Ackers v Cairns Regional Council - [2021] QSC 342

SUPREME COURT OF QUEENSLAND

CITATION:

Ackers v Cairns Regional Council [2021] QSC 342

PARTIES:

PAUL ANDREW ACKERS

(plaintiff)

v

CAIRNS REGIONAL COUNCIL

ABN 24 310 025 910

(defendant)

FILE NO/S:

SC No 636 of 2018

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON:

15 December 2021

DELIVERED AT:

Cairns

HEARING DATES:

1, 2, 3, 4, 5, 8, 9, 10 February 2021; 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 July 2021

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff in the sum of $1,099,132.69.

2. I will hear the parties as to costs, in the event they are not earlier agreed, at 9.15 am on 2 February 2022 (parties having leave to appear by telephone or videolink).

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORSEEABILITY – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the plaintiff began to show signs in the workplace of psychological distress – where the Council investigated a Union complaint against the plaintiff – where the plaintiff exhibited further signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether it was reasonably foreseeable to the Council that the plaintiff may suffer a psychiatric injury

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council breached its duty to take all reasonable steps to avoid unnecessarily exposing the plaintiff to a foreseeable risk of psychiatric injury

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council is causally responsible for the plaintiff’s psychiatric injury

DAMAGES – ASSESSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERAL DAMAGES – ECONOMIC LOSS – SPECIAL DAMAGES – where the plaintiff has not worked since the date of the injury – where the plaintiff already had a pre-existing persistent depressive disorder – where the plaintiff developed more severe depression, anxiety, PTSD symptoms, a severe stutter and a tremor in his right arm – where there was some improvement upon the severity of the plaintiff’s symptoms up until 2018 but little substantial improvement since this plateauing – whether and to what extent the plaintiff’s condition will improve after the litigation concludes – what measure of damages for general damages, special damages, Wilson v McLeay damages and past and future economic loss is appropriate in the circumstances

Civil Proceedings Act 2011 (Qld), s 58

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s.6, s 306, s 305B, s 305D, s 306J, s 306L, s 306O, s 306P

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130, sch 9, sch 10, sch 11, sch 12

Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, distinguished
Hayes v State of Queensland [2017] 1 Qd R 337, applied
Hegarty v Queensland Ambulance Service [2007] QCA 366, applied
Jones v Dunkel (1959) 101 CLR 298, cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied
McAndrew v AAI Limited [2013] QSC 290, applied
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied
New South Wales v Lepore (2003) 212 CLR 511, cited
Robertson v State of Queensland & Anor [2021] QCA 92, cited
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, applied
State of New South Wales v Paige (2002) 60 NSWLR 371, distinguished
Strong v Woolworths Limited (2012) 246 CLR 182, applied
Sullivan v Moody (2001) 207 CLR 562, applied
Wilson v McLeay (1961) 106 CLR 523, applied

Wyong Shire Council v Shirt (1980) 146 CLR 40, cited

COUNSEL:
S D Anderson for the plaintiff

R Morton for the defendant

SOLICITORS:
Slater & Gordon Lawyers for the plaintiff
Jensen McConaghy Lawyers for the defendant

Contents

PART A: LIABILITY

The nature of the case advanced
Introduction to events in the workplace
Council approves of Mr Ackers but three of his staff do not
An exodus of staff creates a heightened and challenging workload
No let-up in other managerial obligations
A need to work longer hours
Long work hours of work a breach in itself?
Corporate knowledge of stress on Ackers accumulates
Union complaints
No breach re handling of Union complaint
Corporate knowledge of a change in Ackers in the second half of June
Foreseeable risk of psychiatric injury from 24 June 2015?
Shaking at interviews 1 July 2015
Events following Ackers’ return to work in early July
Foreseeable risk of psychiatric injury from 9 July 2015
Duty
Ackers targeted
Findings from Payroll Review Document
Andrejic uses Findings from Payroll Review document to target Ackers
Performance Improvement Action Plan implemented
Non-compliance with administrative instruction
Duty and breach
Breach unassuaged by ensuing review meetings
The final throes
Causation

PART B: QUANTUM

Prognosis
General damages
Statutory process for assessing loss of earnings
Past economic loss
Interest on past economic loss
Past special damages
Interest on past special damages
Wilson v McLeay damages
Future economic loss
Future special damages
Conclusion re total damages

PART C: ORDERS

Mr Ackers claims about $1.3 million in damages resulting from a psychiatric injury said to have been caused by the negligence and or breach of contract of Cairns Regional Council (“Council”) while he was employed as the supervisor of its payroll unit.
It is common ground Mr Ackers has a depressive illness which worsened in connection with events in the workplace but Council’s liability for it, its long-term severity and many associated issues were disputed during a trial lasting almost four weeks.
Mr Ackers alleges Council owed him a duty to take reasonable care to avoid unnecessarily exposing him to a foreseeable risk of psychiatric injury. He alleges his injury was caused by Council’s breach of that duty in connection with three main controversies, namely:
·Council’s investigation of a Union complaint against Mr Ackers;
·Mr Ackers’ allegedly excessive hours of work; and
·Council’s imposition of a Performance Improvement Action Plan on Mr Ackers.
As will be seen, the first of those controversies did not manifest any breach but did have an emotional impact on Mr Ackers. The context in which the other two arise is that the payroll unit lost three experienced staff in March/April 2015. This had the consequence that for some months the unit was without sufficient adequately skilled staff, so that Mr Ackers bore an unusually demanding workload and there was a higher than usual risk of errors occurring in the payroll unit. When that risk manifested, with the discovery of a variety of apparent errors at the end of the financial year in mid-2015, the blame was pinned on Mr Ackers, rather than the extraordinary work pressure which had been on him and his unit, by subjecting him to a formal Performance Improvement Action Plan. A person of greater fortitude might have coped with that treatment but, as Council knew, Mr Ackers was already in psychological distress by this time. His state worsened. He eventually went on sick leave and has not resumed work because of his psychiatric condition.
These reasons find the long hours worked by Mr Ackers, while extremely demanding, were not such as to alone make psychiatric injury to a person of ordinary fortitude reasonably foreseeable. However, the accumulation of corporate knowledge of that workload, in combination with corporate knowledge of signs Mr Ackers exhibited of psychological distress, did make risk of such injury reasonably foreseeable by the era in which it targeted him with the Performance Improvement Action Plan.
Against that background these reasons conclude there was a breach of Council’s duty of care which was causative of a major depressive illness. While these reasons conclude Mr Ackers’ prognosis is not quite as bleak as was urged on his behalf, his illness has and will continue to cause him significant loss, for which a substantial award of damages will be made.

PART A: LIABILITY

The nature of the case advanced

Reliance on signs given and nature of work

The nature and scope of the duty of care owed by an employer to an employee is not generic and will vary, depending upon what the employer or those for whom the employer is vicariously liable, knows or should reasonably have foreseen regarding the particular employee in question.[1] The generic or ordinary steps which an employer may take in exercising reasonable care to avoid injury to employees will, in the normal course, assume normal fortitude on the part of the employee.
[1]Robertson v State of Queensland & Anor [2021] QCA 92, [114].
A greater degree of care may be required where the employer imposes a workload upon an employee which, by its nature, will be abnormally stressful or where an employee is exhibiting signs of psychological distress. Hence in Koehler v Cerebos (Australia) Ltd[2] the plurality observed:
“The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. … [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[3] (emphasis added)
[2](2005) 222 CLR 44.
[3](2005) 222 CLR 44, 57 [35].
In the present case Mr Ackers relies upon the allegedly extreme demands of his work and the signs he allegedly gave in the workplace of psychological distress. He contends those features made psychiatric injury to him reasonably foreseeable and that his employer had a duty to take reasonable care to avoid such injury.
The plaintiff contends the defendant breached that duty, thus causing his psychiatric injury, by the way in which it dealt with the Union complaint against him, caused Mr Ackers to work allegedly excessive hours and imposed the Performance Improvement Action Plan on him.
In purporting to attribute corporate knowledge of the nature and extent of work being done by Mr Ackers and signs he was giving of emotional distress, Mr Ackers’ case pleaded reliance on the knowledge of Council’s servants in its human resources branch, Christine Posgate and Rachel Faithful,[4] and in positions of line managerial responsibility for Mr Ackers, namely his immediate supervisor Mandy Wise, who was the Coordinator of the Shared Services Branch, and above her the Chief Financial Officer, John Andrejic. It was not disputed, and I accept, that their knowledge of such matters equated to corporate knowledge, that is, the knowledge of Council.
[4]Michell Chapman of that branch likely falls into a similar category though she was not specifically pleaded in this context.

Duty in contract

The duties Mr Ackers alleges he was owed by Council are pleaded in contract at paragraph 4 of the amended statement of claim as follows:
“4.It was an implied term of the contract of employment between the Plaintiff and the Defendant that the Defendant would:
(a) do all that was reasonably practicable to provide a reasonably safe working environment;
(b) comply with each of its usual processes and administrative instructions and procedures;
(i)in supervising and disciplining the Plaintiff; and
(ii)investigating complaints from and about the Plaintiff;
(c) take all reasonable steps to ensure the supervisors responsible for supervising the Plaintiff following policies and procedures in place with respect to his employment.”
It is unsurprising these were pleaded as “implied” terms because the letter offering Mr Ackers employment, an offer accepted by Mr Ackers,[5] said nothing express as to Council’s obligations in the workplace towards Mr Ackers. The pleaded contractual duties are alleged by paragraph 4A of the amended statement of claim to be “implied into the contract to give efficacy to the contract of employment” in factual circumstances thereafter alleged in paragraph 4A.
[5]Ex 6 PAA-2 pp 7-10.
The factual circumstances listed in paragraph 4A fall into two general categories. The first is simply that Mr Ackers had obligations he had to meet, namely that Council required him to undertake the duties set out in his position description and his personal training and development plan of 18 December 2014 and to comply with Council’s policies, administrative instructions, procedures and supervisors’ directions.[6] The second category of circumstances is that the payroll unit was short staffed from March 2015 and that he was required to undertake his duties by working excessive hours with an excessive workload.[7]
[6]Per ASOC [4A(a)], [(b)] and [(c)] (read with 3A).
[7]Per amended statement of claim [4A(c)] and [4A(d)] (read with 6 to 40).
Those factual circumstances are of background relevance to consideration of the case in negligence. However, it is not apparent how they require the implication of the duties pleaded at paragraph 4 to give efficacy to the contract of employment. The law generally trends against such an implication.[8] Moreover, no substantive argument was advanced in support of the implication. Accordingly, the pleaded implied contractual duties have not been established.
[8]Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 475, 519; Commonwealth Bank v Barker
(2014) 253 CLR 169; Gramotnev v Queensland University of Technology (2015) 251 IR 448, 481-482, 461-462.
The issue in any event appears to be academic. Mr Ackers’ counsel confirmed in addresses that the case in contract did not rely upon duties additional to or different to the duties arising in negligence.[9] It follows that if the case fails in negligence there is no additional feature of the case which could allow it to succeed in contract.
[9]T16-10 L16.

Duty in negligence

Mr Ackers alleges it was the non-delegable duty of Council, as his employer, to take all reasonable steps to avoid unnecessarily exposing employees such as Mr Ackers to a foreseeable risk of psychiatric injury
Paragraph 5A of the amended statement of claim pleads that duty arose from five alternative points in time during 2015, namely 4 May, on or around 15 June, on or around late June, on or around 8 July. Subsequent paragraphs of the amended statement of claim allege there existed a foreseeable risk of Mr Ackers sustaining a psychiatric injury, of which the Council was aware, from each of those times.[10]
[10]ASOC [42A], [42B], [51A], [54], [68].

Breach

In paragraph 85 of the amended statement of claim Mr Ackers pleads his injury was caused by the negligence (and or breach of contract) of Council because, by its agents or servants, it failed to take all reasonable steps to avoid unnecessarily exposing “employees such as the plaintiff to a foreseeable risk of injury”. Paragraph 85 alleges in 16 subparagraphs the various ways in which the Council failed to take those reasonable steps, in effect itemising the alleged breaches of duty said to have been causative of the injury. Those subparagraphs of paragraph 85 (some of which were enlarged upon in an amended response to a request for further and better particulars) relate in various ways to the three main controversies mentioned above, namely Council’s investigation of a Union complaint against Mr Ackers, Mr Ackers’ allegedly excessive hours of work and Council’s imposition of a Performance Improvement Action Plan on Mr Ackers.
Consideration of the breaches of duty allegedly associated with those controversies is best approached and understood by integrating it within a progressive review of events in the workplace and their consequences, including identifying any signs Mr Ackers gave of psychiatric distress as events progressed.

Introduction to events in the workplace

Mr Ackers

Born on 7 January 1970, Mr Ackers is now 51. He was 44 and 45 during his ill-fated year working with Council from September 2014 to September 2015.
He has not worked since then because of his psychiatric injury.
Prior to working for Council Mr Ackers had a long history of work in the payroll sections of various employers and subsequently in his own payroll relief and consulting business.[11] That business ended in financial difficulty in about March 2013 in the wake of the collapse of Mr Ackers’ marriage.
[11]Ex 6 [3] – [16].
After that Mr Ackers worked in payroll for an international company at its Brisbane and Dubai branches. That employment ended in December 2013. Counsel for Council highlighted that Mr Ackers did not nominate his former employer as a referee in his application for employment with Council the following year.[12] Mr Ackers had deposed that there was an instance when he was employed at Dubai where he had become emotional due to a combination of being away from Australia and the project manager giving him “a hard time”.[13] At that time it was contemplated he may be employed in the company’s Qatar office and the company, being aware of his “pre-existing depression”, agreed with him that he should be assessed by a psychiatrist. He deposed he received the “all clear” but the decision was made not to proceed with his employment at the Qatar office and, due to that development, his contract ended.[14] Mr Ackers was cross-examined about having told a consultant psychiatrist he spoke to in the wake of his problems at Council, Dr Shebini, that he “felt like it was Dubai all over again”.[15] Mr Ackers had no recollection of that. In any event, it is no part of Council’s case that Mr Ackers secured employment based on a misrepresentation. Moreover, as will be seen, Mr Ackers had received favourable performance feedback after the commencement of his employment with Council, for a substantial period prior to the commencement of the issues with which this case is concerned.
[12]T4-51 L18.
[13]Ex 6 [16].
[14]Ex 6 [16].
[15]T7-66 L23.

Credit and reliability of Mr Ackers

It was submitted by counsel for Council that Mr Ackers was an unreliable witness. Some of the factual matters featuring in that submission receive discrete consideration below but it is sufficient in generally addressing the submission to make the following five sets of observations.

Firstly, the evidence of what occurred in the workplace and the signs Mr Ackers gave do not emanate solely from Mr Ackers. His evidence that the Council payroll unit was understaffed, that he worked long hours and that he progressively exhibited signs of distress in the workplace is corroborated by other evidence.
Secondly, in giving evidence of events in the workplace Mr Ackers presented as a generally credible witness. He occasionally struggled with some temporal and sequential minutiae, though not unsurprisingly so given the voluminous factual detail advanced in the case. He generally made reasonable concessions of error and acknowledged uncertainty. There were some exceptions to that pattern during a challenging cross-examination. However, I did not perceive deliberate dishonesty on his part.
Thirdly, much of Mr Ackers evidence, and indeed of some other witnesses, went to whether Mr Ackers was right or wrong about many issues of fact connected with access to Council’s CHRIS21 operating system and the accuracy of certain allegations contained in a Findings from Payroll Review document and entries in a Performance Improvement Action Plan. Many of those issues need not be explored or resolved in these reasons. However, I bear in mind in the general assessment of Mr Ackers reliability that there were instances in cross-examination of Mr Ackers on these topics when his ability to deal objectively with some questioning was obviously impaired by the extent of the doubtless genuinely felt frustration and grievance he holds, and has probably ruminated over, in respect of some of this factual minutiae.
Fourthly, Mr Ackers volunteered in cross-examination that he had lied to his consultant psychiatrist by repeatedly representing he was undertaking further studies in a TAFE or university course when he was not doing so. His admission about this appeared honest and it appeared he had lied to please his psychiatrist and reduce embarrassment to himself. Falsely overstating the extent of his recovery to his psychiatrist would be at odds with a desire to falsely understate the extent of his recovery. Nonetheless, it was sustained dishonesty and was also a lie repeated to a nurse he dealt with at the Cairns Clinic. I do not think there existed foundation for a hypothesis also urged by the Council that the desire to please those treating him evidenced a trait which also caused him to have struggled with accepting failure during events in the workplace. However, I do bear this dishonesty in mind in assessing Mr Ackers’ reliability generally and particularly in the context of assessing the true impact of his condition.
Fifthly, Mr Ackers’ psychiatric injury manifests physically in a tremor to his right forearm and hand, for which he wears a protective brace, and a stutter so severe it was considered helpful to receive his evidence in chief by affidavit.[16] His oral evidence spanned days three to eight of the trial. As I observed at the conclusion of his evidence, the intensity of his stutter and shake was particularly bad on the first day of his evidence but eased during his time in the witness box as he visibly appeared to become more used to and less stressed by the process of giving evidence.[17] The intensity of his tremor and stutter tended to increase again from time to time when questioning upset or challenged him. I detected no sign he was acting. The variation of his shaking and stuttering was consistent with psychiatric evidence that those physical manifestations of his illness may vary relative to the stress he is experiencing. It was also consistent with his own evidence that his stuttering and tremor each vary in intensity depending on his levels of anxiety.[18] Exhibited video footage,[19] in which Mr Ackers was filmed moving about the community, was not materially inconsistent with that evidence either.
[16]As it turned out, as so often is the case, it would have been more efficient to follow the conventional
course. There was substantial additional oral evidence in chief and his lengthy affidavit (487 paragraphs) opened up factual debates to an extent the more strictly controlled presentation of oral testimony would not have.
[17]T8-67,68.
[18]T3-37 L43, T3-37 L2.
[19]Ex 39; Ex 40.

Pre-existing persistent depressive disorder

Mr Ackers deposed to an existing history of depression prior to his commencement of employment in 2014 with Council, having taken “anti-depressant medication for many years”.[20]
[20]Ex 6 [468].
Mr Ackers had seen a psychologist for two years after his father’s death in 2000 and had been started on anti-depressants in 2004 after being upset by the death by suicide of his brother, whose body was found by Mr Ackers.[21] The intensity of Mr Ackers’ condition fluctuated, being influenced by subsequent upsetting events such as the death of his best friend in 2008 and the end of his marriage and business.[22] Prior to starting at the Cairns Regional Council in September 2014, Mr Ackers was being prescribed 60md/day of paroxetine which is considered to be a high dose.[23]
[21]Ex 4A [5.1], Ex 5A pp 11, 14.
[22]Ex 5A p 12.
[23]Ex 5c p 2.
Dr Byth and Professor Whiteford, the psychiatrists called respectively for Mr Ackers and the Council at trial, each opined Mr Ackers’ pre-existing condition was a dysthymic disorder, meeting the criteria in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) of a persistent depressive disorder.[24]
[24]Ex 4A [11.9], Ex 5A p 16.
On Mr Ackers’ account his depression was “well controlled” and when he started at Council he was well, and capable of performing the job for which he was employed.[25] It is not alleged Council knew of Mr Ackers’ condition when it employed him or that he was obliged to have disclosed it.
[25]Ex 6 [468].

A new payroll supervisor

Mr Ackers commenced employment as payroll supervisor at Council on 22 September 2014. That position’s objective was to ensure the operational effectiveness and efficiency of the payroll unit, which was the section of Council’s finance department responsible for payroll.
In his position, Mr Ackers was to report to the coordinator of the shared services branch, Ms Mandy Wise. Ms Wise had been on the selection panel which selected Mr Ackers, as was Mr John Andrejic, Council’s then chief financial officer, and Ms Lisa Whitton, the head of Council’s finance department.

A mandate to improve the payroll unit

When Mr Ackers was appointed, Mr Andrejic told him he had two mandates, namely, to “fix the staff and fix the system”.[26] Mr Andrejic was not called as a witness but Ms Wise confirmed in her testimony that Mr Andrejic had told Mr Ackers to fix the system and fix the staff and agreed that was “his mandate”.[27] She testified there had been problems within the payroll system and with payroll staff prior to Mr Ackers’ employment.[28]
[26]Ex 6 [46].
[27]T13-42 L19.
[28]T13-42 L25.
Mr Ackers deposed he was told during the selection process that one of the problems was staff error and previous payroll supervisors had been unable to fix the problems.[29] He testified Mr Andrejic then told him it was an issue that the payroll system was “very manual” and there were a lot of errors being made in manual calculations.[30]
[29]Ex 6 [130].
[30]T3-47 L2; T3-49 L15.
Mr Ackers in due course encountered some significant problems in the unit involving at least some staff using inconsistent procedures and making mistakes in pay calculations.[31]
[31]Ex 6 [134]-[136].

Managing the risk of error

The challenge with managing the risk of mistakes was that despite the existence of a computerised payroll system called CHRIS21, the payroll unit still had to complete a significant array of manual tasks in the process of arriving at correct and timely pay calculations within each fortnightly pay cycle. The array of manual tasks was surprisingly significant in our digital age and included a large volume of manual timesheet and leave form calculations, manual award interpretations, reconciliation of timesheets to a manual report, mandatory cross-checking by another staff member and extensive data entry.[32]
[32]T13-38 L26.
For example, the role of so-called timekeepers in the payroll unit involved processing timesheets which came in batches from various Council depots and units and manually coding them, preparatory to data entry, by breaking down ordinary and overtime time earnings under a range of variable awards under which employees worked and applying a range of variable potential allowances and other entitlements.[33] It carried a high risk of human error, a risk bound to be magnified if the unit was inadequately staffed.[34]
[33]Eg T9-9 LL10-43; T10-40 LL1-11.
[34]T9-9 L12.
When Mr Ackers was employed, he explained he had not used CHRIS21 in some time and offered to attend training of his own accord but was told training would be provided.[35] It was not provided.
[35]T13-39 LL17-25.
Mr Ackers nonetheless sought to improve the use to which CHRIS21 was being put. He experienced frustration at being refused the level of user access he sought to CHRIS21, to explore whether CHRIS21 might be deployed more effectively to perform tasks otherwise being performed manually and to mitigate against the risk of manual error. Mr Ackers’ perception of shortcomings in the existing CHRIS21 system design and his level of access to it attracted much attention in evidence but it developed no material relevance to the determinative issues. It is not suggested that requiring Mr Ackers to manage with a CHRIS21 system design which might have been improved upon was a breach of duty. Conversely it is not suggested for Council that Mr Ackers should have but failed to improve the CHRIS21 system design.
The obvious need for an adequately staffed unit
More to the point is the fact that, as Council must well have known, Mr Ackers was obliged to manage the unit using a system which required the performance of significant manual calculations, interpretations, reconciliations and data entry tasks, with accompanying risk of material error in the performance of those manual tasks.
That risk would inevitably be heightened in the event the unit was not adequately staffed. This was not a unit which could ease down the timely performance of its workload to manage during a period when it was temporarily understaffed or training up temporary or new staff. All of Council’s staff had to be paid on time.
The evidence was unclear about what the official complement of staff was supposed to be in the payroll unit and there was no evidence Council had in recent times conducted some form of objective assessment of what it should be. On Mr Ackers’ evidence, early in his tenure the complement was seven, consisting of him, five other full-time employees and one casual employee.[36] Those staff were:
·Payroll supervisor               Mr Ackers;
·Senior payroll officer         Alana Tier;
·Payroll officer                   Karen Lunt;
·Payroll officer  Deeann Aquilina;
·Timekeeper                        Leanne Cracknell;
·Timekeeper                        David Wier;
·Casual timekeeper              Lex Johnson.
[36]Ex 6 [32].
Further, Mr Ackers testified that, from when he commenced, two staff from the finance branch were sometimes supporting the unit, working as payroll officers namely:
·Temporary support Glenda Alexion;
·Temporary support Judy Fleur.[37]
[37]This is consistent with the recipients to whom Mr Ackers directed an email of 15 January 2015, Ex 6 PAA-3 p 15.
Mr Ackers explained the contribution of those two temporary officers ceased in March 2015,[38] although he later testified that by February 2015 Ms Fleur was replaced on a similar secondment basis by another finance branch officer, Rebecca Slatyer.[39] Ms Lunt’s recollection was that Ms Slatyer actually commenced at a slightly later stage, discussed below, after three staff went on leave.[40]

Council approves of Mr Ackers but three of his staff do not

[38]T3-50 LL7-28.

[39]T3-75 LL17-23.

[40]T10-20 L2.

Change implemented

Mr Ackers proceeded to implement new processes within the payroll unit to improve the consistency of procedures to be followed and mitigate against the risk of mistakes being made.[41] It is likely, as sometimes occurs with change in the workplace, that these changes were resented by some staff who preferred their old way of doing things.
[41]Ex 6 [137], pp 15-17.

Good performance review in December 2014

Mr Ackers apparently performed in his new job to the satisfaction of Ms Wise. She identified no problems with his performance in his probation period performance review or three month performance review interview dated 18 December 2014.[42] Ms Wise testified to telling him he was doing a great job, which was not just because the pays were getting out on time but also because he was reviewing procedures and attempting to improve the efficiency of the payroll office.[43]
[42]T13-42 LL1-13; Ex 81.
[43]T13-42 LL10-17.

Timekeepers moved

In late December Mr Ackers implemented Council’s decision, communicated to him by Ms Wise, that two payroll unit team employees who worked at satellite offices as so-called timekeepers would be moved into the payroll unit office in Council’s headquarters at Spence Street. They were Leanne Cracknell of Council’s Martyn Street depot and David Wier of Council’s Stratford Street depot. Mr Ackers aided in moving and setting up their office equipment, preparatory to them working at the Spence Street office from the commencement of January 2015.

Some staff resent change

Ms Cracknell and Mr Wier were not happy with being made to move. They may also have been concerned their jobs would largely be replaced by a new initiative being developed by Council called TA21, which if implemented would reduce the timekeeper’s manual tasks with timesheets.[44] In any event they exhibited resentment towards Mr Ackers, were uncooperative in following his directions and spoke badly to others about his competence. Mr Ackers perceived another member of the payroll unit team, senior payroll officer Alana Tier, who had been acting payroll supervisor before Mr Ackers’ appointment, behaved similarly in respect of him. Mr Ackers had been trying to address difficulties with her poor work attendance and resistance to following direction.
[44]T13-33 LL1-15.
Mr Ackers deposed in detail to his difficulties with Ms Cracknell, Mr Wier and Ms Tier. They were not called as witnesses.[45] Mr Ackers’ description of their problematic conduct was not challenged in cross-examination. It sufficient to note for present purposes that Mr Ackers informed Ms Wise of his difficulties with those three staff and Ms Wise’s own testimony confirmed there were such difficulties and that they were making Mr Ackers’ job more difficult.[46]
[45]It follows they did not have an opportunity to put a counter version of events before this court.
[46]T12-88 L31 – T12-89 L10; T13-42 L27 – T13-44 L21.
Ms Wise testified it was not just the conduct of those three staff which caused problems. She explained there were other poor behaviours which were not conducive to good teamwork. In December 2014 she met with the payroll staff, telling them to lift their game and work cohesively.[47] Ms Wise testified that in so doing she wanted the payroll office staff to know that she was aware of the situation and that she was fully supportive of the actions Mr Ackers was taking.[48]
[47]T13-44 LL23-41.
[48]T13-44 L45.

Good performance review in March 2015

Ms Wise conducted a six-month performance review of Mr Ackers in March 2015. She told him he was “doing a great job” and no problems with his performance were identified.[49] That Mr Ackers was repeatedly so positively assessed by Council during the first six months of his tenure will assume relevance to Council’s treatment of him during the subsequent era of difficulty stemming from a sudden loss of staff.

An exodus of staff creates a heightened and challenging workload

[49]Admitted on the pleadings.

The sudden loss of three staff

In or around February 2015 Ms Wise convened a disciplinary meeting with Ms Tier, also attended by Mr Ackers, Rachel Faithful from the human resources branch and Ms Tier’s Union representative. Ms Tier was later issued with a written warning about her work performance. Ms Wise subsequently informed Mr Ackers that Ms Tier had gone on indefinite sick leave. Around the same time, Mr Wier informed Mr Ackers he was not feeling well and was going home and was not sure when he would be back. This occurred around 25 or 26 March 2015.[50]
[50]T4-85 L37; T12-90 L27.
Mr Ackers thereafter attempted to set up a non-disciplinary meeting with Ms Cracknell to relay his expectations of her, given Ms Tier and Mr Wier had gone on sick leave. In the end result, Ms Wise determined to cancel that meeting and instead, in early March, gave Ms Cracknell a formal letter requesting a meeting. Ms Cracknell immediately went on sick leave. Mr Ackers accepted in cross-examination that this was on 16 April 2015.[51]
[51]T4-86 L1. This is consistent with Ex 46, attachment 2.
The absences of Ms Tier, Mr Wier and Ms Cracknell on sick leave were prolonged. Council considered their substantive positions could not be filled while they remained employed, albeit on leave, in those positions.[52] Ms Tier eventually resigned, probably around 22 May 2015[53] and her position was not filled permanently until the successful applicant, Ms Brangwen, commenced in mid-July. Ms Cracknell did not return to work until about 10 August 2015.[54] Mr Wier eventually returned, about 28 August 2015, though he was assigned work elsewhere than the payroll unit.[55]
[52]T3-74 L35; T13-4 L2.
[53]T4-87 L9; T12-90 L30; Ex 56.
[54]T12-92 L31; Ex 56.
[55]T12-91 L28; Ex 56.

Loss of staff puts pressure on

The loss of those three staff left the payroll unit short-staffed for some months. Mr Ackers testified performance of their work tasks had to be absorbed into the daily work of Mr Ackers, Ms Lunt and Ms Aquilina.[56]
[56]T3-53 LL2, 22.
Questions were asked on this topic of Ms Lunt, who still works at Council and seemed restrained in volunteering detail when responding to questions from Mr Ackers’ counsel. She explained she and Ms Aquilina “had to step up”, taking on extra duties, and that she sometimes started work as early as 6am.[57] Ms Aquilina, who no longer works at Council, testified the loss of the three staff changed her workload “drastically”, giving rise to a “huge extra workload” and resulting in her working overtime, the majority of which was unpaid.[58] Ms Wise agreed the workload upon the payroll staff meant Mr Ackers and its other staff sometimes needed to work extra hours to get the pay out to Council employees.[59]
[57]T10-5 LL2, 45.
[58]T10-41 LL3-18.
[59]T13-56 L43.
Ms Aquilina testified that she observed Mr Ackers take on the work of coding and data entry and review of running pays.[60] She explained, consistently with the evidence of Mr Ackers, that temporary staff did not have the experience nor skillset to simply take over the workload of the permanent staff who were absent on leave. This had the consequence there was a heightened need for her, Ms Lunt and Mr Ackers to provide guidance and assistance to temporary staff which was itself time-consuming.[61] This provision of guidance and assistance was over and above the usual process of reviewing and double-checking payroll officers’ mistakes as part of the labour-intensive manual system in place.[62]
[60]T10-55 L9.
[61]T10-56 L17 – T10-57 L5.
[62]T10-57 L30.

The deficiencies in staffing inevitably placed stress on the payroll unit’s remaining staff and increased the risk of error. Additionally, Mr Ackers deposed that in about April 2015 he became aware of and attempted to address past mistakes allegedly made by Ms Tier. These involved reconciliation of timesheet calculations as well as failing to complete, sufficiently or at all, processing of staff queries, end-of-month processing, termination payments and back payments.[63]
[63]Ex 6 [131]-[133].

The net reduction in staff

In the absence of Ms Tier, Mr Wier and Ms Cracknell the remaining full-time staff members of the payroll unit were Mr Ackers, Ms Lunt and Ms Aquilina. The employment term of the payroll unit’s temporarily contracted part-time employee Mr Johnson, which had been due to end, was extended for a month but then ended.[64] Rebecca Slatyer, a temporary support officer from Council’s finance department, continued in the unit.[65] The other temporary support officer from finance, Ms Alexion, returned to finance in March.[66]
[64]Ex 6 [91].
[65]Ex 6 [116] suggests she was a replacement provided in response to the absence of the staff on leave but Mr Ackers’ testimony, at T3-75 LL17-24, suggested she had been in place since February covering for another finance branch officer on secondment to the unit, Ms Fleur. On the other hand at T4-91 L12 Mr Ackers conceded Ms Slatyer did not commence until the timekeepers went on leave.
[66]T3-50 L24.
Mr Ackers deposed to unsuccessfully suggesting to Ms Wise that Ms Lunt should move temporarily to Ms Tier’s payroll officer position and be substituted in her position by a less experienced temporary employee.[67] Instead Council provided Julie Lukawski, from a “temp agency”, to act as the temporary notional replacement of Ms Tier.[68] Mr Ackers deposed there were no full-time replacements of the absent timekeepers Ms Cracknell and Mr Wier, or for Mr Johnson when his one month extension was over.[69]
[67]Ex 6 [218].
[68]Ex 6 [115].
[69]Ex 6 [118].
Some temporary assistance was provided with time sheet coding – the role of the absent timekeepers – by four officers from the human resources branch, namely Rachel Faithful, Rebecca Jones nee Stuart, Thea Price and Deanne Baker.[70] However, the human resources manager, Christine Posgate, ceased that provision of assistance after a couple of weeks.[71] Ms Posgate, who told Mr Andrejic of her decision, testified she was concerned her “staff were spending time doing a payroll function” and not getting to their own workload priorities.[72] Ms Wise confirmed that such assistance did end but was unsure why.[73] She acknowledged the reason for the assistance had been that the payroll staff were not getting through the timesheet processing without having to do overtime.[74]
[70]Ex 6 [121].
[71]T9-10 LL20-45.
[72]T15-28 L4; T15-41 LL10-25.
[73]T13-57 L5.
[74]T13-57 L15.
Mr Ackers deposed that in ongoing requests, he asked Ms Wise to provide additional employees, and requested that they be skilled, “not just bodies”, but received no response.[75] Ms Wise acknowledged that after Ms Tier and Mr Wier went on leave Mr Ackers had regularly continued to tell her that the payroll office needed additional staff but she implausibly claimed she could not recall why, apart from “general workload”, he specifically needed extra staff.[76]
[75]Ex 6 [138], [211].
[76]T13-56 LL30-37.
Mr Ackers deposed that Ms Lukawski and Ms Slatyer each had limited immediately applicable relevant skills and knowledge,[77] although he acknowledged in cross-examination that Ms Slatyer did well and Ms Lukawski picked up the data entry role well.[78] The fact remains though that, after Ms Posgate withdrew the temporary additional assistance of four of her staff, the payroll office was left with substantially less staff than normal. That deficit is readily illustrated by noting who then remained in the pre-existing normal complement of staffing positions and temporary support listed earlier in these reasons:
[77]Ex 6 [114].
[78]T4-91 L38; T3-92 L5.

Payroll supervisor

Mr Ackers

Remained

Senior payroll officer

Alana Tier

Replaced by “temp” Julie Lukawski

Payroll officer

Karen Lunt

Remained

Payroll officer

Deeann Aquilina

Remained

Timekeeper

Leanne Cracknell

-

Timekeeper

David Wier

-

Casual timekeeper

Lex Johnson

-

Temporary support from Finance

Glenda Alexion

-

Temporary support from Finance

Judy Fleur

Replaced by Rebecca Slatyer

That appears to have remained the status quo from then until at least a point at about 13 July 2015 when Mr Andrejic decided to place Mr Ackers on a Performance Improvement Action Plan.[79] That finding will assume significance later in these reasons when that decision is discussed, for it means the decision was made after the payroll unit had been inadequately staffed for several months during the final quarter of the financial year.
[79]The first net increase in the depleted staffing level did not occur until Ms Tier’s permanent replacement, Ms Brangwen commenced in mid-July and Ms Lukawski continued in the unit.
Counsel for Council emphasised there was no evidence Council could have immediately substituted the three staff on leave with equivalently skilled temporary staff. That is as may be but it does not mean the additional demands placed on the remaining staff were unavoidable. Council could have recruited temporary substitute staff capable of being trained to an adequate skill level within a short period, as occurred, for example, with Ms Lukawski, and in the interim provided additional other temporary staff so that the unit had more than its usual number of staff assisting, to compensate for the lower skill levels at its disposal. However, as the above table illustrates, after Mr Johnson’s extension and the brief injection of extra staff from finance had ceased, the payroll unit was left to fend for itself with materially less than its usual number of staff.
That made it inevitable that errors and oversights would occur in the unit’s performance. The remarkable feature of this case is that when, after the end of the financial year, such errors and oversights were discovered by Council it unfairly elected to blame the performance of the unit’s supervisor, Mr Ackers, rather than its own dereliction in leaving the unit inadequately staffed for a sustained period.

No let-up in other managerial obligations

In addition to having to cope with an inadequately staffed office in the era after Ms Tier, Ms Cracknell and Mr Wier went on sick leave, Mr Ackers complains that between March and August 2015 he had to attend about three to four meetings per week with persons outside the payroll unit, thus distracting from his available work time in the payroll unit. He describes those meetings as non-essential, apparently perceiving his attendance in his capacity as the payroll supervisor was not essential, relative to tasks he regarded as more pressing in managing an understaffed unit.[80]
[80]Ex 6 [142].
On Mr Ackers’ evidence the meetings he had to attend but considered non-essential, relative to tasks he regarded as more pressing in managing an understaffed unit, were meetings about:
·the implementation of a proposed time and attendance management system called TA21, a meeting of one to three hours’ duration occurring twice per week from early 2015;
·Council’s enterprise bargaining agreement (“EBA”), a meeting of one to two hours duration for about seven meetings around April and May 2015; and
·a new external timesheet software application developed by a Council employee, Alex Ung, a meeting of one to two hours for seven to 10 meetings during May and June 2015.
Mr Ackers deposed he would decline requests to attend these so-called non-essential meetings and he informed Ms Wise that he would have to “remain at work all hours” if he was required to attend the meetings, but that Ms Wise nonetheless directed him to attend them.[81] As much was not in dispute, for Ms Wise testified:
“I would not have made any adjustments to Paul’s responsibilities based on any additional time he might have been doing payroll officer work.”[82]
[81]Ex 6 [195]-[198].
[82]T13-47 L23.
Particulars of the hours these non-essential meetings took were listed by Mr Ackers in exhibit 8 in the proceeding.[83] It shows Mr Ackers had earlier over-estimated, in the estimates to which he deposed, how much time these meetings consumed. I bear that in mind in assessing his reliability generally.
[83]An exhibit apparently sourced from sourced from Outlook calendar records, a fallible source - T8-57 [7].
Exhibit 8 reveals, inter alia, total hours for such attendances from March 2015 of 15 hours in March, five hours 25 minutes in April, no hours in May, two hours in June, three hours 55 minutes in July, no hours in August and two hours in September. In the busiest of those months – March – the total time spent attending the non-essential meetings equated to more than three but less than four hours a week. It was considerably less in the ensuing months. The hours are obviously not excessive for the role of a unit supervisor.
Mr Ackers gave evidence that in addition to meeting attendances he was also required to perform various other additional time-consuming tasks in connection with the TA21, EBA and new external timesheet initiatives. The evidence is less clear as to how long those tasks took.
It is tolerably clear that attending meetings and performing other tasks in connection with these initiatives involved a material impost upon Mr Ackers’ available working time. Indeed, Ms Aquilina’s testimony was to the effect that in this era it involved higher demands upon Mr Ackers’ workload than in the past.[84] Nonetheless, the fact remains that Mr Ackers could not fulfill his responsibility for supervising a unit of a corporate body like Council as if it were operating in a vacuum, unaffected by the broader management of Council. These initiatives were management initiatives which would affect how the payroll unit operated and which could not be properly managed and progressed without input from the payroll unit’s supervisor. Illustrating the undesirability of the alternative, Ms Baker testified that Council’s failure to ensure the payroll unit was involved in a previous EBA process had resulted in a “host of issues” for Council.[85]
[84]T10-43 L38.
[85]T9-5 L41.
Mr Ackers deposed that after Ms Tier went on leave he had to perform the tasks, normally performed by her, of presenting for about 45 minutes at monthly employee inductions. His affidavit also spoke of the inductions taking two to two and a half hours, as distinct from 45 minutes. It was never made clear whether he was there speaking of different tasks or it was a drafting error. Ms Moller estimated inductions would take 10 to 25 minutes.[86]
[86]T14-20 L10-12.
At one point of his testimony Mr Ackers erroneously asserted the inductions were actually fortnightly but when taken to records conceded that error. This was an innocuous error in the context of a lengthy period giving evidence of recollections about an array of different meetings and obligations. In addition to his induction presentations he had to attend two one-hour meetings with a Council staff member responsible for training, would invest additional time preparing for each presentation and he claimed he also took three to four days to produce his presentation materials, which seems improbably long.[87] The materials could not be located in Council’s management system but that is a neutral consideration because the exercise was so obviously effected by unknown variables such as how the document was titled. That said, my impression is that Mr Ackers, having been deeply frustrated by carrying this burden, probably overestimated the extent of the actual demands on his time of responsibility for it.
[87]Ex 6 [189]-[193]; T5-74 L26.
Mr Ackers also deposed that since January 2015 the payroll unit had assumed responsibility for reconciling and processing the timesheets of agency staff, that is, staff engaged by Council from labour hire companies. Mr Ackers deposed this took him half a day every Monday, there being up to 30 agency staff per week to be processed.[88] It is not apparent why, before the era when the three staff were absent, this was a task he, as distinct from other unit staff, performed. In any event it may be accepted that it too was work made more difficult to complete by the unit because of the absence on leave of Ms Tier, Ms Cracknell and Mr Wier. The same may be said of the need, emphasised in evidence by him, to work on a TOIL (“time off in lieu”) reconciliation process. It was, in effect, part of the further responsibility of his position, made more difficult to fulfill by the staff absences.
[88]Ex 6 [188].
The relevance of Mr Ackers’ obligations regarding these various initiatives and work tasks in this proceeding is not that it was unnecessary for him to be required to attend meetings or take responsibility for performing other work as supervisor of the unit. Rather it is that his obligation as a supervisor to do so significantly lessened the working hours available to him within the unit to perform or assist others in performing the tasks of absent staff during ordinary working hours. His resentment of having to spend time on these tasks outside the unit was not because of a sense of entitlement as Council submitted, it was because the payroll unit was inadequately staffed and struggling with its core work.

A need to work longer hours

Longer hours

Mr Ackers deposed that the inadequacy of the unit’s staffing after the loss of three experienced full-time staff members on prolonged sick leave compromised the work efficiency of the payroll unit and resulted in him working longer hours.[89]
[89]Ex 6 [119].
According to his letter of appointment Mr Ackers was to work “a nominal 72.5 hours, 9 days a fortnight”, which represents a working day of 8.05 hours.[90] Mr Ackers gave evidence he was supposed to work from 8.30am to 4.40pm (“ordinary hours”) and that even before Ms Tier, Mr Wier and Ms Cracknell went on sick leave, he would often work 30 minutes to an hour longer each day. However, he gave evidence that after these three staff went on sick leave, his hours worked beyond ordinary hours increased substantially to a minimum of 15 hours per week and involved him at times working on weekends and late at night.
[90]Ex 6 PAA-2 p 8.

Two overnighters

Mr Ackers twice worked through the entire night. The first overnight stint occurred on Monday 11 May 2015 after a data loss. Mr Ackers recollection was that this resulted from the crash of part of the CHRIS21 system after the upgrade of the system’s structured query language (“SQL”) version. Mr Ackers’ adverse view of the risks and efficacy of this test process and whether it or he was the cause of the data loss (and even whether it was an upgrade), attracted much attention in evidence but requires no analysis here. The pertinent point is that when the system was restored, two days’ worth of data had been lost. Mr Ackers deposed this required him to work through the night, performing manual calculation and data entry of timesheets and other manual processes associated with the payroll process.[91] While Mr Ackers evidently worked through the night because he believed it was necessary to do so, there is no suggestion that Council had directed or required him to do so. Indeed, Council did not discover that he had worked through the night until the following morning when Mr Ackers informed Ms Wise. Mr Ackers deposed Ms Wise asked why he had been there all night and he responded that “it was to get the pays done”. On Mr Ackers’ account, Ms Wise informed him what he had done was not healthy and that he needed to go home for a break but he asserted he could only leave once the pays were done, around 3pm, and she approved of him remaining at work until then.
[91]Ex 6 [232].
Ms Wise recalled being told by Mr Ackers of an occasion when he had worked through the night. She testified she told him that was unacceptable and that he should normalise his hours.[92] On Ms Wise’s account she directed Mr Ackers all overtime needed to be approved in advance and that APES forms, which record overtime and the endorsement of supervisors and managers, were to be used for that purpose.[93]
[92]T13-8 LL18-26.
[93]T13-9 l1; Ex 17.
Ms Wise, who still worked at Council, testified she would not expect anything would have been so urgent as to have required Mr Ackers to work through the night but could not recall whether she asked Mr Ackers why he had worked all through the night.[94] This strained credulity – it is implausible she would recall this event and the steps she took to prevent a recurrence yet not recall discussing the circumstances which provoked it.
[94]T13-9 L42 – T13-10 L2.
Within a few days, on 14 May 2015, records from the Redlynch Medical Centre record Mr Ackers attended as a new patient.[95] The consultation notes recorded he had problems with asthma, depression and high cholesterol and, alluding to an antidepressant called Aropax, noted:
“Stable on Aropax 60 mg – does not want to reduce – has had major issues in past – Had lots of deaths etc. Found somebody after suicide.”[96]
[95]Ex 62 p 1.
[96]Ex 62 p 1.
It was highlighted in cross-examination that no entry was made in the patient health summary linking any of his problems with work, but he could not recall the detail of the consultation.[97]
[97]T7-67 L10.
Mr Ackers deposed the second occasion on which he worked through the night was about two weeks after the first, on Monday 25 May. Mr Ackers deposed that on this occasion it was necessary to remedy the loss of one and a-half to two days of “data in the system”.[98] On Mr Ackers’ account, he informed Ms Wise the only way to avoid a consequential looming 12 to 14 hour delay in the payment of employees was for him “to put in another overnight shift”. On his account, Ms Wise gave verbal permission for him to do another overnight shift.[99]

Long work hours of work a breach in itself?

[98]Ex 6 [248].

[99]Ex 6 [251].

Pleading

On the topic of excessive hours, the breaches alleged in paragraph 85 of the amended statement of claim and, in brackets, the relevant responses to a request for further and better particulars, are:
“(a)Causing and/or permitting the Plaintiff to work excessive hours when the employer knew or ought to have known it was occurring;
(b)Failing to implement any or any adequate policy to prevent the Plaintiff from working excessive hours;
(Further particulars: the content of the adequate policy should be such that it prevented the Plaintiff from working excessive hours)
(c)Failing to adequately staff the payroll department so that the Plaintiff would not be required to work excessive hours;
(Further particulars: a sufficient number of skilled and experienced staff, compatible to the workload at any given time, would be required to adequately staff the payroll department)
(d)Failing to supervise the Plaintiff or do so adequately so that his workload did not increase beyond what he was able to complete in a 7.25 hour day;
(Further particulars: the Defendant, through its servants or agents, ought to have provided adequate supervision)
(e)Failing to make arrangements for staff to assist the Plaintiff to complete the work of the payroll department after the Defendant became aware that the Plaintiff was working excessive hours in or about April 2015;
(f)Agreeing to the Plaintiff entering into a “RDO Buyout” in May 2015 in circumstances where the Defendant knew that the Plaintiff was working excessive hours;
(Further particulars: the details are contained in annexure H (to the amended response to request for further and better particulars), titled RDO Buyout Option)
(g)Requiring the Plaintiff to engage in projects and non-core duties between March and August 2015 in circumstances where the Plaintiff had informed Ms Wise that engaging in those duties meant that he was required to work excessive hours;
(Further particulars: the Plaintiff so informed Ms Wise on numerous occasions between March and August 2015; the Plaintiff repeats and relies on further particulars given about non-essential meetings and additional work tasks)
(h)Ms Wise and Mr Andrejic agreeing to the Plaintiff working “as many hours as required to get the pays out” after a system issue meant a delay in the payroll system of 12 to 14 hours;
…
(p)Failing to provide any or any adequate supervision to ensure that a safe system of work was adopted by the Defendant with respect to:
(i)Not allowing or requiring their employees to work excessive hours;
…”

Long hours

The notion that the manager of a work unit of corporate administration may sometimes perform his or her work outside the ordinary working hours of that unit is unremarkable and obviously not unreasonable of itself. At what point such hours worked outside ordinary hours amount to an “excessive” quantity is less obvious. It is more helpful to focus upon the quantum and frequency of hours worked outside ordinary working hours, rather than the adjective pleaded to describe them, bearing in mind the issue is whether they were such as to have made psychiatric injury reasonably foreseeable.
Mr Ackers deposed he worked overtime, that is, outside ordinary hours:
·from September 2014 to early March 2015 for 30 minutes to an hour each day;[100]
·from early March 2015 to 6 July 2015 for a minimum of 15 hours per week, at times working on weekends and late at night;[101]
·from 6 July 2015 to 23 September 2015 for an average of five hours per week.[102]
[100]Ex 6 [123].
[101]Ex 6 [127].
[102]Ex 6 [127].
That someone in Mr Ackers’ position may have worked an hour or so longer than daily working hours from September 2014 to early March 2015 and from 6 July 2015 to September 2015 does not of itself bespeak a foreseeable risk of psychiatric injury. The more potentially concerning workload, now focussed upon, is for the period from early March to 6 July 2015.
For present purposes that period may more accurately be considered as the 14 week period commencing on 25 March, around when Ms Tier and Mr Wier went on sick leave, and ending on 30 June, the day before Mr Ackers went on sick leave from which he did not return until Monday, 6 July.
Council’s position at trial was that Mr Ackers had exaggerated the hours he worked outside ordinary hours, particularly during that period. The issue was explored in various ways.

Schedules advanced by Mr Ackers

Mr Ackers created a schedule relating to a 2016 claim he made for unpaid work.[103] The total of the hours said to be owed in that schedule for the period 25 March to 30 June add up to 185.25 hours or an average of 13.2 extra hours a week. This is not far removed from Mr Ackers’ deposed estimate. It is well over a day and a half extra working days a week for 14 weeks.
[103]Ex 16.
A more recent schedule was created by Mr Ackers for the present proceeding.[104] It was prepared by reference to Council’s records of building entries and exits attributable to Mr Ackers by reason of his use of his Council electronic access swipe card. It was said to represent the minimum hours outside ordinary hours worked by Mr Ackers. In that schedule the total of the hours of swipe card recorded attendances in addition to ordinary hours, on weekends or working days when ordinary hours were exceeded, for the period 25 March to 30 June, add up to 88.49 hours or an average of 6.32 extra hours a week. While that is the substantial majority of an extra standard working day a week for 14 weeks it is a little under half Mr Ackers’ above deposed estimate.
[104]Exhibit 2 (annexure B to the amended response to request for further and better particulars).
Mr Ackers considered the swipe card records understated his work performed. He was cross-examined at length about those records, in the course of which he gave answers speculating as to reasons for why the swipe card records understated the true position. Some were less convincing speculations than others, a feature on which great weight was placed in closing addresses. However, I did not regard the fact that on this topic he proffered some unlikely speculations as materially undermining his credit. It should be borne in mind his position was that because he was certain he had worked substantially longer than the swipe cards suggested, they could not be a complete record of all his arrivals and departures. Further, he was not an expert on Council’s swipe card processes so his posited explanations for the anomaly, when it was pursued in various ways in cross-examination, were destined to be speculative.
Mr Ackers pointed out that not all his arrivals and departures may have been registered if he was moving in company with another person who used their swipe card, as he asserted would occur from time to time.[105] That was less likely to occur after hours because there would have been a limited range of persons with swipe card access to the vicinity of the payroll unit after hours. Despite this Mr Ackers was unwilling to concede the weekend swipe card records of his attendances were “pretty accurate”. In this context he recalled that others with afterhours access would sometimes attend work after hours and on a few weekends Council’s swipe entry system was turned on and off to allow weekend access by an employee called Rosie Ball.[106] Council submitted Mr Ackers’ example relating to Ms Ball was not credible, apparently thinking Mr Ackers meant the system was de-activated for an entire weekend but there was some ambiguity in what Mr Ackers meant.
[105]Eg T5-10 L36.
[106]T5-12 L43; T5-13 L12.
Mr Ackers also asserted that, whilst a rarity, he took timesheets home to work on several times.[107] However, I did not understand this rarity, seemingly volunteered under pressure in cross-examination about access to the building, to have been factored into his estimate of average working hours. He also posited there would have been some days when he left his swipe card at home and was issued with a temporary one which may not have featured in a swipe card record search pertaining to him. It is reasonable to assume that was also rare.
[107]T5-20 LL18-33.
His position finds indirect support from the fact that according to the swipe card records Mr Ackers was, on some working days, recorded as being in attendance for less than ordinary hours. In the period 25 March to 30 June on those days when the swipe card recorded attendances for less than ordinary working hours, the total period of notionally unworked ordinary hours is 47.81 hours.[108] Mr Ackers may have spent ordinary working time at meetings and the like at locations elsewhere in Cairns but that possibility is unlikely to account for that many hours. Mr Ackers could only recall leaving early on two occasions, in connection with securing domestic accommodation when he commenced employment and again six months later.[109] It is important to bear in mind the oral testimony of others in the workplace during this 25 March to 30 June period was consistently to the effect that Mr Ackers was very busy throughout the working day. That testimony was obviously reliable, coming as it did from multiple sources, and is inconsistent with the notion that Mr Ackers was not working full days. In light of that evidence the above total of notionally unworked hours founded upon the swipe records appears unreliable. This likelihood in turn supports Mr Ackers’ position that the swipe card records do not provide a reliable record of all his attendances in the building in that they fail to evidence all of the times when he was present at work.
[108]The addition of the hours in red in the “hours worked in addition to default” column.
[109]T5-5 L46.

Meta data

Beyond swipe card records another potential evidentiary source of when Mr Ackers was at work is Council’s document management system, in the sense its meta data would show when Mr Ackers was active in the system. It may be expected a substantial part of his work would have involved accessing that system but not all of it would. For instance, the work Mr Ackers had to assist with in the absence on leave of the three staff, involved substantial manual work, like coding timesheets. Further, Mr Ackers would not necessarily have been active in the system when performing supervisory work and attending at meetings. He also testified some of his word processor activity, such as internal memoranda to his staff, would not have been conducted in the system.[110] Ms Wise confirmed that Mr Ackers would have stored documents locally on his own computer and his accessing of those documents in his computer would not have shown up as being accessed in Council’s document management system.[111]
[110]T5-35 L24; T8-58 L17.
[111]T13-41.

RDO buyout

It will be recalled on 6 May 2015 an RDO buyout was approved for Mr Ackers’ accumulation of eight RDO days which he had been unable to take. This was additional evidence of his extra hours worked. An attempt was made in cross-examination to undermine it by contending Mr Ackers in fact took many of those days off. The period from Mr Ackers’ commencement on 22 September 2014 to 6 May 2015 is about 16 fortnights. Council produced a schedule formatted variably in exhibits 18 and 79, which lists 12 weekdays within that period during which it was suggested, premised on the absence of evidence of Mr Ackers’ activity in Council’s swipe card records and its computer system, that Mr Ackers must have taken RDOs. The above observations as to the limitations in this context of Council’s swipe card records and its computer system are relevant in qualifying the force of such an exercise.
Mr Ackers conceded some of the 12 days identified by Council were taken as RDOs and was non-committal in commenting on some others. However, his responses and the state of the evidence for four of the days suggest he likely did work on those days.[112] This would reduce Council’s purported schedule of RDO days likely taken, from 12 to eight, leaving a balance of eight in that 16 fortnight period, which is consistent with the legitimacy of Mr Ackers’ RDO buyout.
[112]15.12.14: Mr Ackers did log into the system that day T5-43 l38; 27.1.15: Mr Ackers’ calendar recorded a meeting that day T5-44 L20, Ex 6 PAA-4 p 39; 10.3.15: Mr Ackers swiped into the building at 7.34 am T5-45 L6; 20.4.15: Mr Ackers’ calendar recorded meetings that day T5-47 L46, Ex 6 PAA-4 p 51.

APES forms

Another relevant evidentiary source is the APES forms. It will be recalled Ms Wise told Mr Ackers after learning of his first “all nighter” that all overtime was to be approved and APES forms used.   The so-called APES forms, in which Ms Wise subsequently approved Mr Ackers working overtime, record the following overtime hours for the following dates:
Sat 23 May 2015         7 hours
Sun 24 May 2015        7 hours
Mon 8 June 2015        9.5 hours (Queens Birthday Public holiday)
Sun 21 June 2015        5 hours
Mon 22 June 2015      5 hours
Sat 27 June 2015         5 hours
Mon 29 June 2015      2.5 hours
[113]Ex 17. The form recording work on 23 and 24 May 2015 erroneously records it as 2014. It also includes a further two hours without specifying the detail of it.
Tues 30 June 2015      2.5 hours[113]
That is a total of 43.5 hours accumulated within a period of only five weeks and three days, an average of about 8 hours a week.
As with the RDOs an attempt was made in cross-examination to undermine the accuracy of the APES forms record of overtime by contending Mr Ackers did not work as long as claimed. It was likewise inconclusive in trying to undermine facts treated as accurate by Council’s own managers at the time.
The APES forms also support Mr Ackers’ position that the swipe card records do not provide a reliable record of all his after-hours attendances in the building in that some of the total hours in the APES forms are not supported by swipe card records. It is important to appreciate the APES records relate to overtime approved in that era. It is unlikely Mr Ackers was then greedily rorting overtime claims given that he only came to be completing the APES forms because of his employer’s direction in the wake of it being realised he had been generously performing significant unpaid overtime. The APES forms are likely a more reliable contemporaneous record of the hours worked on the days they relate to than the swipe card records.

Conclusion

The effect of Mr Ackers’ evidence about the 25 March to 30 June period was that he would have worked extra hours for which he was not paid overtime even in the final five weeks of that period to which the APES forms relate. Those forms of themselves give an average of eight extra hours a week. It is to be borne in mind some of the time in the APES forms was for extra hours worked on some weekdays. An additional moderate amount of daily extra time worked incrementally beyond ordinary hours on weekdays would likely have escaped the intervention of Ms Wise during that five week period, though I doubt that in that five week period it would have been quite as much as another seven hours a week so as to uplift the aforementioned eight hours, to the 15 hours a week estimated by Mr Ackers.
I accept that in some weeks, earlier in that period, Mr Ackers’ average may have ranged as high as 15 hours a week worked additional to ordinary hours. However, my sense of the evidence overall is that, as demanding as Mr Ackers’ additional working hours were, a weekly average of 15 hours for the entire period is probably a slight over-estimate. In my conclusion, if the hours a week worked additional to ordinary hours are expressed as an average for the 25 March to 30 June period, the average would likely have been about 12 hours a week.
This is of course a substantial additional amount of working hours, worked over a prolonged period. Council had corporate knowledge he was working very long additional hours, albeit it was not monitoring the amount closely.
Rightly or wrongly it is not unheard of for administrative staff with managerial responsibilities to work substantially longer hours than their official working hours. Reasons for doing so, which are not mutually exclusive, may include a desire to keep up with a substantial workload, an awareness of having been inefficient with working time during ordinary hours, a desire to work without distraction, professional pride, loyalty and ambition.
The present issue is not the moral or legal impropriety of employers expecting workers to carry workloads over a sustained period which can only be met by working one to two hours longer than standard hours each weekday as well as working for part of the weekend and occasionally having to work through the night.
The issue, at least at this point in my reasons, is whether this employer’s knowledge of such additional hours, if averaging about 12 extra hours a week for 14 weeks, made it reasonably foreseeable that Mr Ackers may suffer a psychiatric injury. The issue is finely balanced, particularly factoring in knowledge that in relatively close succession Mr Ackers twice worked through the night. It was undoubtedly a prolonged and substantial burden. Ultimately though I do not accept that the volume of extra working hours was, standing alone, so extraordinary as to bespeak foreseeable risk of psychiatric injury. In my conclusion, assuming that Mr Ackers was a person of normal fortitude, it was not reasonably foreseeable that the burden of such extra working hours may cause a psychiatric injury.
The qualification that Mr Ackers was a person of normal fortitude is important and heralds the point that it is artificial to consider the issue of foreseeability by considering the volume of extra working hours standing alone.

Inadequate staffing the cause of having to work longer hours

Before moving from the topic of long hours it is convenient to deal briefly with Council’s position that if, contrary to its contention, Mr Ackers did work excessively long hour hours, that was because of his inefficiency. It may be accepted Mr Ackers, like any worker, may have sometimes worked additional hours outside ordinary hours because of his own mistakes or inefficiencies during the working day. However, the extent of his long hours during the above discussed era, as distinct from earlier, when there was no problem with inadequate staffing, makes it obvious it was understaffing, not inefficiency which caused the prolonged period of long additional hours worked.
This conclusion is consistent with the evidence of other staff about the pressure of work during that era.[114]

Corporate knowledge of stress on Ackers accumulates

[114]I record I was not materially assisted on this issue either way by the evidence of Kelly Metcalf, who worked in the position of payroll coordinator, previously classified as payroll supervisor, with the Council in 2019. The effect of her evidence was the unit could not then discharge its duties without some staff having to work additional hours outside ordinary working hours. I was not satisfied the circumstances then were sufficiently similar to the era under consideration to draw any reliable conclusion from her evidence on this issue. The same applies to Council’s attempt to use the evidence of Ms Moller in a like way.

Corporate knowledge of “huge stress” on Mr Ackers as at 28 April 2015

Ms Baker, as human resources coordinator, met regularly with the various human resources advisors to departments of Council. On 28 April 2015 in a meeting with human resource advisor Rachel Faithful, regarding the finance department, she noted she was told by Ms Faithful at the meeting:
“Payroll – crazy crazy, huge stress on Paul, Karyn and Deeann. Rachel concerned about hours being worked and health of the team.”[115]
Ms Baker testified that she conveyed that information to the manager of the human resources branch, Christine Posgate.[116] When that was put to Ms Posgate she responded that she did not recall it,[117] although she did acknowledge having learned there were concerns expressed that with the loss of three employees there was understaffing and an increased workload on others in the payroll unit.[118] I accept Ms Baker’s evidence that she did convey what Ms Faithful had told her to Ms Posgate.
[115]Ex 46, attachment 3.
[116]T9-31 L39.
[117]T15-37 LL20-30; T15-39 L27.
[118]T15-40 LL35-46.
I reach that conclusion conscious Ms Baker has long been a close supporter of Mr Ackers. Ms Baker’s friendly relationship with Mr Ackers changed in late 2015 into what she described as more of a “partner relationship”[119] and what he described as a romantic relationship.[120] Mr Ackers denied the relationship had elements of romance any earlier.[121] An exhibited email, apparently from Mr Ackers to Ms Baker, dated 27 March 2015 suggested that at least Mr Ackers had a sexualised interest in Ms Baker as at that time, as Mr Ackers seemed to accept,[122] but Ms Baker could not recall receiving the email.[123] Further, a psychiatrist who saw Mr Ackers on 26 February 2016, Dr Shebini, noted the words “in a relationship 12 months”.[124] Of that notation, which Mr Ackers explained was inaccurate, Mr Ackers conceded he could have said it but was highly medicated at that time.[125] The probability is that a close bond was developing between them throughout 2015 as they had contact with each other in the workplace, so that there was a gradual rather than precise transition of the relationship into a romantic one.
[119]T9-42 L3.
[120]Ex 6 [449].
[121]T5-54 L12.
[122]T5-58 L3.
[123]T9-59 L12.
[124]Ex 19.
[125]T5-54 L26 – T5-55 L13.
After Mr Ackers ceased employment at Council Ms Baker assisted him in preparing a wages claim against Council before the Queensland Industrial Relations Commission in 2016.[126] Indeed she herself resigned from Council that year under threat of disciplinary action about a disclosure by her to Q-Comp in support of Mr Ackers’ review of his worker’s compensation claim.[127] Ms Baker and Mr Ackers each acknowledged they had regularly discussed the present case with each other.[128]
[126]T9-54 L40.
[127]T9-53 L20.
[128]T5-60 L20; T9-57 L19.
These are all reasons why I took particular care in assessing the reliability of Ms Baker’s evidence in support of Mr Ackers’ case, and Mr Ackers’ evidence for that matter, but her testimony did not present as inherently unreliable. More particularly, it was consistent with apparently contemporaneous notes.[129] Further, her assertion that she disclosed the abovementioned concerns regarding Mr Ackers to Ms Posgate, as well as subsequently communicated concerns, was not disputed in cross-examination.
[129]Ex 46.

The records reveal problems with his concentration and memory were troubling him into 2018 but seem to have improved. He fared well keeping himself entertained during a COVID-19 lockdown, is a keen listener to podcasts and audio books and reads, though the extent of his absorption and retention of content is less clear. He does puzzles though he takes a long time to complete them. He has sufficient focus to cook for himself. He rated his memory 7 out of 10 in mid-2020, which Professor Whiteford suggests would be consistent with class 2 impairment.
The assessment is borderline as between class 2 and 3. He falls into the lower end of the range for class 3.

Adaption

Adaption is the area of functional impairment dealing with employability. Dr Byth assessed a class 4 level of impairment, that is severe impairment
I would have readily favoured a less severe assessment had Mr Ackers successfully progressed the pursuit of further study or voluntary work. He has not. I accept the class 4 level assessment.

Median class score and calculation

Section 6 sch 10 requires the calculation of a median score on the assessments listed in ascending order, rounding up to the nearest high number. Thus, 2,2,2,3,3,4 results in a median score of 3. The total class score equals 16.
As s 4 requires, the next step is to apply that data to the s 7 conversion table, which gives a percentage impairment result of 17%. That is the pre-injury rating.

Pre-existing impairment

Where there exists a pre-existing impairment, as there was here, viz, the dysthymic disorder, the same process as above is applied to the pre-existing disorder.
Dr Byth’s assessments and calculations for that disorder went unchallenged, appear unremarkable on the known evidence and I accept them. They give rise to a pre-injury rating of 5%.

PIRS

Pursuant to s 5, 17% less 5% gives rise to a PIRS of 12%.

ISV

Pursuant to sch 9, an example of a mental disorder with a PIRS rating between 11% and 30% is a serious mental disorder. It has a range of ISV’s of 11 to 40.
Section 9 sch 8 permits the consideration of other matters in assessing the ISV for Mr Ackers. I earlier summarised Mr Ackers’ account of his present state and his recorded progress. It is clear his injury has had an all-pervasive effect upon his existence. Nightmares, ruminations, flashbacks, low self-esteem, anxiety, impaired memory, lack of concentration, lack of motivation and agoraphobia have all plagued his mind. His stutter, tremor, incontinence and loss of libido are all concerning and embarrassing physical manifestations and reminders of his mental illness. His sense of worth as a member of the community with a working future is gone. His everyday enjoyment of life and his capacity to enjoy the company of others has been grossly diminished. He experienced a very significant loss of the amenities of life, the degree of which was initially quite devastating and, after some modest improvement, plateaued from 2018. While some further improvement is expected post litigation his condition will never experience full remission and he will not fully regain the amenities of life he previously enjoyed.
In my conclusion his ISV should fall at about the two thirds point of the 11 to 40 range. I assess his ISV as 30.

General damages

The application of an ISV of 30 to the relevant table, table 6, of the general damages calculation provisions in sch 6, gives rise to a general damages calculation of:
($41,200 base amount) + ((30 – 25 ie 5) x $2,360 = $11,800) = $53,000
I will award general damages in the amount of $53,000.
Section 306N of the Act precludes payment of interest on general damages.

Statutory process for assessing loss of earnings

The maximum award a Court may make for damages for loss of earnings is limited by s 306I Workers’ Compensation and Rehabilitation Act 2003 (Qld) to an amount equal to the present value of three times Queensland Annual Time Earnings (“QATE”) average weekly earnings as published by the Australian Statistician for each of the weeks of the period of loss of earnings. That maximum is not going to be reached in the present case.
Section 6 of the Act defines loss of earnings as relating to both past and future loss in these terms:
“loss of earnings means –
(a) past economic loss due to loss of earnings or the deprivation of impairment of earning capacity; and
(b) future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”
The Act therefore contemplates that either of the value of the loss of earnings or the value of lost earning capacity is a measure of loss of earnings.
As to the calculation of loss, s 306J of the Act relevantly provides:
“306J When earnings can not be precisely calculated
(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 that the person      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.
(3) If the court awards damages, the court must state the assumptions        on which the award is based and the methodology used to arrive at the award. …”

Past economic loss

Past loss of earnings

Mr Ackers was 45 at the time of injury and is now 51.
Mr Ackers claims past economic loss on the basis his earnings at Council at the time of his injury were $1,314.03 net per week (inclusive of a one off payment and allowances). That calculation of those net weekly earnings is not in dispute.
Mr Ackers submits that his past economic loss should be quantified as being that defined weekly loss multiplied by the weeks since he ceased work to the date of judgment. For ease of computation, I shall round that period when assessing damages to 325 weeks.
Such a claim does not take the optimistic course of contending his weekly earnings would have increased, though Council contends it is still optimistic because it assumes he would have remained with the Council.
Council seeks a discount for pre-trial contingencies of 20%. It contends there is a real possibility Mr Ackers may have been dismissed, referring to a substantial overpayment of payroll tax by the payroll unit in 2015, discovered after Mr Ackers left Council, as an example of the kind of significant errors which could result in dismissal.[569] That has echoes of the flawed assumption that Mr Ackers ought be blamed for any payroll unit mistake. In any event the point is that it cannot be assumed as a certainty that Mr Ackers would have remained at Council and that, if he did not, he would have promptly regained employment elsewhere earning as much as he had been at Council. There also exists the prospect that if Mr Ackers had not been injured his existing depressive illness may eventually have been aggravated by the occurrence of further workplace stressors or other life stressors resulting in him ceasing work. However, it is now known there were in fact no other such life stressors which occurred in the meantime. I accordingly adopt a moderated discount for contingencies of only 7.5%, so that his award will be 92.5% of the total otherwise arrived at.
[569]T18-61 L25.
Using the aforementioned weekly amount as quantifying his loss, before discounting his past loss of earnings is $1,314.03 x 325 weeks = $427,059.75 x 92.5% = $395,030.27.

Past loss of superannuation

Past superannuation on that amount is also claimed, at 12.5%. That rate seems to have been adopted in Mr Ackers quantum statement without explanation. It appears from his letter of appointment[570] that the rate should be 12%,[571] however Council accepts the use of a rate of 12.5%.[572]
[570]Ex 6 PAA-2 p 9.
[571]It being unlikely he would not have taken up the generous contribution arrangement available.
[572]T17-38 L6.
The claimed amount also seems to have been related to net income but it should be 12.5% of gross income, which was $88,270.61 per annum.[573] Adopting the same weekly approach as above, his past loss of superannuation is calculated as: gross annual income of $88,270.61 ÷ 52 = $1,697.51 a week x 12.5% = $212.19 a week x 325 weeks = $68,961.75.
[573]There may be instances in which superannuation is also paid on some additional payments but there is no evidence allowing any informed conclusion about that possibility here.
I will allow $68,961.75 for past loss of superannuation.

Interest on past economic loss

The total past economic loss is $395,030.27 + $61,402.82 = $456,433.09.
The statement of claim seeks interest per s 58 Civil Proceedings Act 2011 (Qld). Section 306N of the Act requires interest on damages compensating past monetary loss must be related in an appropriate way to the period over which the loss was incurred and not be more than at the rate for 10 year Treasury bonds at the beginning of the quarter in which the award of interest is made. That rate was 1.72%.[574]
[574]Per RBA Statistical Tables, F2.1 Capital Market Yields, Commonwealth Government 10 year bond (rate at 1 October).
Given the accumulation of loss was of even progression I would halve the above rate to apply to the whole of the loss, as follows: 1.72% x 0.5 = 0.86% of $456,433.09 = $3,925.32. I will accordingly award interest on past economic loss of $3,925.32.

Past special damages

Past special damages

The plaintiff claimed $162,706 for past special damages constituted in summary by:
·$27,699.35 Medicare
·$94,585.45 Bupa
·$5,047.32 pharmaceuticals
·$22,654.08 travel
·$12,719.80 hospital and medical.”[575]
[575]Ex BB.1 for identification.
Council did not dispute the past special damages claim.[576] Such detail of it as was provided is unremarkable and I accept the total claimed, subject to the need to uplift it somewhat to allow for the inevitable accumulation of some additional such costs in the time pending judgment. That ought be a modest, not a temporally proportionate, uplift because the very substantial concentration of claimed costs were incurred long before trial, as is apparent, for example, from Mr Ackers’ schedule of hospital and medical expenses.[577] In the circumstances I will round the claimed sum up to allow a sum of $164,000 for past special damages.
[576]T17-38 L31. Council indicated it was double-checking one component of the claim but did not subsequently suggest its checking had identified any error.
[577]Ex 11 Annexure A.

Interest on past special damages

I would apply a similar approach to interest on past special damages as to interest on past economic loss but adjust the moderation of the relevant rate to reflect the reality that the substantial majority of special damages was accumulated well before the half way point of the whole period between injury and judgment. Accordingly, I would only discount the interest rate by 20%.
I would therefore calculate interest on past special damages as follows: 1.72% x 0.8 = 1.376% of $164,000 = $2,256.64 .
I will accordingly award interest on past special damages of $2,256.64.

Wilson v McLeay damages

A claim for so-called Wilson v McLeay[578] damages at the rate of $150 a day during Mr Ackers two in-patient stays in the Cairns clinic over a total duration of 159 days. Its premise is that Mr Ackers’ mother visited from Brisbane for two to three weeks and others visited so that each day such visitors provided Mr Ackers with what he deposes was “much needed emotional support and assistance with tidying my room, running errands, washing, buying snacks and drinks and bringing items of need and comfort”.
[578](1961) 106 CLR 523.
The claim is reminiscent of that presented to McMeekin J in McAndrew v AAI Limited,[579] where there was no evidence of the expenses incurred or the need for the visits in connection with the plaintiff’s treatment. I respectfully agree with McMeekin J’s summary of the applicable principle, derived from Wilson v McLeay:
“The general principle that applies is that the visits need to be reasonably necessary for alleviation of the plaintiff’s condition. Visits prompted merely by love and affection are not compensable.”[580]
There is no evidence the visits here were necessary to alleviate Mr Ackers’ condition. There is no evidence the running of errands of convenience for the sustenance and physical convenience of Mr Ackers was necessary to alleviate his condition in a way the delivery of sustenance and physical convenience in any event provided in the in-patient setting could not achieve. This really only leaves the emotional support provided by the visits and there is no medical evidence that support was necessary for alleviation of his condition. I am prepared to infer, as McMeekin J did in McAndrew, that the management of his psychiatric condition must have derived some assistance from the supporting presence of his loved ones, including his mother who flew to Cairns. However, by reason of the evidentiary deficiencies I assess only a modest sum. I will allow $1,500 for Wilson v McLeay damages.

Future economic loss

[579][2013] QSC 290.

[580][2013] QSC 290, [131] (citations omitted).

Future loss of earnings

Mr Ackers claims future economic loss on the basis he would have continued in employment until his “notional retirement age”, evidently 67.[581] While no other evidence was proffered in support of the selection of that age, it was not challenged and is a reasonable approximate notional point for calculation of future loss. His 67^th birthday is less than a month over 15 years away.
[581]Ex 11 [35].
In the circumstances I will, pursuant to s 306L of the Act, adopt a multiplier derived from a rate of 5%, premised upon him working another 15 years, which is a multiplier of 540.1.[582]
[582]See table 4 of the appendices to Luntz and Harder, Assessment of Damages for Personal Injury and Death, 5^th edition.
Mr Ackers claims future economic loss due to loss of prospective earnings on the premise he would have continued to earn the aforementioned $1,314.03 net per week to retirement. The claim effectively quantifies the loss of prospective future earnings on the assumption he will not regain any income earning capacity. I do not accept that assumption.
I have found that with the conclusion of this case Mr Ackers will experience some moderate further improvement in mental well-being and concentration and be able to re-engage more actively and productively in the community around him. It is reasonable to infer his moderately improved capacity will allow him to perform at least some remunerative work.
The field of available work would be narrowed by Mr Ackers’ on-going limitations. It is doubtful Mr Ackers will regain the mental strength to cope with stressors in a workplace reminiscent of the workplace events which resulted in his injury. This makes it unlikely he will improve sufficiently to resume employment in his special field of payroll or in the capacity of a supervisor or in a workplace involving regular surges in workload and associated hours of work. Given the temporal pressures of most forms of full-time work the range of suitable full-time work options would likely be so limited that it is more realistic to consider the worth of his residual income earning capacity based on it being capacity to work part-time. Mr Ackers’ level of impairment is unlikely to improve to the point where he will successfully undertake further study or specialised training to qualify for significantly remunerated work. This leads to the conclusion that Mr Ackers’ residual income earning capacity ought be assessed on the basis of his moderate improvement resulting in him being able to perform some unskilled part-time work.
The parties, being planted in the opposite camps of no improvement and significant improvement, advanced no evidence about the extent of availability of suitable unskilled part-time work for a person of Mr Ackers’ age. I proceed on the assumption such work will be available but that Mr Ackers is not assured of always being employed to perform it. Allowance should be made for the likely reduced field of work mentioned above and for the level of disadvantage Mr Ackers will be at in competing with others, even for unskilled part time work. I bear in mind the anticipated improvement will not be instantaneous and that even in time there will inevitably be variability in the availability and duration of periods of part-time employment. In my conclusion, averaged out over the years ahead his residual capacity to earn an income will likely equate with a capacity to earn an average of $10,400 per annum, which is an average of $200 a week. I will make a modest global reduction to his claimed loss of future income, on that basis.
I accordingly adopt a reduced weekly net income figure, reducing $1,314.03 by $200 to $1,114.03.[583] Using that amount, his future economic loss, subject to discounting for contingencies, may be calculated as $1,114.03 x 540.1 = $601,687.60.
[583]An annual income of $10,400 would not attract income tax so there is no inconsistency in the present context of applying it in reduction of either a gross or net notional income figure.
Mr Ackers concedes there should be discounting of future economic loss by 20% to allow for the vicissitudes of life. This is a somewhat higher discount than is ordinarily conceded by a plaintiff for future contingencies. Council contends the discount should be substantially higher, at least 40%. It is appropriate there should be some uplift of the discount which may otherwise be appropriate because, even had the facts of this case not happened, Mr Ackers’ pre-existing condition materially heightened his future vulnerability to reduced or lost earning capacity resulting from aggravation of his pre-existing condition
Both experts in the case agreed Mr Ackers was vulnerable to the exacerbation of his pre-existing condition. Dr Byth agreed the dosage of anti-depressant medication Mr Ackers had been taking when he worked for Council was the maximum dose and a reduction in it would have risked exacerbating his condition.[584] Professor Whiteford considered that if such a dose was necessary Mr Ackers would have remained vulnerable to an exacerbation of his condition if exposed to psychological stressors.[585]
[584]T10-85 LL10-36.
[585]Ex 5c p 2.
Given Mr Ackers’ past vulnerability to depression, Professor Whiteford concluded a major psychosocial stressor, if sufficiently severe, would carry a very high risk of a deterioration of his depression. Professor Whiteford used Mr Ackers’ separation from his wife in 2012 as an example of a sufficiently severe psychosocial stressor.[586] As mentioned earlier, it transpires there has not been such a severe stressor, separate from the events with which this case is concerned. Nonetheless it obviously remains a material risk into the future.
[586]Ex 5a p 17.
Matters of degree are involved in this inherently imprecise exercise but in my assessment of the evidence a discount of 40% is materially too high and a discount of 20% is slightly too low. In my assessment the appropriate discount should be one quarter, that is, 25%.
Applying a discount of 25%, for contingencies, to $601,687.60 gives rise to an award for present day value of future loss of earnings of $451,265.70.

Future loss of superannuation

Applying that process to calculating an award for future loss of superannuation I would reduce the weekly gross income figure of $1,697.51 used in calculating past loss of superannuation, by $200, giving a weekly gross income of $1,497.51.
I calculate the present day value of the loss as $1,497.51 x 12.5% = $187.18 x 540.1 multiplier = $101,095.92 - 25% for contingencies = $75,821.94.

I will allow an award of $75,821.94 for future lost superannuation.

Future special damages

Recurring future special damages

Mr Ackers claims recurring future special damages for the course of his life expectancy in three categories.
First, he claims for ongoing consultations with his general practitioner on an average of once a month at $30 a visit, which equates to $6.92 per week (30 x 12 ÷ 52). This appears to be a reasonable approach, even allowing for some moderate improvement in his condition. I will adopt it.
Second, Mr Ackers claims for the ongoing purchase of pharmaceuticals at $68 a week. The approximation is supported by his existing pharmaceutical costs. It is reasonable to infer his moderate improvement should result in some diminution of his medication needs so I will adopt a weekly sum of $60 for future pharmaceuticals.
Third, Mr Ackers claims for an estimated 140km travelled per week, at 50 cents per kilometre, to medical appointments, rehabilitation classes, specialist appointments and the like. This equates to $70 a week. The claim is challenged on the basis it was not supported by any evidentiary detail. That want of proof does not eliminate the undoubted fact Mr Ackers will need to travel to various appointments related to the management of his condition. However, it is a reasonable inference the likely improvement in his condition and his consequent further productive re-engagement in society will see a material easing in his travel in connection with the management of his condition. Indeed, on his own claim he only anticipates seeing his GP once a month. It is realistic to anticipate there will be many weeks when he does not need to travel to attend appointments related to his condition at all and I will assume such travel would average out at about one trip a fortnight.
At the time of his quantum statement Mr Ackers lived at Mount Peter, which I take judicial notice is about 18km from the Cairns CBD, a round trip of 36km. Such a distance fortnightly equates to 18km per week. At the claimed 50 cents per kilometre that is $9 a week. I will allow that amount.
Mr Ackers recurring weekly future special damages for his life expectancy will be a weekly amount of $6.92 + $60 + 9 = $75.92 a week.
I will calculate the present day value of the loss as: $75.92 x 827.1 multiplier = $62,793.43 - 25% for contingencies = $47,095.07
Fixed future special damages
Mr Ackers claims fixed special damages in three categories.
The first two categories are $51,750 for specialist treatment for five years and $56,750 for electro shock therapy. The first seems to be based on the evidence of Dr Byth in his report of 13 June 2018 that Mr Ackers will need to remain in “specialist outpatient [psychiatric] treatment over the next five years, including counselling and an antidepressant and major tranquilliser medications” costing $15,750 plus Dr Byth’s opinion he “would not be surprised if he required 35 days of psychiatric hospitalisation, and a course of 10 ECT treatments, which would cost $36,000”.[587] Council does not dispute it is appropriate to allow a global amount, in the order of the $15,750 proposed, for the probability Mr Ackers will require some further psychiatric care in the short term.[588] On the basis that encompasses the whole of the anticipated psychiatric care it is an unremarkable approach, and I am content to adopt it in combination with the third category discussed below. I do not accept the much more speculative proposal for hospitalisation and ECT treatments. There is no evidence Mr Ackers’ treating psychiatrist has in mind such treatment. Mr Ackers has not been hospitalised since mid-2018. Further, the proposal is obviously premised upon Mr Ackers’ condition remaining entrenched without improvement after judgment and I have concluded it will improve.
[587]Ex 4a [12.11], [12.12].
[588]T17-38 L48.
The second category is unsupported by any apparent or credible evidence and I will not allow it. It may be based on Dr Byth’s opinion Mr Ackers may need to continue the same treatment in the first category for up to ten years.[589] If so it is sufficient to note that is at odds with my findings as to post-trial improvement.
[589]Ex 4b [9.3].
The third category of ongoing hand therapy, physiotherapy, speech therapy and specialist reviews in a global amount of $10,000 also lacks any specific evidentiary support. It is reasonable to infer some additional therapy and other specialist support will be required in the short term but the lack of evidentiary assistance means a conservative approach is apt. I will allow a global amount of $5,000.
The combined global amounts I would allow for fixed future special damages is therefore: $15,750 + $5,000 = $20,750. The amount relates to the short-term future so a contingencies discount is not apt.

Conclusion re total damages

The above findings give rise to the following calculation of total damages to be awarded:

General damages

$ 53,000.00

Past economic loss

$456,433.09

Past loss of earnings (including loss of non-cash benefits)
$395,030.27

Past loss of superannuation

$61,402.82

Total

$456,433.09

Interest on past economic loss (excluding general and special damages)

$3,925.32

Past special damages

$164,000.00

Interest on past special damages

$2,256.64

Wilson v McLeay damages

$1,500.00

Future loss of earnings

$451,265.70

Future loss of superannuation

$75,821.94

Future recurring special damages

$47,095.07

Fixed special damages

$20,750

Sub-total

$1,276,047.76

Less payments by Local Govt. Workcare[590]

-$ 176,915.07

Total damages

$1,099,132.69

[590]Ex 82.

The plaintiff should have judgment in the above amount.

PART C: ORDERS

Costs should follow the event subject to the cost implications of offers as between the parties.
My orders will allow for the potential need to hear and decide costs.
My orders are:
1.Judgment for the plaintiff in the sum of $1,099,132.69.
2.I will hear the parties as to costs, in the event they are not earlier agreed, at 9.15am on 2 February 2022 (parties having leave to appear by telephone or videolink).

CITATION:	Ackers v Cairns Regional Council [2021] QSC 342
PARTIES:	PAUL ANDREW ACKERS (plaintiff) v CAIRNS REGIONAL COUNCIL ABN 24 310 025 910 (defendant)
FILE NO/S:	SC No 636 of 2018
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	15 December 2021
DELIVERED AT:	Cairns
HEARING DATES:	1, 2, 3, 4, 5, 8, 9, 10 February 2021; 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 July 2021
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff in the sum of $1,099,132.69. 2. I will hear the parties as to costs, in the event they are not earlier agreed, at 9.15 am on 2 February 2022 (parties having leave to appear by telephone or videolink).
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORSEEABILITY – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the plaintiff began to show signs in the workplace of psychological distress – where the Council investigated a Union complaint against the plaintiff – where the plaintiff exhibited further signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether it was reasonably foreseeable to the Council that the plaintiff may suffer a psychiatric injury TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council breached its duty to take all reasonable steps to avoid unnecessarily exposing the plaintiff to a foreseeable risk of psychiatric injury TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council is causally responsible for the plaintiff’s psychiatric injury DAMAGES – ASSESSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERAL DAMAGES – ECONOMIC LOSS – SPECIAL DAMAGES – where the plaintiff has not worked since the date of the injury – where the plaintiff already had a pre-existing persistent depressive disorder – where the plaintiff developed more severe depression, anxiety, PTSD symptoms, a severe stutter and a tremor in his right arm – where there was some improvement upon the severity of the plaintiff’s symptoms up until 2018 but little substantial improvement since this plateauing – whether and to what extent the plaintiff’s condition will improve after the litigation concludes – what measure of damages for general damages, special damages, Wilson v McLeay damages and past and future economic loss is appropriate in the circumstances Civil Proceedings Act 2011 (Qld), s 58 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s.6, s 306, s 305B, s 305D, s 306J, s 306L, s 306O, s 306P Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130, sch 9, sch 10, sch 11, sch 12 Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, distinguished Hayes v State of Queensland [2017] 1 Qd R 337, applied Hegarty v Queensland Ambulance Service [2007] QCA 366, applied Jones v Dunkel (1959) 101 CLR 298, cited Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied McAndrew v AAI Limited [2013] QSC 290, applied Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied New South Wales v Lepore (2003) 212 CLR 511, cited Robertson v State of Queensland & Anor [2021] QCA 92, cited Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, applied State of New South Wales v Paige (2002) 60 NSWLR 371, distinguished Strong v Woolworths Limited (2012) 246 CLR 182, applied Sullivan v Moody (2001) 207 CLR 562, applied Wilson v McLeay (1961) 106 CLR 523, applied Wyong Shire Council v Shirt (1980) 146 CLR 40, cited
COUNSEL:	S D Anderson for the plaintiff R Morton for the defendant
SOLICITORS:	Slater & Gordon Lawyers for the plaintiff Jensen McConaghy Lawyers for the defendant

Payroll supervisor	Mr Ackers	Remained
Senior payroll officer	Alana Tier	Replaced by “temp” Julie Lukawski
Payroll officer	Karen Lunt	Remained
Payroll officer	Deeann Aquilina	Remained
Timekeeper	Leanne Cracknell	-
Timekeeper	David Wier	-
Casual timekeeper	Lex Johnson	-
Temporary support from Finance	Glenda Alexion	-
Temporary support from Finance	Judy Fleur	Replaced by Rebecca Slatyer

General damages	$ 53,000.00
Past economic loss	$456,433.09
Past loss of earnings (including loss of non-cash benefits)		$395,030.27
Past loss of superannuation		$61,402.82
Total		$456,433.09
Interest on past economic loss (excluding general and special damages)	$3,925.32
Past special damages	$164,000.00
Interest on past special damages	$2,256.64
Wilson v McLeay damages	$1,500.00
Future loss of earnings	$451,265.70
Future loss of superannuation	$75,821.94
Future recurring special damages	$47,095.07
Fixed special damages	$20,750
Sub-total	$1,276,047.76
Less payments by Local Govt. Workcare[590]	-$ 176,915.07
Total damages	$1,099,132.69