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Miller v WorkCover Queensland[2024] QDC 156

Miller v WorkCover Queensland[2024] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Miller v WorkCover Queensland [2024] QDC 156

PARTIES:

LISA MILLER

(Plaintiff)

v

WORKCOVER QUEENSLAND

(Defendant)

FILE NO:

DC No 2604 of 2022

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

24-29 July 2024

JUDGE:

Loury KC DCJ

ORDERS:

  1. The plaintiff’s application to re-open her case is refused.
  2. The plaintiff’s claim is dismissed.
  3. I direct the parties are to file and serve submissions as to costs by 4.00 pm 25 September 2024 with a copy to be emailed to my Associate. I will then decide the issue of costs on the papers.

CATCHWORDS:

TORTS – NEGLIGENCE – PERSONAL INJURY – where plaintiff contends she was strangled in the workplace resulting in her suffering PTSD – whether plaintiff was a worker under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the plaintiff was a de facto director – whether allegations of criminal conduct were established to a reasonable satisfaction – whether plaintiff suffered PTSD and if so, whether the events of 20 February 2019 were a significant contributing factor

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – where the plaintiff experienced other events contributing to any loss or impairment alleged to have been suffered – where evidence of plaintiff’s earnings is unreliable

LEGISLATION:

Civil Liability Act 2005 (Qld)

Corporations Act 2001 (Cth)

Justices Act 1886 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)

CASES:

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Briginshaw v Briginshaw (1938) 60 CLR 336

Chameleon Mining NL v Murchison Metals Ltd [2010] FCA 1129

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445

SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81

Thompson v Bella-Lewis [1997] 1 Qd R 429

COUNSEL:

The plaintiff was self-represented at trial

J Sorbello for the defendant

SOLICITORS:

The plaintiff was self-represented at trial

Cooper Grace Ward for the defendant

  1. [1]
    The plaintiff and Mr Darren Starling were married in 2004 and had two children. They were financially, very comfortable. In 2015, Mr Starling purchased a water manufacturing business, Wet Fix Pty Ltd. He was the sole director. Monies from a family trust, of which the plaintiff was the beneficial owner, were used to fund the purchase. The plaintiff and Mr Starling worked together at the business. The plaintiff was employed as the general manager from July 2016.
  2. [2]
    Their marriage commenced deteriorating around 2018. The plaintiff and Mr Starling separated on 14 February 2019. Mr Starling moved out of the marital home. They both remained working at Wet Fix Pty Ltd.
  3. [3]
    The plaintiff's evidence is that on 20 February 2019, whilst at their workplace, Mr Starling strangled her during an argument over a laptop computer. Mr Starling accepts that there was an argument over a laptop computer but denies strangling the plaintiff.
  4. [4]
    The plaintiff sues WorkCover, alleging that this incident of 20 February 2019 was a significant contributing factor to her developing post-traumatic stress disorder (PTSD). As a result of that disorder, she contends that she is no longer able to work.
  5. [5]
    The defendant contends: that the plaintiff was not a worker pursuant to the Workers Compensation Rehabilitation Act 2003 (Qld) (WCRA) but rather was a director of Wet Fix Pty Ltd; Mr Starling did not strangle the plaintiff during the incident of 20 February 2019; the plaintiff did not develop PTSD; and, if the plaintiff did develop PTSD the incident of 20 February 2019 was not a significant contributing factor to its development.
  6. [6]
    The determination of the issues in the trial turns on an assessment of the credibility and reliability of the evidence of the plaintiff. For the reasons which follow, I consider the plaintiff’s evidence to be devoid of credit.

The burden of proof

  1. [7]
    The plaintiff bears the onus of proof to the civil standard of the balance of probabilities. The plaintiff's claim involves an allegation against Mr Starling of a criminal offence of strangulation.
  2. [8]
    In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[1], the plurality said of the standard of proof in civil proceedings involving allegations of criminal conduct:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."[2]

  1. [9]
    The plaintiff, in bearing the onus of proof, will not succeed unless, on the whole of the evidence, she establishes to a "reasonable satisfaction" that Mr Starling strangled her as she describes. Reasonable satisfaction will not be reached by "inexact proofs, indefinite testimony or indirect inferences". Actual persuasion is required. Actual persuasion cannot be achieved as a result of a "mere mechanical comparison of probabilities independently of any belief in its reality."[3]

The incident on 20 February 2019

  1. [10]
    The plaintiff's evidence was that upon arriving at the factory operated by Wet Fix Pty Ltd on 20 February 2019, she went to her office to pay the creditors and the staff. She opened the bank account and discovered that there was $7,400 less than what she was expecting in the bank account. She tried to contact Mr Starling but was unable to reach him. She looked for Mr Starling on the factory floor but could not find him. She returned to her office to discover she could no longer access the bank account.
  2. [11]
    The plaintiff went to Mr Starling's office. She saw that the laptop was on his desk. She was holding the laptop when Mr Starling entered the office and asked her what she was doing. A discussion or argument occurred over the missing money. The plaintiff's evidence is that Mr Starling acknowledged taking the money, saying he did so because he had "nowhere to live, and I'm living in a tent".
  3. [12]
    The plaintiff said Mr Starling leaned across the desk and put his hands around her neck. She leaned back and moved to leave the office. Mr Starling pushed her against the filing cabinet and she fell backwards against a wall. She screamed. She was still holding the laptop to her chest. She tried to leave the office again. Mr Starling pushed her, and she fell to the floor. She dropped the laptop. Mr Starling put his left arm around the plaintiff's neck in a headlock position. She was not able to speak or breathe. The plaintiff bit the inside of his left wrist, and he released her. She left the office and gathered her belongings. She then attended a police station. She was taken to hospital by ambulance. Later that same day, she made a formal complaint to the police.
  4. [13]
    Mr Starling's evidence was that on 20 February 2019, he changed the password for the Wet Fix Pty Ltd bank account. The plaintiff entered his office and tried to take the laptop. He managed to get it back off her, and as he was setting it up, she screamed and threw herself against the wall. She again took the laptop. Mr Starling tried to wrestle it from her. The plaintiff bent down and bit him on the wrist. The laptop fell to the ground. Mr Starling picked up the laptop. The plaintiff screamed and threw herself against the filing cabinets and then left the office. He locked the door, and she kicked and bashed it. He opened the door, she screamed and then left.
  1. [14]
    Each of the plaintiff and Mr Starling allege they suffered injury as a result of this incident. The plaintiff accepted she bit Mr Starling. I accept that he suffered an injury consistent with a bite mark to his left wrist. The plaintiff alleges that she sustained some bruising/red marks to her neck. I do not consider that the presence/absence of injuries to the plaintiff's neck is critical to assessing whether the incident occurred as she described. However, the plaintiff’s conduct in fabricating evidence of an injury to her neck and tampering with evidence already admitted at trial, thoroughly undermines the credibility of all her evidence.

The photo of the plaintiff's purported neck injury

  1. [15]
    The plaintiff attempted to tender into evidence during her evidence-in-chief a chart to which she affixed an image she downloaded from the internet (of marks to a neck) and an image that she said was from a photograph she herself took on 22 February 2019 (two days after the incident) of red marks to her neck. At the time the plaintiff sought to tender the chart, she had not, despite many requests, disclosed the original digital image to the defendant. A call was made for its production. The plaintiff said that it was on her old phone.
  2. [16]
    At 7.19 pm on day two of the trial, the plaintiff emailed the image she claimed to be of her neck to the defendant's legal representatives.[4] On day three of the trial, the plaintiff produced a phone, which she said contained the original digital image of her neck.[5] She confirmed that the image was a "selfie" that she took of her neck two or three days after the incident on 20 February 2019.
  3. [17]
    Exhibit 26 clearly shows what appears to be a beauty spot or freckle on the neck in addition to some red marks. The plaintiff does not have a beauty spot or freckle on her neck. She suggested that what was depicted in the image was dirt. I reject that assertion. Significantly, the image of the neck the plaintiff admitted downloading from the internet has a beauty spot or freckle in exactly the same position as that on the image she purports to be of injuries to her neck taken shortly after she says she was strangled.[6] There are other features to that image which, when compared to the image the plaintiff downloaded from the internet, suggest that it is the same image.
  4. [18]
    The actual email which the plaintiff sent the defendants[7] was examined by an expert in digital forensics, Ms Noordin. The email contained a single inline photograph, meaning it was placed in the body of the email using an action such as ‘copy + paste’ rather than as an attachment. Utilising specialised software Ms Noordin was able to extract the metadata. Ms Noordin's opinion was that the image was sent as an email from an iPhone; the image was created at 12:40:15 pm on 29 March 2019; it was a screenshot and likely created on an iPhone. Consistent with that evidence is the metadata visible when manipulating the image on the phone. It is a screenshot created on 29 March 2019 (more than one month after the incident on 20 February 2019).
  1. [19]
    The plaintiff claimed privilege against self-incrimination when pressed as to whether the image she adduced purporting to be of her neck was, in fact, a close-up of the image she downloaded from the internet. Whilst the plaintiff’s claim of privilege cannot be used to infer that the two images are the same[8], I am entitled to draw reasonable inferences from the evidence before me. When there is more than one possibility open, reasonable satisfaction as to one being proven is to conclude that its existence is more likely than all other hypotheses.
  2. [20]
    It is readily apparent from comparing the two images that they are the same. The image said to be of the plaintiff's neck is in my view, an adjusted screenshot of the image the plaintiff downloaded from the internet. Ms Noordin's evidence supports such a finding. When the plaintiff was asked about the beauty spot or freckle in cross-examination, she accepted that she did not have such a mark on her neck. In re-examination, however, the plaintiff claimed to have a mark on her neck, and she tendered a photograph of the side of her head and neck. Having viewed her neck and the image I am satisfied that she does not have such a beauty spot or freckle on her neck. Further, consistent with the plaintiff not having taken any photographs of injuries to her neck, are the contents of an affidavit she swore on 8 May 2019 in which she said no photos were taken of her injuries on 20 February 2019.[9] I am satisfied that the plaintiff has fabricated this evidence of an image of an injury to her neck.
  3. [21]
    The plaintiff was seen at the Greenslopes Private Hospital on 20 February 2019. No injuries were noted to the plaintiff's neck, although the treating doctor noted tenderness on the left side of her neck. On 24 February 2020, the plaintiff requested that the Greenslopes Private Hospital amend her medical records. In response to that request, explanations were given to the plaintiff regarding the terminology used in the records. By email on 23 March 2020, the plaintiff was told that the doctor who had examined her had confirmed that there was no evident bruising at the time of the examination, but "this does not mean that it did not develop in the days following your presentation".
  4. [22]
    In response, the plaintiff requested that she send a photo of her neck the following day for their records. She was informed that it would be added to her file. The plaintiff emailed the hospital, to which she attached six images. Four of those images are of injuries the plaintiff says that she, in fact, sustained in an incident on 28 November 2018. The sixth image that she labelled "neck.jpg" is quite clearly the same as the image the plaintiff said she downloaded from the internet. A simple comparison of the two images makes clear that the image the plaintiff sent to the hospital purporting to show some markings on her neck is, in fact, the image she downloaded from the internet. The sending of these images to the hospital was misleading. The plaintiff was aware of having misled the hospital as the documents she tendered purporting to be her medical records omitted the email attaching the photographs.[10]
  5. [23]
    The plaintiff accepted she was unhappy that the police had not investigated her complaint of strangulation. In December 2022, the plaintiff contacted Detective Shannon Midgley concerning having her complaint re-investigated. On 6 December 2022, the plaintiff emailed Ms Midgley, attaching an image labelled "marks on my neck.jpg". She indicated in the body of the email that the photograph was "taken of my neck 2 days after the incident on 20 February". The plaintiff accepted in cross-examination that the image she sent to Ms Midgley was, in fact, the image she downloaded from the internet. Again, the plaintiff claimed privilege against self-incrimination when asked whether her intention in doing so was to have Mr Starling charged with an offence of strangulation.
  1. [24]
    Again, I draw no conclusions from the plaintiff having claimed privilege against self- incrimination. What is clear though is that the plaintiff misled the investigating police officer.
  2. [25]
    The absence of an injury to the neck of the plaintiff does not mean that the strangulation that she describes did not take place. However, the plaintiff's willingness to fabricate evidence, whether to support her complaint to the police or her civil claim against WorkCover, permeates every aspect of her evidence. I am unwilling to accept her evidence unless it is corroborated independently by some means.

The plaintiff's 307-paragraph statement to Ms Midgley

  1. [26]
    Between 8 November 2022 and 25 November 2022, the plaintiff provided a statement to a police officer, Ms Midgley. The statement is 307 paragraphs in length. The copy of the statement disclosed by the plaintiff to the defendants was an unsigned copy of this statement.[11] The plaintiff also provided a copy of this unsigned statement to Dr Grant Blake, the expert she retained to provide a report and give evidence in support of her claim that she suffered post-traumatic stress disorder as a result of the event on 20 February 2019.
  2. [27]
    Upon being cross-examined on this unsigned statement, the plaintiff was taken to some inconsistencies evident in it. Those inconsistencies related to her age and the amount she identified as being missing from the bank account on the morning of 20 February 2019. The plaintiff clarified that there were some errors and that she had made amendments to the statement before signing it. A call was made for the signed statement and for the statement provided by her to Dr Blake.
  3. [28]
    At 10.14 pm on day three of the trial, the plaintiff emailed a copy of the 307-paragraph statement she claimed that she provided to Dr Blake to the defendant's legal representatives. Dr Blake's evidence established that this statement[12] was different to the statement the plaintiff had, in fact, sent to Dr Blake. The plaintiff had corrected the errors upon which she was cross-examined, that is, she corrected her age and the amount she said was missing from the bank account. She also deleted two sentences from the statement she produced on day three of the trial. The plaintiff claimed privilege against self-incrimination over the suggestion that she made alterations to the document after she had commenced giving evidence. It is clear to me, without having any regard to the claim of privilege, that the plaintiff made alterations to this statement after she commenced giving evidence in order to correct the inconsistencies upon which she had been cross-examined.
  1. [29]
    The inconsistency originally identified in cross-examination in the unsigned statement as to the plaintiff’s age and the amount of money she noticed missing from the bank account is of little significance. Such inconsistencies or discrepancies could readily be explained by the passing of time or by innocent error; however, the plaintiff's conduct in altering the statement to, at the very least, mislead the defendant, if not actively mislead the court, is of greater concern. Further, the removal of one of the sentences from the statement tended to change what the plaintiff was saying about her intentions on 20 February 2019 in picking up the laptop. I would infer that the second sentence was removed as it went to the issue of the plaintiff’s control over the company.
  2. [30]
    I am satisfied that the plaintiff deliberately altered the 307 paragraph, unsigned statement after she had commenced giving evidence. In doing so she actively misled the court. This conduct reflects poorly upon the credit-worthiness of her evidence.

Medical certificate

  1. [31]
    The plaintiff is embroiled in much litigation. The substance of that litigation is irrelevant to my consideration of the plaintiff's claim against WorkCover. However, relevant to her credibility is the plaintiff's conduct concerning one of those other matters. The cross- examination and medical records tendered demonstrate that the plaintiff, to support an application for an adjournment of proceedings in the Magistrates Court, likely altered a medical certificate given to her by a general practitioner.
  2. [32]
    Again, this suggests that she is willing to mislead a court in order to further her position.

The Notice of Claim for Damages

  1. [33]
    On 9 March 2022, the plaintiff signed a Notice of Claim for Damages pursuant to s 275 of the WCRA. In doing so, she declared that all the statements she made within her personal knowledge were true, correct and complete in every respect. She further acknowledged that she had not omitted any information which would make any of the information false or misleading.
  2. [34]
    Upon being cross-examined on this declaration, whilst the plaintiff accepted that she signed the document, she said that her then-lawyers told her to sign it, and she did. She was unwilling to accept that she acknowledged the document was true and correct because she believed there was a trick to the cross-examination.
  3. [35]
    In a signed annexure to the Notice, the plaintiff provided details of her employment (including self-employment) and income for: the three years before the event resulting in injury; for the period since the event resulting in injury; and, at the date of signing the Notice of Claim.
  4. [36]
    The only income the plaintiff declared subsequent to 20 February 2019 was from her employment at Wet Fix Pty Ltd and from a rental property.
  5. [37]
    Cross-examination demonstrated that, in fact, the plaintiff had received income from several sources after 20 February 2019. The plaintiff was in paid employment with one organisation between 29 January 2022 and 28 February 2022. The plaintiff invoiced another entity on ten occasions through her deregistered company, “maddog marketing” for work done between 8 February 2021 and 17 May 2021. Similarly, the plaintiff invoiced a second entity on four occasions for work done by her in June and July 2021. The plaintiff invoiced a third entity on five occasions for work she did between 24 August 2021 and 27 September 2021.
  1. [38]
    As indicated, the invoices were sent under the plaintiff's deregistered marketing company's name. That company was deregistered as of 1 July 2009. The Australian Business Numbers (ABN’s) she attached to that deregistered entity were incorrect and varied between invoices. The plaintiff attempted to blame her accountant for the incorrect use by her of ABN's that she herself admitted including on the invoices.
  2. [39]
    The plaintiff was not honest when she completed this form and hid, at least at that time, the income she had received after the event of 20 February 2019. Whilst the absence of some income could be considered an innocent error, the plaintiff failed to declare income she received from four separate sources. The Notice of Claim was misleading in a material way.

Other income not declared

  1. [40]
    During cross-examination, it was revealed that the plaintiff had received income from another source, which she had not disclosed. Upon a call being made, she produced six invoices she had issued using an entity, "Lisa Miller Family Trust".[13] Those invoices are related to work done by her between April and May 2022. Those invoices had not been disclosed nor referred to in the plaintiff's list of documents filed pursuant to the Uniform Civil Procedure Rules 1999 (Qld).
  2. [41]
    The plaintiff was pressed throughout the trial to provide complete financial records to evidence her income both before and after 20 February 2019. Limited financial records were produced and those financial records are inconsistent. The plaintiff failed to produce her 2021 tax return when she invoiced two separate entities in that financial year. Copies of the plaintiff’s 2020 tax return contained in exhibits 30 and 31 are inconsistent with each other in terms of the income identified. The pay advice received from one employer in 2022 is different to the gross earnings declared on the plaintiff’s tax return for that same year.
  3. [42]
    At the very least, the evidence as to the plaintiff’s income is entirely unreliable.

The statement of loss and damages

  1. [43]
    In her statement of loss and damage, the plaintiff claims that since the incident, she has sought social isolation and is hypervigilant, especially around loud noises and shouting. Posts from her Facebook account reveal otherwise. She attended a festival in June 2024, which depicted her amongst a crowd of people with loud music playing. The posts depict travels to Melbourne, the Whitsundays, Port Douglas and the Gold Coast, amongst other destinations. The posts depict her socialising with others at restaurants and tourist destinations. She attends events where there are fireworks and other loud noises.
  1. [44]
    The Facebook posts do not sit comfortably with her claim that she sought social isolation and is hypervigilant around loud noises and shouting.

Inconsistencies

  1. [45]
    It is to be expected that in an account that a witness gives of an event on multiple occasions over many years, there will be inconsistencies. Whilst a traumatic event that causes negative emotions is often associated with better memory for the critical details of the event, it is also associated with poorer memory for background information. A symptom of post-traumatic stress disorder can be the inability to recall significant aspects of the traumatic event. Memories may be disorganised or fragmented, particularly when emotions are at their most extreme.[14]
  2. [46]
    It is not the inconsistencies themselves that give me any significant cause for concern as to the reliability of the evidence, but rather the plaintiff's unwillingness to accept the existence of an inconsistency attributable to something she said. It is sufficient to describe the plaintiff's evidence concerning a statement taken from her by a police officer.[15] At 4.40 pm on 20 February 2019, a police officer attended the plaintiff's home and took a statement from her. He did so by recording the details of what the plaintiff told him in a police notebook. The plaintiff admitted to having read each page, signed/initialled each page of the notebook, and signed a Justices Act 1886 (Qld) endorsement affixed to the notebook. The plaintiff accepted that she made amendments to the statement, which appear in the side margins of the notebook. However, she refused to accept that she said certain of the statements in that notebook despite having made amendments to other statements on the same page. The plaintiff gave me the impression that she was trying to distance herself from any inconsistency as to her account regarding the events of 20 February 2019, she considered significant.

Findings on credibility and reliability

  1. [47]
    Unless some independent source corroborates the plaintiff's evidence, I am unwilling to accept it. The plaintiff has fabricated evidence and tampered with evidence. She has deliberately misled the court. She has been less than truthful when it comes to her income. The plaintiff has failed to establish to my reasonable satisfaction that on 20 February 2019, she was strangled by Mr Starling at the premises of Wet Fix Pty Ltd.
  2. [48]
    Mr Starling presented as a truthful witness and a reliable historian. Unsurprisingly, given the significant passage of time there were some matters that he had little memory of, particularly as they related to business transactions. However, his evidence as to the events of 20 February 2019 is supported by a photograph of the injury to his wrist, which the plaintiff accepted inflicting.
  3. [49]
    I am satisfied on Mr Starling’s evidence that there was an incident on 20 February 2019 in which the plaintiff was the aggressor. The plaintiff attempted to take the laptop computer from Mr Starling. During the struggle over the laptop computer, she bit him on the wrist. The plaintiff otherwise threw herself against the filing cabinet and walls.

Was the plaintiff a worker under the WCRA?

  1. [50]
    The defendant accepts that as of 20 February 2019 the plaintiff was not formally appointed as a director of Wet Fix Pty Ltd. It is contended, however, that Wet Fix Pty Ltd was under the direction or instructions of the plaintiff at the time of the incident.
  2. [51]
    The plaintiff contends that Wetfix Pty Ltd was a company and not a corporation, so schedule 6 of the WCRA does not apply.
  3. [52]
    A worker under the WCRA is a person who works under a contract and is an employee for the purpose of assessment for PAYG withholding.[16] A person is not a worker if the person performs work under a contract of service with a corporation of which the person is a director.[17] Section 9 of the Corporations Act 2001 (Cth) provides that a “company” means a company registered under the Act. Wet Fix Pty Ltd was a company registered under the Corporations Act 2001 (Cth).
  4. [53]
    Schedule 6 of the WCRA defines a director as:
    1. director, of a corporation, includes –
      1. a person holding or acting in the position of a director (by whatever name called) of the corporation whether or not the person was validly appointed to hold, or is duly authorised to act in, the position; and
      2. a person under whose directions or instructions the corporation is ordinarily controlled.
  5. [54]
    There are no authorities which I could find which deal with this definition of director under the WCRA. However, there are many authorities which deal with the concept of a “shadow director” under the Corporations Act 2001 (Cth). The definition of director in the WCRA as “a person holding or acting in the position of a director (by whatever name called) of the corporation whether or not the person was validly appointed to hold, or is duly authorised to act in, the position” is consistent with the common law concept of a “de facto” director. In Chameleon Mining NL v Murchison Metals Ltd[18] Jacobson J said of the extended definition of “director” in the Corporations Act 2001 (Cth) (which codified the common law concept of de facto director):

“Whether a person is acting as a director of a company will depend upon the nature of the functions and powers which are exercised and the extent to which they are exercised. It is a question of fact which may often be one of degree. It requires consideration of the duties performed by the person in the context of the operation and circumstances of the company” (citations omitted).

  1. [55]
    The circumstances of Wet Fix Pty Ltd are that the sole director appointed was Mr Starling. From 10 September 2018 Wet Fix Holdings Pty Ltd held all 20 shares in Wet Fix Pty Ltd. Wet Fix Holdings Pty Ltd issued 400 shares of which 320 were held by Star HQ Pty Ltd. Star HQ Pty Ltd has 10 issued shares all held by Elem Investments Pty Ltd. The plaintiff is the sole director and shareholder of Elem Investments Pty Ltd. The plaintiff had the majority beneficial interest in Wet Fix Pty Ltd as at 20 February 2019.
  2. [56]
    The plaintiff on 13 December 2018 acted as Wet Fix Pty Ltd in a matter of great importance to it, in entering into a contract with KSLA Ventures Pty Ltd for it to source an investor or purchaser for Wet Fix Pty Ltd and Wet Fix Holdings Pty Ltd.[19] Whilst the plaintiff sought to establish that it was Mr Starling who ultimately entered into contract, it was the act of the plaintiff in herself signing such a contract (despite it not being valid) that demonstrates to me that she considered herself as a person who was able to control Wet Fix Pty Ltd.
  3. [57]
    On 20 February 2019 the plaintiff’s evidence was that she took the laptop from Mr Starling because it “belonged to the company” and she intended to reverse the payments made by Mr Starling, the director of Wet Fix Pty Ltd in order to prioritise the payments of creditors. That intention is consistent with her exercising top level management functions of Wet Fix Pty Ltd and consistent with the plaintiff considering herself as the person who controlled Wet Fix Pty Ltd.
  4. [58]
    The balance of probabilities favours a finding that the plaintiff was not a worker pursuant to s 11 of the WCRA. That WorkCover, during the statutory phase, accepted that the plaintiff was a worker does not preclude such a finding.[20]

What injury did the plaintiff sustain as a result of the events of 20 February 2019?

  1. [59]
    The plaintiff relies upon the evidence of Dr Grant Blake and Dr Lucas Murphy to establish that as a result of the incident on 20 February 2019 she sustained post-traumatic stress disorder.
  2. [60]
    Dr Blake's opinion, as expressed in his report of 29 May 2024, is that the plaintiff suffered an:

"adjustment disorder that emerged in response to domestic violence, namely, alleged financial exploitation, psychological abuse, and coercive control. This was present before [20 February 2019]. The condition was aggravated to become PTSD. The index assault on 20 February 2019 caused the aggravation. The condition went into partial remission for a period before being re-aggravated by the cycling incident in November 2021."[21]

  1. [61]
    Dr Blake's opinion as to any impairment in the plaintiff's capacity for work was primarily based on her difficulties with interpersonal functioning and communication style that she reported arose after the events of 20 February 2019. However, Dr Blake accepted that information the plaintiff had not told him would be relevant to formulating his opinion. In particular, Dr Blake was unaware that on 1 May 2018, the plaintiff consented to orders against her that prevented her from performing any human resource or payroll functions for Wet Fix Pty Ltd in response to six employees alleging that she had bullied them. This suggests the plaintiff had interpersonal difficulties dealing with some people in the workplace before 20 February 2019.
  1. [62]
    Dr Blake’s evidence was that if the event of 20 February 2019 occurred in the manner described by Mr Starling (whose evidence I accept), Dr Blake's opinion may not remain the same. He would need to reconsider his opinion after gathering more evidence.
  2. [63]
    Dr Blake further accepted that if he had been aware of the history of difficulties provided by the plaintiff to her treating psychologist, those difficulties would have impacted his opinion on the plaintiff's capacity for employment. Those difficulties included the disintegration of her marriage; the failing business including multiple applications to wind up the company; other incidents of violence between herself and Mr Starling which the plaintiff accepted she started; and the dispute regarding the parenting arrangements for the children.
  3. [64]
    Dr Lucas Murphy assessed the plaintiff on 14 September 2020. He opined that the plaintiff's mental state began to deteriorate in late 2018 in the context of marital and domestic violence. The events of 20 February 2019 served to aggravate a pre-existing condition. Dr Murphy described this event as a significant stressor. He considered that the plaintiff’s non-verbal communication (in particular, an episode of disassociation) and her mental state examination were consistent with post-traumatic stress disorder. Dr Murphy described the issues surrounding the parenting arrangements for the children and domestic violence to have been the major significant contributing factors to her mental state.
  4. [65]
    In response to a question, "Do you consider employment to be a significant contributing factor to the injury?" he responded, "The events of 20 February 2019 were a significant contributing factor but not the major substantial contributing factor”.
  5. [66]
    Dr Murphy opined that the plaintiff's mental health was "good enough" to return to full-time work as a marketing manager in a different workplace with a different employer as at 14 September 2020.
  6. [67]
    Dr Murphy was asked in cross-examination whether his diagnosis of post-traumatic stress disorder would remain if the events of 20 February 2019 occurred in the way in which Mr Starling described, that is, that the plaintiff commenced the altercation by taking the laptop computer, that they struggled over it and that she bit him during the altercation. He responded that his opinion would not change because there was still a very intense emotional experience where there had been some kind of fight between them, even if the cause of the distress arose outside of what Mr Starling did. I have difficulty accepting this evidence as on the basis of the events described by Mr Starling there is no account of a trauma being experienced by the plaintiff which has features of horror or helplessness which would found a diagnosis of post-traumatic stress disorder.
  7. [68]
    The defendant engaged Dr Watt. She interviewed the plaintiff on 27 July 2023. Her opinion was based on the plaintiff's account of what transpired on 20 February 2019. Even accepting that account, Dr Watt opined that the plaintiff likely experienced an adjustment disorder in the context of stress related to her broken marriage. The incident of 20 February 2019 did not result in symptomatology consistent with post-traumatic stress disorder as there was no evidence to support avoidance phenomenon or hyper-arousal. The incident lacked the character of horror or helplessness and carried a character of grief of being in a situation of physical conflict with a man she had spent 15 years with and with whom she had born two children. Following the events of 20 February 2019, the plaintiff's main concerns were her failed marriage and the impact of that on her children. Dr Watt opines that it is highly likely that the broken relationship and the ongoing issues between the plaintiff and Mr Starling resulted in stress, leading to emotional and behavioural symptoms for which she required psychological intervention.
  1. [69]
    Dr Watt opined that it was highly unlikely that the plaintiff sustained an injury due to the incident on 20 February 2019. That incident was part of the domestic difficulties that the plaintiff had been experiencing, which likely resulted in an adjustment disorder. The plaintiff’s presentation to Dr Watt was suggestive of narcissistic personality traits.
  2. [70]
    Dr Watt also opined that the plaintiff has recovered from this adjustment disorder. Her capacity to work was not compromised due to mental illness or mental disorder. No treatment was required from a psychiatric perspective.
  3. [71]
    The plaintiff sought and received treatment from her general practitioner and a counsellor/social worker before obtaining treatment from a psychologist on one occasion on 24 July 2019. From 19 April 2022, she has received ongoing psychological counselling. A review of the medical records indicates that the events of 20 February 2019 were not a significant focus of her treatment. None of the counselling that the plaintiff has received has been of a type that is used for the treatment of post-traumatic stress disorder.
  4. [72]
    Based on the findings that I have made concerning the events of 20 February 2019, I am not satisfied that the plaintiff has established the necessary causal connection between the events of 20 February 2019 and any psychiatric injury she has sustained. Nor has the plaintiff established any ongoing consequences of such psychiatric injury.

Liability

  1. [73]
    Sections 305B – 305E of the WCRA are the relevant provisions in assessing liability. The plaintiff must establish that the system of work created a foreseeable and not insignificant risk of injury together with a reasonably practicable alternative system that would have prevented the risk of injury. The plaintiff must also establish that there is some causal link between the employer's breach of duty and the injury.

Was there a reasonably foreseeable risk of injury to the plaintiff?

  1. [74]
    Assuming for the purposes of this issue that the plaintiff was a worker and did sustain a psychiatric injury, being an adjustment disorder, as a result of the incident on 20 February 2019, I am not satisfied on balance that any assault by Mr Starling on the plaintiff was reasonably foreseeable.
  1. [75]
    It does not matter to this assessment that the precise manner in which the plaintiff received her injuries is not foreseeable. I must bring a prospective analysis, rather than hindsight, to bear on this question.
  2. [76]
    The plaintiff was the majority beneficial owner of Wet Fix Pty Ltd. The director was her husband, Mr Starling. The extent of control exerted by Mr Starling over the plaintiff was, it seems, minimal. The plaintiff's allegation of negligence on the part of Wet Fix Pty Ltd relates to a failure to ensure that the plaintiff did not work with Mr Starling or if he did, that he was adequately supervised.
  3. [77]
    The plaintiff was at least a senior employee if not a de facto director. Her evidence is that she wrote the code of conduct and other directives for use by the staff. The effect of her evidence is that Mr Starling ought to have abided by the code of conduct. Given her position in the organisation, her beneficial interest in it and the lack of control that Mr Starling exerted over the plaintiff, I do not see how a reasonable person in the defendant's position would have foreseen a not insignificant risk of violence from Mr Starling to the plaintiff.

Were there reasonably practicable means of preventing that risk?

  1. [78]
    The plaintiff bears the onus of establishing a reasonably practical alternative system of work. The plaintiff's evidence was that she wrote the code of conduct for the business obviously enough turning her mind, as a senior employee (and beneficial owner) to issues of conduct within the workplace. The plaintiff said Mr Starling should have complied with the code of conduct. On her evidence, the means of preventing the risk of injury to her was contained within the already existing code of conduct. She did not suggest any alternative, simple measures that could or should have been taken.
  2. [79]
    The plaintiff has not discharged her evidential onus that there were some alternative precautions that could have been taken to prevent the altercation which occurred on 20 February 2019.

Did the employer's breach of duty cause or materially contribute to the plaintiff's injuries?

  1. [80]
    Even if I was satisfied that the defendant did breach its duty of care to avoid psychiatric injury, I do not consider that the plaintiff has established that the incident on 20 February 2019 materially contributed to any psychiatric injury. There were many stressors in the plaintiff's life in the few months leading up to 20 February 2019 and subsequently.
  2. [81]
    There was the disintegration of her long-standing marriage from at least 28 November 2018. There were multiple proceedings initiated by others to liquidate the business that the plaintiff herself had financed. Issues surrounding the parenting arrangements for the two children of the marriage (one of whom was very young) were of significant concern to the plaintiff. Additionally, the plaintiff was involved in much litigation herself.
  3. [82]
    The stress present in the plaintiff's life was evident as early as October 2018 when she suffered a panic attack which saw her treated at hospital. After an incident between herself and Mr Starling in late November 2018 she went to Sydney, informing suppliers that she had taken extended stress leave.
  1. [83]
    I cannot be satisfied on balance that, but for the breach of the defendant's duty (on the assumption that there was one), the plaintiff would not have suffered the injury.

Conclusion

  1. [84]
    The plaintiff has failed to discharge her evidential onus that she was a worker under the WCRA; that she was strangled by Mr Starling in the workplace; that she sustained a psychiatric injury causally linked to that incident; that the assault (if there was one) was reasonably foreseeable; that Wet Fix Pty Ltd breached its duty owed to her or that there were reasonably practical means of avoiding that risk.
  2. [85]
    The plaintiff’s claim is dismissed.

Quantum ofdamages

  1. [86]
    It remains necessary to assess the damages I would have awarded had the plaintiff been successful in her claim.
  2. [87]
    The plaintiff was born on 19 June 1966. She was 52 years-of-age when she alleges she sustained the workplace injury. She is now 58 years-of-age.

General damages

  1. [88]
    An award of general damages compensates the plaintiff for pain and suffering and any loss of amenities of life. Any assessment undertaken by a medical expert as to whole person impairment is important but not the sole consideration. Any award should reflect the level of adverse impact of injuries suffered by the plaintiff. The court must assess an injury scale value (ISV) in relation to the injury suffered by the plaintiff for an award of general damages.[22]
  2. [89]
    In assessing an ISV, the court must give greater weight to a psychiatric impairment rating scale (PIRS) report[23] provided under schedule 10 of the regulations than to another medical assessment of any permanent impairment caused by a mental disorder.[24] The report of Dr Watt is the only expert report which falls into this category. Therefore, I must give greater weight to her assessment. Dr Watt concluded a PIRS rating of 0% was appropriate in the circumstances. A PIRS rating of 0-3% correlates to an ISV of 0-1.[25]
  3. [90]
    The plaintiff claims $16,650.00 for general damages. The plaintiff claims a maximum dominant ISV of 10, in accordance with Item 12 of schedule 9 part 2 of the Regulation. Item 12 relates to moderate mental disorders with an ISV range between 2 and 10.[26]
  4. [91]
    The adverse impact of any psychiatric injury suffered by the plaintiff due to the 20 February 2019 incident is limited. The report of Dr Watt emphasised there were no deficits in the plaintiff’s PIRS condition report. The report of Dr Murphy emphasised there was no occupational incapacity and the plaintiff would benefit from returning to full time employment.
  1. [92]
    Had the plaintiff suffered a psychiatric injury as a result of the event of 20 February 2019, I consider the appropriate ISV would be one of 0.[27] There is no evidence to suggest the plaintiff experienced pain or suffering or any loss of amenities of life as a result of the event of 20 February 2019.
  2. [93]
    Therefore, the award for general damages would be one of $0.

Special damages

  1. [94]
    The plaintiff claims special damages in the amount of $518.50 for pharmaceutical expenses, $519.00 for travel expenses, $1,000.00 in relation to the Medicare refund, $2,500.00 in relation to the WorkCover refund and interest on the amount of $1037.20 at the rate of 0.5% for a period of 2.8 years, being $15.00.
  1. [95]
    The only reliable evidence supplied by the plaintiff in relation to an award of special damages relates to expenses paid by WorkCover of $4,014.00.
  2. [96]
    An award of no more than $4,500.00 including interest and the WorkCover refund would be made in the circumstances.

Economic loss and impairment of earning capacity

  1. [97]
    The plaintiff contends that an award of damages for economic loss should be made as a consequence of the injury suffered on 20 February 2019.
  2. [98]
    As referred to above, the plaintiff’s evidence as to her earnings subsequent to the incident of 20 February 2019 is not reliable. The records she produced were in some respects inconsistent with each other. Some records remained absent despite repeated calls for them.
  3. [99]
    Wet Fix Pty Ltd went into liquidation on 21 March 2019. Consequently, the plaintiff would have been in the same position, searching for work on the open job market, even despite any damage suffered from the event of 20 February 2019.
  4. [100]
    Section 306J(1)-(3) of the Act provides:
  1. This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
  2. The court may only award damages if it is satisfied the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
  1. If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.[28]
  1. [101]
    Section 55 of the Civil Liability Act 2003 (Qld) (‘CLA’) is stated in similar terms.
  2. [102]
    Even if the court were to accept the plaintiff’s version of events on 20 February 2019, the unreliable evidence the plaintiff has adduced of her earnings means that I am unable to state the assumptions which an award would be based or the methodology used to arrive at such an award.
  3. [103]
    As White JA stated in Allianz Australia Insurance Limited v McCarthy[29] (in relation to s 55(2) CLA): “a court may only award damages if satisfied the person injured will suffer loss of earnings”.[30] Her Honour further stated at paragraph 48: “It must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms”.[31]
  4. [104]
    The plaintiff has not demonstrated the injury, if it was suffered, resulted in loss in monetary terms. The court is therefore unable to award damages for economic loss.
  5. [105]
    The plaintiff further claims an impairment of earning capacity as a result of the injury suffered on 20 February 2019. The plaintiff must prove on the balance of probabilities that her earning capacity was diminished as a result of the injury suffered and the injury would result in economic loss.
  6. [106]
    Importantly, the plaintiff conceded in cross-examination and to Dr’s Watt and Murphy (as stated in their respective reports)[32] that her capacity to engage in employment after the event of 20 February 2019 was compromised by other matters related to her marriage and the extensive litigation in which she was involved.
  7. [107]
    I am not satisfied the plaintiff’s earning capacity has been diminished or impaired and because of that the injury would be productive of economic loss. I would make no award for damages for economic loss or impairment of earning capacity.

Future expenses

  1. [108]
    The plaintiff claims various future expenses in the amount of $1,500.00 for pharmaceutical expenses, $850.00 for travel expenses and $6,300.00 for psychological/psychiatric expenses.
  2. [109]
    I do not consider the plaintiff has discharged the evidential burden that she would have incurred such expenses as a consequence of the incident of 20 February 2019. I would therefore make no award for future expenses.

Summary of damages

  1. [110]
    The plaintiff’s lack of candour in disclosing her financial records means that it is impossible for a comprehensive determination of the quantum of damages to be undertaken.

Application by plaintiff to re-open her case

  1. [111]
    On 4 September 2024 the plaintiff sent an email to my associate wanting to re-open her case and tender into evidence a copy of a Claim and Statement of Claim filed in the Supreme Court of Queensland in which Wet Fix Pty Ltd (in liquidation) and its liquidator seeks a declaration that Mr Starling contravened s 588G of the Corporations Act 2001 (Cth), in that Wet Fix Pty Ltd was insolvent and he failed to prevent it from incurring debts.
  2. [112]
    The plaintiff argues that these proceedings only came to her attention on 2 September 2024 and were not disclosed by the defendant. She further argues that these proceedings are relevant to my findings as to her credibility. The defendant objects to the plaintiff re- opening her case and to the tender of the copy of the Claim and Statement of Claim. The defendant is not a party to the proceedings and was not aware of them.
  3. [113]
    As best as I can understand, the plaintiff suggests that these proceedings are relevant to my determination as to whether she is a worker under the WRCA. I do not see how that is so. Who the liquidator pursues in other proceedings brought pursuant to another piece of legislation has no bearing on my determination of whether the plaintiff has proven that she was a worker pursuant to the WCRA. As can be seen from my reasons these proceedings are not relevant to my findings as to the plaintiff’s credibility.
  4. [114]
    I refuse her application to re-open the proceedings.

Conclusion

  1. [115]
    The plaintiff’s claim is dismissed.

Footnotes

[1](1992) 67 ALJR 170.

[2]Ibid.

[3]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

[4]Exhibits 27 and 28.

[5]Exhibit 26.

[6]Ibid.

[7]A copy of which is exhibit 28.

[8]Thompson v Bella-Lewis [1997] 1 Qd R 429, 436-7.

[9]Exhibit 43.

[10]Exhibit 12.

[11]Exhibit 24.

[12]Exhibit 34.

[13]Exhibit 19.

[14]Alan Baddeley et al, 'Legal aspects of memory: a summary of scientific evidence issued by the Psychology and Law Sections of the British Academy' (2023) 11 Journal of the British Academy 95-97.

[15]Exhibit 19.

[16]Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 11 (‘WCRA’).

[17]Ibid sch 2 pt 2.

[18][2010] FCA 1129.

[19]Exhibit 36.

[20]SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81.

[21]Exhibit 44.

[22]WCRA (n 16) s 306O.

[23]Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) sch 13 (‘WCRR’).

[24]Ibid sch 9 pt 2 item 13.

[25]Ibid.

[26]Ibid sch 9 pt 2 item 12.

[27]Ibid sch 9 pt 2 item 13.

[28]WCRA (n 16) ss 306J(1)-(3).

[29][2012] QCA 312.

[30]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 [47].

[31]Ibid [48].

[32]Exhibits 47, 60.

Close

Editorial Notes

  • Published Case Name:

    Miller v WorkCover Queensland

  • Shortened Case Name:

    Miller v WorkCover Queensland

  • MNC:

    [2024] QDC 156

  • Court:

    QDC

  • Judge(s):

    Loury KC DCJ

  • Date:

    18 Sep 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
3 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Cite 3 - [2012] QCA 312
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chameleon Mining NL v Murchison Metals Limited [2010] FCA 1129
2 citations
Jump To
Cite 1 - [2010] FCA 1129
Cite 2 - [2010] FCA 1129
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
1 citation
Jump To
Cite 1 - (1992) 67 ALJR 170
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others [1992] 110 CLR 445
1 citation
Jump To
Cite 1 - [1992] 110 CLR 445
SS Family Pty Ltd v WorkCover Queensland[2019] 3 Qd R 81; [2018] QCA 296
2 citations
Jump To
Cite 1 - [2019] 3 Qd R 81
Cite 2 - [2019] 3 Qd R 81
Thompson v Bella-Lewis [1997] 1 Qd R 429
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 429
Cite 2 - [1997] 1 Qd R 429

Cases Citing

Case NameFull CitationFrequency
Miller v WorkCover Queensland [2024] QDC 1672 citations
1

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