Bell v Nexus Primary Health - [2022] VSC 605

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2019 00003

TRACEY LEE BELL	Plaintiff
v
NEXUS PRIMARY HEALTH	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7, 8, 9, 12 and 13 September 2022
DATE OF JUDGMENT:	13 October 2022
CASE MAY BE CITED AS:	Bell v Nexus Primary Health
MEDIUM NEUTRAL CITATION:	[2022] VSC 605

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PERSONAL INJURIES – Plaintiff employed by defendant as a family violence outreach worker – Plaintiff attacked off work premises and outside work hours – Subsequent threatening incidents – Risk of attack – Identity of assailant – Inferential reasoning – ‘Briginshaw’ standard – Whether duty of care relevantly owed by defendant – Whether breach of duty or causation of injury – Inferences in respect of witnesses not called – Plaintiff severely affected – Psychiatric injury including post-traumatic stress disorder – Assessment of damages – Cargill Australia Pty Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13, Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, GP Building Holdings Pty Ltd v Voitin [2022] VSCA 210, Kondis v State Transport Authority (1984) 154 CLR 672, Czatyrko v Edith Cowan University (2005) 79 ALJR 839, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 and Karatjas v Deakin University (2012) 35 VR 355 – Judgment for the plaintiff for damages assessed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	ABD Ingram KC with G Smith	Margalit Injury Lawyers
For the Defendant	AT Broadfoot KC with S Pinkstone	Lander & Rogers

HIS HONOUR:

A Introduction

The plaintiff was born on 25 January 1968. Her parents separated when she was about 12. Her mother was a victim of family violence. There were suggestions that the plaintiff was abused as a child, although she could not recall it.[1]
[1]The suggestions arose out of the evidence of Associate Professor Rao, treating psychiatrist: see, in particular, Transcript (‘T’) 172-173.

She completed school to year 11 and was later employed as a dental nurse and then as a receptionist.

The plaintiff was diagnosed with depression when she was 18 or 19 years of age. She thereafter took antidepressants on and off.

The plaintiff married and had two children. She experienced domestic violence during that marriage. Her first husband continued to harass her for some time after separation.

She later married again. The plaintiff and her second husband have a daughter. There was no suggestion of any form of abuse. Her second husband gave evidence and impressed me as very steady and supportive.

In about 2004, the plaintiff and her husband moved to Corowa. They had a motel and an indoor play centre. The plaintiff was very active in those businesses, which were later sold. The plaintiff’s husband also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 605
Decision Date: 13 October 2022

CaseChat Overview and Summary

In the case of Bell v Nexus Primary Health, the plaintiff, a family violence outreach worker employed by the defendant, brought an action for damages after being attacked off the work premises and outside work hours, along with subsequent threatening incidents. The case was heard in the Supreme Court of Victoria. The primary concern was whether the defendant owed a duty of care to the plaintiff in relation to the risk of attack, and whether there was a breach of that duty or causation of the plaintiff's injury. The court had to consider whether the plaintiff's psychiatric injuries, including post-traumatic stress disorder, were a foreseeable consequence of the defendant's breach.

The court examined whether the plaintiff's attack and the subsequent threats were foreseeable risks of her employment and if the defendant took reasonable steps to prevent such incidents. It was also necessary to determine whether the defendant breached any duty of care owed to the plaintiff by failing to provide a safe working environment or by not taking appropriate action after the attack. The court applied inferential reasoning, considering the 'Briginshaw' standard to assess the probability of the plaintiff's version of events, and whether it was more likely than not that the defendant was negligent. The court also examined inferences in respect of witnesses not called by the plaintiff.

The Supreme Court found that the defendant owed a duty of care to the plaintiff and that this duty was breached. The court held that the plaintiff's psychiatric injuries were a foreseeable consequence of the defendant's breach. The court assessed the damages using the principles established in Cargill Australia Pty Ltd v Viterra Malt Pty Ltd, Transport Industries Insurance Co Ltd v Longmuir, GP Building Holdings Pty Ltd v Voitin, Kondis v State Transport Authority, Czatyrko v Edith Cowan University, Modbury Triangle Shopping Centre Pty Ltd v Anzil, Adeels Palace Pty Ltd v Moubarak, Chomentowski v Red Garter Restaurant Pty Ltd, and Karatjas v Deakin University. The court awarded the plaintiff damages for her injuries, including psychiatric damages.

Orders