an option that the Second Respondent and her would have to feel comfortable with.  I facilitated the meeting of the two parties, I asked the Second Respondent for permission to be able to do that as that was his residences and I couldn’t make that call as that was his home.  I talked to the Applicant about that so I would have to ask the Second Respondent first but if it was an option would this be an option for you.  We worked our way through that and as a result of me talking with the Second Respondent, the Second Respondent came back and said I would look at this .  I then facilitated a meeting of the two to ensure that both parties were comfortable with the arrangement so at the end of that they had to meet and they had to make sure that both parties were comfortable with that particular situation.  I would have much preferred to find another solution but again we were just trying to help her through.

31. [31]
    Mr CD agreed that he told the Applicant that he had known the Second Respondent for some years and that the Second Respondent was a trustworthy individual.^[7]
32. [32]
    I do not think it is unreasonable in the circumstances that the Applicant would hold the view she formed, given the conversation she had with Mr CD. My assessment of the Applicant is that she was plainly very young at the time of these events. She was 21 years of age.  Her evidence suggests someone who was easily confused.  She often did not seize the meaning of questions put to her and they had to be repeated.  My assessment based on her demeanour in the witness box and her evidence is that of someone who is immature and trusting.  Even in his version of the conversation. Mr CD referred to the Applicant as a “kid”.
33. [33]
    I do not think it is unreasonable for such a person to feel that when her employer is transferring her to Brisbane and taking active steps to arrange her accommodation that she is required to live in that accommodation.
34. [34]
    I reject the submission of the Third Respondent that because she met with the Second Respondent and agreed to move into the spare bedroom that she was exercising a choice as to whether she would stay in the apartment and that it could not therefore have been a requirement that she stay in the apartment. The Applicant’s evidence goes no further than an understanding of her conversation with Mr CD. Again, the Applicant does not put it as her case that she was required to live in the apartment.
35. [35]
    I am not prepared to find that the Applicant lacks credit because of her evidence that it was presented to her as a “requirement that I live with the Second Respondent”.  I do not find that it was in fact a requirement. I merely find that it is understandable why the Applicant might think that was the case.
36. [36]
    I do not think the Applicant has presented her case either at the first hearing or on the re-hearing in the terms submitted by the Third Respondent.  She has not submitted that accommodation was provided to her “as part of her employment at The Complex” or that she was “compelled” to reside at the apartment. I do not accept the submission that the Applicant has narrowed her case because her evidence in the first hearing, on this point, lacked veracity.
37. [37]
    The Third Respondent submits that inconsistencies in the Applicant’s evidence as to the date or order of discussions in relation to the arrangements for her transfer to Brisbane, between Mr CD, Mr A, Ms S, Ms C  and the Applicant affect the Applicant’s credit. I reject that submission.  I do not think the inconsistencies bear in any material way on the issue of the Applicant’s credit. The submission is made on the basis of what would have been the content of discussions, if conversations had occurred in the order suggested by the Applicant. The content of the hypothetical conversations relates to the matters the Third Respondent alone has attributed to the Applicant, as the basis on which her case is put.^[8] Any inconsistencies in relation to timing of conversations do not impact on the real issues to be decided in this case.

Findings

Credit

38. [38]
    For these reasons, I am not prepared to make an adverse finding against the Applicant in relation to credit with respect to the issue of whether the Applicant was required to reside in Unit 402 as part of her employment with the First Respondent.

Is it the case that:

• but for her employment, the Applicant would not have been in Unit 402; and
• the sexual assault took place in accommodation provided and arranged by the Third Respondent?

39. [39]
    I accept the Applicant’s submission and find that but for her employment the Applicant would not have been in Unit 402 at the time the sexual assault took place. Another way of expressing this is as put in the Applicant’s submissions that her accommodation in the spare bedroom of Unit 402, was connected with her employment by the First Respondent. This finding is based on the following matters:

    1. it is compelling that the Unit was under the control of the Third Respondent.  The Chief Executive Officer of the Third Respondent made occupation of the Unit available to the Applicant to assist her move to Brisbane, to take up work at The Complex.  He set the terms of that occupation, namely that it was rent free and subject to the Applicant and the Second Respondent feeling comfortable in sharing the Unit.
    2. It is not the case that the Applicant was a stranger to the Third Respondent invited by the Second Respondent to share the Unit for reasons completely unconnected with his work for the Third Respondent or her work for the First Respondent.
    3. I reject the submission of the Third Respondent that the Applicant was merely a “guest” of the Second Respondent, who had the capacity to consent to her presence. There is no evidence from the Second Respondent that he actively extended a personal invitation to the Applicant to live in the Unit, as one would normally do with a guest.
    4. I reject the submission of the Third Respondent that the Applicant was no more than an invitee of the Second Respondent in his private capacity. There is no evidence that the Second Respondent was acting in his private capacity. There is evidence which suggests he was not acting in his private capacity.  First, he had no control over whether the Applicant paid him rent.  He was told that she was to live in the Unit rent free.  Second, the letter from the Second Respondent to Mr A, Exhibit RG1 to the affidavit of Ms Green, sworn 13 February, 2013 sets out the “Rules for the Applicant’s residence”. If the Second Respondent was entering into a private arrangement there would be no reason for him to send such a letter to Mr A. 
40. [40]
    I reject the submission of the Third Respondent that it is wrong to submit, as the Applicant does, that the sexual assault took place in accommodation provided and arranged by the Third Respondent.  It is said that submission is not supported by the totality of the evidence.  It is submitted that the Third Respondent – the company that had the contract for services with the Second Respondent – had no involvement at all in the Applicant residing in the apartment.  It is hard to understand how that submission could be made. The Third Respondent controlled the Unit, pursuant to its management business.^[9] Mr CD, the Chief Executive Officer of the Third Respondent, suggested the accommodation as a means of enabling the Applicant to commence work at the Complex.  Mr CD determined to provide the accommodation rent free. He telephoned the Second Respondent to obtain his agreement to sharing with the Applicant.  He encouraged the Applicant to take up the offer of accommodation, assuring her that the Second Respondent was trustworthy. Mr CD instructed the Human Resource officers of the Third Respondent to facilitate contact between the two to ensure they were comfortable sharing the Unit. It is in this context that the Applicant agreed to move into the Unit. Just because she made that agreement, does not mean her accommodation was not provided and arranged by the Third Respondent. Based on this evidence, I find that the sexual assault took place in accommodation provided and arranged by the Third Respondent.

Training as a caretaker

41. [41]
    The Third Respondent submits that at the initial hearing an allegation was raised that the Applicant was to be trained as a caretaker.  The Third Respondent speculates as to why such an allegation may have been made - that is if she was being trained, then an argument might arise as to whether the assault occurred in the course of that training so as to be considered to be in the course of the Second Respondent’s work for the Third Respondent.  I cannot see that such an argument formed part of the Applicant’s submissions at the first hearing, even though there was some evidence from the Applicant in relation to the point.
42. [42]
    I am asked to consider the veracity of the Applicant’s evidence that she was to be trained in the caretaking role at The Hotel.  It is suggested that this is a fiction made up by the Applicant to support her case that she was required to reside in the apartment by the First Respondent or was there for some reason connected with the Third Respondent.
43. [43]
    The Applicant alleges that she arranged a meeting with Mr CD to discuss the proposed living arrangements and that this occurred after she had some conversations with the Second Respondent. The Applicant says that Mr CD told her the Second Respondent would teach her a lot more things about the company and she could learn how to do the night caretaker position.  Mr CD denies meeting with the Applicant after she had spoken to the Second Respondent, in order to discuss the proposed living arrangement, and denies the words attributed to him.
44. [44]
    The Third Respondent also relies on the evidence of Mr A, whose evidence is that he was present for part of a meeting with the Applicant in early November, 2010.  He says that Mr CD did not make comments in his presence about the Applicant being trained as a caretaker.  He said that in any event, the Applicant lacked maturity and experience to be a caretaker.  Other evidence is given that the Applicant did not have the skills to be a caretaker.
45. [45]
    It is submitted that because the Applicant’s evidence on this issue is inconsistent with the evidence of Mr CD and Mr A, she should not be accepted as a witness of credit. The fact that other witnesses did not think caretaking work was any part of the Applicant’s role or that she did not have the capacity for that work, does not help resolve the conflict in the evidence.
46. [46]
    It does not advance the Applicant’s case in relation to vicarious liability as in fact put at the first hearing, or on the re-hearing, to claim that Mr CD said she was to be trained as a caretaker.
47. [47]
    The Applicant remained steadfast in her version of events under cross-examination, as did Mr CD.
48. [48]
    I am unable to say whether the Applicant or Mr CD is mistaken as to what was said in their conversation. I do not think there is sufficient justification to find that the Applicant fabricated the conversation. It is possible that the Applicant was confused and mistaken, given other evidence referring to training as a night caretaker, whilst she lived at Unit 402.  The Applicant says in her evidence in chief that the Second Respondent rang her on 30 November, 2010 and said words to the effect: “you are not to stay for dinner.  You must do exactly what I say.  These are Mr CD’s instructions.  You’ve got a lot to learn.  If I break my arm, you will have to know what to do.”^[10] In the absence of any evidence from the Second Respondent, I accept that the Second Respondent said those words to the Applicant.
49. [49]
    The words are consistent with a letter the Second Respondent sent to Mr A, copied to Mr CD and a Mr R. On 30 November, Ms G, the hotel Manager at The Hotel scanned and emailed to Mr A, a hand written letter from the Second Respondent.  The document appears as RJG1 to the affidavit of Ms Green (Exhibit 35). The document is headed “Situation at U402 The Hotel & The Complex (perhaps) Rules for the Applicant’s residence” and includes: “Suggestion the Applicant be trained to assist the Second Respondent every night not affected by the Complex situation.  Reason will restrict time to go out contact boyfriend etc, be near parents etc would also obviate and explain reason for perceived (sic) preferential treatment from other staff at JKL.  Further option 1 train for The Complex (same situation)”
50. [50]
    It is not clear whether the “suggestion” referred to is a suggestion proffered by the Second Respondent or whether it is a suggestion which has been made to him. The Second Respondent was not called to explain the meaning of his document.
51. [51]
    Mr A and Mr CD both deny seeing the document before the events of 1 December, 2010.  Mr CD says he did not have any contact from the Second Respondent which would have initiated such a document, nor its contents.^[11]

Finding

52. [52]
    I am not prepared to make an adverse finding in relation to credit against the Applicant, in relation to this issue or to find that she fabricated evidence. It is possible she was mistaken because of her discussions with the Second Respondent. It is not necessary to make any finding as to whether the Applicant was in fact to be trained as a caretaker, as that does form part of the Applicant’s case.

Other matters in dispute as to the vicarious liability issue

53. [53]
    The Third Respondent submits that findings are required in relation to the nature of the services provided by the Second Respondent to it, and when, how and why those services were performed by the Second Respondent.
54. [54]
    The final matter is whether the Second Respondent’s conduct at approximately 5.00am on Wednesday, 1 December, 2010 occurred in the course of his work as caretaker for the Third Respondent.

What were the Second Respondent’s duties and when were they performed?

55. [55]
    There is no dispute between the parties that the Second Respondent’s duties are as set out in the Particulars filed by the First, Third and then Fourth Respondents, dated 18 December, 2012 (Exhibit 2). I find that the Second Respondent’s duties were as particularised by the Third Respondent.
56. [56]
    The Second Respondent’s duties are described in that document as:

• providing an after-hours on-call service for late guest arrivals and emergencies;
• to be available for after-hours call outs to respond to any emergencies;
• the ability to liaise with the building manager to find a suitable replacement to be on-call;
• to facilitate late arrivals for check-in;
• to respond to emergencies in the building during the evening for example fire-alarms, lift breakdown, mechanical failure, security complaints;
• to provide guest assistance if answering service unable to deal with problem;
• to complete the after-hours call out log book for all call outs;
• to present in a professional manner at all times;
• to have a limited understanding of front office policies and procedures;
• to maintain guest privacy and confidentiality at all times;
• to undertake effective, honest and professional communication with JKL staff members to ensure the smooth operation of the property;
• to ensure all pertinent information is handed over to incoming JKL employees;
• to remain vigilant for situations that could cause a safety risk and remove or advise the building manager; and
• to ensure all accidents on the property were reported to the hotel manager on an incident report.

57. [57]
    Mr CD and Mr A both gave evidence at the first hearing in relation to the Second Respondent’s duties.  They were cross-examined in the first hearing, but not in the re-hearing.  Mr CD’s evidence in cross-examination in the first hearing was that the Second Respondent was “on call between the hours of ten and six”.^[12] Mr A cavilled at the term “on call”, but agreed in cross-examination that the Second Respondent was required to be available to respond if necessary to a range of issues which might occur.^[13]In re-examination, he explained that: “there is no on call unless the phone rings”.
58. [58]
    The Third Respondent submits that the evidence does not prove that the Second Respondent was required to be awake and available between 10.00pm and 6.00am. I find on the basis of the evidence of Mr CD and Mr A that although the Second Respondent may not have been required to be awake during those hours, he was required to be “available” to attend to his duties. I assume that if he slept, he would be awoken by his phone or an alarm or a knock on the door.
59. [59]
    The Third Respondent submits that the evidence does not prove that the Second Respondent worked  a “shift” between 10.00 pm and 6.00 am, in that he was not required to provide any services at all if the phone did not ring or if no issue arose. The Third Respondent submits that the Second Respondent was only performing services for it, if and when he was required to do so. 
60. [60]
    The Third Respondent says that is consistent with the features of his engagement.  The Second Respondent was not paid a specific amount of money if he was required to provide services between 10.00pm and 6.00 am, nor was he paid an amount to physically be present (in case he was needed) in The Hotel between those hours. 
61. [61]
    That submission ignores the provision of accommodation in Unit 402 free of charge, payment of electricity charges and provision of a mobile phone and payment of its costs. The evidence is that those benefits were provided in return for the Second Respondent providing caretaking duties.^[14] Those benefits were constant whether the Second Respondent was called on to take an active step or not.
62. [62]
    I reject the submission that the Second Respondent was not required to provide any services at all if the phone did not ring or if no issue arose.  The evidence from Mr CD and Mr A was clear that the Second Respondent was to be “available” between 10 pm and 6 am. I find that being “available”, that is ready and able to respond when called upon, is a service. I find that the Second Respondent was providing that service between the hours of 10.00 pm and 6.00 am and that he was required to do so as a necessary part of his engagement.  Inconsistent with the submission of the Third Respondent is the evidence that the Second Respondent was not free, when not being actively called upon, to do as he liked to or to locate himself wherever he liked. For example, the Second Respondent was required to remain sober between the hours of 10.00 pm and 6.00 am.^[15] He had to be located close enough to The Hotel during those hours to be able to respond in a suitable period of time to any call on him.^[16] He had to remain “vigilant for situations that might cause a safety risk”.^[17]
63. [63]
    The Third Respondent submits that the evidence does not prove Unit 402 was the Second Respondent’s place of work. The evidence is said to be that Unit 402 was the Second Respondent’s private residence.  I accept that Unit 402 was the Second Respondent’s private residence.  However, that does not limit the Unit having another character.  The Unit is located within The Hotel building.  The Second Respondent was responsible during the hours of 10.00 pm to 6.00 am for that building.  Whilst he was making himself available to deal with any issue, which might arise, he would no doubt locate himself in Unit 402 for comfort and convenience.  As a matter of common sense, that is why he was provided with on-site accommodation.  Mr CD gave evidence that the Second Respondent had no other place in the building to use as an “office” or place of work. Mr CD did not see why the Second Respondent would need an office.^[18] Mr CD also said that once the Second Respondent stepped outside his front door to respond, the common area became his place of work.^[19]  That last evidence is self-serving and inconsistent with Mr CD’s evidence that the Second Respondent was contracted to be “available” to respond during the hours from 10.00 pm to 6.00 am, which must necessarily mean he is “available” whilst in Unit 402, not just after he takes a call and steps into the corridor. I find that Unit 402 was a place of work for the Second Respondent as well as being his residence.
64. [64]
    The Third Respondent submits that the evidence does not prove the Second Respondent was required to remain at The Hotel between 10.00 pm and 6.00 am. It says the evidence is he needed to be available, although he did not need to be physically present and awake at The Hotel, between 10.00 pm and 6.00 am, to provide caretaking services if and when they arose. I accept that submission to a limited extent. I have referred to the evidence that the Second Respondent needed to be proximate enough to The Hotel to attend to his duties. That said he did not need to be physically present and awake between 10.00pm and 6.00am, provided he could respond effectively when needed. I reject the suggestion that caretaking services might only arise between 10.00pm and 6.00am, if the Second Respondent was actively called upon.  I have found that he was providing caretaking services by being available, or at the ready during the hours of 10.00 pm to 6.00 am.

Finding

65. [65]
    In the end, the relevant finding is that the Second Respondent was engaged to be available to attend to issues that might arise at The Hotel between the hours of 10.00 pm and 6.00 am. The duties are as set out in the Particulars (Exhibit 2).  I find that he was working during the hours of 10.00 pm and 6.00am, pursuant to his engagement, whilst waiting for any call, alarm, incident or issue to arise during those hours. I reject the submission that the Second Respondent was only working once he responded to any call, alarm, incident or issue.

Did the sexual assault occur in the course of the Second Respondent’s work for the Third Respondent?

66. [66]
    The Third Respondent submits that it is necessary to construe s 133(1) of the Act, in particular the meaning of the words “in the course of work”.
67. [67]
    The Third Respondent refers me to an interpretation of the phrase in Commonwealth of Australia v Lyon^[20] with respect to workers’ compensation statutes.  In that case the phrase “ in the course of work”  was found to:

    1. contemplate the circumstances where a worker is engaged in the work he or she is employed to do;
    2. to contemplate the circumstances where a worker is engaged in something which is concomitant with or reasonably incidental to the worker’s employment, and
    3. such that the scope of what is within the “course of employment” is a matter of degree, in which time, place and circumstances as well as practice must be considered together with the conditions of employment.
68. [68]
    I think that statement is a helpful way to apply the facts. I also consider it is sufficiently broad to enable a wide and liberal interpretation of the phrase “in the course of work”, as urged by the Applicant in her submissions.  The Applicant relies upon the statements of Kiefel J, as she then was, in South Pacific Resort Hotels Pty Ltd v Trainor^[21] and the case which followed her analysis.^[22]I agree that a wide interpretation is desirable, given the remedial nature of the Act.
69. [69]
    I have found that being “available”, or ready to respond to an issue between the hours of 10.00 pm and 6.00 am, was an integral part of the Second Respondent’s work pursuant to his contract for service. On this basis I find that the Second Respondent was engaged in the work he was required to perform at the time of the sexual assault and that he was therefore engaged in the “course of work” at the time the contravention of the Act occurred.  To the extent that it might be necessary to go further, the facts of this case also fall within what is contemplated by the wider meaning of the phrase expressed in the second and third limbs of the interpretation given in Lyon’s case.
70. [70]
    I accept the submission of the Applicant that when the Second Respondent was “on-call”, or holding himself “available” between the hours of 10 pm and 6 am, he was a worker performing work. That is, he was engaged in the duties required under his contract for services.  I adopt the comment of Dixon J in Automatic Fire Sprinklers v Watson:^[23] “They also serve who only stand and wait”. I reject the submissions of the Third Respondent that reliance cannot be placed on this case.  I place reliance on His Honour’s comment, as a neat way of expressing the fact that passive work is as much work as active work, particularly if that is expressly required of the worker. I consider that to be the case whether the requirement is made pursuant to a contract of service or a contract for service.
71. [71]
    I reject the submission that the Second Respondent was not working unless he was actively called upon. The Third Respondent engaged the Second Respondent to be available to respond to issues which might arise in the building between set hours, it directed that he be sober and vigilant during those hours and provided him with on-site accommodation to enable him to do that work.
72. [72]
    In the terms of the legislation, it matters not if the sexual assault occurred in his private residence or anywhere else in The Hotel.  The critical issue is that it occurred in the course of his work for the Third Respondent. 
73. [73]
    It is not necessary to find that the sexual assault took place in the Second Respondent’s place of work, but it adds force to a finding that the sexual assault occurred in the course of the Second Respondent’s work.  Unit 402 was on-site accommodation, which enabled him to respond within an appropriate time to any issue that arose in the building.  That is a matter which I can logically infer from the evidence of Mr CD and Mr A about the work to be performed by a night caretaker such as the Second Respondent.  I do not consider that any further evidence is required to draw that inference. I find that Unit 402 was the place where the Second Respondent was based, whilst being available to respond. For that reason, it was the Second Respondent’s place of work.  That is consistent with the evidence of Mr CD.^[24]
74. [74]
    In terms of the legislation, it does not matter how the Applicant came to be in Unit 402. Section 118 of the Act sets out an outright prohibition: “A person must not sexually harass another person”. The prohibition is not limited in relation to place or circumstance. Once the Act has been contravened the vicarious liability provision set out in s 133 of the Act will be engaged if the contravention occurred in the course of work of a person’s worker.  It is irrelevant to submit, as the Third Respondent has done, that the Applicant was the Second Respondent’s guest and that she was not in any way connected with the Third Respondent or the Second Respondent’s work for it.

Finding as to vicarious liability

75. [75]
    I find that the Second Respondent’s contravening conduct occurred in the course of his work within the meaning of s 133(1) of the Act. On that basis, I find that the Third Respondent is vicariously liable for the Second Respondent’s contravention of the Act.

Defence

76. [76]
    The Third Respondent has submitted that there was nothing it could have done to avoid the event occurring on 1 December, 2010.  That is not a defence.  S 133 (2) of the Act sets out a defence, however it is not engaged. The Third Respondent led no evidence of any reasonable steps it took to prevent the Second Respondent contravening the Act. I do not accept there were no reasonable steps it could have taken. At the very least one would expect a publicly listed company, such as the Third Respondent, to have an Anti-Discrimination Policy and an education program for its workers.  It is beside the point that the Third Respondent did not know what the Second Respondent might do or that it could not control what he might do in “his own home”.  Unit 402 was also a place of work.  If the Third Respondent had taken steps to inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance, then it may have avoided responsibility for the unlawful acts of its worker.

Medical conditions and affect on ability to work

The Applicant’s submissions

77. [77]
    The Applicant submits that in December 2010, she sustained a psychiatric injury in the form of Post-Traumatic Stress Disorder (PTSD) and a Depressive illness.  She relies on the diagnosis of Dr Beech, Psychiatrist set out in his reports dated, 25 October 2015^[25] and 7 May 2016^[26]; and his evidence given in the re-hearing.  At the re-hearing the Applicant did not call Dr Mungomery, Psychiatrist as her witness. However, in her submissions, she points to large elements of Dr Mungomery’s reports and evidence, which support her claim. The evidence which the Applicant points to are parts of the reports given by Dr Mungomery to WorkCover, dated 17 August, 2011^[27] and 3 April, 2012;^[28] his report to Maurice Blackburn, dated 4 December, 2012,^[29] his evidence to the Tribunal on 18 February, 2013^[30], his report to WorkCover dated 14 October, 2014^[31] and his oral evidence on the re-hearing.^[32]
78. [78]
    The Applicant makes the following submissions.
79. [79]
    Both Psychiatrists make the same diagnosis of Post-Traumatic Stress Disorder and a Depressive illness.
80. [80]
    The Applicant submits that her psychiatric injury was contributed to in at least a material degree by the sexual assault of her by the Second Respondent. The Psychiatrists are agreed that is the case, but there is a difference in opinion as to the degree of contribution and the effect of earlier stressors.  In the re-hearing both Psychiatrists agreed that a person of normal fortitude could have suffered the same psychiatric conditions as a result of the sexual assault.
81. [81]
    Dr Mungomery thought that pre-existing vulnerabilities, psychiatric conditions and additional stressors that occurred in the two years prior to the sexual assault would be significant in the development of her psychiatric conditions.^[33]
82. [82]
    Dr Beech addressed this issue in a further report, dated 7 May, 2016.  He acknowledged that the Applicant had in earlier years suffered from psychological conditions and there had been other stressors, but he did not think the Applicant had at the time of the 2010 incident a pre-existing impairment.  In particular, he noted that prior to the incident the Applicant had for 12 months or so not suffered from any psychological or emotional disturbance and she had returned to work.^[34]  
83. [83]
    The Applicant submits that the psychiatric injury sustained by her on 1 December, 2010 as a result of the sexual assault of her by the Second Respondent rendered her unfit for work until mid-2015. She points to the fact that she was performing satisfactorily in her position at The Accommodation^[35]
84. [84]
    Dr Beech expressed the opinion that: “it was her conditions that arose from the 2010 incident that caused her impairment and inability to work…”^[36]
85. [85]
    Dr Beech expressed the opinion that the Applicant ceased being totally incapacitated for work around mid-2015 when she commenced employment in Darwin at Quest Serviced Apartments.^[37]I note the date was in fact, March, 2015.
86. [86]
    Dr Mungomery expressed the opinion in his reports to WorkCover and to Maurice Blackburn that the Applicant was totally impaired in her capacity for work.   In his report to Aitkin Legal, dated 31 March, 2016,^[38]Dr Mungomery expressed the opinion that the Applicant was totally impaired in her capacity for work for a period between December 2010 to October 2014.  He refined that view in his oral evidence to express the period as up until at least October 2014, because he acknowledged that she was having residual symptoms at that time.
87. [87]
    As to the Applicant’s prognosis, Dr Beech considered her overall prognosis to be positive, but thought that she remained at risk of a relapse of her depression and the re-development of another Major Depressive Episode.   She was also vulnerable to a recrudescence of her Post-Traumatic Stress Disorder syndrome.  Dr Beech thought the Applicant would benefit from 12 or more sessions of psychological therapy at a cost of $250.00 per session. He expressed the view that she continues to suffer residual symptoms of Post-Traumatic Stress Disorder.  The Major Depressive Disorder has remitted.  The alcohol abuse continues but he would see this as a pre-existing condition.^[39]
88. [88]
    Dr Mungomery reaches similar conclusions in relation to the Applicant’s prognosis.  He thought she would benefit from ongoing psychiatric and psychological treatment, including medication.^[40]

The Third Respondent’s submissions

89. [89]
    The Third Respondent submits that the Applicant’s credit is materially relevant to any assessment by the Tribunal of her loss, to any reliance on the expert medical opinions given by Dr Mungomery and by Dr Beech; and to any reliance upon her own account of her inability to work.
90. [90]
    The Third Respondent also submits that the Applicant has not been truthful in her evidence before the Tribunal, either in the earlier hearing or in the  rehearing, in relation to evidence concerning her alleged loss, in terms of:

    1. any steps taken by her to attempt to mitigate her loss;
    2. the period of time that she was actually totally incapacitated to perform work of a kind that she was performing for the First Respondent; and
    3. the extent to which she was humiliated or offended by, or otherwise suffered, by reason of the conduct of the Second Respondent.
91. [91]
    The Third Respondent submits that the Applicant’s veracity is relevant to the weight to be given to the written medical reports given by Dr Mungomery in 2011 (Exhibit 55), in 2012 (Exhibits 56 and 11) and by Dr Beech in 2015 (Exhibit 39), which were based upon the veracity and accuracy of the history given to those experts by the Applicant.

Credit issues arising out of the first hearing

92. [92]
    The Third Respondent refers to the Applicant’s evidence in the first hearing and submit that her evidence lacked credit.
93. [93]
    The Third Respondent submits that the Tribunal should accept that the Applicant was not telling Dr Mungomery the truth about her pre-existing psychiatric or psychological health, in an endeavour to paint an incomplete picture when he examined her, so as to support her case. Namely, to increase the loss she says that she has suffered from the conduct of the Second Respondent (rather than from other causes), for which she seeks to make the Third Respondent vicariously liable.
94. [94]
    It is submitted that the conduct of the Applicant in deliberately withholding such relevant information is of such a nature as to tend rationally and logically to weaken the Tribunal’s confidence in her veracity.

Treatment in the 12 months prior to 1 December, 2010

95. [95]
    The Third Respondent submit that it is clear from the cross-examination of the Applicant in the earlier hearing and the cross-examination of Dr Mungomery in the earlier hearing that the Applicant had not given Dr Mungomery a full account of all her previous psychiatric and medical history when he examined her on three occasions -  August, 2011, March 2012 and December 2012.
96. [96]
    The evidence reveals that the Applicant had a number of medical consultations with General Practitioners during the period 2008 to July, 2009, where she made complaints of anxiety and depression. The relevant medical records appear in Exhibit 5 and Exhibit 10.
97. [97]
    The Applicant does not deny not telling Dr Mungomery about her medical consultations during the period May 2008 to July 2009. However, she says that she did not deliberately not disclose the consultations.  Many of the consultations she could not recall, when questioned about them in the first hearing.  
98. [98]
    The Third Respondent suggests it is implausible for the Applicant to assert she had forgotten many of the consultations, yet she was able to remember and disclose her referral to a psychologist when she was 13 years of age for behavioural issues.  I do not think one can draw an adverse inference from that disclosure.  A psychologist did not treat her during 2008 and 2009, however, she was treated earlier in her life and she raised it in response to the enquiry about psychological conditions.
99. [99]
    The Applicant submits that Dr Mungomery asked her about significant psychiatric or psychological conditions or treatment in the “12 months” prior to 1 December 2010.  The Applicant submits that the consultations she was cross-examined about occurred earlier than the 12 month period raised by Dr Mungomery. It is submitted that there is no evidence of any diagnosis of a psychiatric or psychological condition in that period.  I note the Applicant was not asked in cross-examination about any such diagnosis.  Relevantly the Applicant denied having taken any psychiatric medication in that period. The medical records support that. To the extent that a mental health plan was discussed with the Applicant in June, 2009, her evidence is that she did not take up a referral to a psychologist because she had no need of such treatment.
100. [100]
     I accept the evidence of the Applicant as to why she did not disclose medical consultations which occurred between May, 2008 and July, 2009. I accept her evidence that she did not deliberately not tell Dr Mungomery about those consultations.
101. [101]
     I accept the Applicant’s submissions and find that her credit in the first hearing is not adversely affected by a failure to disclose the medical consultations which occurred with general practitioners, between May, 2008 and July, 2009.
102. [102]
     None of the consultations the Applicant was cross-examined about were with psychologists or psychiatrists.  The Applicant was not asked by Dr Mungomery for full details of all her medical consultations going back over 2 years prior to the assault.  There is no evidence that she was diagnosed with any significant psychiatric or psychological condition in the 12 months prior to the assault. 

Effects of 2009 incident

103. [103]
     The Third Respondent submit that the Applicant did not tell Dr Mungomery of the effect of what she alleges was a non-consensual sexual encounter with Mr CD, which occurred in 2009.  It is said that she did not describe the effect or the longevity of the event upon her.  I note from Dr Mungomery’s 2011 report (Exhibit 55) that the Applicant did disclose the incident to him in some detail.  She told him that she resigned her employment because of the incident.  The Applicant maintained that there were no serious consequences for her as a result of the 2009 incident. Dr Mungomery does not appear to have pursued it further for the purpose of his first 3 reports.
104. [104]
     I accept the evidence of the Applicant given in the first hearing, that there were no serious consequences for her as a result of the 2009 incident. I do not think she deliberately withheld relevant information from Dr Mungomery in relation to the issue.
105. [105]
     The Third Respondent raises this point again in their submissions in relation to her credit in the re-hearing. I address the matter again, later in this decision.

Termination of pregnancy/testing for disease/debts

106. [106]
     The Third Respondent says that the Applicant did not disclose to Dr Mungomery a termination of pregnancy which occurred 6 days before the Applicant commenced work at The Accommodation. Nor did she disclose testing for sexually transmitted disease and worries about indebtedness at that time.
107. [107]
     The Applicant’s evidence in the first hearing, in relation to the termination of pregnancy issue, is  that she did not tell Dr Mungomery about it because it did not particularly trouble her. That is consistent with the Counsellor’s notes made at the time.^[41] Dr Mungomery accepted that was the case when he was referred to the counsellor’s notes in the first hearing.
108. [108]
     I do not consider the Applicant’s credit is affected by not disclosing the termination in these circumstances.  I consider the other two issues to be similar. From her evidence, they did not appear to particularly trouble the Applicant.  There is no evidence to the contrary.

Finding in relation to the Applicant’s credit in the earlier hearing

109. [109]
     It was put to the Applicant in the earlier hearing, that she deliberately did not inform Dr Mungomery of her medical history, the effects of the 2009 non-consensual sex, the termination of a pregnancy, testing for sexually transmitted disease and indebtedness. It was put to her that she did this to give an incomplete picture of her psychological and psychiatric health to favour her case.  She denied this was the case.  I accept the Applicant’s evidence.
110. [110]
     The Third Respondent submits that her evidence in the earlier hearing, that she did not deliberately omit telling Dr Mungomery any of those matters,  cannot be accepted, because she told Dr Mungomery of the psychological issues and counselling she had when she was 13 years of age.
111. [111]
     I reject the submissions of the Third Respondent. I do not think that because the Applicant disclosed treatment by a psychologist when she was 13, that one can find she deliberately did not tell Dr Mungomery of other medical treatment and incidents that occurred in her life.  Plainly, treatment by a psychologist at the age of 13 was significant to the Applicant.  Disclosing it was responsive to a question about psychological treatment.  For the reasons set out in my discussion of the 2008-2009 medical consultations and other events in the Applicant’s life, I do not think she deliberately withheld that information.
112. [112]
     For these reasons, I reject the submission by the Third Respondent that the conduct of the applicant is of such a nature as to tend rationally and logically to weaken the Tribunal’s confidence in the Applicant’s veracity.
113. [113]
     I make no adverse finding as to the Applicant’s credit, arising out of the first hearing.

Credit issues arising out of the re-hearing

114. [114]
     The Third Respondent refers to:

     1. a bundle of medical records of medical treatment sought and received by the Applicant between 1 December, 2007 and 2 February, 2012 (Exhibits 5 and 10);
     2. Caloundra Hospital and Qld Ambulance Service records (Exhibit 49), in relation to the Applicant’s treatment following her flight from a violent boyfriend in 2014;
     3. Nambour Hospital records in relation to the Applicant’s hospitalisation in October, 2014, because of a drug she had taken. (Exhibit 47);
     4. Nambour Day Surgery records (Exhibit 46);
     5. Bli Bli Clinic records (Exhibit 45) in relation to medical treatment during 2014;
     6. Mindful Therapy records (Exhibit 48); and
     7. Maroochydore 7 Day Medical Centre (Exhibit 50).
115. [115]
     The Third Respondent submits that these medical records reveal medical conditions and other circumstances not disclosed to Doctors Mungomery and Beech, which were relevant to their consideration.
116. [116]
     The Third Respondent submits that it is clear from the cross-examination of the Applicant in the re-hearing, that she was still failing to inform the Tribunal and Dr Beech of all her relevant history and circumstances relevant to the Tribunal’s assessment of her claims and Dr Beech’s assessment of her.  The Third Respondent says that she consistently fails to be open frank and truthful.
117. [117]
     The following matters are said to be illustrative.

Assault by a boyfriend on 16 December, 2014

118. [118]
     In December, 2014 the Applicant was punched by a boyfriend and fled from him, by jumping from his car and running away. The Third Respondent says that the description of the event in her affidavit (Exhibit 51), is different to the way it occurred. During cross-examination, the Applicant was taken to Exhibit 49, the Caloundra Hospital Records and to the Queensland Ambulance Service report form.  Those documents record further details of the event, including her boyfriend making death threats, driving up and down looking for her and the Applicant running through a paddock to a house, where she sought help.
119. [119]
     It is said that the Applicant agreed in the re-hearing, that the descriptions were different. I note that the Applicant’s evidence was that she did not add details of the event in her affidavit as to the death threat made to her at the time and the fact that her boyfriend drove up and down the road looking for her. The Applicant gave evidence in the re-hearing that she felt she did not need to go into detail in her affidavit, as it was not relevant to what happened to her on 1 December, 2010.  She said that she did not deliberately leave information out of her affidavit. I accept that evidence. She recorded the violent incident and swore to the effect of the incident on her.  There is no evidence that the effect was not as she says, that is she “did not feel as vulnerable…didn’t feel much emotion…”^[42]
120. [120]
     It was put to the Applicant in cross-examination that not providing further detail in her affidavit about the incident was done to avoid detrimentally affecting her claim.  It was obvious to me that the Applicant had great difficulty understanding what was being put to her, because of the complex way in which the questions were framed.  In the end when a more simple proposition was put to her, she denied that was the case.^[43] The Applicant submits that providing further detail about the incident would not have detrimentally affected her claim because she was able to return to work in March, 2015, 3 months after the incident. I accept that submission.
121. [121]
     The Third Respondent concludes that the event was far more significant and traumatic for the Applicant than as she described in Exhibit 51. The Applicant’s consistent evidence was that although “scared”, she did not feel as vulnerable during the incident as she did during the 1 December, 2010 incident.^[44] She did not accept the more extreme assertions put to her that she was “terrified” or “in fear of her life”. I accept her evidence and do not consider her credit is adversely affected by the way in which she described the incident involving her boyfriend, in her affidavit.  It is Senior Counsel for the Third Respondent who continued to refer to the event as “plainly terrifying”. That is not the Applicant’s evidence.  On the version of events before me, I think it is open to conclude that rather than being terrified, the Applicant showed courage and resourcefulness in how she dealt with the incident.
122. [122]
     It was put to the Applicant in cross-examination that she did not tell Dr Beech about her boyfriend’s death threat and that she had not been frank and truthful about those events when she described them.  She denied that was the case. The Applicant’s evidence is that she did not deliberately withhold information, but did not think such detail was required by the Doctors.
123. [123]
     I do not accept the submissions of the Third Respondent that the Applicant has not been truthful because the truth would detrimentally affect her claim.  First, I do not think the Applicant has been untruthful in her affidavit or in her interview with Dr Beech.  She has disclosed the event in sufficient detail to identify it and to describe its effect upon her. I do not think further detail about the event given to Dr Beech or in her affidavit would have detrimentally affected her claim.
124. [124]
     In this regard, Dr Beech said in cross-examination at the re-hearing that he did not seek detail about the event from her, as he was more interested in the effects of the event on her.^[45]That is consistent with the Applicant’s evidence. He also gave evidence that although a serious event, the Applicant did not freeze at the time.  She had a sense of efficacy and from there onwards, she started pulling herself together and it was shortly after that she moved to the Northern Territory and things started to improve for her. Dr Beech refused to acknowledge in cross-examination that the 2014 event, not the sexual assault in December, 2010 was causative of her residual Post-Traumatic Stress Disorder, diagnosed in September, 2015.  He also refused to acknowledge that if the Applicant suffered no fundamental emotional consequence from the 2014 event, then that indicates no continuation of Post-Traumatic Stress Disorder at that time.^[46] I accept the evidence of Dr Beech.

Illicit drug use

125. [125]
     In relation to illicit drug use, the Third Respondent suggests that the Applicant was not truthful in what she disclosed to Doctors Beech and Mungomery, about the extent of her use of illegal drugs. She acknowledged use of cannabis from time to time. She also acknowledged use of more serious illicit drugs on 2 occasions in the past. The Third Respondent in their submissions focus on the use of the drugs “ice” and “speed”, which they say was heavier than disclosed to the Doctors. 
126. [126]
     It is said that the Nambour Hospital records refer to “intermittent” use of methamphetamine and a later 2015 record by Mindful Therapy (Exhibit 48) which apparently refers to her taking “speed”. The Applicant’s evidence in her affidavit (Exhibit 52) is that she had only taken illegal drugs on 2 occasions, being in October, 2014 and at a festival some years before. It is submitted that the medical records demonstrate she was not truthful.
127. [127]
     The cross-examination of the Applicant on this issue was somewhat confused, because Senior Counsel for the Third Respondent based his questioning on use of methamphetamine, as use of “speed”. I accept the submission in reply by the Applicant that “speed” is the colloquial expression for amphetamine sulphate and not methamphetamine, commonly referred to as “ice”. I accept the submission that Senior Counsel’s attempt to equate the two was productive of confusion.
128. [128]
     The Applicant consistently denied in cross-examination that she had taken illegal drugs on occasions other than October, 2014 and at a festival a number of years before when she was 18.
129. [129]
     The hospital record in relation to the October, 2014 admission says: “Admits to prior use of methamphetamine, but previously for maximum two days, intermittently”. The Third Respondent seizes on the word “intermittently” to support its assertion that the Applicant used the drug “over a period”.
130. [130]
     The author of the note was not called to give evidence about the clinical notes. The record reveals that the Applicant was very distressed at the time of admission. The note says “Patient poor historian due to poor memory of events and tangentiality and derailment”^[47] The author of the note also records that the note was written some 8 hours after the Applicant’s admission and was written in retrospect. It is hard to find in these circumstances that the note is reliable evidence of what is said to be the Applicant’s prior drug use.  On my own reading of the note, it could mean that methamphetamine had been taken intermittently over a 2 day period. It could be a reference to the drug use, which resulted in her admission to hospital at that time, or it could be a reference to her experience at a festival when she was 18 and the drug was taken over a 2 day period.  I do not think the note is sufficiently clear to justify finding that the Applicant has been dishonest about her illicit drug use. I do not think the note proves that the Applicant was a regular user of “ice”.
131. [131]
     The Third Respondent also relies on a note made by Cameron Aggs of Mindful Therapy, Psychology Services on either 20 or 21 May, 2014.  Mr Aggs has recorded in handwriting some abbreviated notes including: “Took speed – hard come down”. ^[48]  The Applicant had no recollection of seeing Mindful Therapy and could not answer any questions in relation to the note.  Mr Aggs was not called to explain the circumstances in which the note was created or the meaning of the note. There is no context for the note. It is not even clear if it is describing the Applicant’s own experience, or when any drug use might have occurred. Given the very rough state of the notes and the absence of evidence from the author, I cannot treat the note as reliable evidence of drug use as submitted by the Third Respondent.
132. [132]
     I do not think the evidence in relation to illegal drug use demonstrates that the Applicant has been dishonest. I do not make any adverse finding in relation to her credit on this issue.

Consultations at the Bli Bli Clinic 

133. [133]
     The Third Respondent refers to Bli Bli Clinic records, which purport to record reports of the Applicant’s mental health in May and June, 2014.^[49]  The Third Respondent submits that at that time the Applicant was reporting no stress, no relationship problems, no irrational fear, no panic attacks, no suicidal thoughts, no suicide attempts and no substance abuse, no suicidal ideation, no delusions, no irrational fears and no panic attacks.  At the re-hearing the Applicant denied these notes were accurate.
134. [134]
     In re-examination, Dr Beech was asked about the records. He thought that as GP consultation notes, they should be treated with caution. He noted the inconsistency from date to date, for example on one date it refers to “normal sleep and then its poor sleep, depressed mood in one, anxiety , no suicidal ideation and then it’s no suicidal ideation any more.”^[50] Dr Beech’s evidence is that the notes follow a drop down menu which prompts questions as to the Applicant’s state of mind on the day of the consultation. In re-examination Dr Beech was taken to a range of pages in the records which noted: “not doing too well”; “still getting the panic attacks” “she is not mentally stable”; “she’s feeling down, even had panic attacks”.^[51]
135. [135]
     I accept the evidence of Dr Beech. I do not consider the Bli Bli Clinic notes reveal that the Applicant was not suffering the conditions she reported to Dr Beech in 2015 or that the Applicant was lying about her condition to Dr Beech.

Effect of 2009 incident

136. [136]
     The Third Respondent submits that the Applicant did not disclose to  Doctors Mungomery and Beech, some more serious effects of the event involving allegedly non-consensual sex in 2009, such as the length of time she was affected, the degree of stress she suffered and its impact on her decision not to join the navy. The Applicant submits that her evidence is that the incident was stressful, but it did not prevent her obtaining alternative employment, nor in approaching Mr CD in July, 2010 for a job. She did not concede that she suffered stress for a long period of time, just that she was stressed for “some time”.
137. [137]
     The Applicant points in her submissions, to evidence that she informed Dr Mungomery of the 2009 incident and she informed him that she felt embarrassed by what happened.^[52] Dr Mungomery concluded that although the incident may have sensitised her to the development of her current psychiatric injury, it did not appear to have lead to a diagnosable psychiatric injury at the time.^[53] Dr Mungomery affirmed that conclusion, even acknowledging in evidence at the re-hearing, following the putting of the proposition to him, that the impact of the 2009 incident may have been longer lasting and more stressful than she first suggested.^[54]
138. [138]
     I note from Dr Beech’s report (MB-1 to Exhibit 39) that the Applicant  disclosed the 2009 incident to him.  He concluded there had not been any psychological or emotional sequelae.  In cross-examination he was asked to accept that the Applicant’s evidence in the re-hearing had been that after the 2009 incident she felt like a sex object, she felt very stressed for a number of months and as a result of that stress, she did not join the navy. Based on that assumption he agreed that he would have diagnosed an adjustment disorder with depressed mood following the incident.  He acknowledged in his final report (MB-2 to Exhibit40), that the Applicant had a tendency to minimize matters. That said, he did not change his opinion that the 2010 incident caused her impairment and inability to work. He was clear that any condition the Applicant may have suffered as a result of the 2009 incident, had remitted by the time she worked for the First Respondent.^[55]
139. [139]
     I am not prepared to find that the Applicant was dishonest in her account of the effects of the 2009 incident  given to Dr Mungomery and Dr Beech.  The event was disclosed. Her description of its sequelae may have been minimized, but that is a different matter to untruthfulness. In any event, the objective facts reveal that any after effects of the alleged event had remitted, so that she was able to ask Mr CD for a job and to work for him again.

Ability to work in 2012

140. [140]
     The Applicant was challenged in the re-hearing in relation to the veracity of her affidavit evidence that she was unable to work in 2013 and 2014 and the statements she made to Dr Beech about her incapacity for work over that period. 
141. [141]
     The Applicant was cross-examined in relation to what she informed an occupational therapist at Advantage Injury Management Services in 2012, recorded at page 4 of Exhibit 8 (attachment NCK-10).  It is said the Applicant conceded in cross-examination that in 2012 there were a number of jobs she would like to perform and had the capacity to perform, if she had the opportunity.  I note that as the questioning proceeded the Applicant hesitated at the proposition: “What you were expressing in January 2012 was what you wanted to do and what you thought you were capable of doing, if you could get the opportunity doing it?” The Applicant said: “I can’t really remember – yes”. ^[56] Despite the way it is put in the Third Respondent’s submissions, I do not consider that the Applicant unequivocally agreed that she had the capacity to work in 2012, if only she had the opportunity.  The question as put to the Applicant, did not say “What you were expressing in January, 2012 was what you wanted to do and what you thought you were capable of doing as at January, 2012?” The question put to the Applicant made no mention of when she thought she might be capable of working.  It was left open as to time.  It would be wrong to assume the Applicant was agreeing that as at January, 2012 she was capable of doing certain work.   I accept the Applicant’s submissions that what might appear to be a concession made at the re-hearing is at odds with the evidence of her capacity at the time, including:

     1. that she reported to Advantage - anxiety symptoms, sleep problems, an inability to drive, loss of interest in sport and a feeling she was not ready for work;
     2. Dr Mungomery in his report of 3 April, 2012, indicated a total incapacity for work at that time, noting her report of an aggravation of her Post-Traumatic Stress Disorder and Depressive symptoms as a result of the Advantage interview, with the result that no return to work program was put in place.
     3. an assessment by her GP in July, 2012, that there had been no real improvement over the previous 18-19 months;
     4. Dr Markou’s observation on 11 January, 2012, that she was having nightmares and couldn’t leave the house, and his assessment that she was not ready for a suitable duties program.
142. [142]
     I note that the Advantage Injury Management Report itself records that the Applicant was certified medically unfit for work at the time of the interview.
143. [143]
     For these reasons, I reject the submission that the Applicant, in an endeavour to advance her own case, has not been truthful to the Tribunal in her evidence in chief about her incapacity for work from 2012.

Conclusions in relation to the Applicant’s credit

144. [144]
     It is submitted that the Applicant’s responses in cross-examination at the first hearing and on the re-hearing were unsatisfactory and reflect adversely on her credit.  In summary, the Applicant indicated that she could not recall some matters, did not think they were relevant or that the Doctors did not require any detail from her.  She denied deliberately withholding relevant information from the Doctors in order to enhance her case.
145. [145]
     I am not prepared to find that the Applicant’s responses in cross-examination at the first hearing and on the re-hearing reflect adversely on her credit. I noted that the Applicant was often confused in cross-examination and required questions to be re-put or explained to her in a different way.  I do not think she had the mental agility to fully understand what was being asked and she did the best she could in making her responses.^[57]
146. [146]
     I am also conscious that many of the matters the Applicant could not recall, for example, details of medical consultations in 2008 and 2009 occurred many years before and form part of a complex medical history. I do not think she can be criticised for a lack of recall in those circumstances.  In relation to matters which the Applicant thought were not relevant for disclosure, I consider that the view she formed was not unreasonable and certainly not representative of dishonesty.
147. [147]
     In his 2014 report (Exhibit 43a), Dr Mungomery records his conversation with the Applicant about why she did not disclose past psychiatric issues, drug use and other non- work related stressors documented in her medical records.  Consistently with the evidence given at both hearings, she said that she had forgotten about them. She had gotten over these issues, sometimes the next day and did not think they were major problems compared to the  problems she had since the incident at The Hotel. That is consistent with her evidence in both hearings. I think it is a reasonable position.
148. [148]
     The Applicant steadfastly denied deliberately withholding relevant information from the Doctors in order to enhance her case.  By the time the case was before me, the Applicant’s solicitors had fully briefed Dr Beech with all available material.
149. [149]
     I am asked to accept that:

• the Applicant was not telling Dr Mungomery the truth, in an endeavour to paint an incomplete picture of psychiatric and psychological health. It is submitted that she did this to enhance the loss she says she suffered from the conduct of the Second Respondent.
• The conduct of the Applicant in deliberately withholding relevant information is of such a nature as to tend rationally and logically to weaken the Tribunal’s confidence in the Applicant’s veracity.
• Even after the first hearing, the Applicant still failed to disclose her full history to Dr Beech, when he examined her for the purpose of a medico-legal report, because she did not want to detrimentally affect her claim.

150. [150]
     I do not accept these submissions.  Based on my observations at the re-hearing, I do not think the Applicant had the guile or wit to engineer her claim in the way asserted. At worst, I agree with Dr Mungomery and Dr Beech that she had a tendency to minimize adverse events in her life. In reality, the Doctors recognized this tendency and were able to pursue these matters and to put into them into context in forming their opinions.
151. [151]
     I accept the Applicant as a witness of credit.

The Medical Evidence

Dr Mungomery

152. [152]
     It is submitted, by the Third Respondent, that because the matters referred to above, were not disclosed to Dr Mungomery, his opinions in the reports of 7 August, 2011 (Exhibit 55), 3 April, 2012 (Exhibit 56) and 4 December, 2012 (Exhibit 11), are detrimentally affected as to the extent to which the Applicant’s psychiatric injury was contributed to by the sexual assault, and the extent to which it rendered her unfit for work. 
153. [153]
     In summary, those reports concluded that the Applicant suffered Post- Traumatic Stress Disorder and a Depressive illness from the sexual assault; her psychiatric injury was contributed to in at least a material degree by the sexual assault by the Second Respondent and the sexual assault had other significant non-employment impacts on her.
154. [154]
     The Third Respondent submits that once fully apprised of the Applicant’s history, Dr Mungomery’s opinion altered.  He maintained that the Applicant suffered a Post-Traumatic Stress Disorder, Major Depressive episode and aggravation of pre-existing alcohol abuse. However, he concluded in his 2014 report, Exhibit 43a, that the Applicant suffered an aggravation of pre-existing Social Anxiety and Panic Disorder and a pre-existing pattern of alcohol abuse and aggravation of a pre-existing Chronic Dysthymic Disorder or a Major Depressive Disorder. He apportioned 50% of her current symptoms and psychiatric impairment to the 1 December, 2010 event and 50% to pre-existing conditions. He assessed her permanent impairment at 2.5% using the Psychiatric Impairment Rating Scale (PIRS).
155. [155]
     In his 2016 report, Exhibit 43b, he concluded  that:

• only 50% of the Applicant’s psychiatric injury had a causal connection to the assault;
• the sexual assault did not render her unfit for work until mid-2015 and may have only rendered her unfit until October 2014;
• the Applicant’s loss of earnings for the period 10 December, 2010 to October, 2014 could be apportioned 50% to the event of 10 December, 2010 and 50% to other factors;
• the Applicant’s Psychiatric Impairment Rating Scale (PIRS) is only 1%;
• ongoing psychological and interpersonal difficulties and problems with drug and alcohol abuse are due to pre-existing vulnerabilities and conditions.

156. [156]
     By the time he prepared his 2016 report, Dr Mungomery had been provided with the transcript of the first hearing, Dr Beech’s report and records from the Nambour General Hospital, Nambour Day Surgery and Mindful Therapy.
157. [157]
     In the 2016 report, he says that he changed his clinical opinion about the Applicant due to his assessment of her in 2014 and various aspects of her personal history that she failed to disclose, prior to him giving his testimony at QCAT.
158. [158]
     Dr Mungomery suggested that Dr Beech may not have considered the Applicant’s pre-existing circumstances and conditions.  In both the 2014 and 2016 reports, Dr Mungomery was critical of the Applicant and expressed the opinion that he had a concern regarding the reliability of her history in relation to her work related injury of 1 December, 2010 and the psychological sequelae. He thought there was a reluctance to disclose personal information that may be at best disadvantageous to her claim.
159. [159]
     The Third Respondent submits that Dr Mungomery gave evidence in chief at the re-hearing that:

• the event in 2009 with Mr CD was a significant event that would have had a compounding or synthesising effect in regards to the 1 December, 2010 event. It also supported his premise that the Applicant had pre-existing psychiatric issues and difficulties prior to the 1 December, 2010 event;
• the Applicant had capacity to work as at January, 2012;
• the Applicant’s percentage disability at 2012 was 5% apportioned to the 1 December, 2010 event;
• the 2014 event was significant in regard to an ongoing aggravation of her ongoing psychological difficulties;
• if the Tribunal accepted the Applicant’s use of methamphetamine was greater than the two occasions she referred to in her affidavit evidence, that supported Dr Mungomery’s ongoing concerns that drug usage had contributed to and may continue to be contributing to her ongoing psychological difficulties.

160. [160]
     I am asked to prefer Dr Mungomery’s final opinion to that of Dr Beech, on the basis that his early reports were prepared without the benefit of additional information, which has informed his final opinion.
161. [161]
     Dr Mungomery was cross-examined during the re-hearing in relation to what information he was provided with at the time of his reports and what new evidence caused him to shift his opinion in the October, 2014 report.
162. [162]
     In the re-hearing, Dr Mungomery confirmed the evidence he had given at the first hearing that a normal person could have developed a psychiatric condition as a result of what the Applicant experienced. However, he said that if she had a pre-existing condition or active, clinically diagnosable psychiatric condition as at 1 December, 2010, it may have been aggravated further by the event on that date.^[58]
163. [163]
     He agreed in cross-examination that the events in the morning of 1 December, 2010 contributed to a material degree, up until at least October 2014 to her psychiatric condition.^[59]
164. [164]
     Dr Mungomery gave the following evidence in cross-examination in the re-hearing.
165. [165]
     He confirmed that on the 3 occasions he had seen the Applicant, she presented consistently with her symptoms.^[60]
166. [166]
     Dr Mungomery confirmed that in relation to the termination of pregnancy, his evidence was that she seemed “open and settled”.^[61]
167. [167]
     In relation to the alleged non-consensual sex event in 2009, Dr Mungomery confirmed that it was unlikely the Applicant had any significant ongoing problems if she contacted the person involved, for assistance in finding employment.^[62]
168. [168]
     Dr Mungomery acknowledged that by the time of the first hearing he had been provided with records of the Applicant’s medical consultations in 2008 and 2009, contained in Exhibit 5. He confirmed the evidence given by him in the first hearing that, even armed with medical records in relation to the Applicant’s medical consultations in 2008 and 2009, he would not have changed her diagnosis.^[63]
169. [169]
     During the first hearing Dr Mungomery was twice asked whether the medical records in relation to consultations in 2008 and 2009 suggested in any way that there was an active psychiatric condition at play with the Applicant as at 1 December, 2010.  He said the notes support her having had a period of emotional symptoms of depression and anxiety which appear to have resolved within a relatively short timeframe.^[64] He said that he did not think there is evidence to support a pre-existing psychiatric impairment due to an active psychiatric condition at the time of the event in December, 2010.^[65]
170. [170]
     During the re-hearing Dr Mungomery confirmed that was a reasonable proposition, based on the information he had at the time.^[66] The parties agreed that the medical records in Exhibit 5 were provided to Dr Mungomery before the first hearing.
171. [171]
     Dr Mungomery was referred to Exhibit 7 (NCK-10), the report of Advantage Injury Management Services, in particular the notes in relation to “Return to work attitudes”, which record a willingness to trial a host employment program and an attempt to return to work. The notes record that the Applicant is unsure whether she is ready for work or not, but expressed motivation to return to work.  Dr Mungomery was asked if he had any comments about what she said in 2012 compared to an interpretation of her evidence in the re-hearing that she was capable of work at that time.  He thought her current confidence in her ability to work, may have led her to state that she feels she probably could have coped.  Dr Mungomery conceded that what occurred in December of 2010 was likely contributing to a degree to her difficulties working in 2012.^[67]
172. [172]
     Dr Mungomery agreed that he had the Advantage report at the time he prepared his 4 December, 2012 report which concluded the Applicant was unfit for work in any capacity at that time.  He also took the report into account in giving his evidence in February, 2013.^[68]
173. [173]
     Dr Mungomery agreed that in February, 2013, he was aware of episodes of binge drinking and cannabis use by the Applicant because she had told him about these things in 2012.
174. [174]
     Finally, Dr Mungomery agreed in relation to the 2014 incident that he was unaware the Applicant had commenced work within 3 months of the incident.  He agreed that whatever her psychological difficulties were through that time, they must have reduced to a point where she was able to work subsequent to that.  Dr Mungomery agreed that he was at a disadvantage in relation to this matter, because he had never had the opportunity to discuss the issue with the Applicant.^[69]
175. [175]
     During cross-examination in the re-hearing, Dr Mungomery struggled to determine what extra material he had, which caused the shift in his opinion in his 14 October, 2014 report. Eventually, he recalled that it was reference to the notes of the treating psychiatrist, Dr Markou and the treating psychologist, Ms Cleary, that caused a shift in his opinion regarding a level of psychiatric impairment that was likely pre-existing. Dr Mungomery said that the level of pre-existing impairment as at October, 2014 was 2.5%, which was a shift from where he had previously seen her as having pre-existing vulnerabilities. He described his new opinion in terms of the Applicant having a mild pre-existing impairment at the time of the 1 December, 2010 event.  After further questioning, he agreed that in fact, as of 18 February, 2013, he had the notes of the treating psychologist, Kathy Cleary and the report of the treating psychiatrist, Dr Markou. Further, Dr Mungomery agreed that his evidence in the first hearing was that on the three occasions that he had seen her, the Applicant presented consistently with her symptoms.^[70]
176. [176]
     Dr Mungomery was re-examined in the re-hearing. He said that in October, 2014 he had documentary information that he did not have when he compiled the first three reports and that the documents influenced his report in 2014. He did not say what documents in particular influenced his report.   I accept that he did not have all the material in Exhibit 5 at the time his first 3 reports were compiled, however he did have the material at the time he gave his evidence at the first hearing. I do not think reference to Exhibit 5 records, at the time of preparation of the 2014 report, explains the difference in opinion between his evidence at the first hearing and the contents of the 2014 report.
177. [177]
     The further issue raised in re-examination was the significance of Kessler Psychological Distress Scale testing (“K10”) by a general practitioner in June 2008, which resulted in a “K10” score of 44 and another test performed in July, 2009 which resulted in a “K10” score of 47.  Dr Mungomery explained at the first hearing that the Kessler Test is a screening test used principally by general practitioners to assess if there may be clinically significant symptoms of depression and anxiety that might require further intervention or assessment.
178. [178]
     In the re-hearing, during cross-examination, Dr Mungomery said that the K10 test is part of the information a psychiatrist may use in considering a patient.  During re-examination he said that numbers of 44 and 47 are reflective of a clinically significant psychiatric condition or issue at that time.
179. [179]
     The 2008 K10 result is noted in a record forming part of Exhibit 5.  It was acknowledged by Dr Mungomery that he had reference to those medical records at the first hearing.  The second K10 result appears in Exhibit 10.  I am not sure he had that document before the first hearing, however, he was informed of its contents at the first hearing and asked to comment on its significance.
180. [180]
     The K10 results were part of the information known to Dr Mungomery at the time he gave evidence in the first hearing.
181. [181]
     In considering Dr Mungomery’s evidence, I have particularly noted some evidence given at the first hearing.  It follows questioning about the significance of pre-existing vulnerabilities and whether the 1 December, 2010 event may have aggravated a pre-existing condition.  Dr Mungomery said that a normal person could have developed a psychiatric condition as a result of the event.  When asked if the event may have aggravated a pre-existing condition further, he said that if it was pre-existing and there is evidence that she actually had an active clinically diagnosable psychiatric condition at the time this event occurred it could certainly have aggravated that condition.  However the symptoms the Applicant describes from the time of the incident are different, there are more features in the Post-Traumatic Stress nature to do with intrusive memories of the event, avoidance of situations that remind her and the sort of overall actual severity of the symptoms and associated psycho social impairment things, was far greater. He said the treating psychologist and treating psychiatrist note that the Applicant has presented consistent with her symptoms over time and that accorded with his observations.^[71]
182. [182]
     A short time later in the questioning at the first hearing, Dr Mungomery’s evidence was that he would need to talk to a patient to determine any pre-existing condition. He discussed an increased vulnerability to the development of the current psychiatric condition, saying that he based his assessment on her history and her clinical presentation which helps an understanding of those vulnerability factors and also her psycho social functioning prior to the actual indexed event. He said:^[72]

…she was working in her employment had been for three or four months, she was a full time relationship with her boyfriend the time, she was socially active so all the indicators of impairment and most, virtually all the diagnoses of psychiatric illness in diagnostic and statistical manuals require not just a set of symptoms but they ought to require that these psychological/psychiatric symptoms cause impairment in important areas of function either in work, socially or recreational so in assessing vulnerability again the sense of what she was actually doing at the time of the event still gives us a sense of the overall picture and what she was like pre and post even though we didn’t have that additional information at that time.

183. [183]
     Dr Mungomery then confirmed that even armed with further information which had come to light he would not have changed the diagnosis or the pre-existing impairment based upon her described functional capacity.^[73]
184. [184]
     Finally, in re-examination of Dr Mungomery at the first hearing, he was asked whether in light of the material or notes concerning various consultations in May 2008, material concerning the development of a mental health care plan and the administration of a K10 test in July, 2009, there was anything that suggests there was an active psychiatric condition at play with the Applicant as at 1 December, 2010. Dr Mungomery said:^[74]

…the notes support her having had a period of emotional symptoms of depression anxiety which appears if you look at the contemporaneously outside of it appear to have resolved within a relatively short timeframe, it appears even with, maybe not even with treatment in the medical records…such so it may be what we call an adjustment disorder where people have a brief reaction to significant psycho social stressors in their life that when the psycho social stressors resolves the condition resolves and they on with their life without the need for any further treatment or without any enduring impairment…it is not in your reported information supporting an active psychiatric condition presenting with symptoms as she had described to other practitioners in those months leading up to that particular date.

185. [185]
     I am asked to draw an inference that because of the shift in Dr Mungomery’s opinion, the Applicant determined to obtain a further medical report. Given the shift in Dr Mungomery’s opinion I have no doubt that was a factor in The Applicant consulting Dr Beech. I do not think that is an inference adverse to the Applicant.

Dr Beech

186. [186]
     The Third Respondent submits that the Applicant told Dr Beech there was no “significant pre-morbid medical or psychological history” as at 1 December, 2010,  yet he was able to determine that was not correct because of his access to collateral material.  Dr Beech agreed in cross examination that her history reflected vulnerabilities which, when other things happened, make it more likely for her to develop some psychological conditions.
187. [187]
     The Third Respondent submits that Dr Beech gave evidence in cross-examination that he was told the reason why the Applicant did not want to take up other positions offered to her was because she did not trust her employers and that was because she had discovered that the Second Respondent had not been sacked.
188. [188]
     The Third Respondent put a number of propositions to Dr Beech drawing on its interpretation of the Applicant’s evidence, and obtained acknowledgements in relation to:

• the Applicant not telling him that the reason she did not want to join the Navy in 2009 was because of the event that had occurred in 2009 with Mr CD;
• her capacity to undertake work in 2012 not sitting well with what he had been told;
• that she had underplayed the 2014 event;
• her use of illicit drugs, did not fit with what she had told him.

189. [189]
     The Third Respondent refers to the propositions put to Dr Beech in cross-examination about what it says were the real circumstances of the 2014 incident.  It submits that no real value can be taken from Dr Beech’s opinion about the significance of the event, because the Applicant “didn’t freeze”. It says that the Applicant did not describe to Dr Beech all of the events that occurred. I reject that submission for the reasons discussed earlier in this decision in my discussion about the Applicant’s credit in relation to her evidence with respect to the 2014 incident.
190. [190]
     The Third Respondent submits that Dr Beech agreed the Applicant was at risk of emotional disturbances through adversity probably because of her lifestyle choices.
191. [191]
     I do not think the submissions made by the Third Respondent are truly reflective of the evidence given by Dr Beech.  Dr Beech said that the emotional turmoil in the Applicant’s life was a stressor.  He said that although she could have been stressed by many things, he would not see the stressors as psychological disorders.  It did not stop her taking out work and working.^[75]
192. [192]
     Dr Beech said that he would not go so far as to say that “vulnerabilities”, as suggested to him in cross-examination, would likely develop into psychological conditions.  He said: “ …these are general stressors and vulnerabilities that she has about boyfriends, STD’s, financial matters and things like that, but they haven’t, as I can see it, caused her to sort of falter.  The second thing is that although they may be general stressors, they don’t relate specifically to the stress that she then faced down in Brisbane following that incident…And I think, as Dr Mungomery said in one of his reports, you know, that a person of normal fortitude would still have had this type of reaction.  So I think she had a number of vulnerabilities through anxiety, depression and she face a number of stressors, but I think a person of normal – sorry, normal fortitude, whether she had the vulnerabilities or not, could’ve reacted in this way.”^[76]
193. [193]
     Later in cross-examination Dr Beech said he did not see lifestyle behaviours which made her vulnerable as mitigating a Post-Traumatic Stress Disorder occurring because of what she alleged happened.^[77]
194. [194]
     Finally, he disagreed with Dr Mungomery that when the Applicant took up the job with the First Respondent in 2010, that she had a 2.5% disability.^[78]
195. [195]
     Dr Beech was re-examined at the re-hearing.  He gave evidence that although the Applicant has a binge drinking pattern in a form of alcohol abuse disorder, it did not seem to stop her working prior to the 1 December, 2010 event. Nor did it stop her working in Darwin. She was still able to drive a truck for her work. He also gave evidence that her heavy drinking should be seen in the context of her psychological suffering.
196. [196]
     He said that he does not use the K10 tool. He undertakes a more in depth assessment in order to diagnose and give an opinion. Dr Beech said the K10 was used by GP’s as a screening tool. 
197. [197]
     Dr Beech confirmed that he consulted with the Applicant, took into account what she said and had a deal of collateral information which he considered before he arrived at his diagnosis.
198. [198]
     Finally, on the question of whether the Applicant had the capacity to return to work in 2012, Dr Beech said an expression of motivation to return to work does not gel with her presentation at the time.^[79]

Which evidence is to be preferred – Dr Beech or Dr Mungomery?

199. [199]
     The Third Respondent submits that the evidence of Dr Mungomery is to be preferred to that of Dr Beech, because he has had the advantage of seeing the Applicant over a longer period of time and he has had the benefit of developing his final opinion by reference to seeing her on 4 occasions since 2011 -  on 17 August, 2011, 20 March, 2012, 4 December, 2012 and 14 October, 2014.
200. [200]
     The Applicant submits that in any assessment of the differences of opinion between Dr Beech and Dr Mungomery, Dr Beech’s opinion should be preferred because:

     1. Dr Beech examined the Applicant as recently as September, 2015, while Dr Mungomery has not examined her since October 2014;
     2. Dr Beech gave his evidence in a very professional and dispassionate manner while Dr Mungomery gave his evidence in a manner more akin to that of an advocate;
     3. Dr Mungomery’s current opinion that the cause of the Applicant’s psychiatric conditions following the 2010 incident has been multi-factorial and that she suffered from pre-existing psychiatric conditions should be heavily discounted because those views are inconsistent with opinions expressed by Dr Mungomery in oral evidence at the initial hearing,^[80]evidence which was given at a time when Dr Mungomery was fully conversant with the medical records of the general practitioners who had treated the Applicant prior to the 2010 incident;
     4. to the extent that Dr Mungomery’s current opinions are based on beliefs that the Applicant required psychological counselling in mid-2009 and was treated with anti-depressant medication at that time, those assumptions are directly contradicted by the evidence of the Applicant and by the objective medical evidence.
201. [201]
     I accept the submissions of the Applicant. I prefer the evidence of Dr Beech for the reasons submitted by the Applicant. In particular, I do not consider there was a satisfactory basis for Dr Mungomery to so radically alter his opinion in October, 2014.  He affirmed his diagnosis and the effect of pre-existing vulnerabilities in the first hearing with full knowledge of the nature of the Applicant’s medical consultations in 2008 and 2009 and with full knowledge of the life events affecting her prior to 1 December, 2010 and up to the date of the hearing in 2013.
202. [202]
     I lost confidence in Dr Mungomery as an expert witness when he attacked the Applicant in his 2014 and 2016 reports and again in the re-hearing for what he said was a reluctance to provide information which was disadvantageous to her case. They were pejorative comments. The comments involved matters of fact, which are for this Tribunal to determine. The assertion reflects the challenge to the Applicant’s credit, made in cross-examination by Senior Counsel for the Third Respondent. It is inappropriate for such a challenge to be presented as expert medical opinion.
203. [203]
     Another unsatisfactory aspect of Dr Mungomery’s evidence is the extent of the shift he made in his opinion as to the nature and effect of the Applicant’s pre-existing psychiatric condition.  He moved from no active pre-existing psychiatric condition given in evidence at the first hearing, to a diagnosis of Social Anxiety Panic Disorder, Alcohol Abuse, Chronic Dysthymic Disorder or a Major Depressive Disorder responsible for 50% of her psychiatric condition following the 1 December, 2010 event. Yet in re-examination in the re-hearing, he described the shift he made as from pre-existing vulnerabilities to merely a “mild pre-existing impairment” of 2.5%. It is not clear to me how a mild impairment could be responsible for 50% of a psychiatric condition suffered by the Applicant following a sexual assault.  Dr Mungomery himself gave evidence that the symptoms of Post-Traumatic Stress Disorder exhibited by the Applicant, related to the sexual assault not to her prior problems.
204. [204]
     Although it is submitted that Dr Mungomery’s examination of the Applicant in 2014 assisted him in arriving at his new conclusions, he does not cite any new clinical information arising out of that examination.  Instead, he has justified his changed opinion on an assertion that the Applicant has failed to disclose information in relation to her past psychological and interpersonal difficulties and drug and alcohol abuse. That was not new information by the time he prepared the 2014 and 2016 reports. Further, he has completely ignored his own evidence about the level of the Applicant’s psycho-social functioning at the time of the 1 December, 2010 assault. Dr Mungomery has also formed adverse conclusions from the fact that the Applicant refused on legal advice to undertake psychometric testing and refused to undertake blood alcohol and drug tests. In cross-examination Dr Mungomery agreed that he did not know why the Applicant had refused the test.^[81] I do not think it was open to him to form an adverse view without relevant facts.
205. [205]
     I have made a number of findings in favour of the Applicant with respect to the impact of the 2009 incident, the 2014 incident and her use of illicit drugs.  To the extent that Dr Mungomery relied at the re-hearing on the propositions put to him by Senior Counsel for the Third Respondent, which were contrary to my findings, I do not think Dr Mungomery’s conclusions are sustainable.
206. [206]
     By contrast, Dr Beech remained balanced and consistent in his opinions. He acknowledged the Applicant’s weaknesses, in particular her tendency to minimise the significance of events.  He made concessions where it was appropriate.  However, he pointed to factual matters to back up his opinions, including the ability of the Applicant to work in the period preceding 1 December, 2010, despite some difficult life events, which strongly suggested she was not suffering from any active psychiatric condition at the time of the sexual assault.
207. [207]
     I note the submission of the Third Respondent that a tribunal of fact can be assisted by expert medical evidence, but it must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence. I have done so.  The sexual assault on the Applicant was serious and shocking.  She was a very young woman at the time, merely 21 years of age.  Her assailant was nearly 70 years of age.  She was assaulted in her bedroom and was awoken from sleep.  She was plainly very vulnerable and she underwent a frightening experience.  Both Dr Mungomery and Dr Beech  expressed the opinion that a person of normal fortitude could suffer the psychiatric conditions of Post-Traumatic Stress Disorder and a Depressive illness as a result of such an assault. That seems eminently reasonable to me. It requires little imagination to understand how the Applicant felt after the assault and how any ordinary person would feel. The evidence is that the Applicant’s symptoms were consistent with her psychiatric condition.  I consider that the sexual assault was the cause of her psychiatric condition.  I have considered the whole of the evidence, including the other life stressors experienced by the Applicant prior to the assault and after.  I have considered her drug and alcohol abuse. I do not consider those stressors or any drug and alcohol abuse caused her psychiatric illness.  I consider it very persuasive that the Applicant was able to work well for her employer until the sexual assault occurred.  That fact contradicts any proposition that some of her less happy experiences were causative of her psychiatric condition.
208. [208]
     I am re-assured that my own assessment is consistent with the opinion of Dr Beech and the early opinions and evidence of Dr Mungomery.

Finding in relation to medical condition

209. [209]
     I find in accordance with the opinion of Dr Beech and the pre-2014 opinion of Dr Mungomery, that the Applicant suffered Post-Traumatic Stress Disorder and a Depressive illness following the assault upon her on 1 December, 2010. I find in accordance with the opinion of Dr Beech that at some point the Applicant also developed Alcohol Abuse Disorder.
210. [210]
     I find in accordance with the opinion of Dr Beech, that the sexual assault caused her psychiatric condition which continued until at least October, 2014. In accordance with the opinion of Dr Beech, I do not consider that the Applicant suffered from any active pre-existing psychiatric condition which caused or contributed to her psychiatric injury as a result of the sexual assault. I find that as a result of treatment, the support of her family and her ability to resume work, the Applicant currently has a PIRS of 1%.  That percentage is agreed between the Doctors.
211. [211]
     I find in accordance with the opinion of Dr Beech that the sexual assault caused her impairment and inability to work, until she commenced work in late March, 2015. I accept his opinion that her substance abuse has been a factor, but that its escalation should be noted in the context of her psychological conditions.

Remedies

212. [212]
     The Applicant claims compensation for loss or damage caused by the contravention of the Act by the Second Respondent and the Third Respondent. Section 209(1)(b) of the Act provides that if the Tribunal decides the respondent contravened the Act,  it may make an order requiring the respondent pay  the complainant an amount the Tribunal considers appropriate, as compensation for loss or damage caused by the contravention. Section 209(1)(g) provides that the Tribunal may order a party to pay interest on an amount of compensation.
213. [213]
     The general principles as to assessment of compensation for contraventions of the Act, that cause loss and damage, are set out in Bell v State of Queensland & Anor (No 1)^[82]. Relevant to this case is the principle that where a recognised personal injury is caused by a contravention of the Act, then it is acceptable to be guided by the level of compensation which might be awarded at common law for that personal injury.^[83]
214. [214]
     The object of compensation is to place the Applicant in the position she was in before the contravention of the Act, to the extent that is possible by way of monetary compensation.

General Damages

215. [215]
     I accept the evidence of Dr Beech that the Applicant’s conditions have been severe and prolonged.^[84] The evidence of the Applicant, her mother, her friends, Dr Beech and Dr Mungomery in his early reports, describe up to 4 years of distressing symptoms.  Her symptoms include nightmares, psychotic illusions of seeing the assailant, agoraphobia, need for help with the activities of daily living, anxiety, fear, panic attacks, poor sleep, depression, loss of confidence and trust, suicidal thoughts, attempted suicide, self-harming and drug and alcohol abuse.  I accept Dr Beech’s evidence that despite treatment from psychologists and a psychiatrist there was limited improvement throughout 2012, 2013 and 2014.^[85]
216. [216]
     I have found that the Applicant’s psychiatric condition was caused by the sexual assault on 1 December, 2010.  It is sufficient however, that the sexual assault materially contributed to the Applicant’s psychiatric injury. I find that is the case.  I have not accepted the evidence of Dr Mungomery that there were pre-existing psychiatric conditions, which also caused her psychiatric illness, so as to warrant an adjustment of any compensation.
217. [217]
     The Applicant submits that an award of general damages in excess of $100,000.00 would be appropriate when one takes into account the circumstances of the sexual assault and its serious effect on the Applicant’s health and ability to work.
218. [218]
     The Applicant relies on awards made in a number of cases arising out of other equal opportunity legislation, decided in other jurisdictions. ^[86] The cases are each apposite, in terms of the nature of the sexual harassment to which the applicants were subjected and the severity of the psychiatric conditions caused by the harassment.  The awards range from $100,000.00 to $380,000.00.  Those awards are significantly higher than awards made in this Tribunal to date.
219. [219]
     Section 4(d) of the Queensland Civil and Administrative Tribunal Act 2009 requires that the Tribunal must ensure like cases are treated alike, in order to achieve the objects of the QCAT Act. Relevantly, s 3(c) provides that an object of the QCAT Act is to promote the quality and consistency of Tribunal decisions. Section 3(d) sets out the further object, to enhance the quality and consistency of decisions made by decision-makers.
220. [220]
     Within this framework, I consider it preferable to take guidance from other like cases determined by this Tribunal.
221. [221]
     I accept the submission of the Third Respondent that appropriate comparative cases are Barney v State of Queensland and Anor^[87] and Nunan v Aaction Traffic Services Pty Ltd.^[88]
222. [222]
     In Barney’s case, the complainant was subjected to bullying, harassment and racial abuse at work causing him to suffer a major Depressive episode of moderate severity where symptoms had largely abated over a period of about 20 months but which still affected him 5 years later.  The Member assessed the award at $55,000.00 on a full liability basis, but discounted it because of other causative factors.  The assessment of $55,000.00 was not challenged on appeal.  The Member said he was satisfied that the amount was assessed on the same principles as an award for a comparable psychiatric injury in tort.^[89]
223. [223]
     In Nunan’s case, the complainant was subjected to 5 months of sexual harassment by a male co-worker, including remarks and conduct.  She suffered a Major Depressive Disorder of moderate severity which encompassed a Generalised Anxiety Disorder.  She was awarded $40,000.00 for non-financial loss.
224. [224]
     The Applicant has suffered a serious and shocking sexual assault.  Her psychiatric conditions of Post-Traumatic Stress Disorder; Major Depressive Illness and Alcohol Abuse Disorder have been described as severe and prolonged.  I consider her circumstances to be significantly worse than those of Mr Barney and Ms Nunan.
225. [225]
     I consider an award of $70,000.00 is appropriate.
226. [226]
     I note the submission of the Third Respondent that a PIRS of 1% represents a minor mental disorder and that a minimal award of damages would be assessed under the Workers’ Compensation and Rehabilitation Act 2003. I reject that submission as irrelevant to my task of assessing compensation for loss and damage under the s 209(1)(b) of the Act, which requires me to make an award I consider appropriate. It is pleasing that the Applicant’s injuries have resolved to the extent they have.  That does not diminish the severe difficulties she endured over the 4 years following the assault upon her and her entitlement to be compensated for that loss and damage.
227. [227]
     I do not accept the submission of the Third Respondent that the Applicant’s evidence to the Tribunal and both Doctors is significantly exaggerated and that any award must be reduced.  The Third Respondent has selected some  examples in support of that submission. It refers to comments in her evidence that she was feeling much better and had stopped taking anti-depressant medication and that she had been socialising and travelling. The Third Respondent ignored the other evidence in the same affidavit, about continuing nightmares, night terrors, poor sleep, lack of trust, dislike of crowds and continuing anxiety at the time the affidavit was sworn in February, 2013.^[90]  Rather than finding that areas of improvement in her condition must mean that the Applicant is exaggerating her condition, I find that she has been honest and has acknowledged those improvements.
228. [228]
     The reference to travelling is a reference to a trip the Applicant made to visit her brother in Adelaide.  Her evidence is that it was a “terrible experience”.^[91] I accept that evidence.
229. [229]
     The Third Respondent refers to a statement made in her affidavit sworn 4 February, 2013 that she “wanted to get another job”.  I take it the Third Respondent is submitting the Applicant was conceding she was capable of working at that time and that any suggestion otherwise is an exaggeration. That submission is not accurate. In fact, at paragraphs 322-324 of that affidavit, under the heading “The future”, she expresses her fears and aspirations in relation to work:

322. I hope to be able to get a job.  I want to get a job and move on.

323. I am scared that I will get worse if I try to get another job, and I can’t do it.

324. I know that I can’t trust a big company ever, but I hope to start with a small company and keep moving forward.

230. [230]
     There is no way paragraph 322 could be interpreted in the manner suggested by the Third Respondent.
231. [231]
     The Third Respondent says that the matters they raise should be compared with the Applicant’s further affidavit, dated 13 March, 2016, tendered in the re-hearing to the effect that she was very sick in 2013 and 2014 and remained living with her parents.^[92] I consider the matters set out in that affidavit are consistent with the description of her ongoing problems raised in exhibit 8, but ignored in the submissions of the Third Respondent.  I have previously noted the opinion of Dr Beech that the Applicant made limited improvement during 2012, 2013 and 2014.  Dr Beech had the advantage of consulting with the Applicant and reading all her medical records.
232. [232]
     The Third Respondent also makes submissions which I take to be to the effect that as the Applicant was able to overcome an incident involving alleged non-consensual sex in 2009 and appeared to suffer little consequence from an assault in 2014, that she must be over-stating the effect of the 1 December, 2010 sexual assault. I have dealt with both those incidents earlier in this decision. It does not follow that because she was able to overcome those events, she did not suffer the severe psychological conditions diagnosed by her treating psychiatrist, Dr Beech and Dr Mungomery.  It ignores the medical evidence traversed in this decision, that the Applicant’s symptoms were consistent with her psychiatric injuries. It ignores the serious nature of the sexual assault she suffered. I reject the submission.
233. [233]
     It is also submitted that the Applicant is not a credible witness because her evidence to the Tribunal and to the Doctors has not been accurate. On that basis it is said that the Tribunal cannot accept what the Applicant says has been the long term effect on her from the sexual assault.
234. [234]
     I reject that submission. I have not made adverse findings as to credit against the Applicant.  In any event, there is good, objective evidence on which I can rely in relation to her psychiatric condition from Dr Mungomery to the end of his evidence at the first hearing and from Dr Beech, where they were both fully apprised of all her relevant medical records to reach their conclusions.
235. [235]
     I award the sum of $70,000.00 for general damages.

Interest on general damages

236. [236]
     Interest is claimed by the Applicant at the rate of 2% per annum from 1 December, 2010 to the date of this decision. The Third Respondent agrees that is an appropriate rate.  Over a period of 5.9 years from 1 December, 2010 the amount of interest is $8,260.00. I award that sum.

Past Economic Loss

237. [237]
     The Applicant submits that:

     1. prior to 1 December, 2010:
        1. she was in secure employment with the First Respondent;
        2. she had completed her probation and had been transferred to a new position;
        3. she was interested in furthering her career with the company.
     2. As a result of the sexual assault she was incapacitated for work and received no wage payments from 12 December, 2010 to 15 March, 2015.
     3. She was dismissed from her employment with the First Respondent on 1 February, 2011 and received 2 weeks pay in lieu of notice.
     4. Her earning capacity since 16 March, 2015 has been generally at lesser rates than that which she would have expected to receive from employment with the first respondent.
     5. At the time of her dismissal, the Applicant’s gross wage was $1,592.31 per fortnight.
     6. Had the Applicant remained employed with the First Respondent, the relevant industrial instrument would have entitled her to annual wage increases.
     7. Taking account of those wage increases, and deducting WorkCover weekly benefit payments, and earnings from employment since mid-March 2015, the Applicant’s past economic loss to the date of the re-hearing, is calculated at $143,715.00:

12.12.10 to 30.06.11 -   $21,727.00 ($42,444 p/a pro rata)

01.07.11 to 30.06.12 -   $43,877.00

01.07.12 to 30.06.13 -   $45,159.00

01.07.13 to 30.06.14 -   $46,333.00

01.07.14 to 30.06.15 -   $35,458.00  ($47,723 less earnings of $12,265)

01.07.15 to 17.05.16 -   $27,730.00  ($43,272 less earnings of $15,542)

Subtotal $220,554.00

Less:

WorkCover payments $ 74,839.10

Total Loss $145,714.90

8. No account should be taken of any Centrelink disability benefits received by the Applicant as some of those amounts have been repaid and the remaining amounts are recoverable or otherwise affected by compensation paid in this case.
9. Interest should be awarded on past economic loss from 12 December, 2010 to the date of the Tribunal’s decision at the rate of 3.5% per annum.

238. [238]
     I accept the unchallenged calculations set out in Exhibit 41 of annual wage rates to the date of the re-hearing, under the JKL Hotel & Resorts Limited – Hotel Collective Agreement 2009. I note the amount of the WorkCover weekly benefits are set out in NCK14 to Exhibit 7.  I accept the calculations and related submissions set out above as accurate.
239. [239]
     The calculation reflects the legal position that compensation for economic loss is to be assessed through a comparison of the position the Applicant might have been in, had the discriminatory conduct not taken place, with the situation in which she was placed because of the conduct of the Third Respondent. The object being to place the Applicant in the position she was in before the contravention of the Act.^[93]
240. [240]
     All the figures used to calculate past loss should be gross of tax.  This is because damages for loss of earnings in discrimination and sexual harassment cases are taxable in the hands of the recipient.^[94]
241. [241]
     The Third Respondent submits that the Applicant’s loss of employment was not as a result of its conduct. It suggests that her employment was terminated because representatives of the First Respondent had been unable to contact her between 4 January, 2011 and termination by it on 1 February, 2011.  It is uncontested that the Third Respondent did in fact speak to the Applicant and wrote to her on that day to terminate her employment.  There is no evidence that the Third Respondent attempted to write to the Applicant earlier than that date, if it was unable to raise her by phone. The termination letter, attachment NCK-9 to exhibit 7 sets out 3 reasons for termination the Applicant’s employment. First, an inability to reach her by telephone; second, uncertainty as to her long term prospects as an employee and third, her failure to take up offers of different employment with them.
242. [242]
     The Third Respondent says that there is no evidence the Applicant was forced to resign her position because of any sexual harassment engaged in by the Second Respondent or because of any psychiatric or psychological injury that she had suffered.
243. [243]
     Plainly, the First Respondent terminated the Applicant’s employment.  She did not resign.
244. [244]
     The Third Respondent submits that there is no evidence the Applicant did not take up other options for employment offered to her by the First Respondent, because of any psychiatric or psychological injury. It also submits there is no contemporaneous medical evidence that suggests the Applicant, in late 2010 or from early 2011, was unable to work because of any psychiatric or psychological incapacity caused by the conduct of the Second Respondent.
245. [245]
     The Applicant gives a detailed response to that submission citing the record of medical consultations contained in Exhibit 5. In particular medical certificates of unfitness for work issued from 22 December, 2010, including successive Workers Compensation Medical Certificates certifying complete incapacity for work up to 24 May, 2012 because of the 2010 incident. The reports of Dr Markou and Dr Mungomery from the relevant times support this position. I accept that evidence of her unfitness for work.
246. [246]
     The Applicant was given special paid leave for two weeks after the assault. Thereafter she was on unpaid leave until the date of termination. She first saw a general practitioner about the psychological problems she was suffering on 22 December, 2010.  I find on the basis of this evidence that the Applicant was incapacitated for work from 1 December, 2010.  I accept the evidence of Dr Beech that the Applicant ceased being totally incapacitated for work when she commenced employment in Darwin at Quest Serviced Apartments.^[95]
247. [247]
     The Third Respondent says that the Applicant did not mitigate her loss by taking up other available employment. I reject that submission and agree with the Applicant’s submission that such a submission could only be made out if the Applicant had been well enough to take up the jobs.  I agree that she clearly was not. I accept the evidence of the Applicant that after the 1 December, 2010 assault she became increasingly ill.  That accords with all he medical evidence and the medical certificates that she was unfit for work.
248. [248]
     The Applicant was offered work as a guest services agent in Townsville.  The Third Respondent in its submissions say that on 9 December, 2010, the Applicant met with Mr A and Ms C.  It asserts that in that meeting Mr A told the Applicant the First Respondent accepted she did not want to take up the role in Townsville, because she wanted to stay close to her family.^[96]  I consider that to be reasonable and understandable, given the Applicant’s age and reaction to the sexual assault. Even apart from the question of the Applicant’s medical capacity to work, I do not think there has been any failure to mitigate her loss by failing to take up the Townsville role.
249. [249]
     The other work offered to her was 16 hours work a week as a guest services agent at the Accommodation.  It was suggested she could supplement her income by performing contract cleaning work at the Accommodation.  The Applicant’s evidence is that she went to see about the cleaning work but broke down completely and was unable to pursue the matter. 
250. [250]
     Her health steadily deteriorated at that time. I accept that evidence and find that she was not medically capable of performing the work suggested to her. On this basis, I find that there has been no failure to mitigate the Applicant’s loss.
251. [251]
     The Third Respondent also submits that a significant cause of the Applicant’s distress and a reason which impacted on her preparedness to accept offers of employment was the intervention of her mother.  Her mother contacted The Hotel 4 to 6 days after 1 December, 2010 and was told that the Second Respondent was “still there”.  She deduced that he was still working there and that is what she told the Applicant.  That gave rise to a distrust of the First Respondent by the Applicant.  The evidence is that the Second Respondent’s engagement had been terminated on 2 December, 2010, however he had 7 days to vacate the apartment.
252. [252]
     It was put to the Applicant in cross-examination that the reason she did not accept the Townsville job was because she did not trust her employer having been told that the Second Respondent was not sacked.  The Applicant said that was part of the reason.  The Applicant was cut off in cross-examination when she attempted to explain the other part of the reason she did not trust her employer.^[97] The submission that the Applicant was responsible for her own loss by failing to take up the Townsville job, relying on false information from her mother cannot be sustained, particularly in light of the acknowledgment given in the submissions by the Third Respondent that Mr A understood she did not want to take the Townsville job because she did not want to be away from her family.
253. [253]
     The Third Respondent submits for the reasons discussed earlier that the Applicant cannot be believed in relation to her evidence that she was very sick in 2013 and 2014 and that she remained living with her parents.  I have rejected that submission by reference to the evidence. 
254. [254]
     The Third Respondent submits that by January, 2012, the Applicant was capable of performing roles described in the vocational assessment report and that she admitted that was the case in cross-examination.  I have earlier rejected that submission on the evidence.
255. [255]
     Finally, it is submitted that on Dr Mungomery’s evidence any compensation for the Applicant’s financial loss should be reduced by 50% and that she was only rendered unfit for full-time work until January, 2012 or at the latest October, 2014.  I have earlier rejected Dr Mungomery’s evidence to this effect. I have preferred the evidence of Dr Beech.
256. [256]
     I find that the Applicant’s economic loss from12 December, 2010 to the date of the re-hearing commencing 17 May, 2016 is $145,714.90. Assuming the same loss has continued from then to 29 November, 2016, I calculate a further amount of $16,879.52 as past economic loss.^[98] I award the sum of $162,594.42 for past economic loss.
257. [257]
     If it is the case that the Applicant’s circumstances have changed since the date of the hearing and the date of this decision, she should by 12 December, 2016, file and serve a calculation of any loss during that time. If no submissions in reply are filed and served by the Third Respondent, by 19 December, 2016, the award for past economic loss, lost superannuation and interest will be amended in accordance with any further calculations received by the Tribunal.

Interest on Past Economic Loss

258. [258]
     Interest is claimed at 3.5% per annum from 12 December, 2010. Interest on $162,594.42 from 12 December, 2010 to 29 November, 2016 at 3.5% per annum for 5.9 years is $33,575.75. I award that sum.

Past Loss of Superannuation Benefits

259. [259]
     Lost superannuation benefits are calculated by the Applicant for the period 12 December, 2010 to 17 May, 2016 in the sum of $20,257.33. Further lost superannuation benefits to 29 November, 2016, calculated at 9.5% on $16,879.52 for 6 months, gives a further sum of $801.73.  The total amount I award is $21,059.06.

Interest on Past Loss of Superannuation Benefits

260. [260]
     Interest is claimed at 3.5% per annum for 5.9 years from 12 December, 2010 to 29 November, 2016 on $21,059.06. The amount I award is $4,348.70.

Special Damages and Interest

261. [261]
     The parties are agreed that the amount for out of pocket expenses in respect of medication is $396.40.  Interest at 3.5% per annum for 5.9 years to the date of this decision is $81.77. The total amount I award is $478.17.

Future Economic Loss

262. [262]
     The Applicant submits that on the basis of Dr Beech’s evidence she has an ongoing permanent disability arising from the residual Post-Traumatic Stress Disorder and it is possible that she could suffer an exacerbation of her psychological conditions or a relapse in the future.  Since recommencing work, the Applicant has not been able to secure full-time employment with an income commensurate to that of her former employment with the First Respondent.  The current wage rate for her former position with the First Respondent is $1,881.42 per fortnight.  Her current position is casual, although there is a prospect of full-time employment.  On that basis, the Applicant continues to suffer economic loss as a result of the 2010 incident and will suffer economic loss into the future for an indefinite period, with a possibility of further discrete periods of increased loss.  On that basis, the Applicant submits that it is appropriate to award a global sum for future economic loss in the amount of $25,000.00 inclusive of superannuation.
263. [263]
     The Third Respondent makes no submissions in relation to future economic loss.
264. [264]
     I consider the submissions as to future economic loss to be reasonable. I award compensation for future economic loss in the sum of $25,000.00, net of tax.  Loss of future earnings or loss of future earning capacity are capital in nature and are not taxable in the hands of the recipient.^[99]

Future medical and pharmaceutical expenses

265. [265]
     Based on the evidence of Dr Beech and Dr Mungomery, both parties agree a sum of $3,000.00 for future medical and pharmaceutical expenses is reasonable. I am prepared to award that amount.

Double compensation

266. [266]
     The Applicant submits that she settled with WorkCover Queensland, her common law personal injuries claim against the First Respondent for damages arising out of the 2010 incident.  The settlement sum did not include any separate figure for legal costs and from the settlement sum certain refunds were made to Centrelink and to Medicare.  In order to avoid the prospect of double compensation, it is submitted that a sum be deducted from amounts otherwise awarded by the Tribunal as compensation to the Applicant.  That sum is said to be calculated by taking the net settlement proceeds received by the Applicant and making a modest deduction to take account of her liability to meet legal costs from that sum.
267. [267]
     The Third Respondent has made no submissions in relation to this issue.
268. [268]
     I accept the Applicant’s submission and proposal as reasonable. I agree that the sum submitted by the Applicant should be deducted from the award of compensation made in favour of the Applicant. The amount is not expressly disclosed in this decision in order to protect the confidentiality of the settlement agreement.

Other Orders

269. [269]
     The Applicant no longer seeks an apology from the Third Respondent.  She seeks an order that the Third Respondent conduct sexual harassment education programs with their employees and contracted caretakers. The Third Respondent do not address this issue.
270. [270]
     I decline to make an order in relation to the conduct of sexual harassment programs.  The Third Respondent has the advantage of legal advisers who can no doubt advise it, in relation to its responsibilities under the Act.

Conclusion in relation to relief

271. [271]
     The total award for which the Second Respondent and the Third Respondent are jointly and severally liable is:

     1. General damages $ 70,000.00
     2. Interest on general damages $ 8,260.00
     3. Past economic loss $162,594.42
     4. Interest on past economic loss $ 33,575.75
     5. Past loss of superannuation $ 21,059.06
     6. Interest on past loss of superannuation $ 4,348.70
     7. Future economic loss $ 25,000.00
     8. Special damages $ 396.40
     9. Interest on special damages $ 81.77
     10. Future medical and associated costs  $ 3,000.00

 $328,316.10

Less amount to avoid double

Compensation _________

 TOTAL $313,316.10

Costs

272. [272]
     Both parties submit that they should be given an opportunity to make submissions in relation to costs once the decision is published. I agree to that course.

Non-publication orders

273. [273]
     At the hearing Counsel for the parties requested non-publication orders in relation to the Applicant’s medical records.  A non-publication order was also requested in relation to details of any settlement agreement reached with WorkCover.  I agree to make those orders. The orders are set out below.

Orders

274. [274]
     I order that:

     1. Subject to the following three orders, the Second Respondent and the Third Respondent pay to the Applicant the sum of $313,316.10  within 28 days.
     2. The Applicant file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016.
     3. The Third Respondent file and serve any reply to a further calculation, by 19 December, 2016.
     4. If a recalculation of past economic loss and other consequent losses together with interest is made, the Tribunal will issue a substituted order for compensation and interest and nominate the time within which it is to be paid.
     5. The Applicant file and serve any submissions in relation to costs by 19 December, 2016.
     6. The Third Respondent file and serve any submissions in relation to costs by 8 January, 2017.
     7. The Applicant file and serve any submissions in reply by 22 January, 2017.
     8. In addition to the Order made on 27 February, 2016, by Senior Member Endicott, publication of the following documents produced to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009:
        1. Exhibit 5, bundle of medical records of various dates;
        2. Exhibit 10, GP Mental Health Plan, dated 30 July, 2009;
        3. Exhibit 38, Affidavit of Dr Beech, affirmed 10 May, 2016
        4. Exhibit 39, Affidavit of Dr Beech, affirmed 14 March, 2016
        5. Exhibit 43, affidavit of Dr Quentin Mungomery, dated 12 April, 2016;
        6. Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2015;
        7. Exhibit 43b, report of Dr Quentin Mungomery, dated 12 April, 2016;
        8. Exhibit 44, transcript of proceeding 18- 20 February, 2013;
        9. Exhibit 45, Bli Bli Clinic Medical Records;
        10. Exhibit 46, Nambour day surgery records;
        11. Exhibit 47, Nambour General Hospital medical records;
        12. Exhibit 48, Mindful therapy medical records;
        13. Exhibit 49, Caloundra Hospital medical records;
        14. Exhibit 50, Maroochydore 7 day medical centre medical records;
        15. Exhibit 54, bundle of exhibits referred to in the evidence of Dr Beech;
        16. Exhibit 55, report by Dr Quentin Mungomery, dated 17 August, 2011;
        17. Exhibit 56, report by Dr Quentin Mungomery, dated 3 April, 2012.

     9. Publication of details of any settlement agreement reached between the Applicant and Workcover which have been disclosed to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.