AZ v The Age [No 1]

[2013] VSC 335

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 0518 of 2011

AZ (A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN BZ)	Plaintiff
v
THE AGE	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22, 23, 26, 27, 29, 30 November and 3, 4, 5, 6, 12 December 2012
DATE OF JUDGMENT:	12 September 2013
CASE MAY BE CITED AS:	AZ v The Age [No 1]
MEDIUM NEUTRAL CITATION:	[2013] VSC 335

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TORTS – NEGLIGENCE – Plaintiff sustained psychiatric injury – Whether injury sustained owing to the negligence of her employer – Scope of the duty of care owed by an employer to their employee – Alleged failure by the defendant employer to take reasonable care to avoid the plaintiff sustaining psychiatric injury – Whether the injury was caused by the defendant’s breach of duty.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Ms B Knoester	Adviceline Injury Lawyers
For the Defendant	Mr J Rush QC Mr N Rattray	Wisewould Mahony

TABLE OF CONTENTS

Introduction

The Trial

The Plaintiff’s Evidence
The Apprehended Bias Application

The Law of Negligence

Duty of Care
Foreseeabilityand Content of the Employer’s Duty of Care

Causation

The Plaintiff’s Case

The Defendant’s Case

The Issues

The Plaintiff’s Background and Work at The Age

Photographic Career
The Plaintiff’s Relationship with Senior Manager, Louise Graham
Exposure to Traumatic or Distressing Events at The Age
Personal Difficulties Prior to the Bali Assignment
The Bali Assignment
After the Bali Assignment
The Last Year at The Age
The Plaintiff’s Condition after the Offer of Redundancy
The Termination of Employment
The Plaintiff’s Current Condition

The Evidence on Foreseeability and the Appropriate Standard of Care

Work Arrangements at The Age

Allocating Assignments
The Chaplain, Ms McMahon
The Employee Assistance Program, Counselling and Other Support
Proposals Relating to Peer Support
Occupational Health and Safety Study
Mr Tippet’s Training
Proposals by  Ms Graham

What a Reasonable Employer Ought to Have Forseen as to the Risk of Psychiatric Injury

Industry Knowledge and Standards

Late 1980s and 1990s
The Early 2000s
2003 and Beyond

Support Models

Professor Embleton’s Model

The TRiM  Program
Australian Defence Force Model
Australian Broadcasting Authority’s Peer Support Program
M.A.N.N.E.R.S Peer Support

Whether the Risk of Injury was Foreseeable

Parties’ Submissions
Cumulative Trauma Exposure
Additional Vulnerability Known as Early as 2003
What Was or Ought to Have Been Known of the Plaintiff’s Work on the Bali Assignment

The Nature of the Work

‘Red Flags’ in 2004 and 2005:  Mr Mottram’s Death and ‘More Than Meets the Eye’
The Plaintiff’s Reliance on Literature to Establish Foreseeability

Breach of Duty of Care and Causation

Parties’ Submissions
Culture and Support at The Age

Screening
Peer Support and Similar Programs

Conclusion

HER HONOUR:

Introduction

1. The plaintiff was employed by The Age (‘the defendant’) as a photographer for some 21 years.  She was by all accounts talented and exceptional in that work.  She now suffers from psychological injury, which her treating psychologist describes as post traumatic stress disorder (‘PTSD’) and major depression.  Her injury is severe, and is likely to prevent her from engaging in any work in the foreseeable future.  It appears certain that she will never be able to work as a photographer again.    

1. The plaintiff, by her litigation guardian, brought these proceedings against the defendant, claiming that the defendant owed her a duty to take reasonable care to avoid her suffering psychological injury or to minimise the injury that she may suffer.  The plaintiff claims that the defendant breached that duty and that her current condition is caused by that breach. 

1. Pursuant to orders made by consent by this Court, the plaintiff’s identity and that of her litigation guardian have been suppressed.[1]    

   [1]Order by McMillan J made on 12 December 2012. 

1. The plaintiff’s case is that she became sensitised to the risk of psychological injury over the course of her employment with the defendant.[2]  Then, in August and September 2003, she was assigned to photograph families of the victims of the first Bali bombings, who were being interviewed for an anniversary story (‘the Bali assignment’).[3]  Some interviews for the Bali assignment were conducted interstate in New South Wales.  The plaintiff claims that the contents of those interviews, which she observed, were unusual, heart-wrenching and sad, and that she had no support.  She also claims that, following the Bali assignment, she continued to be affected by the interviews.  Her condition worsened over time.  The plaintiff eventually ceased working with the defendant in November 2005.  She has not worked since.  The defendant terminated her employment on 18 July 2008.

   [2]Note:  The Plaintiff’s Further Further Amended Statement of Claim dated 3 July 2012 does not confine the exposure to a particular time period.

   [3]The bombings took place on 12 October 2002 in Bali, Indonesia.

1. The defendant submits that the plaintiff has failed to make out her case.  According to the defendant, the plaintiff has not demonstrated that she was exposed to traumatic events over the course of her employment such that she would be sensitised to psychological injury.  While the interviews for the Bali assignment appear to have been very sad and emotional, the defendant emphasises that the plaintiff was not threatened, nor is there evidence that the victim’s death was described. 

1. The defendant says that there is no evidence that the plaintiff made any reference to her response to working on the Bali assignment to any person including her treating doctors, until after the second Bali bombings occurred on 1 October 2005.  Finally, the defendant considers that there is no evidence that any measure taken by it would have been likely to protect the plaintiff from injury.  In any case, it views the measures that it did have in place as providing adequate support to her.

The Trial

1. There are two important preliminary points in respect of this trial.

The Plaintiff’s Evidence

1. The plaintiff was one of the last witnesses to give evidence in respect of her case.  Owing to the state of her health, she did not attend Court and gave evidence remotely with the support of her General Practitioner, Dr Marie Vera Pirotta. 

1. Dr Pirotta, along with the plaintiff’s current and former treating psychologists and the litigation guardian, all expressed grave concerns for the plaintiff’s health and the impact of litigation upon her. 

1. Dr Pirotta described the plaintiff as being at the ‘extreme end’ of patients that she has treated with a non-psychotic mental illness.  When notified that her case was being brought, the plaintiff was said to have almost been in the foetal position, crying and shaking in Dr Pirotta’s office.  Dr Pirotta said that the plaintiff:

wishes she’d never been talked into allowing it to happen and she wished it would all just go away.  So whether she wins or loses, I mean, I think she’s just a bit disinterested at this stage.  I think she’s just found the whole process extraordinarily stressful … I think it’s bringing up … all of the events again and I think she was aware there would probably be media interest and that worried her a lot.  She just wanted to be left alone basically.[4]

[4]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 22 November 2012) 413.

1. Dr Pirotta’s view was that the plaintiff would have bolted rather than attend Court in person, but that, if she did attend, she would be overwhelmed, terrified and horrified, and unlikely to be able to give evidence.[5] 

   [5]Ibid 405.

1. The plaintiff’s current treating psychologist, Dr Darryl John Wade, emphasised that the plaintiff is highly avoidant, almost reclusive, and severely impaired.  In his view, the plaintiff would find it very stressful to give evidence in Court and it would increase the likelihood of her having thoughts of self-harm.  Dr Wade noted that even if the plaintiff gave evidence remotely there would still need to be a risk management and support plan in place.

1. Similarly, in a report dated 7 May 2012, the plaintiff’s former psychologist, Dr Helena McCallum, said that she does not believe the plaintiff could attend Court to give evidence, as she was terrified at the thought of appearing in front of employees of the defendant or members of the press.  Dr McCallum noted that, if the plaintiff did attend, she ‘would be so traumatised that she would not be able to say much, and moreover … it would undo whatever recovery she has made.  I am not sure she could survive it without self-harm’.[6]  She believed that even giving evidence remotely would be very difficult for the plaintiff.  

   [6]Plaintiff’s Court Book, AZ v The Age (Supreme Court of Victoria, McMillan J) 160.

1. Finally, the litigation guardian’s evidence is that the plaintiff had expressed thoughts of self harm and suicide to him and her condition worsened as the trial date approached.  In the lead up to the trial, the plaintiff broke down and an ambulance was called to her home.  The litigation guardian attended her home and he described her distress at that time as follows:

she was fearful about the court case, she was paranoid that there were journalists out waiting for her to come outside of the front door, she was fearful that someone was going to actually chase her through her own house and try and get photos of her, that her name was going to be plastered all over the print and all the other media and she was fearful of the outcome, of what was going to happen, that she was going to be crucified.  She’d drawn pictures.  She's got a notebook where she's drawn pictures of a tree with a person hanging, as in hung from the tree.  There's other pictures there, they’re all very vivid accounts of her fears.[7]

[7]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 80.

1. As a result of this evidence, counsel for the defendant limited cross-examination of the plaintiff to five brief questions and did not cross-examine the plaintiff in relation to many important issues raised in this case.  In doing so, counsel submitted that the defendant was ‘put in a stressful position in relation to the way in which we conduct our case and to force a person into giving evidence … we are seriously concerned as to the repercussions of a cross-examination of the plaintiff and that creates a great unfairness for us in the way in which we conduct our case’.[8] 

   [8]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 26 November 2012) 515.

1. As a result, I indicated that the defendant’s position would be taken into consideration by this Court, however, owing to the conclusions reached in this judgment, there is no need to consider the weight that can be placed upon the plaintiff’s evidence in the absence of thorough cross-examination.  

The Apprehended Bias Application

1. On 4 December 2012, on the 11^th day of the trial and after the close of the plaintiff’s case, an application was made by her counsel for me to stand down on the basis of apprehended bias.  I refused the application and delivered my ruling on 6 December 2012, indicating that published reasons for my decision would be available at a later date.  Those reasons are set out in a separate judgment delivered on 12 September 2013.[9]     

   [9]AZ v The Age [No 2] [2013] VSC 436 (12 September 2013) (McMillan J).

The Law of Negligence

Duty of Care

1. Employers owe a duty to take reasonable care for the safety of their employees.  In Czatyrko v Edith Cowan University, the High Court described this duty as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.  The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in cases of repetitive work.[10]

[10](2005) 214 ALR 349, 353 (McHugh, Gummow, Hayne and Heydon JJ) (citations omitted).

1. It is now well established that an employer’s duty extends to taking reasonable steps to prevent its employees from suffering psychiatric harm.[11]  It was not contended, nor could it have been, that a duty was not owed by the defendant to the plaintiff.  The issues in the present case are foreseeability; the content of this duty; and breach.

Foreseeability and Content of the Employer’s Duty of Care

[11]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; S v State of New South Wales [2009] NSWCA 164 (17 July 2009) (Beazley JA Giles JA Macfarlan JA); Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 (3 March 2010) (J Forrest J).

1. The Court must determine what a reasonable employer in the position of the defendant would do in discharging its duty to the plaintiff.  In cases involving psychiatric harm to an employee, there are a number of considerations for the Court.

1. In Koehler v Cerebos (Australia) Ltd, a majority of the High Court stated:

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation.) Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant’s case here, an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.[12]

[12](2005) 222 CLR 44, 53.

1. And later:

Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties.  First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle.  Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle.  The obligations of the parties are fixed at the time of the contract unless and until they are varied.[13]  

[13]Ibid 57–8.

1. In terms of foreseeability, the High Court has held that ‘normal fortitude’ is not a precondition to liability for negligently inflicting psychiatric injury.[14]  In Koehler v Cerebos (Australia) Ltd, the Court confirmed that the central inquiry remains:

whether, in all the circumstances, the risk of a [particular] plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.[15] 

[14]Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 384 (Gummow and Kirby JJ).

[15]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 57.

1. The test for foreseeability remains as that expressed by Mason J in Wyong Shire Council v Shirt:

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone,[16] may nevertheless be plainly foreseeable.  Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.  Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.[17]

[16][1951] AC 850.

[17](1980) 146 CLR 40, 47.

1. In the industrial context, assessing foreseeability ‘invites attention to the nature and extent of the work being done by the particular employee, and the signs given by the employee concerned’.[18]  The Court assesses foreseeability ‘on the basis of the impression created by, and the other overt or foreseeable sensitivities of the actual person affected’.[19]  There is, however, no positive duty on an employer to acquire knowledge of special weakness.[20]  As stated by Callinan J in Koehler v Cerebos (Australia) Ltd, it is also important to acknowledge that the:

fact … that a psychiatrist placed in the same position as an employer might have foreseen a risk of psychiatric injury, does not mean that a reasonable employer should be regarded as likely to form the same view.[21] 

[18]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 57.

[19]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 65 (Callinan J).

[20]           Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 (6 December 2004).

[21](2005) 222 CLR 44, 65 (Callinan J).

1. In that case, Callinan J also cited with approval the dissent of Lord Scott of Foscote in Barber v Somerset County Council:

Pressure and stress are part of the system of work under which [people] carry out their daily duties.  But they are all adults.  They choose their profession.  They can, and sometimes do, complain about it to their employers.[22] 

[22]Barber v Somerset County Council [2004] 1 WLR 1089, 1095.

1. Where complaints are made, the question remains whether it is foreseeable that the employee is at risk of psychiatric injury as a result of stress.  As stated by Keane J in Hegarty v Queensland Ambulance Service:

special difficulties may attend the proof of cases of negligent infliction of psychiatric injury.  In such cases, the risk of injury may be less apparent than in cases of physical injury.  Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension.[23]

[23][2007] QCA 366 (26 October 2007) [41].

1. Keane J went on to state that determining what a reasonable employer would do in response to a foreseeable risk of psychiatric harm raises important considerations in respect of ‘[t]he private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty’.[24]

   [24]Ibid [43].

1. In Hegarty v Queensland Ambulance Service, the plaintiff left his employment as an ambulance officer after 15 years, suffering PTSD and obsessive compulsive disorder.  He claimed that the defendant, Queensland Ambulance Service, was negligent by failing to have in place a system whereby the plaintiff’s supervisors were trained to identify signs of dysfunction in personnel regularly exposed to distressing and traumatic experiences, so that referral could be made for clinical psychological assessment and treatment.[25]  In the context of that case, Keane J considered that:

The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff.  Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems  …

The plaintiff’s case means that the employer must be concerned, not only with non-performance by the employee as an employee, but also with possible episodes of unhappiness in the employee’s private life.  It is not self-evidently necessary or desirable that employees’ private lives should be subject to an employer’s scrutiny …

In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene.  An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.

Employees may well regard such an intrusion as an invasion of privacy.  Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position.  If an employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment.  Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion  …

Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations.  A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.[26]

[25]Ibid [39].

[26]Ibid [43]–[47] (emphasis added).

1. Further, in assessing the content of the duty of care, the Courts have long recognised that industry standards are relevant, although not determinative.[27]  As was eloquently expressed by the House of Lords in Bank of Montreal v Dominion Greshan Guarantee Co Ltd, ‘[n]eglect of duty does not cease by repetition to be neglect of duty’.[28] 

   [27]A discussion of the relevant authorities is contained in Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 (29 September 2010) (J Forrest J) [62]–[72].

   [28][1930] AC 659, 666.

1. In Bankstown Foundry Pty Ltd v Braistina, the High Court affirmed the relevance of contemporary community standards as follows:

what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community.  This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards.  In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.[29]

[29](1986) 160 CLR 301, 308–9.

1. Industry practices carry evidentiary weight as to the reasonableness of the practices impugned in a proceeding.

1. In this case the common law, unfettered by statute, governs the question of breach.  In assessing what a reasonable employer would do in response to a risk of foreseeable harm, it is also relevant to consider the probability and gravity of the harm to the plaintiff, the nature and capacity of the employer and the cost and inconvenience of precautions.  As Mason J stated in Wyong Shire Council v Shirt: 

The perception of the reasonable man’s response [to the risk of injury] calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[30]

[30](1980) 146 CLR 40, 47–8.

1. Finally, in assessing risk in the context of the law of negligence, albeit in a medical negligence case, the Court of Appeal has reiterated that:

in a case like this where something unforeseen has gone wrong, it is important to avoid the temptation of looking back from the patient’s present condition and reasoning that, because of what has occurred, there must have been a significant risk of its occurrence that should have been avoided.  For so to reason is neither logical nor fair.[31]

[31]Hookey v Paterno (2009) 22 VR 362.

1. Similarly, in Rosenberg v Percival, Gleeson J stated:

In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight.  A foreseeable risk has eventuated, and harm has resulted.  The particular risk becomes the focus of attention.  But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed.  Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.  This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.[32]

[32](2001) 205 CLR 434, 441–2 (citations removed).

Causation

1. If the defendant is found to have breached its duty in this case, the Court must consider whether the breach caused the harm suffered by the plaintiff.  In doing so, I bear in mind what was said by Keane J in Hegarty v Queensland Ambulance Service, that in cases of psychiatric harm:

Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is … likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.[33]

[33]Hegarty v Queensland Ambulance Service [2007] QCA 366 (26 October 2007) [41].

1. In cases such as the present, which involve consideration of what would have unfolded had the defendant taken particular steps, the following passage by the High Court in Adeels Palace Pty Ltd v Moubarak is also pertinent:

Describing the injury as ‘the very kind of thing’ which was the subject of the duty must not be permitted to obscure the need to prove factual causation.  Unlike Home Office v Dorset Yacht Co Ltd and Stansbie v Troman, these are not cases where the evidence demonstrated that the taking of reasonable care would probably have prevented the occurrence of injury to the plaintiffs.[34]

[34](2009) 239 CLR 420, 442.

1. Unless the plaintiff establishes that it is more probable than not that the risk of injury would have been prevented or ameliorated then it cannot be said that the plaintiff has satisfied the Court that the conduct of the defendant caused the loss.[35]

   [35]Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 367–8 (Brennan J).

The Plaintiff’s Case

1. Counsel for the plaintiff submitted that by 2002, and certainly by 2003, the defendant knew or ought to have known that there was a risk of psychiatric injury to journalists when they undertook tasks of the nature that the plaintiff was undertaking and that there was a need to protect journalists against this risk.[36]  In the circumstances, and ‘leaving aside the higher duty imposed by the knowledge of … vulnerability’, the plaintiff submitted that the defendant owed a duty to have in place:

   [36]Plaintiff’s Written Submissions dated 11 December 2012, 14

(a)a trauma awareness training [sic] where the employer would assess both prospectively and retrospectively the stresses that were faced and have in place a program for placement and review of employees;

(b)a culture of education and support;

(c)a program of monitoring and responding to issues and in particular a peer support program;

(d)a system for education, relocating and counselling.

The discharge of the duty involves at least the undertaking by the defendant of:

(a)what was suggested in 2008 by Ms Graham in relation to the training of line managers;

(b)the implementation of a peer support program as was foreshadowed by the August 2002 workshop; and

(c)the investigation of a peer support program as was suggested by Professor Caple in October 2002.[37]      

[37]Ibid 7–8.

1. The defendant was also said to have had knowledge of the plaintiff’s vulnerability, being the development of a psychological sensitisation and her increased risk of suffering from psychological injury, by virtue of the plaintiff’s cumulative exposure to trauma over her time employed by the defendant; her ‘additional vulnerability known as early as 2003’, which I infer is a reference to the plaintiff’s personal difficulties; work on the Bali assignment; her association with Murray Mottram, a journalist who worked on the Bali assignment and later committed suicide; and by virtue of the plaintiff’s ‘complaints’ made in the interview published on 22 July 2004, which will be outlined in due course.[38]  Counsel submitted that with that knowledge, the defendant, in exercising reasonable care, should have:

   [38]Ibid 10.

(a)implemented a trauma awareness program;

(b)had a system of evaluation pre and post the assignment of the Plaintiff’s suitability and continued suitability for such work;

(c) in supervising the work that the Plaintiff was doing, undertaken regular and appropriate contact and enquiry with the Plaintiff both whilst they were doing the [Bali assignment] … and immediately subsequent thereto;

(d)introduced the peer support program which it work-shopped in August 2002 and which was well received and we hear no reason for it not being introduced;

(e)completed the feasibility study of a peer support program as was recommended in October 2002 by Professor Caple;

(f)in accordance with the recommendations above and the general understanding at that time ensured there was a culture of permitting and in fact encouraging reports of psychological symptoms;

(g)knowing that the Plaintiff had in her period of employment been engaged in many stressful activities and was a key person in the Bali bombing anniversary story, undertaken appropriate enquiry post the story, especially post Murray Mottram’s death, as at July 2004 and when allocating the Plaintiff to the task at the Sunday Age.[39]

[39]Ibid 28. 

1. The plaintiff’s case is that the defendant breached its duty to the plaintiff, and that the breach was causative of the injury.  The plaintiff submitted that in an organisation with a proper peer support program and trauma awareness training, ‘certain responses would have been triggered to certain events — suicides of colleagues, refusal of assignments, persons making it known that they had covered a difficult story’.[40]  The plaintiff submits that, if a peer support program were in place, she would have spoken about her issues in relation to her employment with someone she was comfortable with and whom she did not see as a boss.  It appears that the plaintiff’s case is that, under a peer support program, this would have led to an early referral to a psychologist.  The plaintiff submits that early medical intervention would have avoided or ameliorated the effects of PTSD.[41]

   [40]Ibid 27–8.

   [41]Ibid 41.

The Defendant’s Case

1. The defendant submits that the plaintiff’s counsel:

opened this case relying on principles very generally enunciated, i.e. the duty of the Defendant to provide a safe system of work and supervision ‘... which meant she was not exposed to injury which the Defendants acknowledge was a prospect for that type of employment’.  It appears that the Plaintiff by pleading and in opening was alleging at the time the Plaintiff was performing her work on the anniversary of the Bali bombings that ‘... there was a body of knowledge that the risks of journalists suffering this type of injury and the need for protection of journalists from this type of injury’.[42]

[42]Defendant’s Written Submissions dated 12 December 2012, 1.

1. Nevertheless, the defendant understands the plaintiff’s case to be that:

(a)the Plaintiff was exposed to ‘traumatic events’ and ‘traumatic stress’ in the course of her employment (period undefined);

(b)the Defendant should have been aware that such exposure could result in psychological sensitisation and increased risk of injury;

(c)that there was a need for the Defendant to adopt measures ‘for the protection’ of journalists from the possibility of injury;

(d)that those measures, on the evidence, was some form of ‘counselling’ or alternatively of ‘peer support’ for journalists and photo journalists, or alternatively ‘TRIM’;[43]

(e)if the Plaintiff suffered PTSD as a consequence of undertaking interviews ‘of traumatic content’ in 2003 with family members of those who had perished in the Bali bombing of 2002, the content of those interviews, on what evidence there is, appears to have been very sad and sometimes emotional; but certainly the Plaintiff was not threatened, nor is there evidence that the circumstances of the loss of family members of the Bali bombing was described in detail;

(f)that the Plaintiff suffered injury as a consequence of the negligence and breach of duty of the Defendant in not incorporating peer support or TRIM into its system of work.[44]

[43]See paragraphs [190]–[192], [214]–[221] below.

[44]Ibid 2.

1. The defendant submits that the plaintiff has failed to make out her case:

(a)the Plaintiff has not demonstrated she was exposed to ‘traumatic events’ and ‘traumatic stress’ in the course of her employment such as would sensitise her to psychiatric injury.  Indeed what evidence there is to the varying ‘exposures’ set out in the Particulars have not been identified or proved.  Many of the ‘exposures’ in any event could not be classified as traumatic;

(b)the Plaintiff has not demonstrated any measures taken by the Defendant such as peer support or TRIM would have likely ‘protected’ the Plaintiff from injury;

(c)the Plaintiff has not demonstrated that the duty of care of the Defendant required the taking of measures such [as] ‘peer support‘ or ‘TRIM’;

(d)that in any event the support offered to the Plaintiff by Age staff between 2003–2006 was the equal of and likely better than that offered by a peer support program or TRIM;

(e)the Plaintiff has not demonstrated that the intervention through peer support or TRIM would have made a difference to the psychiatric condition of the Plaintiff;

(f)the Plaintiff has not demonstrated by any or any proper evidence that, even if the Plaintiff had been identified in 2003 or 2004 by a peer supporter, she would have accepted or acted upon any suggestion of the peer supporter and further that such intervention would have been effective in ameliorating her condition (whatever it be) existing at that time.

In fact the evidence demonstrates that between August–September 2003 and October 2005 the Plaintiff made no reference to any issue concerning her response to the work performed on the first anniversary of the Bali bombing to any person treating her including [her] general practitioner, psychiatrist or psychologist.[45]

[45]Ibid 2–3.

The Issues

1. In my view, the issues raised in this proceeding are as follows:

(a)whether there was a foreseeable risk of psychiatric injury to the plaintiff at the time of, and following, the Bali assignment owing to her work on that assignment;

(b)if a risk was foreseeable, what a reasonable employer in the position of the defendant would do in response to that risk, and in particular, whether the scope and content of the duty of care owed extended to:

(i)a system of evaluation pre and post the Bali assignment as to the plaintiff’s suitability and continued suitability for such work;

(ii)contact and enquiry with the plaintiff:

·     during the Bali assignment and following the assignment;

·     following the death of Mr Mottram;

·     following the publication of a story on 22 July 2004 in which the plaintiff is said to have made a ‘complaint’;  and

·     when transferring the plaintiff to the Sunday Age.   

(iii)completing a feasibility study of a peer support program and introducing a peer support program prior to the Bali assignment;

(iv)     implementing a trauma awareness program;

(v) establishing a system for education, relocating and counselling;

(vi)training of line managers in line with Ms Graham’s email dated 9 May 2008; and

(vii)ensuring a culture of education and support, and one permitting and in fact encouraging reports of psychological symptoms.

(c)in the event that the defendant breached its duty of care, whether that aspect of the breach was causative of the injury to the plaintiff.

1. I note that there is disagreement amongst the medical experts who gave evidence as to whether the plaintiff’s current condition can be classified as PTSD under the DSM IV criteria; whether her depression is more significant than her PTSD; whether she suffered from PTSD from the time of the Bali assignment or whether her PTSD was ‘late onset’, meaning that symptoms did not surface until some time after the assignment.  Owing to my findings, which will be outlined in due course, it is not necessary to decide these issues.

1. Finally, neither party relied upon the contractual arrangement between the defendant and the plaintiff as giving rise to distinct considerations that might bear upon the duty of care owed to the plaintiff in the present case.[46] 

The Plaintiff’s Background and Work at The Age

[46]Compare to Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 57.

1. The plaintiff was born on 14 November 1958.  She grew up in Albury, Wodonga with four brothers.  Her father was in the army, and, as a result, she moved around a lot and attended several different primary and secondary schools.  The family stayed in Bandiana for a long time, and also spent time in Papua New Guinea.       

1. The plaintiff’s youngest brother, the litigation guardian, has been a member of the police force since 1987.  He gave evidence that two of the plaintiff’s four brothers are now deceased.  One brother, Mark, died in 1985 in an explosion resulting from a welding accident.  Another brother, John, died in 1992.  It appears that he had HIV/AIDS.  The other brother, Peter, lives or lived in the Northern Territory.  The plaintiff’s parents live or lived interstate.   

1. The plaintiff has no children.  She had a long-term partner, ‘Bevan’, for some 20 years.  In or about 2009, the plaintiff broke up with Bevan, but remained living with him as friends at her property in Northcote.  Bevan suffers from bi-polar disorder.  He had been an elite athlete at one stage and an employee of the defendant.  He was not in work for lengthy periods of time, presumably because of his condition.  The litigation guardian’s evidence is that, when Bevan was in ‘one of his moods’, he became argumentative and would attempt to bait people, but he did not know the extent of the difficulties that the plaintiff went through with him.[47]

   [47]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 84.

1. Aside from psychological illness, the plaintiff was diagnosed with Hepatitis C in November 2008.  In 2010, she was diagnosed with cirrhosis of the liver and was told to stop all alcohol intake.  In the lead up to this diagnosis, the plaintiff was drinking up to 12 stubbies of beer each night.  Her evidence is that her drinking increased after she ceased work with the defendant in November 2005.[48] 

   [48]Affidavit of AZ sworn 7 May 2010 [26].

Photographic Career

1. The plaintiff first worked as a photographer at The Border Mail after finishing high school in or about 1980.  She became a cadet after a year or so with the company. 

1. The plaintiff commenced work with the defendant in or about 1984 or 1985 as a press photographer.  She was the only female photographer.  At the start, she covered ‘[e]verything; sport, general news’.[49]  She went on shift work, and, it appears, worked at night.  She said that ‘[i]t was a tough environment and for quite a while I was only given the assignments that no one else wanted.  Over time I proved myself and “moved up the ranks”’.[50] 

   [49]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 730.

   [50]Affidavit of AZ sworn 7 May 2010 [5].

1. As part of ‘moving up the ranks’, the plaintiff moved to a day shift.  Over the years, she photographed many well known figures, such as Mirka Mora and Tim Burton.  Her talent as a photographer was recognised through various awards.  The plaintiff’s litigation guardian describes her as living for her job.  In his words, the plaintiff was ‘never without a camera, she was very independent, very vibrant, very passionate about [her work]’.[51]  She became a senior photographer with the defendant.

   [51]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 64.

1. In or about 2000, the plaintiff was made the features pictures editor at The Age.[52]  She described having a smaller staff in that role, who ‘shoot all the feature stuff and the magazines and the Green Guide and EG and feature pages, Sunday Extra, you know’, as well as the ‘supplements’ and ‘all the non-news stuff’.[53]  The plaintiff is unable to confirm the length of time that she was in that role;  however, employment records indicate that she returned to photography in or around June 2002.[54]

   [52]Exhibit D10, Fairfax Performance Agreement dated 28 August 2000. 

   [53]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 734.

   [54]Exhibit D10, Fairfax Incident/Accident Notification Form dated 6 June 2002.

1. The plaintiff said that, while working with the defendant, she did not feel able to talk to people about how she was feeling or if she were having problems.  She described it as a ‘no guts no glory kind of thing’, explaining ‘you just have to be strong and do your job and get on with it’.[55]  Her evidence is that one would never refuse a job.

   [55]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 741.

The Plaintiff’s Relationship with Senior Manager, Louise Graham

1. Ms Louise Graham commenced her career as a cadet photographer in 1977 at The Herald Sun.  In the early days, Ms Graham and the plaintiff were the only female photographers in Melbourne.  Ms Graham said that she and the plaintiff would ‘naturally gravitate towards each other because [we were] both …  female and we liked each other and we’d often talk’.[56] 

   [56]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 788.

1. Ms Graham worked as a picture editor for The Sunday Age between approximately 1989 and 1991 or 1992.  After this, she returned to The Herald Sun, before returning again to the defendant in 1997 as picture editor.  By the time Ms Graham moved back to work with the defendant in 1997, she was in a very senior role and was the manager of the plaintiff’s managers.  In this role, she managed photographers; liaised with news editors; edited images that came in from photographers at the end of the day; and presented the better images to the editor for the paper.  In her role, she would see the plaintiff ‘quite a lot.  She was someone that I would often talk to’.[57]  They would see each other smoking.

   [57]Ibid 794.

1. According to Ms Graham, the plaintiff was ‘one of those people that … did show her feelings to me on numerous occasions’.[58]  She had observed the plaintiff upset about things, such as ‘the type of rostering she had or if a photographer was giving her grief’.[59]  Her perception was that the plaintiff would come to her at any stage she needed help.  On occasions, the plaintiff would feel strongly about not doing something, and Ms Graham could usually accommodate the plaintiff.  For instance, at one stage the plaintiff had come to Ms Graham and said ‘[l]ook I can’t do education anymore, I’ve had enough, I need a change’, or sometimes the plaintiff ‘didn’t particularly want to work with someone perhaps’.[60]  She cannot, however, recall the plaintiff rejecting a project or refusing to cover a story prior to 2002.  She ‘respected [the plaintiff] as a photographer, so … was keen to keep her happy’.[61]

   [58]Ibid.

   [59]Ibid 795.

   [60]Ibid 800.

   [61]Ibid.

1. In contrast, the plaintiff’s evidence is that she could talk to Ms Graham about things, but:

she was my boss, I couldn’t — you know, she was my boss, I couldn’t sort of say too much because I was worried about my job and everything … [62]

[62]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 748.

1. Ms Graham was not able to comment on how the plaintiff’s line managers dealt with her from 2002 to 2005.  She accepted that those line managers did not have any expertise in dealing with people with a psychiatric condition.  The plaintiff did not give evidence in respect of her line managers and none were called to give evidence.

Exposure to Traumatic or Distressing Events at The Age

1. The plaintiff and defendant disagree over the extent to which the plaintiff was exposed to tragic events and trauma through her work.  This disagreement concerned both the classification of work as ‘traumatic’ or ‘distressing’ and the proportion of the plaintiff’s work that involved exposure to such events. 

1. The plaintiff’s Further Further Amended Statement of Claim dated 3 July 2012 (‘the FFASC’)[63] alleges that the plaintiff was ‘repeatedly exposed to traumatic events and traumatic stress’ during the course of her employment.  The particulars at [6] of the FFASC state that the plaintiff attended upon and covered stories as a press photographer arising out of:

   [63]Leave was given to the plaintiff to file the FFASC by the order of the Court made on 19 November 2012.

(a) Homicides;

(b) Suicides;

(c) Fatal car accidents;

(d) Fire scenes;

(e) Natural disasters;

(f) The Port Arthur Massacre in 1996;

(g) The 11 September 2001 World Trade Centre and related terrorist attacks;

(h) Grieving families;

(i) Deaths of young children and young adults;

(j) Terminally ill individuals;

(k) Premature births

1. In oral evidence, the plaintiff described the non-glamorous side of her job as ‘all the pain and the destruction and death and — you know, that sort of tragedy — just tragedy, tragic stories, tragic lives’.[64]  As a young photographer, she said that she found night shifts difficult as ‘it was always fires or murders or, you know, stuff that happens at night time’.[65]  She did not think she was very good at photographing things at night time.  When asked whether she regularly covered  ‘stories where you’re hearing things that people have gone through and deaths and tragic things that have happened’, the plaintiff responded ‘I can’t remember how many I’ve done and that’.[66]  When asked, ‘but it was part of your work?’, the plaintiff replied ‘[y]eah. Especially when — when I’d do the features’.[67]  According to the plaintiff, features involved, for instance, speaking to parents a couple of weeks after something terrible happens.  The plaintiff described her method of photographing such events as follows:

most of the times, you sit there and listen to the story.  You just don’t go and — go into someone's house who’s lost a child or had something happen to them.  You’ve got to show respect, respect for them, and sometimes people, they're vulnerable and you never want to push someone into anything.  You just — you just have to respect them and if they want to have their photo taken because they think it's going to help other people,  other people out there that might have the same — some  issues, I don't know but yeah — but no, I wasn’t a blaze-away.  I never did door knocks or anything like that — well, I did one but I just couldn’t do it.[68]

[64]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 731.

[65]Ibid 730.

[66]Ibid 732.

[67]Ibid.

[68]Ibid 731–2.

1. When asked ‘[w]hen you are sitting in interviews and listening to the story, or when you’re taking the photo, would people open up to you?’, the plaintiff replied:

[y]eah, because most of the time, the journalist is writing.  They want someone to focus on, you know.  They want to see someone's eyes.

1. The plaintiff gave evidence in respect of two particular assignments undertaken prior to the Bali assignment that she found distressing:

(a)the first assignment involved photographing a premature baby, which the plaintiff described as ‘horrible’, commenting ‘I know that sounds mean but I’d never seen a baby look like that before’.[69]  The plaintiff received the Walkley Award in 1994 for that assignment; and

(b)the second assignment involved coverage of the anniversary of the Port Arthur massacre.  She travelled to Port Arthur, Tasmania, for that assignment.  She described it as a ‘horrible place’, ‘surreal’ and ‘creepy’.[70]  She recalls photographing ‘an old man and a kid or whatever, and — with the big cross with all the names on it, and it just gave me the creeps’.[71]  She also said that she found it ‘pretty hard to go past that tree where those little girls got shot’.[72] While the plaintiff did not confirm, the photographic records indicate that this assignment took place in 1997.[73]

[69]Ibid 731.

[70]Ibid 733, 734.

[71]Ibid 733.

[72]Ibid 734.

[73]Exhibit P2, Photograph 41.

1. The plaintiff also gave evidence that she was the features picture editor at the time of the terrorist attacks on 11 September 2001.  She looked at photos that were coming in from the United States from the attack.  The photographs were required to be archived and some were required for features in The Age.  The plaintiff was unable to say whether she was the features picture editor at the time of the Bali bombings in October the following year, although she recalls photographs recording that tragedy as well.  If the employment records are accurate, and I have no reason to doubt that they are, the plaintiff was no longer the features picture editor at that time. 

1. The plaintiff also tendered a sample of 145 photographs taken by her between 1987 to 2005.  The plaintiff did not give any evidence herself on the stories behind the photographs,[74] although a short description of each is included as part of the archive.  It appears that the photographic sample tendered by the plaintiff is designed to highlight stories that involve tragedy, sadness or otherwise dark subject matter.  Even so, no photograph displays graphic violence or the scene of an emergency, aside from an Aerial photograph of the Coode Island fire, dated 1994, showing black clouds of smoke rising from buildings; a photograph of a woman holding a knife dated 1999, which appears to be staged; a photograph of a ‘generic homeless dead man’ dated 2004 and attributed to a story on a new crime novel; and a photograph of a car crash on the Geelong Freeway dated 2005.[75]  Quite a number of the descriptions accompanying the photographs also reveal a positive element to the story covered. For instance, a photograph of a middle aged woman, dated 1997, carries the accompanying description: ‘In memory of my child: Comfort through shared experience:  [She] ... has written about the death of her baby as a way to help others’.[76]  Another photograph, dated 1999, depicts an elderly woman sitting smiling with the accompanying description, ‘[a] good day to die: At peace: At first [she] was stunned when her doctor told her she had cancer. Now, she awaits death without fear’.[77]  

   [74]Note: the only exception is the plaintiff’s evidence as to the Bali assignment photographs and the story ‘Mum I Shot a Policeman’ dated 22 July 2004.  This evidence will be dealt with in due course.

   [75]Exhibit P2, Photographs 122, 105, 75, 4.

   [76]Ibid, Photograph 48.

   [77]Ibid, Photograph 76.

1. The plaintiff also tendered a 2004 DVD titled ‘Talking Pictures’, in which photographers employed by the defendant narrate some of their more memorable photographs taken over the years (‘the Talking Pictures DVD’).[78]  Gary Tippet is one journalist featured on the video and notes ‘the imprint and sometimes the scars’ that are left by photographs on the people that took them. The plaintiff is one of several photographers featured on the DVD.  In my view, she is portrayed as a portrait photographer and most of her featured photographs involve light subject matter, such as portraits of actors and performers.  The photographs of the premature baby and elderly woman awaiting death, along with a portrait of a woman battling cancer, comprise a minority of photographs dealing with more difficult or somewhat distressing subject matter.  In contrast, other photographers describe photographs taken in conflict zones such as East Timor and Iraq or while visiting refugee camps.

   [78]Exhibits P29, P30.

1. The defendant objected to the limited sample of photographs and tendered the plaintiff’s photographs as retained on the defendant’s file and that could be located at the time of the trial, with most photographs dated after the first 10 years of the plaintiff’s employment.[79]  In my view, this larger sample evidences a career centred on portraits and lifestyle stories, with photographs of community celebrations, artists and writers, restaurants and cafés and scenic outdoor settings.[80] 

Personal Difficulties Prior to the Bali Assignment

[79]Exhibit D9, vols 1-8.

[80]Ibid.

1. In an affidavit sworn 7 May 2010,[81] that plaintiff said that in around 2003 she attended a psychologist when Bevan and his mother were both ill ‘and I felt like I should talk to someone about this’.[82]  She said that she attended on a couple of occasions.[83]  In oral evidence, the plaintiff could not recall whether she spoke to a psychologist about these issues in 2003, but she remembers that she went to an Indian man who ‘said to get a book on garlic or something’.[84]  The plaintiff’s oral evidence is that she thought ‘it was a crock.  It was just a waste of time.  Garlic’.[85] 

   [81]Note: This affidavit was sworn in support of the plaintiff’s application to issue a common law proceeding under s 134AB of the Accident Compensation Act 1985.

   [82]Affidavit of AZ sworn 7 May 2010, [7].

   [83]Ibid.

   [84]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 737.

   [85]Ibid.

1. If this oral evidence relates to the counselling that she received in 2003, it does not appear to accord with clinical notes taken by her treating psychologist, Dr Nerida Jane Crewdson, in 2005.[86]  In these notes, Dr Crewdson records that the plaintiff had seen someone once before, two years ago, through work for three weeks weekly.  On a separate page it is recorded ‘counselling helpful to a point.  He talked to me’.[87]  Dr Crewdson was unable to confirm, but assumed this note related to the three weeks’ counselling in 2003.  The clinical notes also indicate that Bevan was admitted as an involuntary patient in 2003 and that the plaintiff felt that she had betrayed him.

   [86]Exhibit D8.

   [87]Ibid.

1. Around this time, Ms Graham recalls an occasion when she saw the plaintiff upset and distressed at work.  She went outside the office for a cigarette and found the plaintiff looking upset and tearful.  The plaintiff told her that she had issues with her ‘husband’ who was bi-polar and her mother-in-law and she seemed to Ms Graham to be very distraught.  It was the first time Ms Graham had seen the plaintiff so distressed about her family. 

1. Ms Graham said that she asked the plaintiff whether she would like to try the defendant’s Employee Assistance Program (‘EAP’), a confidential counselling service, and initially the plaintiff was quite hesitant.  However, according to Ms Graham, ‘I said, look, just give it a crack, see what it’s like and see if it does anything and helps you manage your family better because she seemed to have a lot on her plate with her family’.[88]  According to Ms Graham, she followed up some time after with the plaintiff to ask how counselling had gone:

I asked [the plaintiff] how it was going and I could tell just physically she looked so much better and a lot more confident.  She said it went very well and I said, are you going to continue with it? And she said, I think it’s something I might need and I said, well, if it’s working for you.  She was very positive and enthusiastic about how she felt post going through some sort of employee assistance.  I remember at the time feeling very happy about that.[89]     

[88]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 794.

[89]Ibid 796.

1. While Ms Graham is unable to recall exact dates, it seems likely that her referral to EAP occurred in 2003, and led to the counselling described by the plaintiff in paragraph [71] above. 

1. The plaintiff’s counsel asked her whether the situation with Bevan, back in 2003, continued to cause her problems.  The plaintiff’s answer was ‘[n]o, his mother died anyway.  No.  He’s looked after me … he’s done his best for me’.[90] 

The Bali Assignment

[90]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 741.

1. The Bali anniversary stories aimed to celebrate the victims of the Bali bombings in a series of pen portraits.  The idea was for journalists to go and talk to the relatives and loved ones of those who had lost their lives and to paint a story of the victims before they went to Bali, rather than to focus on their death.  The editor of the defendant wrote letters to all of those relatives and loved ones of which they were aware, asking whether they would like to be involved in the story.  Journalists and photographers were then assigned to those who were willing to be interviewed.  Around 70 interviews took place.[91]  The stories were published on 4 October 2003 (‘the Bali bombing anniversary edition’).[92]

   [91]Plaintiff’s Court Book, AZ v The Age (Supreme Court of Victoria, McMillan J) 317.

   [92]Exhibit D1.

1. The plaintiff appears to have had a personal connection with Bali.  Her evidence is:

I went to Bali, I’d been to Bali many times.  I knew exactly where that club was, I know everything about Bali.  I wanted to move there and live there, to get a business going there … I loved the people there.[93] 

[93]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 741.

1. While the plaintiff did not state when she had travelled to Bali, or when she had entertained thoughts of moving there, it seems likely that her connection with Bali was formed prior to the Bali assignment.  There is no evidence to suggest that the defendant knew of the plaintiff’s personal connection with Bali.      

1. Ms Graham believes that the plaintiff was allocated the Bali assignment because she was ‘so good at portraiture and she was one of these people that related well to people’.[94]  Ms Graham said that she was familiar with the type of work that the Bali assignment involved, seeing people who were distressed or those who had lost someone, and she had done that sort of work herself previously.  She acknowledged that ‘you don’t go into these assignments not expecting it to be tough’.[95]  She believes that she would have been aware that the plaintiff was allocated as a photographer on the Bali assignment and that she had no concern in relation to this assignment.

   [94]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 797.

   [95]Ibid 802.

1. The plaintiff worked on the Bali assignment over August and September 2003.  The earliest recorded estimate of the number of interviews that the plaintiff covered appears in clinical notes dated 4 October 2005.[96]  These notes indicate the number of interviews during which the plaintiff was present, with the number appearing either as ‘10’ or ‘16’.[97]  In a later, unsworn statement prepared for her WorkCover claim, the plaintiff estimates that she was present for around 20 interviews.[98]  No estimate is given in her affidavit sworn 7 May 2010 or oral evidence. 

   [96]Exhibit D8.  Note: the record states ‘saw 10 [or 16] families’.  

   [97]Ibid.

   [98]Exhibit P16.

1. The plaintiff described her role on the assignment as follows:

My job was to sit through the interviews and then set up and take photographs of the family members.  The families very often looked at me when they were speaking because the journalists were looking down to write.  The interviews were incredibly sad and emotional.  The families often cried and showed us the belongings or bedrooms of the family members that had died.[99]

[99]Affidavit of AZ sworn 7 May 2010, [9].

1. The plaintiff said that she cried after every interview.[100]  

   [100]Ibid [10].

1. She worked with a number of journalists on the assignment: Murray Mottram, now deceased, Mr Tippet, Farah Farouque and Andrea Jackson.  

1. Ms Jackson undertook at least 17 interviews, which she believed was the most of any journalist.  Her experience was:

Well, in [one] particular case I really felt like I'd been put into this role of a counsellor.  With some of the other cases, you form a bond with the people, and so while they’re talking to you it’s like you experience their sense of loss and what it means to them, but at the same time it can in some cases be a rewarding experience in the sense that you know that if you do a good job you're doing something that's going to be of lasting value to them and worthwhile and that was the idea of this magazine, so, you tried to keep that in mind that even though some of the interviews were very upsetting and really draining, that the idea, the greater goal, was to try and do justice to the lives of the people who have been killed.[101]

[101]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 317.

1. Ms Jackson’s evidence in an affidavit sworn 13 September 2010 is that counselling was available after the Bali assignment, although she did not take up the offer.[102]  She was less certain about whether counselling was offered in her oral evidence, but agreed that her memory would have been better at the time of swearing her affidavit.  She noted that people did talk about their experiences.  She shared hers with Mr Tippet.[103]

   [102]Exhibit D5, Affidavit of Andrea Jackson sworn 13 September 2010.

   [103]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 332.

1. Ms Jackson can only recall undertaking one interview with the plaintiff, which appears to have taken place in Victoria.  The interview was with Spike Stewart, whose son had died in the Bali bombings.  Ms Jackson’s memory is that Mr Stewart was an emotional wreck and that he was in tears at times during the interview.  She recalls that the plaintiff sat in on the interview, which went for ‘[q]uite a few hours’.[104]  According to Ms Jackson, the plaintiff left the interview room at one stage to have a look around to see what might be an appropriate photograph, and discussed the photograph with Mr Stewart.  Ms Jackson had to leave for another appointment, and left the plaintiff with Mr Stewart.  Mr Stewart’s story was recorded in the Bali bombing anniversary edition.[105]  Ms Jackson read the story to the Court and became quite emotional, explaining ‘sorry, it just sort of brings it back to me too’.[106]  The story recounts Mr Stewart’s loss of one son, Rodney, prior to the Bali bombings; the loss of his second son, Anthony, in the Bali bombings; Mr Stewart’s trip to Bali to search for Anthony after the blast; and Mr Stewart’s grief.  In her affidavit, Ms Jackson said that she was not aware that the plaintiff was affected by the Bali assignment, although in her oral evidence she also notes that she had little interaction with the plaintiff at work after the assignment. 

   [104]Ibid 322.

   [105]Exhibit D1.

   [106]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 21 November 2012) 320.

1. The interstate interviews appear to have been particularly difficult for the plaintiff.  It is unclear how much time the plaintiff spent in Sydney.  If her evidence is that she carried out approximately four interviews per day while interstate, and her estimate of 20 interviews is accurate, it follows that she could not have spent more than five days interstate observing interviews, although this estimate does not account for the fact that some interviews took place in Melbourne.  It is also unclear whether the plaintiff travelled to Sydney once or more than once for the assignments and whether she worked consecutive days on the assignment.  Ms Graham was unable to assist, although her memory was that it was a ‘very short’ interstate assignment.

1. The evidence of the plaintiff and Mr Tippet together suggests that the plaintiff worked with Messrs Mottram, Tippet and Farouque interstate.  Mr Tippet believes the plaintiff completed most interviews interstate with Mr Mottram, and a number of interviews, although he is not sure how many, with Mr Farouque.

1. The plaintiff described Mr Mottram as a quiet bloke with a quirky sense of humour.  He did not talk much and would just go to his hotel room at the end of each day.  She explained ‘[n]o one really felt like talking much.  We’d just go to our rooms’.[107]  In contrast, the plaintiff described working with Mr Tippet as ‘good’ because he would take her out to dinner and would help take her mind off what she had just been through.  Mr Tippet would also occasionally talk about their day. 

   [107]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 738.

1. The plaintiff found it hard to cope with what she had heard.  She would sometimes telephone her parents:

Because it was just so hard.  I mean, you’re sitting there with all these parents that have lost their children.  They’re pouring their heart out to you and then you get back to the crappy motel room by yourself.  You just wanted to talk to someone that you loved.[108]       

[108]Ibid.

1. The plaintiff’s parents did not give evidence at trial.  The evidence of the plaintiff’s litigation guardian is that the plaintiff would occasionally telephone him while working in Melbourne and interstate on the Bali assignment ‘just to see how things were going as a normal brother and sister do, I imagine’.[109]  He agreed that through his line of work as a policeman he had been in similar situations to the situation of the plaintiff during the Bali assignment, meaning speaking to families of victims and identifying with victims.  At this time, he did not realise that the plaintiff was suffering any problem as a result of her own work.

   [109]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 66.

1. Mr Tippet’s evidence is that he completed four to five interviews with the plaintiff in Sydney.  He worked with the plaintiff after she had worked with Mr Mottram.  He believes he did three or four interviews with her.  He said that such interviews, which he refers to as ‘intrusion stories’, ‘are very tough stories to do’.[110]  He agreed, however, that there was a positive for him as a journalist in dealing with people who had lost a loved one, and allowing them to ‘celebrate the loved one’.[111]  Mr Tippet gave evidence in relation to three interviews he did with the plaintiff over two days: 

(a) on the first day, he interviewed the parents of a young man who was killed.  The interview went for some time.  Afterwards, Mr Tippet and the plaintiff went back to the hotel and then out for dinner together.  In the car on the way back from the interview and during dinner, the plaintiff expressed to Mr Tippet how glad she was to be working with him ‘because we talked about what we’d seen and what we’d heard, what we were going through, and she hadn’t had that opportunity with Murray’.[112]  The plaintiff told Mr Tippet that when covering a story with Mr Mottram, he would return to the car after completing the interview and leave the plaintiff alone to take photographs.  Mr Mottram would not talk with the plaintiff or go out to dinner with her afterwards.  The plaintiff told Mr Tippet she felt quite isolated.  Mr Tippet was surprised by this at the time as, according to him, it was not normal for colleagues to have little to do with each other on such assignments.  He viewed Mr Mottram as someone who could be reserved, but who could also ‘party with the best of them’.[113]  He did not know Mr Mottram likely suffered depression at the time of the Bali assignment.  He agreed that those working with Mr Mottram at the time did not appreciate his condition.

(b)the next day, Mr Tippet interviewed a young woman named Jane Mavroudis, who had lost her brother in the Bali bombings.  Ms Mavroudis sat on a couch with Mr Tippet, and the plaintiff sat on a chair in the interview room.  Ms Mavroudis had a friend present.  She warned that she would cry and she did.  The plaintiff told Ms Mavroudis during or after the interview that she too had lost a brother and knew how it felt.  The plaintiff became quite emotional;  she also cried.  Another interview, which took place on the same day, was with the family of a girl named Chloe Byron, who was in her early teens when she died.  The plaintiff also recalls an interview with Mr Tippet and the parents of a girl who was only 13 years of age, and I infer that it was the same interview.  The plaintiff said that she found this interview heart-wrenching.  According to Mr Tippet, he and the plaintiff went out to dinner again that night and discussed their day.

[110]Ibid 101.

[111]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 20 November 2012) 151.

[112]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 103.

[113]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 19 November 2012) 106.

1. Mr Tippet’s evidence is that alarm bells were not set off for him at the time on account of what the plaintiff had relayed to him over dinner about her difficulties working on the assignment.  To him, there was no indication that the plaintiff was not coping with her job or was being overwhelmed by the process.  When asked by counsel for the defendant, ‘if you did think something was amiss … you would have done something about it?’, Mr Tippet responded ‘I’m not sure that’s true … I don’t know that I would have had the knowledge … [or] the motivation to do so.  I may have, if you like, respected her privacy, I don’t know’.[114]    

After the Bali Assignment

[114]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 20 November 2012) 155.

1. The plaintiff’s evidence is that after the assignment:

things just started to snowball.  Like, then I started to get scared at The Age.  I’d dream about The Age. You know, like the people at The Age, and the garage and that.  Sometimes I’d drive my car in and I couldn’t get out of the car, and then I’d — I’d ring up and say ‘I can’t make it to work’, even though I was already in work. I mean, I just couldn’t cope …[115]   

[115]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 742.

1. She agreed with her counsel that in the last two years with the defendant she did not feel able to talk to people about how she felt. 

1. Ms Graham accepts that she did not follow up with the plaintiff after she returned from interstate.  She said that ‘[m]y feeling was that there was no reason to check on that particular project because at the time [the plaintiff] seemed to be thriving … [she] liked a challenge’.[116]  She later said that such follow up would ordinarily be done at a line manager level.  She does not know whether this occurred and did not ask the line manager at the time.[117]

   [116]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 826.

   [117]Ibid 849–50.

1. The plaintiff’s evidence is that, from October 2003 to February 2004, she had flashbacks of the stories she had heard and nightmares about the Bali bombings and the young people who had died.[118]  The plaintiff attempted to work as hard as she could to block out how she was feeling.  She stopped socialising with her colleagues and did not attend the usual award functions.  She started losing weight.[119] 

   [118]Affidavit of AZ sworn 7 May 2010, [11].

   [119]Ibid.

1. In or about February 2004, the plaintiff decided to talk to Mr Mottram about how she was feeling.[120]  She wanted to ‘ask him what he was feeling … does he have these nightmares about Bali or what’.[121]  She arrived at work one day, she cannot recall precisely when, and learnt that Mr Mottram was missing.  Soon after, the plaintiff was informed that Mr Mottram had committed suicide.  Both the plaintiff and defendant accept that Mr Mottram’s suicide was not related to his work.  Nevertheless, Mr Tippet’s evidence is that, following Mr Mottram’s suicide, ‘[i]t was a very emotional time for people’.[122]  Ms Graham did not make or cause to be made any inquiries of staff who had dealt with Mr Mottram in the 12 months prior to his suicide.  However, Mr Tippet’s evidence was that the defendant offered counselling to any of Mr Mottram’s workmates who were affected or not coping.  The defendant also made a room available for reflection, with candles and a condolences book. 

   [120]Ibid [12]

   [121]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 744.

   [122]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 20 November 2012) 155.

1. Counsel for the plaintiff asked her whether, after Mr Mottram died, anyone approached her in particular to say ‘[h]ey … we know you just did a story with Murray.  Are you all right?  Are you okay?’, to which the plaintiff replied ‘no’.[123]  The plaintiff’s evidence is that Mr Mottram’s suicide was very distressing to her.  She said that she still believes that ‘Murray held the key for me’.[124]  She explained that, when ‘he killed himself … there … went my key because I wanted to ask him’ about his experiences working on the Bali assignment.[125]  There is no evidence to suggest that anyone employed by the defendant was aware that the plaintiff identified with Mr Mottram in this way.

   [123]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 29 November 2012) 743.

   [124]Ibid 744.

   [125]Ibid.

1. On 22 July 2004, the defendant published a story ‘More than Meets the Eye’, which reported on the stories behind three ‘unforgettable pictures’.[126]  One was the plaintiff’s picture of Spike Stewart.  The article reports:

   [126]Plaintiff’s Court Book, AZ v The Age (Supreme Court of Victoria, McMillan J) 338.

[the plaintiff] says it was ‘one of the hardest assignments I've had’.  She was part of a team of Age photographers and journalists who travelled the country to meet the families of victims of the Bali bombings for a series of commemorative articles last year.

By the time she visited Spike Stewart’s Werribee home, [the plaintiff] had been immersed in the grief of ‘beautiful people (who had) lost beautiful people’.  The challenge was to hide how affected she had been by the experience.  ‘You're on the other side of the camera so you've got to kind of steel yourself a bit not to get too emotional — especially in front of the people,’ she says.

Stewart has become for many the public face of the victims’ families.  He lost his 29-year-old son Anthony in the bombings, five years after Anthony’s twin brother Rodney had been killed in a car accident.

Their father is determined to ensure that some good comes out of this senselessness.  He has raised money for the Balinese and taken groups to visit the island, their suitcases filled with clothing and toys for orphans.  Now, he is devoting his energies to a website, … established a few months after the tragedy.

When [the plaintiff] and reporter Andra Jackson arrived at Stewart’s home, [the plaintiff] recalls he was being ‘bombarded with phone calls after one of the Bali bombers was convicted ...  so I went out into his backyard while I was waiting to photograph him’.  That was when she noticed his garden shed with the four hard hats lined up on the roof.

The hats, all labelled with the names of their owners, belonged to Stewart and his three boys (his third son, Shane, also lives in Melbourne) who had worked together at Smorgon Steel in Laverton.  [The plaintiff’s] picture captures him in front of what has become a memorial to happier times.

‘As we each left Smorgon’s we just put the hat on top of the shed and it built up.  It wasn't a deliberate thing — it just cluttered up the shed otherwise,’ he says.

Now the meaning has changed.  ‘The hats are still there.  They'll stay there.  The wind blows them away every now and again but I go and collect them and put them back — it's like we're all together again.’

1. The plaintiff was not approached by anyone at work after the article was published to check if she was ‘okay’.  The plaintiff did not see the published article at the time as she was on holidays.  Ms Graham was asked by her counsel whether, if she had seen the story at this time, it would have put her on alert or prompted her to follow up with the plaintiff.  Ms Graham’s answer was:

No … if I’d read that I just would have thought that that would be how she felt and many people feel like that … I would have had the conversation about perhaps — you know, ‘I read the piece on you in the paper’, because you always give each other feedback.  And I certainly would have had the conversation at some stage but it wouldn’t have been something that I would have read and thought I better go and find that girl now.[127]  

[127]Transcript of Proceedings, AZ v The Age (Supreme Court of Victoria, McMillan J, 3 December 2012) 804.

1. The Talking Pictures DVD is the only other record of the plaintiff discussing her work in 2004.  In my view, the plaintiff’s narration of her photography recorded in the DVD suggests that she enjoyed her work.  In summarising her work, she said:

That’s the beauty about this job;  the places you see;  it’s the events you cover;  and the stories, it’s just fantastic.  Someone once said to me ‘get a real job’. [Laughs].  I don’t know what I said, I think I smiled and agreed.[128]  

[128]Exhibit P29.

1. Yet when reflecting on 2004, the plaintiff said in her affidavit sworn 7 May 2010 that throughout this time:

The Court should conclude that the Plaintiff if she was in a peer support program would have spoken of her issues in relation to the employment and issues arising there from.  This can be concluded from:

(a)the fact that she did so speak to Gary Tippet;

(b)the fact that she was searching out Murray Mottram to speak to him who she saw him as a peer; and

(c)the fact that she did disclose those issues to a peer for the story of 22 July 2004;

The Plaintiff may have in fact spoken to line managers if they did make the enquiry or alternatively line managers did not make the enquiry.  In circumstances where no line managers are called the Court can infer that their evidence would not have assisted the Defendant.  In a circumstance where this is described as a major production by the Defendant, for the Defendant not to call one person who was involved in the placement of the Plaintiff and the editing of the work compels we submit those inferences as explained in Jones v Dunkel (1950) 101 CLR 298 to be drawn adverse to the Defendant.

1. The plaintiff made further oral submissions on the likely consequence of the plaintiff engaging with a peer supporter, revealing her difficulties and the process that is then adopted as per the various peer support models relied upon by them.  The plaintiff also relied upon the effectiveness of early medical intervention in avoiding or ameliorating the effects of PTSD. 

1. In contrast, the defendant submits that:

(a)the Plaintiff has not demonstrated any measures taken by the Defendant such as peer support or TRIM would have likely “protected” the Plaintiff from injury;

(b)the Plaintiff has not demonstrated that the duty of care of the Defendant required the taking of measures such “peer support” or “TRIM”;

(c)that in any event the support offered to the Plaintiff by Age staff between 2003-2006 was the equal of and likely better than that offered by a peer support program or TRIM;

(d)the Plaintiff has not demonstrated that the intervention through peer support or TRIM would have made a difference to the psychiatric condition of the Plaintiff;

(e)the Plaintiff has not demonstrated by any or any proper evidence that, even if the Plaintiff had been identified in 2003 or 2004 by a peer supporter, she would have accepted or acted upon any suggestion of the peer supporter and further that such intervention would have been effective in ameliorating her condition (whatever it be) existing at that time.

1. In relation to peer support and TRIM programs, the defendant also submitted:

Why should an employer be expected to implement an unproven methodology, particularly in circumstances where some more recent psychological interventions (debriefing) have been found to be counterproductive to the psychiatric health of those exposed.  … How can an employer be criticised for failing to introduce an unproven system?

…

It is an extraordinary step for the Plaintiff to attempt to cast upon the Defendant in this proceeding a duty to implement an unproven, debatable, controversial system of work in circumstances where even the protocols and procedures surrounding the so-called peer support cannot be agreed upon.

There can be no requirement on the Defendant to institute an unproven system where there is little consensus as to the goals, implementation or effectiveness of such system.  The fact that a world leader in relation to research into PTSD informs this Court that it is “a cause for concern”[309] that such programs are adopted without agreed protocols and adequate evidence base demonstrates the uncertainty of such programs.  The High Court in Koehler[31] referred to the difficulties of “giving content” to an “external standard”.  In this case that standard is particularly difficult to grasp.  In the context of the uncertainty surround peer support an employer needs to be wary, with the absence of any proven benefit of peer support, an employer in years to come could face litigation for instituting a program which in fact causes harm.[310]

[309]Note:  in making this submission, the defendant is referring to the evidence of Professor Creamer.

[310]Defendant’s Written Submissions dated 12 December 2012, 5–6.

Culture and Support at The Age

1. In my view, the defendant had an adequate culture and system of support, reallocation and counselling for its’ staff, and in particular, the plaintiff.

1. I find that the defendant had a culture and system ‘permitting and in fact encouraging [of] reports of psychological symptoms’.[311]  The EAP program provided staff with the opportunity to access confidential, off-site counselling for both work and personal issues, with a number of sessions being paid for by the defendant.  While it is clear that some doubts had been expressed about the efficacy of EAP programs on their own or in general by 2002–03, there was also literature to support the use of this program; it appears to have been the main source of support for other media outlets in Australia at this time; and it remains a ‘central plank’ within the ABC’s peer support program.  Given this evidence, I consider it reasonable for the defendant to have adopted an EAP program as its’ more formal system of psychological support for its’ staff, particularly where the evidence is that journalists did not come forward to discuss problems within the workplace under the chaplaincy program in the 1990s.  Furthermore, in addition to the use of EAP, it appears that the defendant proactively arranged or encouraged counselling sessions where journalists were exposed to ‘front line’ emergencies that were particularly distressing, such as the Port Arthur Massacre and the Boxing Day Tsunami. 

   [311]See the plaintiff’s submissions as referred to above.

1. I accept that Ms Graham did refer journalists to EAP if she noticed something amiss, and she did so with the plaintiff when Ms Graham noticed her distressed in 2003.  I also accept Ms Graham’s evidence that those journalists referred to EAP reported that the counselling had been helpful.  As stated, if the plaintiff did have reservations about the quality of the EAP program at this stage, she did not share those concerns.  And, while it is clear that not all journalists knew of the EAP program, it is clear that the plaintiff was aware of this program at the time of the Bali assignment.   

1. As soon as it became apparent to the defendant that the plaintiff was not coping at work in April 2005, Ms Graham met the plaintiff offsite to discuss a return to work and to determine how the defendant could provide support to the plaintiff.  The defendant made arrangements for the plaintiff to be transferred to The Sunday Age and allowed her to have one day paid leave, so that she could see her counsellor.    I consider that this shows a very supportive workplace culture in operation.   

1. In addition, the evidence in this case suggests that the defendant was accepting when a journalist did not want to undertake a particular assignment.  For instance, journalists who had covered the immediate aftermath of the first Bali bombings and who had enough of the ‘horrors of Bali’ were not compelled to work on the Bali assignment.  In the plaintiff’s case, when she indicated that she did not want to go to Aceh, Ms Graham’s response was to reassure her that she did not have to go.  Later, when the plaintiff told the defendant that she did not want to cover a funeral as part of the ‘Mum I Shot a Policeman’ story, it appears that she was not required to do so.  I consider that this indicates that the defendant gave its’ staff appropriate latitude to decline to undertake assignments if staff felt unable to do so. 

Screening

1. It is not self—evident that a more intensive screening process should have been undertaken by the defendant so as to actively prevent an ‘at risk’ journalist from working on particular assignments.  The defendant also needed to consider countervailing problems raised by such an approach, including the encroachment on its’ staff’s autonomy and privacy in the workplace.  If what the plaintiff is suggesting by way of screening before and after the Bali assignment would have involved preventing her from undertaking that or future high—profile assignments, where there was no evidence that the plaintiff was not functioning at work, the defendant might well have been exposed to an industrial relations complaint.  As noted by Mr Tippet in his report to the defendant after completing Dart Centre Training, the ‘possibility of quarantining potentially at-risk journalists from problematic jobs … is not what most of us want.  We do want to be considered for the best and toughest jobs’.[312]  Indeed, even after it became apparent to the defendant in April 2005 that the plaintiff was unwell, and the transfer to The Sunday Age was initiated, it is clear that the plaintiff was upset about this relocation and characterised it as a ‘demotion’ to her treating psychologist at the time.  This illustrates the tightrope that the defendant had to walk between protecting staff from a risk of psychological harm and ensuring that their autonomy was preserved. 

Peer Support and Similar Programs

[312]See paragraph [167] above.

1. In my view, there is no basis to suggest that a reasonable employer in the position of the defendant in 2002–03 should have implemented a peer support or similar program as a method of protecting staff from the risk of psychological injury. 

1. It was not common practice for media outlets to have in place a peer support or trauma awareness program in 2003.  The BBC, which introduced a TRiM program in late 2002, was clearly a pioneer internationally, while the first peer support program was introduced in Australia much later, by the ABC in 2007.  As is clear from the established case law, common practice is powerful, but not decisive, evidence that the defendant did not act negligently.  The Court does, on occasion, find negligence even where a defendant adheres to common practice in an industry.[313]      

   [313]Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 (29 September 2010).

1. In this case, however, the standard was not set in other industries by 2003.  The plaintiff’s characterisation of peer support as a well-established program in other industries, and in essence a program that could essentially be ‘picked of the shelf’ and easily implemented by the defendant, is not accurate. 

1. The literature and evidence in this case made clear that other industries that deployed peer support programs were, by the early 2000s, grappling with studies that suggested debriefing as an element of peer support was unhelpful and potentially harmful.  For instance, the British Royal Marines implemented the TRiM program in 1997, but there was resistance at this stage because the problems of debriefing had rightly made medical staff cautious: widespread acceptance of the TRiM program came later.  Then, by 1999, Mr Castle warned in his article that ‘[s]ome media managements have expressed concern that by raising the issue of PTSD support with their staff, they may become re-traumatised or think they should have a problem when they don’t’.[314]  While the evidence is that VAS ran a peer support program based on the ‘Mitchell Model’, that was discredited by the early 2000s.  The British military banned debriefing in or about this time.  By 2003, Dr Ochberg noted there was an ongoing debate about what should be done concerning responses to trauma and the effectiveness or otherwise of revisiting the traumatic event.

   [314]See paragraph [185] above.  

1. In addition to concerns about debriefing at the turn of the century, other concerns were also highlighted in the literature tendered in this case. Even by 2012, the content and character of peer support programs was still being fleshed out, so that controlled studies might be undertaken to test the effectiveness of such programs.  And aside from the effectiveness of such programs, there were also concerns centred around employee’s privacy.  For instance, Mr Place noted in his thesis the concerns of others that a peer support person may become over-involved and that the unloading of personal problems may create awkwardness working with a peer in the long—term.  While Mr Place concluded that peer support programs are still a good idea, in part as such programs provided a ‘cheaper’ alternative to counselling, this does not mean that a reasonable employer would come to the same conclusion. 

1. Further, a reasonable employer might well have had reservations about elements of the programs relied upon by plaintiff that were in existence as at 2002–03:   

(a)it is clear that Professor Embleton’s peer support program involves elements of ‘debriefing’ that were controversial by this time.  For instance, comparison can be made between the Mitchell Model’s seven phases of debriefing and the post-exposure discussions outlined by Professor Embleton.  There is also evidence before this Court that the use of TRiM involved some elements of the condemned practice of debriefing;  and

(b)there is evidence that the Australian Defence Force Model carries a risk of screening fatigue and sensitising individuals to the memory of the event.  In addition, the re—allocation policy outlined by Professor McFarlane suggests a journalist will be in essence taken off the more ‘glamorous’ stories if it is determined that they have become unwell.  While this may be appropriate in a military context, in my view, this approach to mental illness is heavy-handed and could lead to industrial complaints if a journalist is still performing in their usual role.   In my view, a reasonable employer may well have been reluctant to implement the defence—force model on that basis.     

1. As is evident from my conclusions as to foreseeability, I consider that enquiry as to whether the plaintiff was ‘okay’ would not have put the defendant ‘on alert’ that she was not coping as a result of the Bali assignment, prior to the second Bali Bombings on 1 October 2005. 

1. In my view, the additional step of having a peer support program in place would not have altered the position or ensured that the plaintiff was identified and referred for counselling at an earlier stage.  The plaintiff relies upon her conversations with Mr Tippet and a journalist interviewing her for the story ‘More than Meets the Eye’, as well as the fact that she sought out Mr Mottram, as evidence that she ‘if speaking to somebody that she was comfortable with and not seen as a boss would have spoken of her difficulties’.[315]  Yet, it is evident that the plaintiff did not disclose the depth of her problems with Mr Tippet when speaking to him or to the litigation guardian during the Bali assignment, given that no alarm bells went off for either individual at this time.  I consider that the plaintiff’s devastation that she was not able to talk to Mr Mottram in particular, and her description of him as holding the ‘key’ for her, suggests that she had a particular fixation on talking to Mr Mottram, as opposed to talking to other peers, such as Mr Tippet or Ms Jackson.  Moreover, the plaintiff’s own evidence is that, while working with the defendant, she did not feel able to talk to people about how she was feeling or if she were having problems.  Her statement that she was someone who was not comfortable talking about herself is supported by her distress when Dr Crewdson pushed her to talk during counselling. And, in any case, when she did talk to her treating doctors, she did not identify her work on the Bali assignment as being the cause of her problems until after 1 October 2005. 

   [315]Plaintiff’s Written Submissions dated 11 December 2012, 40.

1. As for the particular responses triggered by the peer support programs:  

(a)evidence as to whether Professor Embleton’s model would have ‘picked up’ the plaintiff is very speculative.  If his peer support program were implemented, 40 peers employed by the defendant would have been trained.  Whether and how the plaintiff would be ‘spotted’ by one of those 40 peers are not evident.  If the plaintiff was identified, however, the Professor’s evidence is that the peers rely on the fact that people feel comfortable telling their stories to identify problems.  Furthermore, under the Professor’s model, the discussion goes ‘where the person suffering from the concern wants to lead’ the peer.  It is not evident that the plaintiff would have led the peer in the direction of discussing her problems on the Bali assignment any earlier than late 2005.  Indeed the Professor noted himself that it did not surprise him that PTSD could come to light two years after the exposure, as there can be delays in presentation for years and a non-disclosure of root problems;

(b)it is not certain under the TRiM model whether a TRiM interview, involving the 10 point checklist, would have been triggered for the plaintiff after she worked on the Bali assignment.  According to Professor Greenberg, after an event, a TRiM meeting is held in order for colleagues to discuss their experiences.  It is only if an individual is acting differently or worryingly that a TRiM interview is triggered, as some events that can appear traumatic ‘can actually become a little routine for some people’.[316]  Given there is no evidence that the plaintiff showed any overt signs of distress to her colleagues following the Bali assignment, it is not certain that she would have been identified at this initial stage. As stated by Mr Brayne, the BBC’s TRiM program still relies upon individuals to ‘talk about what’s going on for them. Peer support practitioners and managers can’t be mind readers’;

(c)Professor McFarlane’s evidence as to screening under an Australian Defence Force Model adapted to the defendant’s workforce was not consistent because the regularity of screening for the plaintiff. Professor McFarlane assumed that the plaintiff had witnessed ‘much tragedy’ by attending regularly at natural disasters, fires, crime scenes and other personal tragedies.  He  considered that this placed the plaintiff in a ’high risk’ situation and he concluded that annual screening was appropriate for the plaintiff.  The evidence does not support that the plaintiff was undertaking the type of work that formed the backdrop for regular screening.  In any case, if the plaintiff was screened after the Bali assignment, it is uncertain whether she would have reported her difficulties, given the other aspect of the Professor’s recommended model involves a reallocation of duties, meaning that she might have been demoted even while she was attempting to continue to function at work.  And, in any case, there is the possibility that the plaintiff would have felt ‘screening fatigue’;

(d)the ABC’s model involves peers referring individuals to EAP.  If the Court accepts the plaintiff’s evidence that she found the counselling offered by this program to be ‘a waste of time’, then it is doubtful that, even if referral were made before 2005, the plaintiff would have accepted that referral;

(e)while the M.A.N.N.E.R.S program provides a link between the workforce and psychologists, it appears that this program still requires employees  proactively to contact the peer support, counselling or chaplaincy program via a centralised phone number.  While more proactive steps are taken when paramedics are part of an ambulance dispatch dealing with ‘something nasty’, such as a fatal accident or suicide, it is far from clear that this type of response would have been triggered by the Bali assignment in the context of the defendant’s workplace.

[316]See paragraph [214] above.  

1. For these reasons, I consider that any of the measures put forth by the plaintiff would not necessarily have meant that the problems experienced by her would have been ‘picked up’ by peers or management.  I respectfully agree with Keane J’s observations in Hegarty v Queensland Ambulance Service that, in cases involving psychiatric harm, ‘whether a response to a perceived risk is reasonably necessary to ameliorate that risk is … likely to be attended with a greater degree of uncertainty’.[317] 

   [317][2007] QCA 366 (26 October 2007) [41].

1. In this case, the plaintiff has failed to show that her loss is more probable than competing hypotheses denying causation.[318]  In summary, I am not satisfied that any of the steps that the plaintiff alleges should have been undertaken would have prevented or ameliorated her risk of injury.  

   [318]Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 367–8 (Brennan J).

Conclusion

1. I have found that the plaintiff has not established that the defendant was negligent. For the reasons set out above, I dismiss the plaintiff’s claim.

1. I will hear the parties on the form of orders and costs.

ANNEXURE 1

1. The particulars to paragraph [10] of the FFASC are as follows:   

(a)Failing to provide a safe system of work;

(b)Failing to provide a safe place of work;

(c) When allocating the work in or around July 2003, knowing the Plaintiff and other employees were at increased risk:

i. failing to have any or any adequate educational programs to inform employees of the;

1. hazards of reporting on traumatic events;

2. risks of injury when reporting on traumatic events or stories;

3. need to monitor and report symptoms that they may suffer;

ii.failing to have any or any adequate system of periodically screening employees to assess the risk and/or development of psychological injury;

iii.failing to have any or any adequate peer support program;

iv.failing to implement the recommendation of the Risk Management Review 2002 insofar as it related to:

1.the development of a peer support program;

2.informal peer support;

3.alternatives to an Employee Assistance Program;

4.the recording of psycho-social issues as part of an incident reporting system;

v.Failing to have in place any or any adequate policies or procedures regarding the provision of:

1. follow-up of employees after traumatic events or stories;

2. counselling of employees after traumatic events or stories;

3. peer support (formal or informal) of employees after traumatic events or stories;

4.monitoring of employees after traumatic events or stories;

5.screening of employees after traumatic events or stories;

6.an assessment of employees after traumatic events or stories;

vi.Failing to provide any or any appropriate training to the Plaintiff’s line managers regarding:

1.follow-up of employees after traumatic events or stories;

2. counselling of employees after traumatic events or stories;

3. peer support (formal or informal) of employees after traumatic events or stories;

4.monitoring of employees;

5.screening of employees;

6.assessing of employees;

vii.failing to provide any or any appropriate training to employees of the Defendant regarding:

1.the Employee Assistance Program;

2.Counselling;

3.peer support (formal or informal);

4.providing peer support (formal or informal) to employees;

5.monitoring of each other;  

viii.failing to have an adequate system of:

1.promoting;

2.encouraging attendance upon;

3.communicating;

the use of the Employee Assistance Program;

ix.Knowing the Plaintiff did not have access to a proactive Employee Assistance Program, failing to have an occupational health service, for employees of the Defendant, skilled in the diagnosis and assessment of employees who were beginning to develop symptoms of psychological injury, including Post-Traumatic Stress Disorder; 

x.Failing to monitor and/or appreciate the exposure immediately prior to requiring the Plaintiff to undertake the work in and around August and September 2003 so as [to] implement a system to prevent the Plaintiff from sustaining psychological injury;

xi.Failing prior to the Plaintiff undertaking the work in and around August and September 2003, to:

assess monitor and/or screen the Plaintiff to identify increased risk to the Plaintiff of undertaking the work in and around August and September 2003;

(d)Knowing the Plaintiff and other employees were at increased risk during the work in and around August and September 2003;

i.Requiring the Plaintiff to participate in interviews which contained highly traumatic content without any or any adequate regard to the increased risk;

ii.Exposing the Plaintiff to multiple interviews which contained highly traumatic content;

iii.Requiring the Plaintiff to carry out the work in and around August and September 2003 which carried with it a foreseeable risk of psychological injury without undertaking any or any adequate pre-assignment assessment;

iv.Failing to take any or any adequate precautions against the foreseeable risk of the Plaintiff suffering psychological injury and the magnitude of such injury;

v.failing to ensure that there was any or any adequate system to prevent the Plaintiff from sustaining psychological injury and/or if a psychological injury was being exhibited, to minimise the effects thereof;

vi.failing to ensure the Plaintiff was adequately, monitored, assessed and supported by her peers.

vii.failing to give consideration to the scheduling, duration and frequency of the interviews the Plaintiff was required to attend;

viii.failing to provide the Plaintiff with any or any appropriate breaks during the days on which the interviews, which contained highly traumatic content, were carried out in and around August and September 2003;

(e)Following the work in and around August and September 2003[,] knowing the Plaintiff was at increased risk:

i.failing to provide the Plaintiff with any or any adequate:

1.follow-up screening;

2.counselling;

3.peer support (formal or informal);

4.monitoring;

5.supervision;

so as to;

A.identify any psychological injury;

B.identify the symptoms of any psychological injury;

C.offer or refer the Plaintiff for appropriate treatment;

D.withdraw the Plaintiff from further such reporting or certain types of reporting until she was fit to do so;

ii.failing to carry out any or any adequate assessment and/or screening of the Plaintiff before requiring her to undertake further work so as to:

1.identify any psychological injury;

2.identify the symptoms of any psychological injury;

3.offer or refer the Plaintiff for appropriate treatment;

4.withdraw the Plaintiff from further such reporting or certain types of reporting until she was fit to do so;

iii.permitting a situation whereby symptoms of psychological injury, including Post-Traumatic Stress Disorder, were:

1.ignored by employees of the Defendant;

2.not monitored by employees of the Defendant;

3.not reported;

iv.Failing to have or any adequate system of providing relief to employees from repeated exposures to traumatic events or stories in the form of:

1.rotation of duties;

2.re-allocation of duties;

3.rotation of stories;

4.time off work;

v.Failing to have any or any adequate policies or procedures for dealing with employees who have developed symptoms of psychological injury, including Post-Traumatic Stress Disorder;

vi.Failing to have any or any adequate system of intervention by way of:

1. screening employees;

2. monitoring employees;

3. assisting employees;

who had developed symptoms of psychological injury, including Post-Traumatic Stress Disorder;  

(f)Following the work in and around August and September 2003 and after the death of Murray Mottram, knowing the Plaintiff was at increased risk:

i. failing to carry out any or any adequate monitoring assessment and/or screening of the Plaintiff;

1. failing to take any or any adequate steps to ensure the psychological well-being of the Plaintiff.